Chief Executive of the Office of Environment and Heritage v Turnbull (No 2)
[2014] NSWLEC 155
•25 September 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Chief Executive of the Office of Environment and Heritage v Turnbull (No 2) [2014] NSWLEC 155 Hearing dates: 24 and 25 September 2014 Decision date: 25 September 2014 Jurisdiction: Class 4 Before: Pepper J Decision: See at [67].
Catchwords: INJUNCTIONS: alleged unlawful clearing of native vegetation - legal principles - no undertaking as to damages - whether a serious question to be tried - balance of convenience - delay in bringing application for interlocutory relief - whether terms of injunction sought too broad - modified injunction granted. Legislation Cited: Native Vegetation Act 2003, ss 3, 12, 38, 41, Div 2, 3, 4
Threatened Species Conservation Act 1995Cases Cited: Chief Executive of the Office of Environment and Heritage v Turnbull [2014] NSWLEC 153
Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150
Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84
Turnbull v Director-General, Office of Environment and Heritage (No 2) [2014] NSWLEC 112Category: Interlocutory applications Parties: Chief Executive of the Office of Environment and Heritage (Applicant)
Grant Wesley Turnbull (Respondent)Representation: Mr T Howard SC (Applicant)
Mr T Alexis SC with Ms H Irish (Respondent)
Office of Environment and Heritage (Applicant)
Cole & Butler (Respondent)
File Number(s): 40763 of 2014
EX TEMPORE Judgment
A Further Injunction is Sought Against Mr Turnbull in Respect of Unlawful Clearing of Native Vegetation
The background to this application for further injunctive relief in respect of alleged unlawful clearing of native vegetation contrary to the Native Vegetation Act 2003 ("the NVA") by Mr Grant Turnbull, is, in part, set out in Chief Executive of the Office of Environment and Heritage v Turnbull [2014] NSWLEC 153 (at [1]-[7]).
Section 12 of the NVA states as follows:
12 Clearing requiring approval
(1) Native vegetation must not be cleared except in accordance with:
(a) a development consent granted in accordance with this Act, or
(b) a property vegetation plan.
(2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act.
(3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4.
Section 41 of the Act relevantly provides that:
41 Restraint of contraventions of this Act
(1) In this section, contravention includes threatened or apprehended contravention.
(2) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a contravention of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that contravention.
...
(5) If the Court is satisfied that a contravention has occurred, or that a contravention will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the contravention.
In these proceedings, in addition to the interlocutory injunction granted in Chief Executive of the Office of Environment and Heritage v Turnbull on 19 September 2014 (at [23]), the applicant, the Chief Executive of the Office of Environment and Heritage ("OEH"), seeks an additional interlocutory order in the following terms:
6 A further interlocutory order, pending the making of final orders in these proceedings, that the respondent be restrained from carrying out, or causing or permitting to be carried out, the following conduct or activities in the areas of the Land identified as Areas B1, B2, C1, C2, C3, C4, C5 and C6 on the marked up satellite image which is Annexure A to this Summons, except insofar as is necessary to comply with the Remedial Direction made by way of order of the Court on 31 July 2014 in Turnbull v Director-General, Office of Environment and Heritage (No 2) [2014] NSWLEC 112:
a. disturbance of any soil by any means involving human or mechanical intervention;
b. planting, tending or cultivating of any commercial crop;
c. use or application of any herbicides or similar substances, capable of adversely affecting broad leaf plants; and
d. grazing by stock.
Annexure 'A' to the summons is found at Annexure 'A' to this judgment.
The extension of the temporary restraint ordered on 19 September 2014 is not opposed by the respondent, Mr Grant Turnbull. Accordingly, the Court extends the duration of that injunction until the making of final orders in these proceedings.
The further interlocutory order sought in prayer for relief 6 is, however, opposed by Mr Turnbull principally on five grounds, to which I will return later:
(a) first, because there is no serious question to be tried insofar as OEH have not discharged their evidential burden of demonstrating that there has been an actual breach of the NVA;
(b) second, there has been a failure by OEH to precisely articulate the final remedy sought in the summons (filed on 19 September 2014) or the area of land over which this remedy is sought;
(c) third, no undertaking as to damages has been given by OEH;
(d) fourth, OEH has delayed the bringing of the application; and
(e) fifth, the breadth of the terms of the injunctive relief sought are too wide.
