Chief Executive of the Office of Environment and Heritage v Turnbull (No 4)

[2016] NSWLEC 66

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Chief Executive of the Office of Environment and Heritage v Turnbull (No 4) [2016] NSWLEC 66

Hearing dates:

3 - 6 March 2015, 30 - 31 March 2015

Date of orders:

03 June 2016

Decision date:

03 June 2016

Jurisdiction:

Class 4

Before:

Craig J

Decision:

1. Order pursuant to s 41(5) of the Native Vegetation Act 2003 that the respondent, by himself, his servants and agents, be restrained from clearing, or causing or permitting the clearing, of native vegetation on land comprising Lots 1 and 17 in DP 755998, known as ‘Colorado’, at or near Croppa Creek in New South Wales (the Land) in contravention of that Act.

2.  Order that the respondent carry out the remedial works on the Land that are set out in Annexure ‘B’ to these orders.

3. Order that the respondent carry out the work identified in the remedial direction given by this Court pursuant to s 38 of the Native Vegetation Act 2003 on 31 July 2014.

4.  Order that the respondent pay the applicant’s costs of these proceedings unless within 21 days from the date of this order he applies by motion for a different order.

5.  Reserve liberty to apply on 5 days’ notice for the variation of the remedial works that are the subject of Order 2.

6.  Otherwise reserve liberty to apply on 5 days’ notice.

7.  Exhibits may be returned.

Catchwords:

CIVIL ENFORCEMENT - unlawful clearing of native vegetation – declaration of contravention of statute – whether declaration appropriate – order to restrain unlawful clearing – whether restraining order necessary and appropriate – order to remedy unlawful clearing – order to comply with court direction requiring remedial work – whether orders reasonable and proportionate – extent and seriousness of environmental harm – Native Vegetation Act 2003, ss 12 38,41

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
National Parks and Wildlife Act 1974 (NSW)
Native Vegetation Act 2003 (NSW)
Native Vegetation Regulation 2013
Uniform Civil Procedure Rules 2005

Cases Cited:

ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Chief Executive of the Office of Environment and Heritage v Turnbull [2014] NSWLEC 153
Chief Executive of the Office of Environment and Heritage v Turnbull (No 2) [2014] NSWLEC 155
Commercial and Industrial Property Pty Ltd v Holroyd City Council [2013] NSWLEC 1000
Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118; 210 LGERA 300
Great Lakes Council v Lani [2007] NSWLEC 681; 158 LGERA 1
Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6
Terranora Group Management Pty Ltd v Director-General, Office of Environment and Heritage [2013] NSWLEC 198; 200 LGERA 1
Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84; 212 LGERA 163
Turnbull v Director-General, Office of Environment and Heritage (No 2) [2014] NSWLEC 112
Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; 82 NSWLR 12
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508

Texts Cited:

National Committee on Soil and Terrain, Australian Soil and Land Survey Field Handbook (3rd Ed 2009, CSIRO Publishing)

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
T Howard SC with DK Jordan (Applicant)
T Alexis SC with H Irish (Respondent)

Solicitors:
Office of Environment and Heritage (Applicant)
Cole & Butler (Respondent)

File Number(s):

2016/165155 (Formerly 14/40763)

Judgment

1. Grant Turnbull, the respondent, is the owner of land known as ‘Colorado’ at Croppa Creek, some 60km northeast of Moree. Mr Turnbull has been the registered proprietor of ‘Colorado’ since 31 January 2012. He has used that property for farming, principally the growing of crops.

2. The applicant has brought the present proceedings in Class 4 of this Court’s jurisdiction, contending that between 5 January 2013 and 31 July 2014, Mr Turnbull cleared native vegetation on Colorado in contravention of s 12 of the Native Vegetation Act 2003 (NSW) (the NVAct). The applicant seeks a declaration to that effect together with an order under s 41(5) of the Act that Mr Turnbull be restrained from clearing or causing or permitting the clearing of native vegetation on ‘Colorado’ in breach of the Act.

3. Two further orders are also sought. One seeks an order pursuant to s 41(5) of the NV Act requiring that remedial action be undertaken in accordance with a detailed rehabilitation plan served upon Mr Turnbull. In addition, an order is sought that Mr Turnbull comply with a direction for remedial work to be undertaken on part of ‘Colorado’ made in proceedings in this Court on 31 July 2014. The order giving that direction was made pursuant to s 38 of the NV Act.

4. Mr Turnbull admits that native vegetation on ‘Colorado’ was cleared in contravention of the NV Act. Whereas he contends that the aggregate area of native vegetation cleared was a little under 30ha, the applicant alleges that the area of native vegetation cleared was an area of about 508ha. The reasons for this extraordinary difference will be later explained.

5. By reason of his admitted breach, Mr Turnbull acknowledges that he ought be required to carry out remedial work. He rejects, as inappropriate, the remedial work proposed by the applicant. He advances alternate proposals. The aggregate area in which such works should be undertaken differs, depending upon the area of native vegetation found to have been cleared.

6. Mr Turnbull contends that the declaratory order sought by the applicant is inutile and should not be made. He also contests the granting of an injunction on the basis that he has acknowledged his contravention and stated, in evidence, that he will not carry out any further clearing of native vegetation in contravention of the Act.

The property

7. The property named ‘Colorado’ is located on County Boundary Road at Croppa Creek. It is formally described as Lots 1 and 17 in DP 755998. Lot 17, which is the larger of the two lots, lies to the north of Lot 1. In aggregate, the area of the two lots is about 1533ha.

8. The property is situated within an area of the Moree Plains that is extensively used for grazing and cropping. Native vegetation within that area is of limited extent. At the time at which ‘Colorado’ was acquired by Mr Turnbull, its principal agricultural use was as a grazing property.

Critical statutory provisions

9. Before turning to address the evidence directed to the clearing of vegetation on ‘Colorado’, it is appropriate to notice the statutory provision to which reference must be made in order to consider the issues raised by the parties.

10. As I have recorded, Mr Turnbull accepts that he cleared native vegetation in contravention of s 12 of the NV Act. That section relevantly provides:

“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.”

11. Mr Turnbull admits that at the time at which he cleared the vegetation that is the subject of these proceedings, he neither held a development consent under the Act to do so nor did he clear the land in accordance with a Property Vegetation Plan (PVP).

12. Section 6 addresses the meaning of “native vegetation”. That section relevantly provides:

“6   Meaning of native vegetation

(1)   For the purposes of this Act, “native vegetation” means any of the following types of indigenous vegetation:

(a)   trees (including any sapling or shrub, or any scrub),

(b)   understorey plants,

(c)   groundcover (being any type of herbaceous vegetation),

(d)   plants occurring in a wetland.

(2)   Vegetation is indigenous if it is of a species of vegetation, or if it comprises species of vegetation, that existed in the State before European settlement.”

13. The applicant contends that in each of the areas of ‘Colorado’ identified as having been the subject of clearing, indigenous vegetation including trees, understorey plants and groundcover were found. A substantial controversy in the case is the extent to which native vegetation comprising groundcover had been cleared.

14. Clearing native vegetation is defined in s 7 of the NV Act to include cutting down, felling, thinning, logging, removing, killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation. Any of those actions are proscribed by s 12 unless undertaken in accordance with a development consent or a PVP.

15. The present proceedings are founded upon s 41 of the NV Act. Subsection (1) of that section states that “contravention includes threatened or apprehended contravention”, while subs (2) provides that any person may bring proceedings in this Court “for an order to remedy or restrain a contravention of this Act”. Subsection (5) is consequential upon proceedings being brought under subsection (2) and provides:

“(2)   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.”

16. As will be apparent, subsection (5) affords the Court with a wide discretionary power not only to make restraining orders of the kind sought by the applicant in the present proceedings, but also to make a remedial order. Mr Turnbull accepts that the subsection authorises the making of a remedial order in the present proceedings.

