Director-General, Department of Environment, Climate Change and Water v Venn - [2011] NSWLEC 118

Land and Environment Court

New South Wales

Medium Neutral Citation: Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118
Hearing dates: 7 March 2011, 13 May 2011, 23-27 May 2011, 1 June 2011, 17 June 2011 (supplementary written submissions)
Decision date: 08 July 2011
Jurisdiction: Class 4
Before: Preston CJ
Decision:
Declaration and injunctions as set out at [348]

Catchwords:
Civil enforcement - proceedings for orders to remedy and restrain breach of statute - picking of plants of endangered ecological communities - owner of private land directed clearing and filling of adjoining land - whether clearing and filling constituted picking of plants - whether plants picked were part of endangered ecological communities - past breach established - threatened or apprehended breach - appropriate orders to remedy and restrain breach - declaration of past breach - orders restraining future breach - orders remedying past breach.

Civil enforcement - proceedings for orders to remedy and restrain breach of statute - damaging and removing vegetation and soil from land reserved or acquired under National Parks and Wildlife Act 1974 ("Parks Act") - owner of private land directed conduct of clearing and filling of adjoining land - conduct damaged and removed
vegetation and soil - whether adjoining land had been acquired under Parks Act at time of conduct - transfer of land not registered until after conduct - whether land acquired before registration of transfer - whether adjoining land reserved under Parks Act as nature reserve at time of conduct - land eligible to be reserved includes land acquired under the Parks Act and lands of the Crown - whether adjoining land was land acquired under the Parks Act at time of reservation - whether adjoining land was lands of the Crown at time of reservation - whether adjoining land was vested in Minister administering Parks Act - alternatively whether adjoining land was lands vested in a public authority - whether Delta Electricity is a public authority - whether public authority granted concurrence to reservation of adjoining land as nature reserve - past breach not established - threatened or apprehended breach - adjoining land since been acquired under Parks Act - appropriate orders to restrain future breach.

Civil enforcement - proceedings for orders to remedy and restrain breach of statute - whether time barred - proceedings for an offence to be commenced within two years after date of offence - civil enforcement proceedings not proceedings for an offence - time bar not applicable.
Declarations and injunctions - civil enforcement proceedings - whether declaration should be made in addition to injunctive orders to remedy and restrain breaches of statute - declaration of breach appropriate to be made in circumstances -appropriate injunctive orders to restrain and remedy breaches - application of polluter pays principle to require polluter to remedy environmental harm caused by breach - whether discretion to decline relief should be exercised.
Legislation Cited: Annual Reports (Statutory Bodies) Act 1984 s 24A
Civil Procedure Act 2005 s 4 Sch 1
Criminal Procedure Act 1986 s 246
Energy Services Corporations Act 1995 s 4, 5, 6, 11, Pt 1 Sch 1
Environmental Planning and Assessment Act 1979 Pt 5
Independent Commission Against Corruption Act 1988
Land Acquisition (Just Terms Compensation) Act 1991
Land and Environment Court Rules 2007 r 5.3
Land and Environment Court Act 1979 ss s 20(1)(cg), 21(h)
National Parks and Wildlife Act 1974 ss 5(1), 30A, 30B, 30C, 118A(2), 145, 146, 148, 156A(1), 176, 189(1), 190(1), 191(1A), 193, Pt 4 Div 1, Pts 4A, 5, 11
Public Finance and Audit Act 1983 Pt 4
Real Property Act 1900 s 41(1)
State Owned Corporations Act 1989 ss 4, 20A, 20F, 20H, 20N, 20O, 20P, 20T, 20U, 24A, 28(2), 36(2), 37A(4), Sch 5
Threatened Species Conservation Act 1995 Pt 3 Sch 1, s 4
Uniform Civil Procedure Rules 2005 rr 1.5, 1.6, Pt 6 r 6.2
Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Australian Securities Investment Commission (ASIC) v Atlantic 3 Financial (Aust) Pty Ltd [2006] QSC 132
Barry v Heider (1914) 19 CLR 197
Barton v Orange City Council [2008] NSWLEC 104
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Commissioner of Taxation v Bank of Western Australia Ltd (1995) 61 FCR 407; (1995) 133 ALR 599
Committee of Direction of Fruit Marketing v Delegate of the Australian Postal Commission (1980) 144 CLR 577
Corin v Patton [1990] HCA 12; (1990) 169 CLR 540
Council of the City of Sydney v Mae [2009] NSWLEC 84
Ellison v Warringah Shire Council (1985) 55 LGRA 1
Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349
Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2009) 148 LGERA 299
Federal Commissioner of Taxation v Silverton Tramway Co Ltd (1953) 88 CLR 559
Great Lakes Council v Lani (2007) 158 LGERA 1
Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6
Lane Cove Council v Sarkozy (1996) 130 LGERA 240
Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127
Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; (2004) 138 LGERA 383
Renmark Hotel Inc v Federal Commissioner of Taxation (1949) 79 CLR 10
Strathfield Council v Xu Hong Lin and Wei Jiang t/as Play Electronics (1994) 130 LGERA 344
Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1
Tynan v Meharg & Newcastle City Council (1998) 101 LGERA 255
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Watt v Lord [2005] NSWSC 53
Western Australian Turf Club v Commissioner of Taxation of the Commonwealth of Australia (1978) 139 CLR 288
Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508
Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244
Woolworths Ltd v The Warehouse Group (Aust) Pty Ltd [2003] NSWLEC 31; (2003) 123 LGERA 341
Texts Cited: Keith D A & Scott J "Native vegetation of coastal floodplains - a diagnosis of the major plant communities in New South Wales" (2005) 11 Pacific Conservation Biology Journal 81-104
D J Whalan, The Torrens System in Australia, (1982) LawBook Co, Sydney
Category: Principal judgment
Parties: Director-General of the Department of Environment Climate Change and Water (Applicant)
Mr Anthony De Lisle Venn (Respondent)
Representation: Mr D K Jordan, Barrister (Applicant)
Ms C Kardell, Solicitor (Respondent)
NSW Department of Environment, Climate Change and Water (Applicant)
Ms C Kardell, sole practitioner (Respondent)

