Chief Executive Officer, Department of Environment and Conservation v Szulc [No 3]
[2014] WASC 150
•1 MAY 2014
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION -v- SZULC [No 3] [2014] WASC 150
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 150 | |
| Case No: | CIV:2722/2009 | 11 DECEMBER 2013 | |
| Coram: | MARTIN CJ | 1/05/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Permanent clearing injunction granted | ||
| B | |||
| PDF Version |
| Parties: | CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION MAXWELL JAN SZULC |
Catchwords: | Environment Environmental Protection Act 1986 (WA) Clearing injunction Turns on own facts |
Legislation: | Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), reg 5 Environmental Protection Act 1986 (WA), s 50A, s 50B, s 51A, s 51C, s 51D, s 51J, s 51S, s 70 Soil and Land Conservation Act 1945 (WA), s 32, s 35, s 44 |
Case References: | Chief Executive Officer, Department of Environment v Szulc [2010] WASC 195 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MAXWELL JAN SZULC
Defendant
Catchwords:
Environment - Environmental Protection Act 1986 (WA) - Clearing injunction - Turns on own facts
Legislation:
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), reg 5
Environmental Protection Act 1986 (WA), s 50A, s 50B, s 51A, s 51C, s 51D, s 51J, s 51S, s 70
Soil and Land Conservation Act 1945 (WA), s 32, s 35, s 44
Result:
Permanent clearing injunction granted
Category: B
Representation:
Counsel:
Plaintiff : Mr T C Russell
Defendant : In person
Solicitors:
Plaintiff : State Solicitor's Office
Defendant : In person
Case(s) referred to in judgment(s):
Chief Executive Officer, Department of Environment v Szulc [2010] WASC 195
- MARTIN CJ:
Summary
1 The plaintiff, the Chief Executive Officer of the Department of Environment and Conservation (the CEO), applies for a permanent injunction restraining the defendant, Mr Maxwell Jan Szulc, from clearing native vegetation from a farming property (the property) which he part owns and occupies near Munglinup in the south-west of Western Australia. For the reasons which follow, I am satisfied that such an injunction should be granted on a permanent basis.
The statutory regime
The Environmental Protection Act 1986 (WA) (the Act)
2 The object of the Act is to protect the environment of this State, having regard to the principles specified in s 4A of the Act.
3 Part V of the Act is concerned with the regulation of activities which might have an adverse effect upon the environment. Provisions within that Part create a number of general offences, including the offence of causing serious environmental harm (s 50A), and the offence of causing material environmental harm (s 50B).
4 Division 2 of pt V of the Act was introduced by amendments made in 2003. It is concerned with the clearing of native vegetation. These proceedings arise under that division, and its particular provisions require detailed consideration.
5 Section 51C of the Act creates the offence of unauthorised clearing of native vegetation. It is committed by a person who causes or allows 'clearing' unless the clearing is done in accordance with a clearing permit, is of a kind set out in sch 6 to the Act, or is of a kind prescribed for the purposes of the section and is not done in an environmentally sensitive area.
6 'Clearing' is defined for the purposes of the division to mean (s 51A):
(a) the killing or destruction of; or
(b) the removal of; or
(c) the severing or ringbarking of trunks or stems of; or
(d) the doing of any other substantial damage to,
some or all of the native vegetation in an area, and includes the draining or flooding of land, the burning of vegetation, the grazing of stock, or any other act or activity, that causes -
(e) the killing or destruction of; or
(f) the severing of trunks or stems of; or
(g) any other substantial damage to,
some or all of the native vegetation in an area;
7 Schedule 6 to the Act specifies a number of categories of clearing which do not fall within the scope of the offence created by s 51C. It is unnecessary to refer to those categories in any detail, as it has not been suggested that any of those categories has any application to the circumstances of this case. Generally (and perhaps inaccurately) speaking those categories relate to activities specifically authorised by the Act or by other specified laws.
8 The kinds of clearing prescribed for the purposes of s 51C of the Act are set in the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) (the Clearing Regulations). It will be necessary to refer in due course to reg 5 of those regulations, which prescribes clearing activity if it is of a kind specified in a table contained with the regulation. Clearing activity of a kind specified in any item in that table does not contravene s 51C provided that it is not undertaken in an environmentally sensitive area.