17. Mr Turnbull accepts that he was a “landholder” within the meaning of s 4(1) of the Act. That has a consequence for the application of s 44 which provides:

“44   Evidentiary provision

In any criminal or civil proceedings, the landholder of any land on which native vegetation is cleared is taken to have carried out the clearing unless it is established that:

(a)   the clearing was carried out by another person, and

(b)   the landholder did not cause or permit the other person to carry out the clearing … ”

18. By operation of s 44, Mr Turnbull accepts that he is taken to have cleared those parts of ‘Colorado’ that are the subject of these proceedings, albeit that some of that clearing was carried out by others who were doing so on his behalf.

Clearing activity prior to January 2013

19. Although the clearing of native vegetation on ‘Colorado’ that is the subject of these proceedings is clearing work carried out between January 2013 and 31 July 2014, evidence was given of clearing work undertaken prior to January 2013. That evidence is said to be relevant to the exercise of the Court’s discretion to make the orders sought by the applicant, including the application for an order to restrain Mr Turnbull from carrying out any further work in contravention of the Act. The evidence is also said to be relevant to the scope of the remedial order, as well as the order sought that requires compliance with the remedial work directed to be undertaken by the Court on 31 July 2014.

20. The contract entered into by Mr Turnbull to purchase ‘Colorado’ was exchanged in September 2011. Following the exchange of contracts, but prior to settlement, which did not occur until 31 January 2012, Mr Turnbull commenced clearing native vegetation on ‘Colorado’. He did so with the consent of the departing owner. The clearing commenced in about October 2011. Between late October 2011 and 18 January 2012, Ian Turnbull, who is the father of Grant Turnbull, together with another man engaged by Ian Turnbull, undertook the native vegetation clearing work on ‘Colorado’. That work was carried out by means of bulldozers. The trees and other vegetation were pushed over and formed into piles. Those piles were subsequently burnt and the ash heaps raked over the ploughed ground.

21. At the time of contracting to purchase ‘Colorado’, about 86 percent of the property had not been cropped. It was the intention of Grant Turnbull that the property be used for the growing of crops rather than grazing of cattle. He regarded grazing as unviable on the property.

22. In the period to about 18 January 2012, approximately 421ha of ‘Colorado’ was cleared and subsequently ploughed, sprayed with herbicide and sown with wheat and barley. Those crops were harvested in the late spring of 2012. The process of ploughing, spraying, sowing and harvesting of commercial crops was repeated in 2013 and again in 2014.

23. The clearing of native vegetation between late 2011 and early 2012 came to the attention of the present applicant. Having established that an area of about 421ha had been cleared in contravention of the NV Act, the then Director-General gave a direction under s 38 that remedial work be carried out to repair the damage caused by the clearing and to rehabilitate land affected by that work.

24. At about the same time, it also came to the attention of the applicant that clearing of native vegetation on an adjoining property known as ‘Strathdoon’ had been carried out by another member of Mr Turnbull’s family, who had acquired that property at about the same time that ‘Colorado’ was purchased. A direction for remedial work was also given to the owner of ‘Strathdoon’ by the applicant. Each of Mr Turnbull and his relative exercised their right to appeal to this Court under s 39 of the NV Act, disputing the parts of each property that should be the subject of remedial direction and also disputing the specifications for remedial work that had been given by the applicant.

25. In the course of investigating the clearing that had taken place on ‘Colorado’ and prior to the direction given under s 38 of the Act, Mr Turnbull was interviewed by officers of the applicant. As a result of that interview Mr Turnbull was aware that the applicant’s investigators regarded the carrying out of clearing on the property to be in breach of the Act. That interview took place in March 2012.

26. Mr Turnbull’s appeal under s 39 of the NV Act, together with that brought by the owner of ‘Strathdoon’, was heard by the Court in June 2014. On 25 June 2014, Preston CJ determined that the appeals should be upheld and that different directions for rehabilitation should be made in place of those formulated by the applicant (Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84; 212 LGERA 163 (Turnbull No 1).

27. As a consequence of his Honour’s judgment, the parties were required to formulate new directions for rehabilitation of ‘Colorado’ in accordance with his reasons for decision. Those directions were finally settled by his Honour and given by him on 31 July 2014 (Turnbull v Director-General, Office of Environment and Heritage (No 2) [2014] NSWLEC 112) (Turnbull No 2).

28. In Turnbull No 1, the Chief Judge had rejected a submission made on behalf of the applicant that the area within which remedial work was required to be undertaken was confined to the area that had been cleared in contravention of the Act. His Honour’s rejection of the submission had the consequence that areas outside the areas then cleared were the subject of remedial direction.

29. Part of the exercise directed to the remedial work was to identify “offset areas” for remedial work being “areas where direct actions could be undertaken that would provide measurable conservation gain for the species, populations of species and ecological communities of native vegetation affected by the clearing in the cleared areas” (Turnbull No 1 at [54]). An area that was identified as a “high priority offset area” on ‘Colorado’ and within Lot 17 was described as a large area “shaped like saddlebags on a horse”, later referred to as the “saddlebag area”. That area was identified in the direction made by his Honour in Turnbull No 2 as being an area within which remedial work was required to be undertaken. Subject to harvesting any crop within the remediation area remediation was required and, as would be apparent, any further clearing was the antithesis of the required remediation work.

Applications for broadscale clearing

30. In November 2012, Mr Turnbull made an application to the Border Rivers - Gwydir Catchment Management Authority (CMA) for a PVP under the NV Act. The areas on ‘Colorado’ that were the subject of the application were areas additional to those that had been cleared in late 2011 and early 2012. A map accompanying the application showed the aggregate of the areas intended for clearing to approximate 550ha.

31. In response to that application, two CMA officers visited ‘Colorado’ on 19 April 2013 for the purpose of assessing the PVP application. They met with Mr Turnbull and discussed with him the manner in which the NV Act operated in respect of broadscale clearing, including what were described as the “improve and maintain” requirements relevant to clearing and the provision of offsets. The circumstances in which clearing could not be approved were stated. Having discussed those matters, the officers proceeded to carry out a detailed inspection of ‘Colorado’, particularly those areas nominated in the plan accompanying the PVP application. That plan identified four separate areas of ‘Colorado’ as being the areas in which clearing would take place.

32. One of the CMA officers carrying out the inspection of ‘Colorado’ was Luc Ferago. Following the inspection he prepared a file note of observations made at the time and the conclusion reached as to the PVP application. The file note recorded the native vegetation species and communities that were observed within the areas proposed to be cleared, those communities including Belah woodland, Brigalow woodland and Poplar Box grassy woodland. In respect of each of the four areas proposed for clearing, the file note records:

“The site appears to have a clearing history for grazing outcomes (i.e. scattered mature trees with a remnant native groundcover in high condition …:”

33. The conclusion reached by the inspecting officers as recorded in Mr Ferago’s file note was that “the PVP application cannot be approved for broadscale clearing as the vegetation is considered as ‘overcleared’ and cannot meet the ‘improve or maintain’ environment outcomes test of the Act”. The file note also records that the “findings” of the officers were discussed with Mr Turnbull prior to their leaving the site.

34. On 16 May 2013 Mr Ferago wrote on behalf of the CMA to Mr Turnbull, confirming that the PVP application “would be unsuccessful”. The conclusion expressed in the file memo of 19 April 2013 as to why the application could not be approved is repeated in the letter of 16 May 2013.

35. At around the time of submitting the PVP application to the CMA, Mr Turnbull also submitted an application to the Commonwealth Department of the Environment for approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) to carry out broadscale clearing on ‘Colorado’ to convert areas on the property “currently used for grazing into cropping land” (the EPBC application). The areas to be cleared were the same areas nominated in the PVP application made to the CMA.

36. For the purpose of supporting the EPBC application, Mr Turnbull engaged Peter Hall, an ecologist, to prepare an ecological assessment. Mr Hall visited ‘Colorado’ on 6 and 7 November when he inspected and traversed the four areas proposed to be cleared, described as polygons because of their shape.

37. The EPBC application included a number of statements of present relevance. On p 2 it is recorded that pastures within the property “are in good condition with no evidence of overgrazing, apart from a few small occurrences of Scleroloena species, possibly associated with grazing pressure”. In section 3 of the application, describing the existing environment, the following statements are made:

“The proposed clearing areas are mostly open scrubland with low regrowth of Desert Lime (Citrus glauca) and scattered mature trees of various species. The ground layer within the retained Brigalow/Belah remnant areas is sparse due to a dense leaf litter layer and competition with the tree layer. The ground layer within the regrowth and woodland areas is chiefly comprised of native grasses and Chenopods.