File Number(s): 40826 of 2010

Judgment

CIVIL PROCEEDINGS ARE BROUGHT TO REMEDY AND RESTRAIN CLEARING AND FILLING OF LAND

Mr Venn owns and occupies land at Colongra Point on the southern shore of Lake Munmorah. The land is formally described as Lot 2 in DP 509889 and is known as Lot 2 Macleay Drive, Halekulani ("Lot 2").

Adjoining Lot 2 to the northwest is land formally described as Lot 1 in DP 509889 ("Lot 1"). The Minister administering the National Parks and Wildlife Act 1974 ("the Parks Act") is the registered proprietor of Lot 1. Lot 1 forms part of an area of land known as Colongra Swamp Nature Reserve.

The topography of Lot 1 comprises a low-lying flat on its north-eastern portion ("the lake side") and an elevated area ("a low rise") on its south-western portion ("the land side"). Different vegetation communities occur on the low-lying flat and on the elevated area.

Between about May 2007 and July 2008, Mr Venn arranged for earth moving contractors to clear parts of both the low-lying flat and the elevated area of Lot 1 and deposit and spread fill over the cleared area ("the Disturbed Area").

On 13 October 2010, the Director-General of the then Department of Environment, Climate Change and Water commenced proceedings under s 193 of the Parks Act, by Statement of Claim, seeking orders to remedy and restrain two breaches of the Parks Act. The orders sought were amended at the hearing to include both prohibitory and mandatory injunctions and a declaration that Mr Venn had breached the Parks Act.

The two breaches alleged are, first, a breach of s 118A(2) of the Parks Act in that Mr Venn picked plants of two endangered ecological communities on Lot 1, one being the Swamp Oak Floodplain Forest of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions ("the Swamp Oak Floodplain Forest") and the other being the River-Flat Eucalypt Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions ("the River-Flat Eucalypt Forest") and secondly, a breach of s 156A(1)(b) of the Parks Act in that Mr Venn damaged and/or removed vegetation, soil, sand or similar substance from Lot 1 which was reserved under the Parks Act as Colongra Swamp Nature Reserve or acquired under Part 11 of the Parks Act.