9 Various provisions within div 2 of pt V of the Act regulate the issue of clearing permits. It is unnecessary to consider those provisions in detail, as the evidence establishes that no clearing permit has ever been issued in respect of the land the subject of these proceedings. Section 51J (which is referred to below) creates the offence of contravening a condition to which a clearing permit is subject.
10 Section 51S provides:
51S. Clearing injunctions
(1) In this section -
contravention includes the continuation of a contravention;
court means the Supreme Court;
improper conduct means an act or omission constituting a contravention of, or involvement in a contravention of, section 51C or 51J;
involvement in a contravention means -
(a) aiding, abetting, counselling, or procuring the contravention; or
(b) inducing the contravention, whether by threats or promises or otherwise; or
(c) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) conspiring with others to effect the contravention; or
(e) attempting to do anything constituting involvement in a contravention under paragraph (a), (b), (c) or (d).
(2) Without limiting any other power the court may have to grant injunctive relief, it is declared that the court may grant an injunction to prevent a person from engaging in improper conduct (a clearing injunction).
(3) The CEO may apply for a clearing injunction.
(4) A clearing injunction may be granted if the court is satisfied that it would be appropriate to grant the injunction -
(a) whether or not it is proved that the person intends to engage, or to engage again, or to continue to engage, in improper conduct of the kind sought to be prevented by the injunction; and
(b) whether or not the person has previously engaged in improper conduct of that kind.
(5) An interim clearing injunction may be granted before final determination of an application for a clearing injunction.
(6) The court is not to require, as a condition of granting an interim clearing injunction, that an undertaking be given as to damages or costs.
(7) The taking of proceedings against any person for an offence under this Act is not affected by -
(a) the making of an application for a clearing injunction; or
(b) the grant or refusal of a clearing injunction or an interim clearing injunction; or
(c) the rescission, variation, or expiry of a clearing injunction or an interim clearing injunction.
12 Although not directly relevant to that question, s 70 of the Act provides a context for the evaluation of the activities which I am satisfied that Mr Szulc undertook. That section authorises the CEO to issue a vegetation conservation notice to the owner or occupier of land if he suspects on reasonable grounds that unlawful clearing is likely to take, is taking or has taken place on the land. Failure to comply with a vegetation conservation notice constitutes an offence. As will be seen, the CEO issued a vegetation conservation notice to Mr Szulc.
The Soil and Land Conservation Act 1945 (WA)
13 The regime created by the Soil and Land Conservation Act 1945 is also relevant to the evaluation of the conduct which I am satisfied Mr Szulc undertook. Section 32 of that Act empowers the Commissioner of Soil Conservation to issue a soil conservation notice if of the opinion that land degradation is occurring or is liable or likely to become liable to occur as a result of, inter alia, the clearing of vegetation. The soil conservation notice may, amongst other things, direct persons to refrain from clearing land specified in the notice. Contravention of the notice is an offence contrary to s 35 of that Act. As will be seen, a notice was issued to Mr Szulc under that Act.
The facts
14 Pursuant to directions made prior to trial, the evidence adduced at the hearing consisted entirely of affidavits filed by the parties and some miscellaneous documents tendered by Mr Szulc. None of the deponents to those affidavits was required for cross-examination and, in the result, none of the facts upon which the CEO relies were in serious contention. The relevant facts which I find from the uncontested affidavit evidence are as follows.
15 Mr Szulc and his wife are jointly registered as proprietors of the farming property to which I have referred. However, at all material times Mr Szulc has been the sole occupant of the property.
16 On 30 September 1994, a soil conservation notice was issued to Mr Szulc and his wife as a result of land degradation arising from erosion caused by clearing sensitive areas of land. The notice restricted Mr Szulc from carrying out 'further development' on the property until a land management plan had been lodged with the Commissioner of Soil and Land Conservation. The soil conservation notice was registered as a memorial on the certificate of title relating to the property in November 1994. There is no evidence to suggest that a land management plan satisfactory to the Commissioner was ever provided by Mr Szulc and I find that no such plan was ever provided.
17 A group which comprises the Department of Agriculture and Food WA, the Commonwealth Scientific and Industrial Research Organisation, the Department of Water, the Department of Environment and Conservation, the Water Corporation and Landgate jointly acquire satellite imagery each year so as to monitor vegetation and salinity changes to land in Western Australia. As a result of that monitoring, in the latter half of 2008, changes in the vegetation cover on the property occupied by Mr Szulc were identified as having occurred between 2006 and 2008. The satellite images relating to the property suggested that approximately 100 ha of native vegetation had been cleared over that period. The satellite imagery is in evidence and is consistent with the observations which were made by departmental officers in the latter half of 2008.