All areas examined had a healthy groundcover of native species or leaf litter.”

38. The EPBC application was subsequently withdrawn. Mr Turnbull explained that this was done because activities on ‘Colorado’ were being investigated and costs were being incurred in that regard.

Clearing of vegetation: January 2013 – 31 July 2014

39. For the purpose of identifying the areas of ‘Colorado’ that were cleared between January 2013 and July 2014, the parties relied upon an aerial photograph of the property, said to have been taken in August 2014. That aerial photograph became Exhibit A. In order to understand the evidence, I have annexed a copy of that Exhibit to this judgment.

40. The boundaries of ‘Colorado’ are outlined on Exhibit A. Lot 1 in DP 755998 is rectangular in shape, with its eastern boundary extending from the south-eastern corner for about one quarter of the entire length of that boundary. The balance of the land depicted on Exhibit ‘A’ is Lot 17. The significance of areas marked with the letter B and C will shortly be made apparent. The area that is hatched and outlined in yellow is the area to which I have earlier referred as “the saddlebag area”.

41. Clearing of areas hatched and marked B1 and B2 on Exhibit A are areas that were cleared between 5 January 2013 and 14 May 2014. Areas that are hatched and marked C1, C2, C3, C4, C5 and C6 were cleared between 14 May 2014 and 31 July 2014. The fact of clearing of those areas and in the periods identified is not in contest between the parties.

42. The sequence of clearing work generally involved:

1. the removal of smaller trees and all “shrubs” (an apparent reference to understorey plants);

2. ripping the groundcover, including raking and plowing by attachments to bulldozers;

3.  the removal of remaining large trees pushed over by a bulldozer and then moved into piles; and

4.  application of a “knockdown” herbicide in order to rid the ground surface of all remaining vegetation.

As was stated by Mr Turnbull in his oral evidence, it was his intention to take each cleared area “back to dirt” so that a crop could be planted. That included the removal of groundcover (Tcpt 64:6-10).

43. The clearing that I have identified generally took place in those areas that were the subject of the PVP application that Mr Turnbull was told in April 2013 would not be approved. Nonetheless, Mr Turnbull acknowledged, when giving his evidence in these proceedings, that the clearing undertaken between January 2013 and July 2014 had “almost achieved” all of the clearing sought in his PVP application. Clearing of ‘Colorado’ for cropping was his plan for the use of the property from the time of purchase.

44. Among the areas on ‘Colorado’ that were cleared between May and July 2014 were, by reference to Exhibit A, areas C3 and C4. That clearing work was undertaken within the saddlebag area when Turnbull No 1 was being heard before this Court. As I have earlier recorded, the judgment delivered in that matter on 25 June 2014 identifies the saddlebag area as a high priority offset area intended for rehabilitation. At [55] the “high priority remediation areas” were described as:

“… locations in the cleared areas that adjoined areas of native vegetation or that could be linked to areas of native vegetation. They were areas where the experts predicted remedial work could provide a greater conservation gain”.

45. Apart from reference to the saddlebag areas within Turnbull No 1, a map attached to the judgment identified that area, amongst others, as a high priority offset area. It was incorporated as such in the final directions given by the Chief Judge on 31 July 2014 when the judgment in Turnbull No 2 was delivered.

46. Mr Turnbull explained that the clearing work on ‘Colorado’ was being undertaken by his father, Ian Turnbull, with an employed assistant. While the respondent, Grant Turnbull, had been provided with a copy of the judgment in Turnbull No 1 and the map annexed to it, he had unwittingly earlier provided a different plan to his father when indicating the areas on ‘Colorado’ to be cleared. He returned to ‘Colorado’ on 22 July 2014 and observed that extensive clearing had been carried out in the saddlebag area, consistent with the areas marked C3 and C4 on Exhibit A. Notwithstanding that discovery, no disclosure was made of that clearing prior to or at the time at which remedial directions were made in Turnbull No 2. When asked in cross-examination before me as to whether he was proposing to tell the applicant that the remediation area had been cleared he responded by saying, “I didn’t know I had to at that stage” (Tcpt 77:7-9).

47. In August 2014, officers of the applicant, using satellite and aerial imagery, discovered clearing on ‘Colorado’ that appeared to have been undertaken between 5 January 2013 and August 2014. As a consequence, the present proceedings were commenced, leading to the grant of an interim injunction on 19 September 2014 (Chief Executive of the Office of Environment and Heritage v Turnbull [2014] NSWLEC 153) and an interlocutory injunction on 25 September 2014 (Chief Executive of the Office of Environment and Heritage v Turnbull (No 2) [2014] NSWLEC 155). At the conclusion of the hearing before me, the substantive orders then made were discharged and a new interlocutory injunction imposed in terms agreed between the parties.

48. Mr Turnbull sought to explain his actions in having areas of ‘Colorado’ cleared after he was informed that his PVP application would not be approved. He states that he read on the NSW Government website that the rules were changing in relation to the “clearing of paddock trees” (Tcpt 114:10-15). The information that he saw led him to think that if a tree or trees remained in a cultivation paddock, being a paddock in which the soil had been ploughed, a standing tree could then be removed. On that basis he believed that if he cleared an area of existing “small trees” and understorey plants, ploughed or cultivated the soil in that paddock, he could then return to remove the substantial tree or trees that remained. This was the understanding he had after referring to a fact sheet showing that new rules had been made (Tcpt 109:3-8).

49. Although Mr Turnbull could not identify when he first saw this information on the Government website, it is likely that he saw reference to Native Vegetation Regulation 2013, first published on the legislation website on 19 September 2013.

50. Clause 41 of that Regulation provided:

“41   Clearing of paddock trees

(1) The Minister may by order declare the clearing of a paddock tree in a cultivation area (being a tree within an area that is cropped, ploughed, fallow or covered in perennial or annual non-indigenous pasture) to be a routine agricultural management activity.

(2)   The clearing of a tree, carried out in accordance with any declaration by an order under this clause … is a routine agricultural management activity.”

By s 22 of the NV Act, clearing for routine agricultural management activities is permitted.

51. Mr Turnbull states that based the way in which he read cl 41 of the Native Vegetation Regulation, he was entitled to take the course that he did in 2013 and 2014. It was only after these proceedings were commenced that, with the benefit of legal advice, he came to realise that he was not able to carry out the clearing work that he did, not the least reason for which was that the order required to engage the provisions of cl 41 was not made by the Minister until November 2014.

Contravention of s 12 of the NV Act is established

52. Mr Turnbull’s admission in his Points of Defence, together with his evidence, establishes that as the landholder of ‘Colorado’ he contravened s 12(1) of the NV Act. His evidence establishes that after 5 January 2013, the areas marked B1, B2, C1, C2, C3, C4, C5 and C6 on Exhibit A were all areas within which native vegetation was cleared, that clearing having been completed prior to 31 July 2014.

53. My finding that s 12(1) of the NV Act has been contravened engages the provisions of s 41(5), enabling me to address the issue of what orders are appropriate to remedy and restrain the breaches that I have found. However, before addressing those orders there are two matters that must be considered.

54. In my narrative describing the breaches that have occurred, I have referred to the actions of Mr Turnbull which the applicant has described in terms that would be appropriate if directed to a defendant on sentence for a criminal prosecution. I make clear that in exercising the discretion that I have, I do not propose to do so by way of punishment. The discretion to make orders under s 41(5) extends only to the making of such orders as are seen to be necessary to restrain further breach of the law and to make orders that are appropriate in order to achieve restorative justice. The identification of evidence establishing that Mr Turnbull was, or ought to have been aware, that his actions breached the NV Act coupled with his explanations for so doing, are relevant only, but importantly, to a determination as to whether the making of a restraining order against further breach is required. That is a matter to which I will turn in due course.