Mr Venn defended the proceedings. At the outset, Mr Venn claims the proceedings are time barred. Section 190(1) of the Parks Act provides that proceedings for an offence under the Parks Act may be commenced within but not later than 2 years after the date on which the offence is alleged to be committed or the date on which evidence of the alleged offence first came to the attention of any authorised officer. Mr Venn claims that the two year period, from whichever date is used, would have expired by July 2010. The proceedings were not commenced until 13 October 2010 after the two year period expired. Hence, Mr Venn claims that the proceedings are time barred. The plaintiff's response, of course, is that the proceedings are civil proceedings under s 193 of the Parks Act for an order to remedy or restrain breaches of the Parks Act, not proceedings for an offence under the Parks Act, and hence the limitation period in s 190(1) has no application to such civil proceedings.

Mr Venn denies that he breached either s 118A(2) or s 156A(1)(b) of the Parks Act. As to s 118A(2), Mr Venn says that the vegetation on Lot 1 at the time of the alleged breach, was not part of either the Swamp Oak Floodplain Forest or the River-Flat Eucalypt Forest endangered ecological communities and, in any event, he did not pick any plant of such endangered ecological communities because only dead trees or exotic plants were picked, not live native plants.

As to s 156A(1)(b), Mr Venn says that, at the time of the alleged breach, Lot 1 had neither been validly reserved under the Parks Act as part of Colongra Swamp Nature Reserve nor been acquired under Part 11 of the Parks Act because the transfer of title to the Minister administering the Parks Act was not registered until 10 February 2009 which was after the alleged breach had occurred. Hence, Mr Venn claims that Lot 1 was not land to which s 156A(1) applied and his actions could not be in breach of s 156A(1).

Finally, Mr Venn says that the Court should not, in its discretion, grant the injunctive and declaratory relief sought by the plaintiff.

THE CIVIL PROCEEDINGS ARE NOT TIME BARRED

There are two types of proceedings that may be commenced to enforce the Parks Act: criminal proceedings and civil proceedings.

In relation to criminal proceedings, s 189(1) of the Parks Act provides:

"(1) Proceedings for an offence under this Act or the regulations may be dealt with:

(a) summarily before the Local Court, or

(b) summarily before the Land and Environment Court."

Section 191(1A) of the Parks Act provides:

"(1A) Proceedings for an offence under this Act may be instituted in the Land and Environment Court in its summary jurisdiction only by the following persons:

(a) the Director-General,

(b) an officer of the Service authorised by the Director-General for the purposes of this section."

Part 5, r 5.3 of the Land and Environment Court Rules 2007 provides:

"(1) Proceedings for an offence that may be taken before the Court in its summary jurisdiction are to be commenced in the Court by summons claiming an order under section 246 of the Criminal Procedure Act 1986 in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence.

(2) A summons seeking an order pursuant to section 246 (1) of the Criminal Procedure Act 1986 is to be accompanied by the affidavits intended to be relied on as establishing prima facie proof of the offence charged."

Section 246(1) and (2) of the Criminal Procedure Act 1986 provide:

"(1) A prosecutor may apply for an order:

(a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or

(b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order.

(2) The application must be in accordance with the rules."

The Land and Environment Court has jurisdiction in Class 5 to hear and dispose of in a summary manner proceedings under s 189(1) of the Parks Act: s 21(h) of the Land and Environment Court Act 1979 (noting that s 176 of the Parks Act has been renumbered as s 189).

In relation to civil proceedings, s 193(1) of the Parks Act provides:

"(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations, whether or not any right of that person has been or may be infringed by or as a consequence of that breach."

The Land and Environment Court has jurisdiction in Class 4 to hear and dispose of proceedings under s 193 of the Parks Act: s 20(1)(cg) of the Land and Environment Court Act (noting that s 176A has been renumbered as s 193).

Section 4 and Schedule 1 of the Civil Procedure Act 2005 apply that Act to civil proceedings in Class 4 of the Land and Environment Court's jurisdiction. Part 1, r 1.5 and Schedule 1 apply the Uniform Civil Procedure Rules 2005 to proceedings in Class 4 and Part 1, r 1.5(2) and r 1.6 and Schedule 1 do not exclude any provisions of either the Civil Procedure Act or the Uniform Civil Procedure Rules for proceedings in Class 4.

Accordingly, proceedings under s 193 of the Parks Act are to be commenced in the Land and Environment Court by filing a statement of claim or by summons: Part 6, r 6.2 of the Uniform Civil Procedure Rules. As I have noted, the plaintiff commenced the current proceedings by filing a Statement of Claim.

