Chief Executive of the Office of Environment and Heritage v Turnbull (No 3)

[2014] NSWLEC 181

Land and Environment Court

New South Wales

Case Title:

Chief Executive of the Office of Environment and Heritage v Turnbull (No 3)

Medium Neutral Citation:

[2014] NSWLEC 181

Hearing Date(s):

14 November 2014

Decision Date:

14 November 2014

Jurisdiction:

Class 4

Before:

Craig J

Decision:

1. By consent, make orders in accordance with the Short Minutes of Order, initialled by me and placed with the papers.

2. Note the proceedings are listed for final hearing on 3 to 6 March 2015.

Catchwords:

PRACTICE AND PROCEDURE - application to vacate hearing dates - expert witness retained by respondent no longer available to give evidence - alternative experts retained by respondent - failure of respondent to provide full instructions to his legal advisers - application not opposed by applicant - interests of justice - application granted

Legislation Cited:

Native Vegetation Act 2003 (NSW)

Cases Cited:

Chief Executive of the Office of Environment and Heritage v Turnbull (No 2) [2014] NSWLEC 155

Category:

Procedural and other rulings

Parties:

Chief Executive of the Office of Environment and Heritage (Applicant)
Grant Wesley Turnbull (Respondent)

Representation

- Counsel:

D Jordan SC (Applicant)
T Alexis SC (Respondent)

- Solicitors:

Legal Department, Office of Environment and Heritage (Applicant)
Cole & Butler Solicitors (Respondent)

File Number(s):

40763 of 2014

EX TEMPORE JUDGMENT

1. These are Class 4 proceedings that have been set down for a five day hearing to commence on 1 December next. That hearing was fixed following a successful application made by the Applicant for interlocutory relief, resulting in orders being made by Pepper J on 26 September last (Chief Executive of the Office of Environment and Heritage v Turnbull (No 2) [2014] NSWLEC 155).

2. Those orders substantially curtail the capacity of the Respondent to undertake farming activities on a large rural property. The proceedings have been brought seeking to restrain what are said to be breaches of the Native Vegetation Act 2003 (NSW). The consequential orders that are sought are remedial in nature, predicated upon the need to restore land from which native vegetation has been cleared, assuming breach of the Act is established.

3. Early hearing dates were fixed on the basis that the issue of breach alleged by the Applicant should be determined expeditiously and, if adverse to the Respondent, the terms of any remedial orders formulated. The claimed breach as well as its consequences for the Respondent, if breach is established, are clearly matters of considerable importance for both parties.

4. The Respondent now applies to vacate the hearing dates. The grounds upon which he does so are essentially twofold. First it is said that he embarked upon an annual crop harvest commencing on about 15 October. He is expected to continue to be so engaged for a further two weeks. During that time his attention has been and will be totally focussed upon his harvesting activities, with the consequence, so the evidence indicates, that he has had little opportunity to provide full and proper instructions to his solicitor directed to the preparation of this matter for hearing.

5. The second ground upon which the application is made is that although, when hearing dates were selected and accepted, the Respondent had reason to anticipate that a nominated expert witness was available to provide advice and give evidence, that particular expert is not now available to the Respondent. The advice and evidence sought was directed both to the interpretation of aerial photography upon which the Applicant relies to establish breach as well as evidence directed to the extent of appropriate remedial action, if any, should breach be established. While new experts have been retained, I am informed that their evidence directed to these issues will not be available until about 19 December next.

6. As to the first of these grounds, while I acknowledge that the participation of a farmer in an annual crop harvest is of some importance, the significance of these proceedings is such that I do not find the inability of the Respondent to provide instructions to his legal advisers because of his commitment to harvesting activities as persuasive, in itself, of the need to vacate the hearing dates. Clearly, the need to address the proceedings instituted by the Applicant and, importantly, to comply with the directions made by the Court to prepare the matter for hearing, rendered it incumbent upon the Respondent to make arrangements such that he found time to provide appropriate instructions to his legal team. As it happens, the Respondent has not taken any of the steps directed to be taken by him in the Directions made on 26 September.

7. Of greater significance to determination of the Respondent's application is the second ground upon which that application is made. Clearly, the evidence founding the claim, directed to the interpretation of aerial photography in order to establish breach, and the need to address the ambit of remedial action, on the assumption that breach is established, are matters of considerable importance to the Respondent.

8. At the present time, the interlocutory orders that govern the Respondent's use of his property severely curtail his capacity to undertake agricultural activities on what appear to be substantial areas of that property. Assuming breach is established, I anticipate that there will be considerable debate at the final hearing of the matter as to the extent to which those agricultural activities should be allowed to continue or to recommence, as the case may be. In short, if the issues raised in the proceedings are determined adversely to the Respondent, the entitlement to use his rural property for the conduct of agricultural activities may be significantly impacted.

9. Also relevant to, but not determinative of, the application to vacate the hearing is the fact the Applicant in the proceedings does not oppose the hearing dates being vacated. It takes that position on the basis that the interlocutory orders made on 26 September last will remain in force so that the curtailment of agricultural activities on the Respondent's property will remain in place in the terms imposed by those orders until the proceedings are finally determined.

10. Taking all these matters into account, although with concern as to the considerable inconvenience and disruption to the Court's business, I am prepared, in the interests of justice, to grant the Respondent's application to vacate the hearing dates fixed to commence on 1 December next. Apart from the affect upon the Court's business, as between the parties the prejudice that flows from vacating these dates primarily impacts upon the Respondent, a position acknowledged to be the case by his counsel when propounding the present application.

11. The parties have agreed upon dates that are suitable to them and to the Court in March 2015. Four days is identified as being sufficient to enable the hearing to conclude. That hearing is now fixed to commence on 3 March 2015.

12. There is one other matter that needs to be noticed. Apparently, there is an area of the Respondent's property that is presently the subject of one of the interlocutory orders made by Pepper J that would prevent any farming activities being undertaken upon it. That is an area described as "Area B2" in the Orders made on 26 September. Area B2, so it is agreed, is an area that had been sown to crop before dates upon which the restraining orders were intended to operate. That crop is now ready to be harvested. The Applicant in the proceedings accepts that the Respondent should be permitted to enter and harvest that crop but, having done so, is otherwise subject to the constraints imposed by the interlocutory orders. Given the Applicant's consent, I am prepared to vary the orders in the terms agreed between the parties to allow the harvesting of that crop.

13. The parties have agreed upon revised directions in order to have the matter prepared for hearing. Those directions have been included in draft short minutes of order and reflect directions that I consider to be appropriate.

14. Accordingly I make the following orders:

    1. By consent, make orders in accordance with the Short Minutes of Order, initialled by me and placed with the papers.

    2. Note the proceedings are listed for final hearing on 3 to 6 March 2015.

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