18 As a consequence, Mr Craig Jaques, an officer of the Department of Conservation, attended the property on 10 December 2008. He met Mr Szulc and inspected an area where the clearing of native vegetation had taken place. Mr Jaques told Mr Szulc that the legislation relating to the clearing of native vegetation had changed in 2004, and that if he wanted to conduct further clearing of the land it would be necessary for him to apply for and obtain a clearing permit. Mr Jaques gave Mr Szulc an application form for a clearing permit as he left the property.
19 Satellite monitoring during 2009 suggested that a further 130 ha of native vegetation had been cleared. The satellite images are in evidence and are consistent with those observations. Consequently, on 23 September 2009, Mr Jaques returned to the property. Mr Szulc met Mr Jaques, and told him that he had been expecting him. Mr Jaques exercised his powers of entry as an inspector appointed under the Act and inspected various parts of the property. He observed recently cleared native vegetation evident over extensive areas of the property. Part of the area contained windrows of burnt eucalypt mallee trees. Such trees are native vegetation in this area of the south-west.
20 In other areas, Mr Jaques observed trees which had been pushed over and were lying flat on the ground. Mr Jaques surmised that the vegetation had been cleared by attaching a chain between two machines and dragging the chain over the vegetation.
21 During this visit, Mr Jaques gave to Mr Szulc a vegetation conservation notice dated 18 September 2009 signed by the CEO and a letter to Mr Szulc bearing the same date which explained the effect of the notice. The notice required Mr Szulc to ensure that no unlawful clearing, or no further unlawful clearing, took place on the land, and the letter explained that the notice applied to all unlawful clearing on the property. The covering letter explained that there were avenues of appeal against the issue of the notice, and set out the procedure to be followed in the event that an appeal was instituted. However, no appeal has ever been instituted against the issue of the notice, which remains in force.
22 Mr Jaques took a number of photographs depicting the recently cleared areas which he observed during this visit. Those photographs are in evidence and are consistent with the observations which he made.
23 Following that inspection these proceedings were commenced and on 8 October 2009 I granted an interim clearing injunction restraining further clearing of native vegetation on the property, unless in accordance with a clearing permit and the soil conservation notice. At a further hearing on 2 November 2009, I concluded that the interim injunction should continue in place until trial, although I modified the terms of the injunction to allow the clearing of a 6 m firebreak on the external boundaries of the property. Mr Szulc was present when I made the order and I explained the effect of the order to him. He was personally served on 9 October 2009 with a copy of the injunction which I had issued on 8 October, and in early November he was again served with a copy of the amended injunction which I had issued on 2 November 2009.
24 On 10 May 2010, Mr Jaques again inspected the property. I described the observations which he made during that inspection in detail in earlier reasons in this matter (Chief Executive Officer, Department of Environment v Szulc [2010] WASC 195 [19] - [26]). For present purposes it is sufficient to note that Mr Jaques observed that additional clearing of native vegetation had occurred on a number of areas of the property. In areas where trees had been pushed over and were lying on the ground, he noticed a metal bar and chains of the kind customarily used for clearing native vegetation using the method previously described. Mr Jaques took photographs of the recently cleared areas which he observed during his visit on 10 May 2010 which are in evidence. They are consistent with his observations, and establish that further clearing work had been undertaken since his previous visit to the property in October 2009.
25 Although Mr Jaques met Mr Szulc during his visit to the property on 10 May 2010, Mr Szulc was reluctant to engage in any significant conversation and suggested that the matter should be resolved in court.
26 The CEO relied upon the evidence of Mr Jaques' inspection of the property in May 2010 in proceedings for contempt brought against Mr Szulc in which it was alleged that he had wilfully breached the interim clearing injunction which I had ordered. On 26 July 2010 I found those allegations proven and sentenced Mr Szulc to a term of 3 months imprisonment. As there is no question of parole in relation to terms of imprisonment for contempt, Mr Szulc was released from custody on 25 October 2010.
27 A little over a month later, on 30 November 2010, Mr Jaques and others again inspected the property. They observed that additional clearing had recently occurred by the ploughing of the areas which had previously been the subject of clearing, which had resulted in the destruction of native vegetation which was regenerating in those areas. He also observed that areas that had been cleared prior to the granting of the clearing injunction had been ploughed, which also resulted in the destruction of regenerating native vegetation. Photographs were taken of the areas inspected during this visit which are in evidence and which substantiate the observations made.