These two types of proceedings under s 189 and s 193 of the Parks Act are distinct in nature, originating process and the Court's jurisdiction to hear and dispose of the proceedings.

The two year limitation period prescribed in s 190(1) of the Parks Act is expressly stated to apply only to "[p]roceedings for an offence under this Act or the regulations". This is a reference only to proceedings under s 189 of the Parks Act, which also expressly applies to "[p]roceedings for an offence under this Act or the regulations". Proceedings under s 193(1) of the Parks Act, in contrast, are not stated to be proceedings for an offence under the Parks Act or the regulations but instead to be "proceedings ... for an order to remedy or restrain a breach of this Act or the regulations".

I reject Mr Venn's submission that "breach" and "offence" are synonomous and interchangeable and that proceedings under s 193 are proceedings for an offence. Proceedings under s 193 are civil proceedings to remedy or restrain a breach of a statutory prohibition. They do not attract a criminal conviction or a penalty. They are not criminal proceedings for an offence: Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; (2004) 138 LGERA 383 at [15], [16].

Hence, the two year limitation period in s 190(1) does not apply to bar the plaintiff's proceedings under s 193 of the Parks Act.

BREACH OF S 118A(2) OF THE PARKS ACT

The elements of the statutory provision breached

Section 118A(2) of the Parks Act provides:

"(2) A person must not pick any plant that is of, or is part of, a threatened species, an endangered population or an endangered ecological community."

An endangered ecological community is defined in s 5(1) of the Parks Act to mean "an endangered or critically endangered ecological community within the meaning of the Threatened Species Conservation Act 1995. "

An endangered ecological community is defined in s 4 of the Threatened Species Conservation Act 1995 to mean "an ecological community specified in Part 3 of Schedule 1" to that Act and an ecological community is "an assemblage of species occupying a particular area."

Part 3 of Schedule 1 of the Threatened Species Conservation Act sets out all of the ecological communities which have been listed as endangered. The two endangered ecological communities relevant for this case are:

"River-Flat Eucalypt Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions (as described in the final determination of the Scientific Committee to list the ecological community)"

"Swamp Oak Floodplain Forest of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions (as described in the final determination of the Scientific Committee to list the ecological community)."

I will return later in the judgment to consider the terms of the final determinations of the Scientific Committee to list each of these ecological communities as endangered ecological communities.

A "plant", which is part of an endangered ecological community, is not defined directly in the Parks Act but its meaning is described in the context of "pick". Section 5(1) of the Parks Act provides that:

" pick a plant (including a native plant, a protected native plant and a plant that is of, or is part of, a threatened species, population or ecological community) includes gather, pluck, cut, pull up, destroy, poison, take, dig up, crush, trample, remove or injure the plant or any part of the plant."

Hence, the proscription in s 118A(2) is against doing any action of the kind described in the definition of "pick" in relation to a native plant that is part of an endangered ecological community.

To establish a breach of s 118A(2), therefore, the plaintiff needs to prove, on the civil standard of proof of the balance of probabilities, that Mr Venn, between about May 2007 and July 2008, picked any native plant that is part of either or both of the endangered ecological communities of Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest.

Mr Venn's responsibility for the actions of picking

Mr Venn admits that he is responsible for the work of clearing and filling that took place on Lot 1 between about May 2007 and July 2008. Mr Venn says in his second affidavit of 11 May 2011 that "I have done the Work, which is currently the subject of these proceedings, because I consider the foreshore of the Land to be mine and my responsibility" (para 40). Mr Venn explains his intentions for arranging for the work of clearing and filling of Lot 1:

"46. I initially intended only to complete the foreshore works started by the mining company on Lot 2 in 1996, because I had the development consent for DA 726/95 for the work. But when I had the opportunity to put some good soil in there to raise and stabilise the foreshore on the Land I couldn't resist. I realised how much could be achieved.

47. I have not completed the planned Work on the Land. I've done some work on the mid section and had started to extend into the southern section. But even as it stands, I think it is an improvement, because the mid section is still there. Before, it was increasingly looking like the ooze in Pic 46, tab 16, Venn-01.

...

49. I wanted to put in about 400mm of fill, including topsoil, which I estimated would raise the Work area, safely above the Lake Water unless it subsided further ...