55. The second matter that must be addressed before turning to consider the term of orders that should be made is the necessity first to determine the extent to which Mr Turnbull contravened the NV Act. That is because the exercise of discretion must involve a reasonable and proportionate response to the breach that is established. It is the extent of the breach to which I will next turn.

Extent of the contravention

56. The area of ‘Colorado’ within which clearing was carried out between January 2013 and July 2014 was addressed in evidence by Mr Paul Spiers, a natural resources officer employed by the applicant, and Dr Ross Jenkins, a consultant retained by Mr Turnbull. They each sought to determine the areas cleared by examining aerial photography and satellite imagery. There is no challenge to the expertise of either of them to undertake that task.

57. Fortuitously, there is no material dispute between Mr Spiers and Dr Jenkins as to the extent to which clearing took place on ‘Colorado’ during the period they were asked to consider. Dr Jenkins calculated an aggregate cleared area of 308ha while Mr Spiers determined the area to be about 506ha. However, Dr Jenkins was instructed by Mr Turnbull to exclude consideration of clearing that occurred within areas C3 and C4 as identified in Exhibit A, an area totalling 198ha. The rationale advanced on behalf of Mr Turnbull for excluding consideration of the latter area was that it was within the saddlebag area that was the subject of the remedial direction made by Preston CJ in Turnbull No 2. I will return to the relevance of that exclusion in due course.

58. As Exhibit A discloses, the aggregate area cleared of about 508ha (rounded) comprises:

B1:   218ha

B2:   2ha

C1:   38ha

C2:   6ha

C3   92ha

C4:   106ha

C5:   15ha

C6:   31ha

Total:   508ha

59. The dispute that arises from the evidence is the extent to which clearing in the areas identified involved clearing of native vegetation. On the analysis undertaken by Dr Jenkins, he contends that the total area of native vegetation that was cleared was 29.4ha. It is that figure that Mr Turnbull accepts as being the area of native vegetation that was cleared in breach of s 12(1) of the NV Act. Expressed succinctly, Dr Jenkins used a crown diameter measurement of trees or shrubs along imagery transects within each area “in order to obtain the best representation of the overall cover” for each designated area. He stated that, based on the crown cover calculation, the area covered by trees and shrubs can be calculated. Having determined the average crown diameter for each area, he sought to determine that crown diameter as a percentage of the area cleared. Recognising that the crown cover, measured along transects used to make his estimate, included both shrubs and trees, he identified from within the transects used the larger shadows likely to have been cast by trees, as opposed to shrubs, in order to calculate a tree stem density for each of the areas cleared (in all cases excluding areas C3 and C4). An estimate was made as to the percentage of vegetation that was regrowth and allowance also made for routine agricultural management activities. From the total area of tree and shrub ground cover that he calculated of 31.1ha (excluding areas C3 and C4) he deducted the allowance he made both for the regrowth and routine agricultural management activity to arrive at his net figure of 29.4ha and an “area-weighted tree stem density of 8.1stems/ha”.

60. The methodology used did not involve a count of every tree or shrub, so far as it could be determined from the relevant photography or imagery. However, what is clear is that the calculation made by Dr Jenkins involved taking account of only trees or shrubs that could be determined from that photography or imagery. To the extent to which there was groundcover within the dripline of the trees or shrubs, it was also counted. However, no account was taken of groundcover lost that was located outside the dripline. As a consequence, it does not identify the totality of indigenous groundcover that was cleared.

61. Mr Spiers carried out his assessment using digital imagery, including 3D images that were viewed using stereoscoping programs and equipment. Dr Jenkins did not have that equipment available to him although he was afforded access to the Grafton office of the applicant where that equipment was available. Dr Jenkins stated that because of time constraints he had only been able to use that equipment for about one and a half hours. That use, limited as it was, enabled him to confirm the assessment he had made as to vegetation density pre-clearing, using the digitally corrected photographs available to him. When viewing images using the applicant’s stereoscoping equipment he had only viewed for assessment the uncleared section of vegetation in the saddlebag area, located between area C3 and area C4 on Exhibit A.

62. Mr Spiers stated that by viewing aerial photographs and digital stereoscopic images in 3D, he was able to observe characteristics of both tree and shrub vegetation as well as ground surface cover. Characteristics viewed using the images upon which he relied enabled ground cover to be distinguished from “dirt”, particularly by reference to colour and texture as portrayed in those images. He did not purport to determine that the groundcover was a component of native vegetation but the presence of groundcover was nonetheless apparent.

63. Mr Spiers included in his report a detailed description of the vegetation that he was able to observe by reference to each of the images that he viewed commencing in 1975. By comparing each subsequent image, not only was he able to describe observations from that image but also compare changes, if any, by reference to the previous image. For the purpose of assessment, polygons were superimposed upon the computer images, outlining the areas where clearing had occurred, thereby enabling the area cleared to be calculated. Those polygons are represented by the areas hatched and marked B1, B2, C1, C2, C3, C4, C5 and C6 on Exhibit A.

64. By comparing images for January 2013, with images for 7 February 2014, May 2014, 1 July 2014, 17 July 2014 and 2 August 2014 and by using the computer program available to him, he was able to determine the loss of vegetation during each period. His program also enabled him to assess the extent to which vegetation had been lost in the intervening periods.

65. The imagery that Mr Spiers had available also enabled him to assess the tree densities within the cleared areas during the period from January 2013 to July 2014. In reporting upon tree density, he used definitions from the Australian Soil and Land Survey Field Handbook (3rd Ed 2009, CSIRO Publishing). Depending upon the category identified from that publication and assigned by the person making the assessment, a “crown separation ratio” could be applied as could a percentage of crown cover. The “crown separation ratio” is expressed as the “ratio of the mean gap between crowns and the mean crown width”. Relevantly, the categories applied by Mr Spiers to the various areas in the relevant period were Category I (Isolated plants), V (Very sparse), S (Sparse or open) and M (Mid dense).

66. Applying those categories to the areas identified in Exhibit A, Mr Spiers assessed the tree density for areas B1 and B2 to be Category I. Prior to clearing he determined them to be Category V having a 10 percent to 20 percent canopy cover. Areas C2, C3 and C4 were totally cleared but prior to clearing were assessed to be Category S, having a canopy cover of between 20 percent and 50 percent of each area. Areas C1, C5 and C6 were also totally cleared but were identified as falling somewhere between Category S and Category M, with a 20 percent to 80 percent canopy cover in each area.

67. It is acknowledged that the categorisation requires assessment by the viewer. As Mr Spiers said in the report annexed to his affidavit of 14 October 2014, (par 27) “these vegetation densities are commonly used by individuals interpreting aerial photographs to identify and describe the concentration of vegetation which they observe at any given location”.

68. The selection of a tree density, being the subject of the reports prepared both by Mr Spiers and by Dr Jenkins, is primarily directed to appropriate remedial works. However, neither witness, after analysing aerial photography, has suggested that the tree and understorey vegetation that they assessed as having been cleared was uniformly dispersed throughout each area. Just as Dr Jenkins used selected transepts for the purpose of assessing tree density, thereby relying upon judgment, so also Mr Spiers has made an assessment within each area in order to assign a particular density category to that area. Each of them acknowledged that there is scope for a margin of error. Dr Jenkins allowed that a margin of error of 5 percent was appropriate to his method whereas Mr Spiers suggested that the margin should be closer to 10 percent, based on his experience. I infer that the latter margin would apply to his assessment but the precise allowance need not be determined. The assessment of what might be required by way of rehabilitation referable to an appropriate tree density to be achieved will not turn upon precise calculation.

69. As I have indicated, in the absence of evidence that any native ground cover was confined to the dripline of tree and shrub canopy throughout the area that Mr Spiers and Dr Jenkins agree was cleared in the relevant period, it is necessary to consider the evidence directed to the presence of native groundcover within the cleared areas. It is to that evidence that I now turn.

Groundcover

70. The existence of groundcover within the areas that were cleared during the relevant period is not in issue nor is it contested in any of the evidence that the groundcover was, if not wholly, then predominantly native. The issue is the extent to which it was present prior to clearing the identified areas.