28 On 18 May 2011, Mr Jaques again inspected the property. He observed that dense native vegetation which he had inspected the previous year had been burnt, and that additional areas had been ploughed. Photographs were again taken of the areas inspected. Those photographs are in evidence and substantiate the observations made.
29 The CEO again commenced proceedings for contempt based on the clearing work undertaken prior to the inspection on 30 November 2010, and the further work undertaken between that inspection and the inspection of 18 May 2011. On 11 November 2011, I found both charges proven, and sentenced Mr Szulc to 9 months imprisonment in respect of the clearing undertaken prior to 30 November 2010, and to a further term of 15 months imprisonment in respect of the clearing work undertaken prior to 18 May 2011, those sentences to be served concurrently.
30 The evidence, and the facts which I have found, establish beyond reasonable doubt that Mr Szulc had undertaken 'clearing' of native vegetation within the meaning of that expression in div 2 of pt V of the Act. It follows that unless that work was done in accordance with a clearing permit, or has been exempted from the operation of s 51C of the Act by the Clearing Regulations, the clearing work has been undertaken in contravention of s 51C (it being clear that sch 6 of the Act has no application to the clearing work undertaken). However, because there was a soil conservation notice issued in respect of the property, by virtue of s 51D(3)(b) of the Act, even if a clearing permit had been issued in respect of the clearing undertaken by Mr Szulc, s 51C of the Act would still apply if the clearing was in contravention of the soil conversation notice. At all events, it has been established that no clearing permit has ever been issued in respect of the property, and the soil conversation notice has remained in force since 30 September 1994, and no clearing activity has been authorised by its terms.
Possible defences
31 Despite efforts to obtain legal representation, Mr Szulc has represented himself at all stages of these proceedings, including the trial. Understandably, given his lack of legal training, he has had some difficulty in enunciating with any clarity any lines of defence to these proceedings. However, he did apply for an order dissolving the interim injunction in February 2011 and supported that application with affidavit evidence and submissions. He also advanced submissions during the course of the substantive trial. Doing the best I can to elucidate lines of defence of those materials, it seems that basically two lines of defence have been advanced although with a number of miscellaneous propositions.
32 First it is suggested that as the initial clearing of the property took place prior to the enactment of the Environmental Protection Act, the provisions of the Act do not apply to subsequent clearing activity. This proposition may be shortly disposed of. Division 2 of pt V of the Act applies to all clearing work undertaken since its commencement in 2004. There is no general provision exempting land cleared at any particular point in time from the operation of that division, or s 51C, although, as will be seen, there are provisions in the Clearing Regulations which authorise clearing for the continuing use of land for pasture or forestry purposes in certain circumstances. However, there is no element of retrospectivity involved in the operation of div 2 of pt V of the Act, in that it applies only to clearing work undertaken since its commencement. The CEO relies only upon clearing work undertaken by Mr Szulc in contravention of the Act for the purposes of the application for a clearing injunction. The fact that the property was first cleared prior to the commencement of the Act is therefore irrelevant.
33 Second, it is submitted that the clearing work either does or could fall within the Clearing Regulations and is thereby exempt from the activities prohibited by s 51C of the Act.
The Clearing Regulations
34 The first point to note with respect to the possible application of the Clearing Regulations is that clearing of a kind prescribed in those regulations is only exempted from the operation of s 51C if it is not undertaken in an 'environmentally sensitive area'. Apart from the evidence relating to the degradation of the property as a result of erosion, there is no direct evidence bearing on the topic of whether the property is situated in what could be described as an environmentally sensitive area. I will therefore proceed on the assumption that clearing would be exempted from the prohibition contained in s 51C if it is of a kind prescribed in the clearing regulations.
35 The Clearing Regulations were amended with effect from 4 December 2013, which was a few days prior to the hearing of this matter. The general effect of those amendments was to:
(a) increase the total amount of clearing that may be undertaken in any one financial year from one hectare to five hectares if the clearing falls within the exemptions contained in reg 5(1) items 1, 5, 6, 7, 10, 12, 13 or 19; and
(b) increase the period specified by item 14 of reg 5(1), within which land may be cleared to maintain existing cleared areas for pasture, cultivation or forestry, to include land lawfully cleared within 20 years prior to the clearing (instead of 10 years prior to the clearing).