50. The trees in the mid section I had cleared were dead and mostly melaleuca, with a few casuarinas. They had no branches, just dead sticks in the air: like those shown in the photo of the area immediately to the north of the Work area, although it wasn't ever as thick as that (tab 17, Venn-01). It was waterlogged, detritus filled ooze and nothing was growing. It was a dead place. And not even lantana grew, because it was so waterlogged and salty." (Venn second affidavit of 11 May 2011).

Mr Venn describes how he came to an agreement with Mr Michael Bruce of T J Excavations Pty Limited, initially to do works on Lot 2, in accordance with the development consent that had been granted by Wyong Shire Council in 1995 for foreshore rehabilitation works on Lot 2 after the subsidence in 1992, but then he extended the works to the clearing and filling of Lot 1. Mr Venn says:

"89. I understood from Mick [Bruce] that he could get hold of some good sized rubble and clean fill, as much as I needed and so long as he got exclusive access to the site. He'd manage the work, with his machines on site. He'd line up other contractors to bring in fill from their jobs, charge them for each bin, which would cover his costs. Then he could make sure the fill was good clean fill. He'd get them to get the proper certificates for each load, so he wanted me to get them to contact him if anyone called. He had several projects underway and could start straight away. I agreed.

94. The plan was to bring the trucks in along the front lawn area in front of my home to continue along the existing section of road, which led down to where the old scout camp area used to be. Bring in some road base for a road across my front lawn. Excavate for the road: stockpile the topsoil near the Work area. Install drainage. Widen and take the 'corner' area off the existing (boat rack/access) road, create a turning area to be able to swing the big trucks around to back down the hill to tip the load into the ooze at the bottom of the slope. Then, gradually widen the platform and go out from there. The dead trees in the Work area would be pushed over leaving the roots in the ground. The fill would be applied to the potholes and over the top of the existing surface, up to about 300mm in depth, before topping it up with topsoil. The dead trees would be stacked to one side to be burnt later. A silt fence would be put in to protect the lake and the casuarinas along the shoreline. I would re-plant it with native vegetation.

95. Taking the 'corner' off meant taking two or three apple gums about 100mm diameter and a lot of lantana and bitou bush. I couldn't see a problem with that, because Council doesn't require consent for trees less than 100mm and lantana and bitou were weeds. I knew that dead trees could be removed without Council consent. I worked out that I could safely fill the potholes and raise the land by about 400mm, including topsoil without consent." (Venn second affidavit of 11 May 2011).

Mr Venn similarly admitted responsibility for the clearing and filling of Lot 1 in his and his solicitor's letters to the plaintiff. In Mr Venn's letter of 8 January 2008, Mr Venn said:

"I am removing the dead and dying trees and filling the potholes. I intend to stabilise the area as best I can, before replanting the foreshore area with Casuarina glauca and Melaleuca quinquenervia and other appropriate Eucalypts and suitable vegetation to encourage fauna.

I have had to remove quite a lot of lantana and a number of small apple gums (less than 100mm diameter) to allow access, but I see this as an opportunity to replace the lantana with understorey like Acacia longifolia , Banksia integrifolia and others when the work is complete. I have been careful to avoid removing any vegetation that might support local wildlife, in the process." (Venn first affidavit of 16 February 2011, Tab 17, p 7).

In the letter of Ms Kardell, Mr Venn's solicitor, of 7 July 2008, the work being done by Mr Venn was described as follows:

"The work in question is being done on the lake foreshore. It is to be done in three stages. The first (central) section of dead and dying Casuarinas, reeds and weeds have been removed and the potholes and subsided areas are being filled. This will be spread with a good topsoil and be planted with Casuarina and young Eucalypts and understorey plants that are native to the area. The temporary roads for access are to be removed, top-dressed and re-planted with native trees and plants." (Venn first affidavit of 16 February 2011, Tab 18, pp 1-2).

Mr Venn's solicitor said in her letter of 14 April 2010:

"Mr Venn is concerned to stop the erosion & subsidence of the foreshore into the lake and to that extent he has changed the hydrology and stopped the erosion of the bank thereby returning the land to a condition where it can (again) support the growth of swamp oak and melaleuca." (Venn first affidavit of 16 February 2011, Tab 22, p 3).