A sixth ground concerning the admissibility of some of the evidence relied upon by OEH in support of this application was abandoned by Mr Turnbull during the hearing.
The Court Orders Mr Turnbull to Remediate the Land
It is necessary to further elaborate upon the factual context in which this application has been brought.
On 31 July 2014, the Court made final orders directing Mr Turnbull to undertake certain remedial work on land that had been the subject of clearing (Turnbull v Director-General, Office of Environment and Heritage (No 2) [2014] NSWLEC 112 at [13]-[14]). The land included areas cleared on a property owned by him, known as "Colorado".
Between 1 November 2011 and 18 January 2012, Mr Ian Turnbull, who is the father of Mr Grant Turnbull, and the grandfather of Mr Cory Turnbull, and another man, engaged by Mr Ian Turnbull, cleared native vegetation on Colorado and an additional property known as "Strathdoon" (owned by Mr Cory Turnbull and his wife, Mrs Donna Turnbull) (Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84 at [8]) ("Turnbull (No 1)"). Mr Ian Turnbull was convicted and sentenced for this unlawful clearing (Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150).
On Colorado, the aggregate of the area of native vegetation cleared during that time period was approximately 421ha. This was the total of the areas contained within the perimeters of each of the parts of the property within which native vegetation was cleared. In this aggregate area about 2,708 trees were cleared. The total area previously covered by the canopy of those trees was 29.9ha. The tree density within the aggregate area cleared on Colorado was "sparse to very sparse, with only 14ha being estimated to be mid dense" (Turnbull (No 1) at [9]).
The remedial directions made on 31 July 2014 in Turnbull (No 2) by Preston J included the following:
2.5 Subject to 2.6 below, if commercial crops are present in the Remediation Area then those crops are not to be tended or harvested and measures should be taken to prevent seed set, including removal of the crop if necessary. If those crops comprise perennial plants they should be destroyed. If those crops are still present in the Remediation Area 12 months after they are first detected they should be destroyed.
2.6 If any commercial crop was present in the Remediation Area as at 25 June 2014, then that crop may be tended and harvested up to 31 December 2014. After 31 December 2014, 2.5 above applies without this exception.
An aerial SPOT image of the remediation area covered by the orders was attached to that judgment. It is reproduced at Annexure 'B' to this judgment.
The final remedial directions made by the Court did not reflect the remedial directions initially sought by the OEH.
This was because on 25 June 2014, Preston J delivered a judgment (Turnbull No 1) upholding appeals brought by Mr Grant Turnbull, Mr Cory Turnbull and Mrs Donna Turnbull ("the owners"). The owners had appealed against decisions of OEH to give them directions under s 38 of the NVA to carry out work to repair damage caused by, and rehabilitate land affected by, clearing of native vegetation on their properties. The owners contended that the Court, in disposing of the appeals, should substitute, for the directions issued by OEH, other directions requiring remedial work on different parts of the properties and on different terms (at [1]). The appeals were upheld and as Turnbull (No 2) indicates, different directions were made to those given by OEH.
The Court marked on a map attached to the judgment in Turnbull (No 1) the parts of the properties on which remedial work would need to be carried out. The parties were directed to discuss and to endeavour to agree on final terms of the new directions for remedial work. The parties did so and any residual disagreement between them was adjudicated on by the Court, with final orders being made on 31 July 2014 (Turnbull (No 2)).
To reiterate, in Turnbull (No 1) the draft terms of the new directions for remedial work that the Court proposed to make, together with the map on which was drawn the remediation areas on each of the properties (including Colorado) to which the directions would apply, were attached to the judgment. Although the parties were directed to delineate accurately the remediation areas on each property on a final map that could be attached to each remedial work direction, as is apparent from the map attached to that judgment, the areas to be remediated on Colorado (comprising Lot 17 of DP 755998 and Lot 1 of DP 755998) and Strathdoon were clear as at 25 June 2014. That map is attached to this judgment at Annexure 'C'.
In these proceedings, OEH alleges that unlawful clearing of native vegetation has occurred on Colorado in areas B and C (in Lots 1 and 17 of DP 755998) as indicated on an aerial photograph attached to the summons (Annexure 'A' to this judgment).