36 The only regulation within the Clearing Regulations potentially applicable to the circumstances of this case is reg 5 which, as I have noted, contains a table comprising various categories of clearing work which are prescribed for the purposes of s 51C(c). The only items within the table that are potentially applicable to the circumstances of this case are as follows.
Item 3
37 This item prescribes clearing for the purpose of reducing fire hazards provided that clearing is done in such a way as to minimise long-term damage to the environmental values of the vegetation. However, in this case, there is no evidence to suggest that clearing on the scale undertaken by Mr Szulc was undertaken for the purposes of fire hazard reduction. To the contrary, the areas cleared, and the nature of the clearing work undertaken, give rise to a clear inference, which I draw, to the effect that the purpose of clearing was to enable the land to be used for cropping or pasture.
Items 10, 12 and 19
38 Items 10, 12 and 19 within the table contained in reg 5 prescribe clearing of land along a fenceline with a width necessary to provide access to construct and maintain a fence, clearing for vehicular tracks provided the clearing for the track is no wider than necessary, and the clearing of isolated trees that are more than 50 m from any other native vegetation, provided that the clearing, together with all other limited clearing carried out on the property does not exceed 5 ha of land per financial year in combination. However, the evidence clearly establishes that areas significantly greater than 5 ha were cleared by Mr Szulc, and, as I have noted, that the purpose of the clearing was not for access to fencelines, or for the provision of vehicular tracks, or for the clearing of isolated trees.
Item 14
39 Item 14 prescribes the clearing of land that was lawfully cleared within the 20 years prior to the clearing if:
(a) the land has been used as pasture or for cultivation or forestry within those 20 years; and
(b) the clearing is only to the extent necessary to enable the land to be used to the maximum extent to which it was used in those 20 years.
40 As I have noted, this item was recently amended to prescribe a period of 20 years in lieu of the period of 10 years previously applicable.
41 Mr Szulc did not provide any evidence which would enable any meaningful assessment to be made with respect to the applicability of this item. In particular, there is no evidence which would enable me to find that the land which has been cleared by Mr Szulc since 2006 had previously been used as pasture or for cultivation and if so, for what period, or whether the land was lawfully cleared within 10 years prior to the clearing undertaken by Mr Szulc prior to the amendment which extended the relevant period to 20 years. Nor is there any evidence from which an assessment could be made of the question of whether the clearing undertaken by Mr Szulc was only undertaken to the extent necessary to enable the land to be used to the maximum extent to which it had been used for pasture or for cultivation within the relevant period of 10 years (in respect of clearing undertaken prior to the recent amendments).
42 It is, however, clear from the evidence of Mr Jaques, and there is an inference from the photographs which have been tendered in evidence to the effect that the land which was cleared by Mr Szulc after 2006 had not been used for pasture or cultivation within a reasonable period preceding the clearing, as there was significant native vegetation on the land. Further, item 14 only applies to land that was lawfully cleared within 20 years prior to the prescribed clearing. As any land cleared after the issue of the soil conservation notice in September 1994 was not 'lawfully cleared' (see s 35(2) Soil and Land Conservation Act 1954 (WA)), land cleared for the purposes of pasture or cultivation after September 1994 cannot fall within the scope of item 14 of reg 5. Accordingly, I find that the clearing undertaken by Mr Szulc without lawful authority since 2006 is not clearing of a kind falling within item 14 of reg 5 of the Clearing Regulations.
43 However, the possible application of this item must be borne in mind when framing any clearing injunction. Whether or not the item applies will depend upon the time at which the clearing is undertaken (as the period of relation back is 20 years prior to the clearing) and upon the use to which the land has been put over the period of 20 years prior to the clearing. Clearly, part of the property occupied by Mr Szulc was cleared prior to 2006 and has been used as pasture or cultivation over a lengthy period. Because the nature and extent of any clearing work which might be undertaken by Mr Szulc on the property in the future cannot now be predicted with certainty, it follows that the question of whether or not that work may or may not fall within item 14 of reg 5 cannot now be ascertained with certainty either. In those circumstances, the preferable course is to exempt from any clearing injunction granted in these proceedings, clearing of a kind prescribed in the Clearing Regulations. I amended the interim injunction which I had previously issued accordingly at the conclusion of the hearing, and the permanent injunction which I propose to issue will be similarly modified. For analogous reasons, the injunction will not apply to clearing undertaken in accordance with a clearing permit issued under the Act, or of a kind specified in sch 6 to the Act, as such clearing would not contravene s 51C of the Act.