Mr Bruce confirms that his company, T J Excavations Pty Limited, was engaged by Mr Venn to carry out the clearing and filling work on Lot 1 (Bruce affidavit of 4 March 2009, para 6). Mr Bruce said that, in about April 2007, he went to Mr Venn's house and they walked along the waterfront of Lake Munmorah and to the west to an old rickety fence (this fence is on the northern boundary of Lot 1 with Lot 3 in DP 1029487 in the zone of dead trees). Mr Bruce recounts Mr Venn's directions (he refers to Mr Venn by his first name Tony) as to the work Mr Venn required Mr Bruce to do as follows:

"33. When we were in the area of the Old Rickety Fence, Tony said, 'If you clear all this for me, you can bring as much fill in as you want'.

34. Tony said that he wanted the area from the existing lawn area to the Old Rickety Fence cleared and brought up to the same level and dressed with topsoil.

35. I understood that Tony intended to use the area to be cleared for a Scout camp because Tony said, 'I want it like that grass there, exactly the same up there', referring to the lawn area on the point [Colongra Point which is on Lot 2]. Tony said, 'less trees the better so the kids can set their tents up and it is not going to flood down there so they can use it for their Scout camp.'

36. I understood that Tony was referring to clearing the existing vegetation in the area of the lake foreshore. The type and density of vegetation depicted in the photograph 'MB-C' (Tab 3 of Exhibit MB-01) is similar in species and density to the vegetation that extended from the area of the Old Rickety Fence to the existing lawn area depicted in photograph marked 'MB-A(1)' (Tab 1 of Exhibit MB-01). The only difference is that there were a lot less dead trees towards the east, about 30% dead or dying, 70% alive. I recognised that the trees in the Lower Section included what I know as Swamp Oak and the occasional Paper Bark with Eucalypts further back away from the lake.

38. I can't recall if it was then or later that Tony spoke about the Swamp Oaks in the lower area of the property. Tony said, 'Knock them over, they're weeds. They're not protected.'

39. We discussed how the job was to be undertaken, things like the need to build up the road leading from the gate to the area that was to be cleared and filled. I indicated to Tony that I would need to discuss it with my then business partner, John Rogers ("John").

40. I spoke to John about it and agreed that Tony's proposal sounded alright. It wasn't long, about 2 or 3 weeks after the first visit that I attended the property with John and we spoke with Tony. We discussed the way that the work would be carried out - in stages - building up the road so that the trucks could get down the back with the fill, clear and fill one section then continue on towards the Old Rickety Fence. I tried to negotiate a price for the clearing work with Tony but he would not accept any part of it, saying that we were being able to tip for free. At some stage Tony said, 'You are allowed to bring rubble and that in here too.'

41. John and I agreed to do the work as long as Tony could provide us with a copy of the Development Consent. When we were at Tony's house, he handed me a single page document which I now know relates to works authorised to be carried out on Lot 2 in DP 509889 and is part of Development Consent 726/95 ...

42. When I saw the date of the Development Consent I said: 'It's out of date.' Tony said, 'The DA does not run out until the work's finished.'" (Bruce affidavit of 4 March 2009).

Later, when recounting the work that he did on the low-lying flat on the lake foreshore, Mr Bruce said:

"Tony wanted us to clear the vegetation and fill all the way to the lake but I refused to." (Bruce affidavit of 4 March 2009, para 50).

When describing how he pushed the trees over with an excavator, Mr Bruce said:

"Tony said he wanted the roots kept in the ground to establish the ground and it would be more to burn anyway." (Bruce affidavit of 4 March 2009, para 51).

Mr Bruce noted that:

"64. The area that was to be cleared and filled wasn't marked by Tony but it was clear to me where we were to carry out the work because I received specific instructions from Tony and no one else. I would see and speak to Tony on the property nearly every day we worked there and if he had his way we would have knocked over more trees and cleared right to the water's edge. At no time did I receive any payment for the work that was carried out on the property. The benefit I received was having a place to dump clean fill at little or no cost.

65. At no time did Tony indicate or communicate that we were doing the wrong thing, if anything he was encouraging us to do more." (Bruce affidavit of 4 March 2009, paras 64 and 65).