It is alleged by OEH that area B was cleared sometime between 5 January 2013 and 14 May 2014. It is alleged that area C was cleared sometime between 14 May 2014 and 20 August 2014. Some of the alleged clearing is asserted to have occurred in the area the subject of the remediation directions issued by the Court. I shall return to the significance of this later.
Finally, it should be noted that there was evidence before the Court that some of the area comprising B1 in Annexure 'A' has been planted with a cereal crop by Mr Turnbull. It was alleged by OEH that the clearing in that area had taken place for this purpose.
Evidence of Alleged Unlawful Clearing by Mr Turnbull
The OEH relied on a trio of affidavits to support their submission that not only was there a serious question to be tried, namely, an actual contravention of the NVA but, moreover, that the balance of convenience favoured the granting of the injunction.
The first affidavit was that of Mr Paul Spiers, affirmed 12 September 2014. Mr Spiers is employed as a Natural Resource Officer by OEH. Mr Spiers has particular skills in aerial photography interpretation. His qualifications and expertise were not in dispute.
Using aerial photographs and satellite images obtained by him, Mr Spiers was able to make the following observations:
(a) that between 5 January 2013 and 14 May 2014, approximately 221ha comprising mid dense to sparse tree cover had been cleared on Colorado. These areas had remnants of the trees removed and had been subject to cultivation. Of this area, approximately 218ha comprised the area referred to as B1 in Annexure 'A'; and
(b) that between 14 May 2014 and 20 August 2014 extensive areas of clearing totalling 286ha had occurred over most of Lot 17 of DP 755998 of Colorado. In these areas, all remnants of the trees had been removed and the growth of ground cover was consistent with the emergence of a crop. The areas were shown on a map attached to Mr Spiers' expert report and are annexed to this judgment at Annexure 'D'. As Annexure 'D' demonstrates, polygons 26 and 27 comprising approximately 198ha are covered almost exclusively by the remedial area ordered by the Court in Turnbull (No 2) on 31 July 2014. This remediation area covered 279ha, and the 198ha of its area cleared amounted to approximately 66% of the remediation area. Importantly, from the images Mr Spiers analysed, he was able to ascertain that:
(i) polygon 26, covering the western part of the remediation area, or C3, was cleared between 1 July 2014 and 17 July 2014; and
(ii) polygon 27, or C4, was cleared between 17 July 2014 and 2 August 2014. However, according to Mr Spiers, it was not possible to identify whether any clearing had occurred between 31 July 2014 (the date of the final remediation directions made by the Court) and 2 August 2014 (the date of the aerial image to which he had regard).
Mr Spiers was not required for cross-examination.
Second, OEH relied upon an affidavit of Mr Terry Mazzer affirmed on 12 September 2014. Mr Mazzer is a Conservation Planning Officer employed by OEH. Relevantly for present purposes, Mr Mazzer was requested to provide his expert opinion on the following matters:
(a) whether there had been any clearing of native vegetation within the meaning of the NVA on Colorado;
(b) whether or not the cleared vegetation was "regrowth" within the meaning of the NVA;
(c) the location of the native vegetation cleared on the property;
(d) the environmental impact of the clearing of the vegetation at the local and landscape scale. A copy of an aerial image identical to Annexure 'A' was provided to Mr Mazzer, but with an additional cleared area marked on the image (area A, allegedly cleared between 1 June 2012 and 5 January 2013, and which is currently the subject of separate investigation and proceedings and which does not form part of these proceedings); and
(e) whether remediation or rehabilitation of the cleared area was viable.
Mr Mazzer concluded that this cleared vegetation constituted native vegetation within the meaning of the NVA. He was also able to correlate the clearing of the native vegetation to the areas marked on the aerial image at Annexure 'A'. Further, at paragraphs 27 to 29 of his report he opined that the size of the trees that appeared to have been cleared indicated that they would have been present prior to 1990, and hence, that the vegetation cleared was remnant native vegetation under the Act, and thus, not regrowth as defined.
Mr Turnbull submitted that Mr Mazzer's conclusion in this regard was equivocal, given the limited inspection undertaken by him of the property for this purpose and given his reliance on the results of vegetation transects undertaken by a third person (Mr Peter Hall) for a different purpose (the mapping of koala habitat). But in my opinion, in light of the unchallenged nature of this evidence (Mr Mazzer was also not cross-examined), it was sufficient for present purposes.