71. Before addressing the evidence in that regard, I should record the submission by Mr Turnbull that it is necessary for the evidence to establish that any native vegetation, including groundcover, that is cleared must be “living” vegetation in order to engage a breach of s 12(1). Support for that proposition is said to be found in the decision of the Court of Criminal Appeal in Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; 82 NSWLR 12. That Court was hearing an appeal from this Court in which the appellant had been convicted and sentenced for an offence against s 12(1) of the NV Act. An issue raised on the appeal was whether the trial judge had erred when determining that the cleared vegetation included both living and dead plant matter.

70. For the purpose of the appeal, it was not contested that living vegetation had been cleared. However, there was a body of evidence at the trial establishing that some of the vegetation identified by the prosecutor was in fact dead at the time at which it was cleared. The trial judge had taken that into account but had identified its inclusion as being of “marginal significance”.

71. The leading judgment in the Court of Appeal was delivered by McClellan CJ at CL (Hidden and Garling JJ agreeing). In response to the submission that the trial judge had erroneously taken into account so much of the vegetation that was dead his Honour said at [62]:

“To my mind her Honour’s conclusion that vegetation includes dead plant matter was not correct. Obviously a plant will be a plant, whether it is dead or alive. However, the concern of s 6 is with vegetation which is defined ‘for the purposes of the Act’ to mean any of the stated types of indigenous vegetation. Section 7 makes plain that so far as the Act requires approval for the clearing of native vegetation, it contemplates the clearing of living vegetation only. It would be an extraordinary use of language to speak of cutting down, felling, burning, logging or removing dead plants or trees or killing, destroying, poisoning or uprooting dead plants: see subss 7(a)-(b). Construed in the context of the Act, these activities are only relevant to living plants or trees. One may speak of burning dead vegetation, but given the other verbs in s 7, the draftsperson must have been referring to burning living plants or trees.”

74. Mr Turnbull’s emphasis on the need for living native vegetation forms part of his challenge to the lack of evidence directed to the areal extent of such vegetation which, I infer, he seeks to confine to the time immediately before clearing commenced. Reference is made in the evidence to seasonal conditions and observations made from time to time indicating that the extent and abundance of groundcover varied depending upon both season and the time of year at which the observation was made. As the expert evidence to which I will refer made tolerably clear, that fluctuating occurrence due to seasonal conditions occurs because of the seedbank or other reproductive mechanism for groundcover species within the soil profile.

75. As Mr Turnbull acknowledged, a flush of groundcover will occur following rain while its density may diminish after prolonged dry periods. That demonstrates to me that there remains in the soil a viable reproductive organism that may be dormant but is not dead in the sense discussed in Walker Corporation.

76. I have earlier referred to the EPBC application made by Mr Turnbull. In his application, dated 30 November 2012, he acknowledged that the information included in his application was “complete, current and correct” (Exhibit B, p 16). In that application he stated that all areas examined, being essentially those areas that he cleared between January 2013 and July 2014, “had a healthy groundcover of native species or leaf litter”. He identified the “ground layer” within the woodland areas as “chiefly comprised of native grasses”.

77. Peter Hall, an ecologist, prepared a report for Mr Ian Turnbull when he was prosecuted for carrying out clearing on ‘Colorado’ between November 2011 and January 2012. He was asked to inspect the property in order to address, as an expert, the environmental harm occasioned by that clearing. For that purpose he surveyed areas within ‘Colorado’, outside the then cleared areas and in so doing recorded observations along a number of transects within areas cleared in the period between January 2013 and July 2014. A number of the transects spread sheets identify the ground layer as being comprised of “native grasses and forbs”.

78. Each of the parties called ecologists. Mr Terry Mazzer, a conservation planning officer and Dr Christopher Nadolny were called on behalf of the applicant. Each of them prepared a report. Dr Rhidian Harrington, an ecologist focusing on faunal ecology and Dr David Tierney, a botanist and plant ecologist were called on behalf of Mr Turnbull. All four experts prepared a joint report, tendered as Exhibit P. There are two matters of agreement recorded in that Exhibit that are of present relevance.

79. At par 11 they agreed that “no evidence exists that the groundcover was not native and therefore permissibly cleared” with a qualification expressed by Dr Harrington that there was “no evidence that all the groundcover within vegetation that was cleared was native”. That agreement was identified by Mr Turnbull in his written submission as an “unhelpfully inconclusive trespass into the law”. Putting aside the reference to the “permissibility of clearing”, I find the statement useful. Although expressed in the negative, other evidence, including that to which I have already referred, establishes that the groundcover observed was native. Moreover, the qualification expressed by Dr Harrington that “there is no evidence that all the groundcover within vegetation that was cleared was native” is of no assistance to Mr Turnbull. It is sufficient if it is established that the groundcover cleared “includes” native groundcover (Walker Corporation at [33]).

80. The second item of agreement among the experts of present relevance is that recorded at par 12 which states:

“The parties agree that woodlands function in a holistic manner with spaces between the canopies of trees being of ecological importance and the integrity of the woodland being dependant on the ground layer vegetation and structural components such as leaf litter and logs.”

81. That statement is criticized by Mr Turnbull on the basis that it was first necessary to establish that what was cleared was “woodlands”. However, there seems little doubt on the evidence that the majority of areas cleared would satisfy that description.

82. Mr Mazzer characterises the vegetation type in area B1 as “a Brigalow-Belah open woodland with a grassy groundcover dominated by native species (predominantly VCA ID35 with some VCA ID55)”. He characterises the vegetation type in areas C1, C2, C5 and C6 by the same description. Areas C3 and C4 are characterised by him as “Belah Rosewood woodland with a grassy groundcover dominated by native species (predominantly VCA ID56 with some VCA ID55)”.

83. The reference by the experts to woodlands functioning “in a wholistic manner”, with spaces between canopies being of ecological importance is reflected in observations made by Preston CJ in Turnbull No 1. Responding to a submission that the area of native vegetation to be rehabilitated based on areas of projected canopy cover cleared, his Honour referred to the decision of this Court in Commercial and Industrial Property Pty Ltd v Holroyd City Council [2013] NSWLEC 1000 in which that approach to assessment had been rejected. His Honour continued at [98]:

“98   Vegetation communities are more than just the sum of canopy areas of the tallest stratum, such as trees. While the composition of the canopy is important to characterise communities and to permit their recognition, it is the totality of vegetation which provides the structural framework for habitat and primary productivity, which is utilised by the range of biodiversity which forms the ecological communities.”

84. Dr Nadolny had inspected ‘Colorado’ in February, March, June and August 2012. He again visited in December 2013, April 2014 and September 2014. While his latter visit was described as a “drive-through”, earlier visits had involved an examination of vegetation in a number of plots in the north-eastern part of ‘Colorado’ prior to clearing. He had taken photographs and identified the location on ‘Colorado’ in which those photographs were taken. The data collected and observations made, particularly those made prior to clearing that occurred in the period presently being considered established that within that area groundcover did comprise native grasses. He states that he did not find a single exotic grass but did observe a wide variety of native grasses (Tcpt 264:4-6). Although the plots that he had surveyed were, by definition, confined in area, he had traversed the area of ‘Colorado’ more widely, mostly on foot and that “basically, everywhere I went I saw native vegetation, native groundcover” (Tcpt 235:26-36).

85. Mr Mazzer inspected ‘Colorado’ on 10 September 2014. He inspected areas B1, C4, C5 and C6. Area C1 was viewed from outside the northern boundary fence of the property. He also inspected areas adjacent to those nominated that were uncleared at that time. His understanding of the area within which vegetation had been cleared was “informed” by his examination of existing remnant vegetation on the property proximate to the areas that had been cleared. Data was collected from three small plots for the purpose of groundcover assessment. Based upon both the plots examined and the more general observations he made at the time of his visit, he said that the groundcover consisted “predominantly of native species” (par 23 and 24 of Annexure A to his affidavit affirmed 10 October 2014).

86. In the course of giving his evidence at the hearing, Mr Mazzer gave an account of the data and material that he considered to be probative of the presence of native groundcover before the clearing occurred between January 2013 and July 2014. He again expressed the opinion by reference to the data that native ground cover was present on ‘Colorado’ prior to clearing of those areas during the relevant period (Tcpt 256:10-269:3).