Item 26
44 During the hearing, Mr Szulc also drew attention to item 26 of reg 5 of the Clearing Regulations. That item prescribes clearing that is a result of carrying out an activity in respect of which notice of intention was given under reg 5 or reg 6 of the Soil and Land Conservation Regulations 1992, and which meets certain other requirements, and in respect of which a soil conservation notice has not been served. Leaving to one side the lack of any evidence to the effect that Mr Szulc gave notice of intention to clear within either reg 5 or reg 6 of the Soil and Land Conservation Regulations, it is clear that the land which he cleared after 2006 was land in respect of which a soil conservation notice had been served, with the result that item 26 of reg 5 of the Clearing Regulations cannot have applied.
45 For these reasons I conclude that none of the clearing work undertaken by Mr Szulc since 2006 and which has been the subject of evidence in these proceedings was of a kind which is prescribed for the purposes of s 51C of the Act. However, because the potential applicability of items within the table contained in reg 5 of the Clearing Regulations cannot now be predicted with certainty, clearing work falling within that regulation will be exempted from the permanent injunction which I propose to grant.
Miscellaneous lines of defence
46 During the hearing Mr Szulc tendered a number of documents and raised other lines of argument by way of defence. First, he referred the court to a letter from the CEO advising that Mr Szulc would not be prosecuted for unlawful clearing in contravention of s 51C. However, in light of the two periods of imprisonment Mr Szulc has already served for contempt of court, the decision not to prosecute him sheds no light upon the lawfulness or otherwise of the clearing activities he has previously undertaken.
47 Mr Szulc also referred me to communications between himself and the Commissioner of Soil and Land Conservation, in which he sought removal of the soil conservation notice. However, it is clear from the evidence that the notice has not been removed and consequently those communications provide no line of defence.
48 Mr Szulc also referred me to s 44 of the Soil and Land Conservation Act, which requires proceedings for an offence against the Act to be brought within two years after the offence was committed. Mr Szulc suggested that the effect of this provision was that any clearing undertaken more than two years after the soil conservation notice was issued in 1994 could not be the subject of proceedings for contravention of the notice. However, this misreads s 44, which refers to the period of two years after the relevant clearing, not the period of two years after the issue of the soil conservation notice. Further and in any event, the limitation provisions contained within s 44 of the Soil and Land Conservation Act relating to proceedings for contravention of that Act do not bear upon the lawfulness or otherwise of clearing action taken in contravention of a notice issued under that Act.
49 Next, Mr Szulc contended that the removal of vegetation which he had undertaken on the property did not fall within the definition of 'clearing', because the vegetation was only temporarily removed, and regenerated over time. However, the fact that other plants or trees might later germinate in the land cleared by Mr Szulc does not mean that native vegetation was not killed, destroyed or removed, or at least 'substantially damaged' by Mr Szulc during the clearing work which I have described.
50 Mr Szulc advanced a variation on that argument, when he proposed that the clearing of regrowth from land previously cleared was an inherent aspect of farming activity in the Australian bush, because regrowth will inevitably recur on land previously cleared, and that therefore the expression 'clearing' should be construed so as to exclude the removal of such regrowth. However, the definition of 'clearing' is unequivocal, as it refers to 'some or all of the native vegetation in an area' without regard to the question of whether that vegetation was original or had regrown following earlier clearing. The lawfulness of the clearing of land previously cleared is, inter alia, addressed by item 14 of the table in reg 5, to which I have already referred.
Conclusion
51 For these reasons I am satisfied that Mr Szulc has cleared native vegetation from the property the subject of these proceedings in contravention of s 51C of the Act on a number of occasions between 2006 and 2011. On three separate occasions that work was undertaken in contempt of orders issued by the court. Given that history, I cannot be confident that the issue of a permanent injunction will have the desired effect of restraining Mr Szulc from again clearing native vegetation from the property which he occupies in contravention of the Act. However, it is difficult to imagine a clearer case for the issue of a permanent injunction intended to have that effect, and the interim injunction which I granted at the conclusion of the hearing will be made permanent. As the CEO does not seek costs against Mr Szulc, there will be no order as to the costs of these proceedings.
0
1
3