Hence the Court finds that, for the purpose of this application, the cleared vegetation was not "regrowth", and therefore, was not the subject of an exemption under the NVA.
While Mr Mazzer was not in a position to form a complete view about the impact of clearing at the local and landscape scale, the clearing in the areas he examined was, according to him, likely to have caused environmental harm. The reasons for this included, that the clearing had caused fragmentation of habitat and that some of the vegetation cleared may have been of a type which could be classified as an endangered ecological community under the Threatened Species Conservation Act 1995. Furthermore, he was of the view that if the clearing continued, it would be likely to cause additional harm because it would prevent natural regeneration from occurring at the cleared sites.
As to whether remediation of the cleared areas was viable, Mr Mazzer stated that it was. He gave the following written evidence:
38. Given the scale and expected impacts of the clearing remediation is required, and is likely to be feasible, although there are risks of not being able to restore all the vegetation types that were cleared, given that the largest area (B1) has been ploughed and sown to field crops. Areas C1 to C6 have only been ploughed on one occasion, to my knowledge, and so are more likely to regenerate successful [sic].
39. The most important aspect of allowing future natural regeneration is to prevent further damage to the areas cleared. This would entail:
● no further removal of remaining remnant vegetation,
● no further removal of scattered paddock trees,
● protection of paddock trees by removal of woody debris from their proximity,
● no further ground disturbance of cleared areas,
● no spraying of herbicide to kill native woody or herbaceous regeneration, and
● prevention of harvesting of the crop sown in area B1.
40. However, even in areas that have been ploughed some species, (e.g. Brigalow) are likely to regenerate, at least to a limited extent from root suckers (i.e. shoots arising from intact roots). A small number of individuals which were probably root suckers were observed under one of the scattered Brigalow (that shown in Photograph TM04). It is likely that some roots will remain intact, at depth, even in areas where the soil surface has been ploughed and sown to a crop. There are also scattered paddock trees to serve as limited seed sources within this area and potentially seed from woody species remaining within the soil profile.
41. Therefore, I form the opinion that there are likely to be sufficient roots of Brigalow plants, and seed of other canopy species, that are intact to enable regeneration in at least some areas.
42. Regeneration of most ground cover species should not be a problem because seeds are likely to persist in the soil.
43. Control of African Boxthorn, using spot-spraying with herbicides, will be essential in the Remediation Area.
Attached to Mr Mazzer's affidavit were photographs taken on 10 September 2014, that indicated cleared land and the planting of a crop.
Finally, OEH drew support from the affidavit of Dr Christopher Nadolny, affirmed 22 September 2014, as to the current state of the vegetation and potential for remediation in areas B and C of Annexure 'A'. Dr Nadolny gave the following evidence:
(a) area B, which mostly comprised area B1, had been cleared of standing vegetation, with the exception of a few scattered large trees and had been "sown to a cereal crop in late autumn [of 2014]". Before the area had been sown it had been prepared for cropping and based on the absence of broad-leaved weeds from the crop, it was almost certain that selective herbicides had been used. Although as at the date of the affidavit very few native plants had regenerated, Brigalow shoots were beginning to emerge in one location;
(b) in the absence of any action interfering with regeneration, he expected that substantial regeneration of key woody native plants would occur in the next few months. In addition, substantial regeneration of native grasses and broad-leaved plants was also likely to occur, depending on seasonal conditions; and
(c) in area C, he noted that, in general, standing vegetation had been removed with only a few trees being retained. However, he expected the regeneration of woody native plants, assuming further action to harm regeneration was prevented, would occur and that the regeneration would be even more prolific than that occurring in area B. In addition, native groundcover would regenerate fairly readily, depending on what herbicides had been used and on seasonal conditions.