87. When asked in the course of concurrent evidence whether he disagreed with the conclusions drawn by Mr Mazzer, Dr Harrington stated that he trusted the observations reported. He added that the data collected by Mr Hall also indicated that there were native groundcover species present. He acknowledged that all reports had acknowledged the presence of some weeds but he did not challenge the statement that the groundcover was predominantly native.

88. Dr Tierney conducted a field survey of ‘Colorado’ on 5 December 2014. The aim of his survey was to determine if the cleared areas and areas adjacent to the cleared areas were likely to have been dominated by native vegetation before clearing and to record features that were indicative of biodiversity values. He identified eleven locations at which he recorded data. Three locations were proximate to the northern boundary on the edge of clearing in areas B1, C1 and C5; three were in the vicinity of clearing in areas C2 and C6; two were located towards the western boundary of Lot 17, one to the north and the other to the south of the uncleared area between C2 and C3 while others were near the south-eastern corner of Lot 17. The data from each observation point was “used to develop an overall assessment of the likely quality and type of vegetation (and its broad habitat values) before clearing (report p 19). In making the assessment from that data, Dr Tierney said “overstorey and groundlayers were overwhelmingly dominated by native species in adjacent uncleared vegetation”. His statement makes clear that he was distinguishing “groundlayers” from what he described as the “midstorey strata”.

89. The evidence of the experts comfortably satisfies me that prior to the clearing that took place between January 2013 and July 31 2014 the areas subject to the clearing contained groundcover within the meaning of s 6 of the NV Act. For reasons that I have earlier given, I do not accept Mr Turnbull’s submission that the fluctuating abundance of native groundcover is a basis upon which some areas need to be excluded because from time to time there were bare patches between the herbaceous vegetation observed to be present as ground cover.

Environmental impact

90. All four experts addressed this topic. Indeed, the primary focus of the reports prepared by both Dr Harrington and Dr Tierney was directed to the environmental harm occasioned by clearing in the relevant period of time. The focus of Dr Tierney’s evidence essentially concerns the floristic impact while the focus of Dr Harrington is impact upon fauna, principally upon the koala habitat.

91. In their joint reports, Exhibit P, all four experts agreed that the clearing of native vegetation “constituted significant environmental harm”. The Exhibit indicates that the native vegetation that was cleared was in “an over-cleared landscape – Croppa Creek Clayplains, 92 percent cleared.” They further state that the native vegetation was not in ‘low condition’ at sites from where data exists.

92. In the report prepared by Dr Nadolny, annexed to his affidavit of 10 October 2014, he described the environmental harm as significant from the clearing that had occurred with the major impacts of that clearing including:

1.  loss of a significant area of remnant native vegetation of approximately 500ha, which was generally not in low condition prior to clearing, ocurring with an overcleared landscape;

2. loss of significant areas of an endangered ecological community namely Brigalow within the Brigalow Belt South, Nandewar and Darling Riverine Plains Bioregions;

3.  loss of significant areas of overcleared vegetation types being vegetation types estimated to be over 70 percent cleared within the area managed by the CMA;

4.  a significant loss of habitat for fauna including feed trees known to have been used by a population of koala and likely habitat for the Grey-crowned Babbler; and

5. the environmental impact of that clearing was exacerbated because of the cumulative effects of clearing that took place in 2011 and 2012, being the clearing that was the subject of remedial directions made in Turnbull No 1.

93. Drs Tierney and Harrington further acknowledged the existence of evidence that the Brigalow endangered environmental community was present on the site and, based on the vegetation mapping the patch of that community “was relatively large, but if you exclude C3 and C4 it was relatively small”. That is a roundabout way of saying that a substantial patch of the Brigalow endangered environmental community was lost due to the clearing that occurred in areas C3 and C4. Dr Nadolny accepts that to be the case.

94. All four experts stated that the habitat was of moderate to high importance locally; that the vegetation was not in low condition, and that it consisted of a “relatively large, well connected remnant”. Dr Harrington added the qualification that, so far as he was concerned, his acceptance of that statement was based on an assumption that the habitat cleared was similar to that of adjacent vegetation/habitat when that may not have always been the case. The qualification is noted but the conclusion drawn by the other experts upon the data that they had collected, both as a consequence of Dr Nadolny’s 2012 and 2013 visits to the site and other data to which I have referred was that the observation made as to the condition of the vegetation and its connectivity was more likely than not.

95. They further agreed that within the area cleared there was a known koala habitat. Poplar Box (Eucalyptus populnea) is a known koala feed tree and that species was among the trees cleared, albeit the exact number, size and habitat condition of those trees was not known. By reference to the data available to him, Dr Harrington calculated that up to 72 mature koala feed trees may have been impacted by the clearing on ‘Colorado’ during the relevant period which he suggested represented “a very small proportion of mature feed trees in the locality (within 10km)”. He concluded that the removal of that number of feed trees would affect a local population but that it was unlikely to have a significant impact on that population “such that it was placed at risk of extinction”. Nonetheless, he considered koalas to be the fauna species “of most conservation significance” and that restoration for fauna “should concentrate on improving habitat for this species”.

96. The experts accepted that the Grey-crowned Babbler had been recorded on the site in area C3 and in the uncleared area north of area C3. On that basis, they accepted that the species was likely to have utilised the vegetation that has since been cleared.

97. All four experts agreed that a “substantial part of the Area Cleared requires remediation”. In nominating those areas, Dr Tierney and Dr Harrington identified the areas within which that remediation is required to be areas B1, C1, C2, C5 and C6. Dr Nadolny and Mr Mazzer consider that areas C3 and C4 should be included in the areas to be remediated. This, so it seems to me, is a distinction without a difference. The exclusion of reference to areas C3 and C4 by Dr Tierney and Dr Harrington is premised upon the requirement for remediation of those areas by the remedial work directions in Turnbull No 2.

98. The evidence to which I have referred satisfies me that as a consequence of the clearing that occurred between January 2013 and 31 July 2014 significant environmental harm was occasioned. The acceptance by all four experts that remediation is required, satisfies me that an order for that work should be made “to remedy” the contravention by Mr Turnbull of s 12(1) of the NV Act. I will turn to consider the terms of that order shortly.

Orders

99. The terms in which s 41(5) of the NV Act are expressed reflect the terms in which s 124 of the Environmental Planning and Assessment Act 1979 (the EPA Act) are framed. The breadth of discretion available to the Court when exercising the discretion under s 124 of the EPA Act are well known. This is identified in the seminal cases of Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-340 and ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82. Those principles are to be applied in the present case having regard to the objects of the NV Act and the provisions it makes for the preservation and conservation of native vegetation.

100. As the applicant submitted, the contravention of the NV Act by Mr Turnbull was neither technical nor accidental. It involved a breach that had significant consequences with the result that orders should be made, not only to reflect the fact that a breach of the law has occurred but that “private advantage” is not won “by a particular individual which others cannot enjoy” (Warringah Shire Council v Sedevcic at 340).

101. It must also be observed that in seeking the remedial orders, the applicant does not bring proceedings in a private capacity but does so as one vested with responsibility to administer and enforce the provisions of the NV Act.

A declaration

102. The applicant seeks to have the Court make a declaratory order, in substance declaring that the respondent cleared or caused the clearing of native vegetation on ‘Colorado’ in contravention of the NV Act. Mr Turnbull opposes the making of that order on the basis that it serves no utility.

103. It is accepted by Mr Turnbull that in exercising the discretion available under s 41(5) the Court may in an appropriate case, make a declaratory order. The making of that order is not a condition precedent to the making of either a restraining order or a remedial order.

104. The applicant accepts that the making of the declaration in the present case would not have any constitutive effect in the sense that it would not bring about any change in the rights or duties of the parties. Further, Mr Turnbull has not, in the course of these proceedings, denied having carried out, as landowner, clearing of vegetation on ‘Colorado’ in breach of the NV Act during the period from January 2013 to 31 July 2014. His purpose in the conduct of the proceedings has been to challenge the extent to which clearing of native vegetation has been carried out and the terms of a remedial order.