In oral evidence, Mr Bruce said it was "Tony's job"; "Tony was directing what to do" and that Tony "gave advice and direction". Mr Bruce gave two examples of specific directions given by Mr Venn. Mr Bruce said Mr Venn told him to leave 500mm of the stump when the tree was pushed over to hold the ground together before it was covered with fill. Mr Bruce also said that his work on the low-lying flat to strip back the reeds and sedges and push them to the side to make a bund to stop run off was in accordance with what he was told to do by Mr Venn.

The picking of plants

The wide definition of "pick" in s 5 of the Parks Act means that a variety of actions undertaken in the clearing and filling of Lot 1 involve the picking of plants. These include the pushing over of trees; snapping trees off but leaving stumps; breaking branches of trees; injuring the bark of trees; digging up reeds, sedges, rushes and other ground cover; digging up, cutting or injuring roots of trees and other vegetation; digging up soil containing parts of plants such as seeds, bulbs, corms, rhizomes, rootstocks, tubers or lignotubers; destroying plants by placing fill on top of plants; and injuring trees by placing fill around the base of the trunks of trees and over their root zone.

The evidence that such picking of plants occurred on Lot 1 is extensive. It includes the evidence of Mr Bruce and Mr Murphy who undertook the work of clearing and filling on Lot 1, the direct observational and photographic evidence of persons visiting Lot 1 during the period of work from May 2007 to July 2008 and the expert evidence of Dr Keith. Notwithstanding this extensive and indeed overwhelming evidence of picking of plants, Mr Venn denied he had picked any live plants, although he did concede three small apple gums may have been removed, and instead asserted that only dead trees and weeds were removed. Mr Venn's denial, therefore, necessitates the setting out of the evidence of picking of plants.

The evidence of the persons who cleared and filled Lot 1

First, there is the evidence of the two persons who undertook the clearing and filling work, Mr Michael Bruce and Mr Keith Murphy. Mr Bruce's evidence, both in his affidavit of 4 March 2009 and his oral evidence at the hearing, was that he cleared both live and dead vegetation on Lot 1.

In Mr Bruce's description of the work undertaken in clearing and filling the land provides an explanation of the various ways in which plants were picked. Mr Bruce said:

"49. One of the first jobs we did on the property, after clearing some Lantana, was build the road out of an existing track. We dug out the topsoil to get to hard ground and I think we may have put terra firma cloth over that before bringing in some compacted material from the Caves Beach job. It took about 200m of fill to build the road. We put the topsoil that was dug out of the existing track down to the area that was later cleared and then spread.

50. Before I started work on the Lower Section, towards the lake foreshore, I erected a silt fence along the shoreline about 4m from the water's edge. Tony wanted us to clear the vegetation and fill all the way to the lake but I refused to. We then started working on clearing the vegetation. The silt fence is depicted in photograph marked 'MB-O' (Tab 15 of Exhibit MB-01) [Earlier Mr Bruce stated that this photograph 'depicts a silt fence and bund wall that was set up along the northern edge of the cleared area, adjacent to the lake foreshore': para 23].

51. The trees were pushed over with the excavator by me and John [John Rogers, Mr Bruce's then business partner]. I would give them a tap with the excavator like we were told and then move on to the next tree and give that a tap, before going back to the first tree and push it over, snapping it off at the base, just above ground level. Tony said he wanted the roots kept in the ground to establish the ground and it would be more to burn anyway. This is depicted in photographs marked 'MB-H' (Tab 8 of Exhibit MB-01) and 'MB-I' (Tab 9 of Exhibit MB-01) [being photographs 018 and 019 taken by Mr McKay on 19 October 2007, although incorrectly labelled 18 Aug].

52. The trees in the Lower Section were about 3-4m apart, predominately Swamp Oak with the occasional Paperbark ... There were about 3 or 4 trees in the Lower Section that were dead and had fallen over and some of the remaining standing trees were dead or dying. We knocked down at least 20 trees in the area that we cleared initially. The largest tree would have been about 250mm in diameter and 20 ft (6m) tall. Of the 'at least 20 trees' we knocked down, about 30% were dead or dying and about 70% were alive.