In relation to the application of herbicides, Dr Nadolny noted that herbicides had the potential to eliminate regenerating native trees, shrubs and groundcover of plants. Dr Nadolny observed that Mr Turnbull had previously attested to having selectively applied herbicides on standing crops and either before sowing, or following the harvest of, crops. In particular, a herbicide treatment in March 2014 included the use of Tordon 75-D, which contains the active ingredients Picloram and 2,4-D. This herbicide was used against a range of broad-leaved weeds but would also be effective against regenerating woody plants, especially where such foliage was directly sprayed. It was a matter of concern to Dr Nadolny that Picloram remains active in the soil for a considerable time after use. However, depending on its concentration, although it was likely that the herbicide would have some residual effects, it was unlikely that those effects would be prolonged. Nevertheless, the use of herbicides associated with normal farming operations had the potential to severely reduce the likelihood that native woody species would regenerate successfully, even without any action by the landholder to specifically treat areas of woody regeneration.
According to Dr Nadolny, soil disturbance, particularly from plowing for the preparation of cropping, would result in the destruction of most regenerating woody plants. This adverse impact was augmented when combined with the use of herbicides. This was important because particularly in areas C5 and C6 there were significant fragments of woody plants, including pieces of roots, which, if not dried out, could have the potential to regenerate.
Dr Nadolny also opined that intensive grazing (that is to say, normal commercial grazing) was likely to result in a significant "set back" in the rate of regeneration of native woody plants and could result in a semi-permanent loss of seedling trees. He acknowledged, however, that if the livestock was primarily grazing on this cereal crop that had been sown, then the likely impacts of light to moderate grazing were much less than the impact that would be expected from the continuation of farming.
Finally, Dr Nadolny stated that the fact that natural regeneration had been eliminated on other parts of Colorado that had been cleared and cropped in 2012 and 2013 provided an example of what could be expected to occur if normal farming practice was allowed to continue. In short, the potential for woody regeneration was lost rapidly if areas were repeatedly cleared and cropped. In this regard, Dr Nadolny was specifically concerned with the significant cumulative impacts of various episodes of clearing on Colorado.
The evidence of Dr Nadolny was uncontested.
With the exception of evidence demonstrating delay by OEH in filing the summons and applying for the interlocutory relief, Mr Turnbull did not offer any evidence to the Court. From the bar table it was stated that Mr Turnbull's wife was seriously ill, however, no application for an adjournment of the proceedings on that basis (or any other basis) was made by Mr Turnbull.
In particular, no evidence was presented by Mr Turnbull as to the adverse impacts, if any, that the granting of the injunction would have on him.
Applicable Legal Principles
The legal principles to be applied in determining whether or not to grant interlocutory relief of the kind sought in the summons the subject of this application have been set out in a number of cases in this Court and were recently summarised by me in Chief Executive of the Office of Environment and Heritage v Turnbull (at [15]-[16]). It is not necessary to repeat them here, suffice it to note that they have been relied upon for present purposes.
There is a Serious Question to be Tried
OEH asserted that there was a serious question to be tried, viz, that, on the evidence of the three witnesses above, there had been a contravention of s 12 of the NVA insofar as there had been unlawful clearing of native vegetation on Colorado in the areas indicated on Annexure 'A'.
It was an agreed fact that neither development consent had been granted in accordance with the NVA, nor was a property vegetation plan in existence that would otherwise authorise the clearing of native vegetation on Colorado (see s 12(1) of the NVA).
Given the unchallenged evidence of Mr Spiers, Dr Nadolny and Mr Mazzer, there would appear to be a strong case that clearing has occurred on Colorado in contravention of the NVA. As a consequence, a serious question appeared to arise engaging the power of the Court contained in s 41 of the NVA to restrain the contravention.
Mr Turnbull submitted, however, that OEH had not demonstrated to the requisite standard on an interlocutory application that a contravention of the Act had actually occurred. This was because it was necessary for OEH to discharge its evidential burden of proving that none of the defences or exemptions available to Mr Turnbull under Div 2, 3 or 4 of the NVA were applicable, and it had not done so.
No authority was provided to the Court in support of this proposition, which would have the effect of reversing the onus of proof under the Act and which would impose a more onerous burden of proof at an interlocutory level on OEH than OEH would be required to meet at a final hearing.