105. In those circumstances, the applicant recognises that the observations of Preston CJ in Great Lakes Council v Lani [2007] NSWLEC 681; 158 LGERA 1 at [20]-[25] may be apposite. In that case, his Honour cautioned about the use of a declaration of breach of a statute in civil enforcement proceedings as a substitute for a criminal prosecution. His Honour acknowledged at [25] that a legitimate purpose of civil enforcement proceedings “is for there to be a finding by the Court and through its judgment a public pronouncement that a breach of the law has occurred”. That effect can be achieved by the Court making findings in the judgment of the Court which is a public document.

102. The applicant made reference to other decisions of this Court in which the Court has applied a principle that the making of declarations marks the Court’s disapproval of conduct that Parliament has proscribed (Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 at [20]. Reference is also made to the decision of Preston CJ in Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118; 210 LGERA 300 where his Honour determined that it was appropriate to make a declaration that the respondent had breached the National Parks and Wildlife Act 1974 (NSW) by picking plants of two endangered ecological communities. Reference was also made to the judgment of Stein JA in Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508 where at [308] his Honour observed that the making of a declaration served “to declare the law and underline the breaches”.

103. I do not think that this is an appropriate case in which to make a declaratory order. Whether such an order should be made will inevitably depend upon the facts of each case. In Venn there was a contest as to whether any breach had occurred and a threat to continue the breach. In Winn the conduct that constituted the breach alleged was continuing.

104. In the present case, the fact that breach has never been in contest is important. Mr Turnbull’s points of defence and evidence have both admitted that breach. Further, the judgment finds that a breach has occurred and that circumstance, coupled with the other orders that I propose to make are sufficient both to identify and announce on behalf of the community Mr Turnbull’s unlawful conduct (Lani at [25]).

105. For these reasons, I do not propose to make a declaratory order.

A restraining order

110. The applicant seeks an order that Mr Turnbull be restricted from clearing or causing or permitting the clearing of native vegetation on ‘Colorado’ in contravention of the NV Act. Mr Turnbull opposes the making of any restraining order. He does so, essentially for the reason that he has admitted contravention and has stated that he does not intend to contravene the Act in the future.

111. That statement of present intent must be understood in the context of the events that attended the undertaking of work in the period between January 2013 and 31 July 2014. The chronology of events reveals that as early as March 2012, Mr Turnbull was aware that the clearing that had been undertaken on ‘Colorado’ was being investigated by officers of the applicant and that the view had been expressed by them that clearing was “wrong”. Having submitted a PVP application in November 2012, he learned in April 2013 that his application would not be approved. In that same month he was served by the applicant with a direction under s 38 of the NV Act requiring specified remediation to be carried out in those areas that had been cleared during 2011 and 2012. Those proceedings were commenced in 2013 and not determined until judgment in Turnbull No 1 was given in June 2014. From the time at which the direction was served until the conclusion of those proceedings, it must have been readily apparent to Mr Turnbull that clearing of native vegetation without the requisite consent or PVP was likely to involve a contravention of the NV Act. Yet, between January 2013 and May 2014 areas B1 and B2 were cleared and after May 2014 areas C1, C2, C3, C4, C5 and C6 were cleared.

112. Moreover, the area of C3 and C4, identified in Turnbull No 1 as being a high priority offset area for the clearing that took place in 2011 and 2012, had been cleared to the knowledge of Mr Turnbull prior to the making of the remedial works direction in Turnbull No 2 on 31 July 2014. Mr Turnbull did not think it necessary to disclose, at that time, either to the applicant or, so it seems, to the Court that the high priority offset area on ‘Colorado’ had in fact been cleared. The explanation for that latter work occurring and not being disclosed was that he had failed to provide his father with the appropriate plan and inform him that those areas should not be cleared. What caused him to think that it was not necessary for him to disclose that fact at the time when the matter was before the Court is not explained.

113. I have earlier referred to the explanation offered by Mr Turnbull for carrying out clearing work in the latter part of 2013 and 2014 in the belief that the information he had seen on the Government website enabled him to clear paddock trees. Even assuming that he had misunderstood the newly made cl 41 of the Native Vegetation Regulation 2013, believing that it sanctioned the clearing of a paddock tree without a prior declaration by the Minister, I find his explanation for undertaking the work somewhat disingenuous. It was to the effect that the land is first cleared, removing all but some large trees, the cleared land ploughed, thus creating a cultivation area, it became open to him to return and remove the “paddock” tree or trees. That is no more than a device in an attempt to circumvent s 12 of the NV Act.

114. The circumstances that I have identified do not satisfy me that, without a restraining order in place, Mr Turnbull will adhere to the provisions of the NV Act in conducting his farming activities on ‘Colorado’. I therefore propose to make a restraining order.

The remedial order

115. Both parties accept that the making of a remedial order is appropriate. They are at issue as to the terms in which that Order should be framed.

116. The remediation work sought by the applicant and the areas within which it should occur are reflected in Exhibit Q. Mr Turnbull advances alternative proposals, described in Exhibit 1 as “Scenario 1” and “Scenario 2”. Scenario 1 is predicated upon the area required for remediation work as being predicated upon my accepting the evidence that only 29.4ha of the total of 505ha cleared in the relevant period was native vegetation. I have rejected that argument and have found that the whole of the area cleared was native vegetation, including the areas C3 and C4 located within the saddlebag area. As a consequence, it is Mr Turnbull’s Scenario 2 that needs to be considered.

117. The applicant submits that the remedial orders proposed would be a reasonable and proportionate way of remedying the contravention of the NV Act by the respondent in the 2013/2014 period. The area within which the remedial orders proposed by the applicant are to be implemented comprise about 224ha of the area cleared in the north-western section of ‘Colorado’. In submitting that it reflects a proportionate response, the applicant points to the fact that the area to be set aside is less than 50 percent of the area cleared, inclusive of areas C3 and C4. The orders made in Turnbull No 2 required a remediation area approximating 70 percent of the aggregate 421ha that were cleared in 2011/2012.

118. Leaving location aside, I have compared the written requirements expressed in the applicant’s proposed order with the term of the remedial work directed in Turnbull No 2. That comparison persuades me that the presently proposed order is, as the applicant submitted, modelled upon the remedial direction given on 31 July 2014. The rehabilitation work to be carried out in the proposed order is the same work required to be carried out in areas C3 and C4 pursuant to the direction given on 31 July 2014. That direction continues to apply to the C3 and C4 areas.

119. Mr Turnbull contends that the scope of work required by the applicant’s proposed order is not consistent with restorative justice. He submits that a remedial order under s 41(5) is to be distinguished from the scope of a remedial work direction under s 38 of the NV Act. Quite why that distinction should be drawn was not made apparent.

120. In Terranora Group Management Pty Ltd v Director-General, Office of Environment and Heritage [2013] NSWLEC 198; 200 LGERA 1, Biscoe J accepted at [62] accepted that a direction given under s 38 “had to be a reasonable and proportionate response” to the unlawful clearing alleged. When framing an order under s 41(5) “to remedy” a contravention of the Act that has been found, I would have thought that “a reasonable and proportionate response” was equally applicable to the order that the Court “thinks fit” to make in that context. Just as the text of s 38 contemplates the carrying out of “remedial work”, so also s 41(5) contemplates the making an appropriate order that is remedial in its effect.

121. Mr Turnbull further criticises the applicant’s proposed order because it was said to be prepared by a person unknown but only then considered by Dr Nadolny who proposed the reduction in the size of the area proposed to be excised from area B1 and to pare back the timing of milestones by about a year. A number of other criticisms are made by Mr Turnbull. However, it seems to me that the close similarity between the remedial direction made in Turnbull No 2 and that which is currently proposed is a matter of some significance. Common requirements for work to be undertaken and objectives to be achieved, seem to me to facilitate rather than detract from the management of ‘Colorado’ as an agriculutural enterprise.