In my opinion, the submission should be rejected. Having regard to the text and context of ss 12 and 41, including their statutory purposes (as articulated in s 3 of the NVA), there is no warrant for construing either ss 12 or 41 in the manner posited by Mr Turnbull. To do so would, in a practical sense, result in few injunctions ever being sought under the Act. This is because to do so would require the injuncting party to meet an evidential burden that would be either impractical or financially stultifying. In each instance, for example, the applicant would have to demonstrate that the vegetation cleared was not regrowth; that the vegetation cleared did not comprise permissible groundcover; that the clearing was not for a routine agricultural management activity (as they are defined); that the clearing was not the result of the continuation of permissible existing cultivation, grazing or rotational farming practices; that the clearing was not the result of permissible sustainable grazing; and that the clearing was not exempted by any of the enactments and statutorily permitted activities listed in Div 4 (of which 14 statutes are listed therein). Moreover, this would be required to be proved even if, as in the present case, there was no suggestion of any reliance by a respondent on any of the defences or exemptions. Plainly, this could not have been the objective intention of Parliament in enacting ss 12 and 41 of the NVA.
For the reasons given above, I have no hesitation in finding that there is a serious question to be tried.
The Balance of Convenience Favours the Granting of an Injunction
OEH submitted that the balance of convenience strongly favoured the granting of the injunction in the terms sought. Its reasons were essentially three-fold. First, there was evidence, as contained in the affidavit of Mr Spiers, that after the Court had made it clear that the areas comprising C3 and C4 of Annexure 'A' would be required to be remediated on 25 June 2014 (in Turnbull (No 1) as evidenced by Annexure 'C' to this judgment), the clearing of native vegetation nevertheless occurred in those areas. This clearing occurred in circumstances where it may be readily inferred that Mr Turnbull was aware that such clearing would be in contravention of the draft remediation directions, and hence, of the final remediation directions. This demonstrated a continued intention on the part of Mr Turnbull to clear native vegetation in contravention of the Act and in flagrant disregard of the Court's orders. Second, a large proportion of Colorado had now been cleared of native vegetation. It was therefore important to preserve that which remained. And third, absent the restraint as sought, there would be no opportunity for regeneration and remediation of the property.
From the outset, Mr Turnbull argued that injunctive relief above and beyond that which he had agreed to (that is, the extension of the interlocutory injunction made on 19 September 2014) was not necessary. This was because that injunction, combined with the remediation directions given by the Court on 31 July 2014, were a sufficient constraint on his ability to further clear and degrade Colorado. However, given the evidence demonstrating that there was continued clearing in the areas to be set aside by the Court in Turnbull (No 1) for remediation, there is, in my opinion, no force whatsoever in that submission.
Mr Turnbull complained about the inchoate nature of the remedy sought in respect of the clearing of native vegetation carried out on Colorado. The summons relevantly describes the relief as follows:
4 Such order or orders as the Court sees fit to make against the respondent pursuant to s41(5) of the Native Vegetation Act 2003 to remedy the clearing of native vegetation carried out on the Land in the period between about 5 January 2013 and the date of the making of final orders in these proceedings in contravention of the Native Vegetation Act 2003.
Mr Turnbull observed that there was nothing in the evidence to explain what remedy was sought and over what area of Colorado the remedy was ultimately directed to. This was problematic, he contended, because the total area sought to be injuncted was approximately 508ha. Even if the area comprising C3 and C4 were excluded from this calculation (on the basis that its use was, in any event, constrained by the remediation directions made by the Court in Turnbull (No 2)), this nevertheless resulted in approximately 308ha, or a quarter of his property, that Mr Turnbull would be prevented from farming. Given that it was highly likely that the Court would ultimately find that a much smaller area of land had been unlawfully cleared (based on findings made in Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull at [107]-[110]) it would therefore be disproportionate to effectively "lock up" such a large area of his land for the duration of the entire proceedings. In addition, it would be unfair on Mr Turnbull to injunct areas of the property for the purposes of remediation when, as Turnbull (No 1) demonstrated, different areas of the property could be the subject of rehabilitation directions.
In my opinion, the submission is misconceived insofar as it conflates the relief sought in this interlocutory application with whatever final relief is ordered by the Court should OEH be successful in the Class 4 proceedings. That is to say, ultimately it is a matter for the trial judge as to what, if any, final relief is ordered. At this stage of the proceedings, the Court is only concerned with preserving the status quo of the remaining native vegetation on Colorado in order to ensure that if any remedial directions are given by the Court, or any relief is ordered, it is effective.
Nevertheless, there is some force in the submission of Mr Turnbull insofar as it relates to the cropped area in B1. I shall return to this below.
The absence of an undertaking as to damages was a matter upon which Mr Turnbull placed considerable emphasis, especially given that the size and location of any final remedy by way of remediation was presently unknown. Mr Turnbull directed the submission, in particular, to the potential loss of the crop planted in parts of the B1 area. It was accepted by both parties that if an interlocutory order was granted in the terms sought over this area, the crop would be destroyed. Although there was no evidence from Mr Turnbull indicating what financial consequences he would suffer if the crop perished, the Court may reasonably infer that it is likely that Mr Turnbull would suffer some loss in those circumstances. The extent of that loss is, however, not known.
In Chief Executive of the Office of Environment and Heritage v Turnbull, I set out the legal principles applicable in proceedings of this type where no undertaking as to damages is proffered. Given the reliance placed by Mr Turnbull upon this factor I repeat what I stated in that judgment (at [17]-[19]):
17 No undertaking as to damages was proffered by OEH. But in circumstances where the party seeking the temporary injunctive relief is a public body acting in the public interest this is not fatal to the application.
18 In this regard, r 4.2(3) of the Land and Environment Court Rules 2007 provides the following:
4.2 Proceedings brought in the public interest
(3) In any proceedings on an application for an interlocutory injunction or interlocutory order, the Court may decide not to require the applicant to give any undertaking as to damages in relation to:
(a) the injunction or order sought by the applicant, or
(b) an undertaking offered by the respondent in response to the application,
if it is satisfied that the proceedings have been brought in the public interest.
19 I am satisfied that the proceedings have been brought by a public body acting in the public interest insofar as there is a real and necessary public interest in protecting the native vegetation of this State by a prosecuting body such as OEH (see Willoughby City Council v Sahade [2000] NSWLEC 38 at [24]; Tegra at [28]-[31]; Hooper v Port Stephens Council [2009] NSWLEC 234 at [28]; Dungog Shire Council v B and E Clarke [2009] NSWLEC 16 at [14] and Liverpool Plains Shire Council v Vella [2013] NSWLEC 54 at [29]).
In my view, these proceedings have plainly been brought by OEH acting in the public interest. The prevention of the unlawful clearing, and protection, of native vegetation, and the encouragement of the revegetation and rehabilitation of land that has been illegally cleared is a fundamental matter of public importance. This is all the more acute in the context of the long history of clearing of native vegetation on Colorado, where the cumulative effect has been, as the evidence of Dr Nadolny and Mr Mazzer demonstrates, markedly dire. These circumstances, and the fact that Mr Turnbull has cleared native vegetation in areas set aside for remediation, mean that less weight may be given to the fact that no undertaking as to damages was proffered by OEH.
However, there is force in the submission by Mr Turnbull that the delay in filing the summons and in bringing this application for temporary injunctive relief ought to preclude a restraint being granted over the area presently being farmed in B1. Uncontested evidence before the Court demonstrated that as early as 17 April 2014, OEH knew, or ought reasonably to have known, that B1 was being cultivated. Yet no action was taken by OEH to prevent Mr Turnbull from planting a crop in this area for five months. In circumstances where this area is outside the area set aside for remediation and, regrettably, has already been the subject of considerable clearing, I do not consider that the balance of convenience would presently favour an injunction being granted in the terms sought, over the entirety of area B1. This conclusion is consistent with remedial direction 2.6 made by Preston J in Turnbull (No 2), albeit in relation to a different part of the property.
During the course of the hearing the Court enquired as to whether or not it was possible to restrict Mr Turnbull from "using or applying any herbicides or similar substance capable of adversely affecting broad-leaved plants" in cultivating his crop in B1 (see prayer 6c of the summons). After seeking instructions, both parties informed the Court that in order to successfully harvest the crop, the application of herbicide was required.
The Court is therefore, for the reasons given immediately above, disinclined to injunct Mr Turnbull's present use of that part of B1 which has currently been planted with a crop. But this does not exclude the entirety of B1. Not all of B1 has been cropped. The parties will therefore need to indicate the precise boundaries of the area in B1 where crops have been planted.