122. Indeed, a comparison between the text of Mr Turnbulls’s proposed orders and the text of the order proposed by the applicant would seem to indicate material difference in only two respects. The criterion for monitoring and direct planting posited by Mr Turnbull proposes a density of a least 100 live stems on average per hectare “as determined by the quadrat method” or 100 live stems in at least 50 percent of monitoring sites. The comparable requirement in the applicant’s draft is for “100 live stems on average per hectare, as determined by the quadrat method”, omitting the “50 percent of monitored sites” qualification. In that respect the applicant’s draft accords precisely with the direction given in Turnbull No 2.

123. The other difference of potential significance is related to thinning of vegetation in the rehabilitation areas. Whereas the applicant’s proposed order stipulates that thinning is not to be undertaken as part of the remedial work, Mr Turnbull’s proposal is that thinning can be undertaken “where stem densities are high and likely to result in multi-stemmed trees of lowered conservation value”. The requirement also states that “this” is to be assessed and then the assessment and action documented in the required reporting to be made to the applicant. The direction made in this regard in Turnbull No 2 accords with that proposed by the applicant. That provision, in turn, reflected the decision in Turnbull No 1 where at [153] the Chief Judge considered that “the prohibition on thinning should be included” without qualification. The inclusion of the prohibition would not seem to be unreasonable and has the advantage of being consistent with that which is required in the saddlebag area which, as will be recalled, has an area in excess of 200ha. Commonality of requirements for that area and the area proposed by the applicant for remediation that links with the saddlebag area is, to my mind, desirable.

124. Mr Turnbull’s Scenario 2 proposal identifies an area between the western boundary of Lot 1 and the north-western boundary of the saddlebag area as being an area to improve. It then proposes a strip of land for improvement running from that point to the northern boundary of Lot 1 across the northern boundary for about half its distance and then returning in a southerly direction approximately within the area of C1. He also proposes the improvement of an area in the south-western corner of Lot 1, running into Lot 2 and then the maintenance of existing vegetation that runs from the western boundary of Lot 1 in an easterly direction, terminating shortly before the eastern boundary. The totality of these areas is said to be a little in excess of 236ha.

125. The area proposed in the applicant’s order essentially involved remedial work in areas C1,C2, C5, C6 and B1 save for two box-like areas that are linked within the centre of the B1 area. The excluded area approximates 84ha and provides a link to the existing cleared area to the east. The areas proposed by the applicant for rehabilitation provide useful links between existing vegetation and, unlike Mr Turnbull’s proposal, are not relatively narrow and linear.

126. Weighing the evidence that I have received, I favour the applicant’s proposal. I do so, essentially for the reasons that I have indicated. The total area involved does not differ greatly between the applicant’s proposal and Mr Turnbull’s Scenario 2 but the configuration and comparability of requirements that pertain to the areas required to be rehabilitated in accordance with the direction given in Turnbull No 2 are factors that bear significantly upon my decision. I propose to make appropriate amendments to the dates that were incorporated into the applicant’s scheme so as to reflect a commonality of dates with the requirements to be met under the Turnbull No 2 direction.

Economic hardship

127. In favouring the imposition of an order for remedial work conforming with that proposed by the applicant, I do not overlook the evidence given by Mr Turnbull as to the economic consequences of imposing that order. An estimate given for the costs of compliance over the next 15 years was $3,948,000 while an estimate to fence the area being rehabilitated was $406,560. He also provided financial statements directed to the operation of ‘Colorado’ and other rural properties in the area of which he is the owner, to suggest that the cost would have significant ramifications for the viability of his farming activities, particularly because the requirement would, in a sense, be a “blight” upon ‘Colorado’, significantly diminishing its value.

128. It seems to me that there are two difficulties with this submission. First, he advocated, supported by his experts, that rehabilitation should and would be undertaken in order to compensate for the clearing that he acknowledged to have been carried out in contravention of the NV Act. Indeed, he proposed the two Scenarios that I have identified.

129. Secondly, while he adverted to the burden that compliance with the applicant’s proposal would place upon him, no evidence was given by him as to the financial consequences of complying with either of the scenarios that he proposed. Clearly, they will involve a cost, including an inability to use approximately 236ha of land for cropping, an area that is slightly in excess of the area required to implement the applicant’s proposal. I have no evidentiary basis upon which to determine that the cost of the remedial works in the applicant’s proposal is disproportionate to the cost of implementing his proposed Scenario 2.

Compliance with the remedial direction given on 31 July 2014

130. Although not the subject of an order identified in its summons, at the commencement of the hearing the applicant indicated that it would seek an order from the Court requiring that Mr Turnbull comply with the direction given in Turnbull No 2. Shortly put, the rationale for seeking that order is that the direction given in Turnbull No 2 involved the exercise of an administrative function. It was not exercising a judicial function in making the remedial direction. If civil enforcement of that direction was required to be made, that could only be achieved by the applicant commencing fresh proceedings under s 41 of the NV Act.

131. While Mr Turnbull opposes the making of such an order, he did not oppose the applicant seeking that order on the basis that such an order was not nominated in the orders sought in the summons. The issue was addressed by him.

132. Mr Turnbull first submits that the order sought will not “of itself”, remedy the clearing carried out in areas C3 and C4. I do not accept that to be so. Notwithstanding the direction given in Turnbull No 2, clearing was carried out in area C3 and C4. To the extent that there is an order of the Court requiring that work to be carried out, it assumes a different juridical character from the administrative direction given on 31 July.

133. I am not persuaded by Mr Turnbull’s submissions, relying upon the Uniform Civil Procedure Rules 2005 (the UCPR) as to the enforcement of the July 2014 direction nor to the availability of criminal prosecution, relying upon s 38(4) of the NV Act, that I should not make the order sought by the applicant.

134. It seems to me that given the availability of a discretion to remedy a breach by making such order “as the Court thinks fit”, it is appropriate to make an order that Mr Turnbull comply with the direction given to him on 31 July 2014. The requirement to rehabilitate that area thereby becomes the subject of an order of the Court rather than an administrative direction.

Costs

135. The question of costs has not been argued. In his submissions, Mr Turnbull assumed that costs would be reserved, no doubt anticipating that there may be issues determined that would give rise to an argument that the usual rule would not apply.

136. As will be apparent from this judgment, the applicant has been successful on all of the principal grounds that have been argued. I am not aware of any matter arising in the litigation that would give rise to an order, other than one that Mr Turnbull should pay the applicant’s costs (UCPR r 42.1). I consider that the most convenient manner of dealing with costs is to order that Mr Turnbull pay the applicant’s costs subject to applying, by motion, for a different order within 21 days from the date of this judgment.

Orders

137. For the reasons that I have stated I make the following Orders:

1. Order pursuant to s 41(5) of the Native Vegetation Act 2003 that the respondent, by himself, his servants and agents, be restrained from clearing, or causing or permitting the clearing, of native vegetation on land comprising Lots 1 and 17 in DP 755998, known as ‘Colorado’, at or near Croppa Creek in New South Wales (the Land) in contravention of that Act.

2. Order that the respondent carry out the remedial works on the Land that are set out in Annexure ‘B’ to these orders.

3. Order that the respondent carry out the work identified in the remedial direction given by this Court pursuant to s 38 of the Native Vegetation Act 2003 on 31 July 2014.

4. Order that the respondent pay the applicant’s costs of these proceedings unless within 21 days from the date of this order he applies by motion for a different order.

5. Reserve liberty to apply on 5 days’ notice for the variation of the remedial works that are the subject of Order 2.

6. Otherwise reserve liberty to apply on 5 days’ notice.

7. Exhibits may be returned.

Map Annexure 'A' (578 KB, pdf)

Annexure B (amended as ordered 18.8.2017) (71.2 KB, doc)

Attachment B (amended as ordered 18.8.2017) (1.52 MB, pdf)

Turnbull.attachment - Initial Works Report (4.25 MB, pdf)

Amendments

30 August 2017 - Slip rule amendments to Annexure B:

(1) Order 5.2 amended such that “2017” replaced with “2018”

(2) Definition of “Remediation Area” amended so as to delete “C3” and “C4”

(3) Definition of “reporting period” amended such that “1 July 2014” replaced with “1 July 2016”

– Slip rule amendment to insert header of “Attachment B” on map attached to judgment

07 June 2016 - Change spelling of Mr Mazza to Mr Mazzer

Decision last updated: 30 August 2017