Further, in order to minimise the harmful effects of the herbicide required to cultivate the crop, and to facilitate, if possible, the rehabilitation of the entirety of B1 in the future, it is appropriate that once the present crop is harvested, no further agricultural activity (including, for example, planting, cultivating, farming, or grazing) should be permitted on any part of B1. This is consistent with remedial direction 2.5 in Turnbull (No 2), again albeit at a different location on Colorado.
To the extent that Mr Turnbull contends that once the crop is harvested a sizeable portion of Colorado (approximately 218ha) will be wholly immunised from any activity by him until such time as the Court finally determines these proceedings, the solution is to set the matter down for an expedited hearing. This will, moreover, to some extent, have the advantage of ameliorating the effects of OEH not offering an undertaking as to damages, and will mitigate the fact that the injunction will cover areas of Colorado outside B1, C3 and C4. Neither party opposed this course.
Finally, Mr Turnbull submitted, correctly, in my view, that the terms of the injunction sought were overly broad. For example, prayer 6a would preclude Mr Turnbull from both driving a car or walking across those areas the subject of the interlocutory order. With the exception of areas C3 and C4 (the areas the subject of the remediation directions which Mr Turnbull has continued to clear), the evidence relied upon by OEH could not justify a restriction of Mr Turnbull's activities in these terms.
Counsel for OEH suggested various amendments to 6a in order to overcome the problem. In each instance, however, Mr Turnbull was able to point to deficiencies in the proposed changes. In my opinion, the preferable course is to require the parties to bring in short minutes of order setting out the precise terms of the interlocutory order in a manner that conforms with the reasons given in this judgment.
Summary
In order to assist the drafting of any orders, and for the avoidance of any doubt, the preliminary findings of the Court may be summarised as follows:
(a) first, that an interlocutory order be granted immediately in the terms proposed at prayer for relief 6 in the summons in respect of areas C3 and C4 of Annexure 'A';
(b) second, that an interlocutory order be granted in the terms provided for at prayer for relief 6b, c and d, and in a modified form of 6a which permits Mr Turnbull to walk or drive a car across areas B2, C1, C2, C5 and C6 of Annexure 'A';
(c) third, an interlocutory order in the terms immediately above in respect of those parts of B1 of Annexure 'A' which are not the subject of a current crop; and
(d) fourth, an injunction in the terms of that contained above at paragraph (b) for that part of area B1 currently under crop, to come into force upon the harvesting of that crop.
Costs
Upon the application of the parties, costs are to be reserved.
Orders
In conformity with the reasons above, the orders of the Court are therefore as follows:
(1) the parties are directed to bring in short minutes of order reflecting the reasons given in this judgment by 4pm on 26 September 2014. The matter is listed before me at that time and date for the making of such orders, including the resolution of any disputes concerning those orders;
(2) until further order, Mr Grant Turnbull is restrained from clearing, or causing, or permitting the clearing, of native vegetation on the land comprising Lots 1 and 17 in DP 755998, known as "Colorado" at, or near, Croppa Creek in New South Wales, in contravention of the Native Vegetation Act 2003;
(3) in respect of the areas marked C3 and C4 at Annexure 'A' to this judgment, until further order, the respondent is restrained from carrying out, or causing, or permitting to be carried out, the following conduct or activities except insofar as is necessary to comply with the remedial direction made by way of order of the Court on 31 July 2014 in Turnbull v Director-General, Office of Environment and Heritage (No 2) [2014] NSWLEC 112:
(a) disturbance of any soil by any means involving human or mechanical intervention;
(b) planting, tending or cultivating of any commercial crop;
(c) use or application of any herbicides or similar substances, capable of adversely effecting broad-leaved plants; and
(d) grazing by stock;
(4) the hearing of the matter is to be expedited. The matter is therefore listed for final hearing on 1 to 5 December 2014, for five days. The short minutes referred to above in order 1 are to include a timetable for the preparation of the matter for final hearing consistent with the intention of the Class 4 Practice Note;
(5) the costs of the application are reserved; and
(6) the exhibits are to be returned upon the publication of this judgment.
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Annexure A
Annexure B
Annexure C
Annexure D
Decision last updated: 26 September 2014
Chief Executive of the Office of Environment and Heritage v Turnbull (No 2) [2014] NSWLEC 155
Chief Executive of the Office of Environment and Heritage v Turnbull (No 3) [2014] NSWLEC 181
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