53. The trees were placed into stacks and were burnt. The fire brigade attended the day the stacks were lit and put out the fires. I understand that people from the nearby caravan park complained about the smoke from the fire so Tony told the personnel from the fire brigade 'okay, we'll stop doing it.' The stacks of trees and fires are depicted in photographs 'MB-F' to 'MB-J' inclusive [photographs 010, 011, 018, 019 and 021 taken by Mr McKay on 19 October 2007, although incorrectly labelled 18 Aug. Earlier in his affidavit, Mr Bruce had identified by reference to these photographs that the area depicted was 'an area of Lot 1 that was cleared of vegetation and had fill placed on it' (para 14), the fire depicted 'was conducted using vegetation cleared from within Lot 1' (para 15) and that the vegetation depicted 'was 'cleared on Lot 1 and burned' (paras 16-18)].

54. Just before the fires we had started clearing the vegetation, which consisted of grass, similar to that depicted in photograph marked 'MB-C' [referring to a photograph taken on 14 May 2007 to the north of Lot 1 showing reed and sedge groundcover] and Lantana. We dug out 300mm of the vegetation and soil and placed the material into two piles, one at the eastern end of the clearing and the remainder as the bund wall next to the silt fence along the foreshore. After we cleared the vegetation we started bringing in the fill, which was certified fill from the job I was also doing at Caves Beach. The fill was spread and the area profiled. We only brought in fill from time to time as it became available. A copy of the Virgin Excavation Natural Material (VENM) report for the material is located at Tab 19 of Exhibit MB-01.

55. Photograph marked 'MB-N' (Tab 14 of Exhibit MB-01) [photograph taken on 7 November 2007] depicts the condition of the cleared area we did to the end of the first stage. I sub-contracted a bloke I know as Keith MURPHY to do some work including spreading fill and profiling. I now know that was at the end of October 2007." (Bruce affidavit of 4 March 2009).

Mr Bruce referred to photographs taken on 16 November 2007 by Ms Lawley (photographs 100-3328 and 100-3330) and said they depict "fill" that was deposited onto Lot 1 in DP 509889 and "spread around vegetation" (paras 19 and 20). Mr Bruce also referred to a photograph taken by Mr Gifford on 3 July 2008 (picture 001) which he said depicts "fill that was deposited onto Lot 1 in DP 509889 and a stack of trees which were pushed over as part of the clearing activity" (para 21).

Mr Bruce continued his description of the activities, which constitute picking of plants, as follows:

"56. After that date [end of October 2007] we continued to work on the property but only when fill was available. We started clearing the vegetation towards the Rickety Old Fence [between the boundary of Lot 1 and DP 1029487 to the north] and pushed over a number of trees. Again, about 30% were dead or dying and about 70% were alive. Photograph marked 'MB-M' (Tab 13 of Exhibit MB-01) [Mr Gifford's picture 001 taken on 3 July 2008] depicts the trees we knocked over and stacked beyond the first stage and the fill that was brought into the area.

57. Between the start of the job and 3 July 2008, I would say we brought in about 2,000m of fill. We avoided placing fill around trees but some fill was placed around the trees in the southern area of the clearing but only to a depth of about 200mm. The depth of the fill near and around the base of trees is depicted in photographs marked 'MB-K' (Tab 11 of Exhibit MB-01) and 'MB-L' (Tab 12 of Exhibit MB-01) [Ms Lawley's photographs 100-3328 and 100-3330 taken on 16 November 2007].

58. On 3 July 2008 I arranged to take approximately 180 m of fill to Lot 1 in DP 509889. While we were in the process of taking fill to the property I spoke to a person I now know as Steven JAMES, an investigator with the Department of Environment and Climate Change ... By that stage we had taken about 150 m of fill to the property. I was instructed by Steven JAMES to stop placing fill onto the property and cancelled the two trucks that were on the way there.

59. Later that day I spoke with Tony about being told to stop work. Tony said that if I stopped work he would take legal action against me. He also said that the people from the National Parks and Wildlife Service were not allowed on his property.

60. It was around that time that Tony said, 'it looks like a minefield'. I said, 'I can't come there because the EPA come in.' Tony said, 'well, come in and spread it' referring to the piles of fill.

61. Tony also wanted the stack of trees that were present in the clearing, depicted in photograph marked 'MB-M' [Mr Gifford's picture 001 taken on 3 July 2008] burnt.

63. The only work I did on Lot 1 in DP 509889 after 3 July 2008 was to spread the fill that was on site and burn the trees in the stack, as well as three loads of trees I brought in from another job. Tony wanted me to continue with the clearing work but I refused to." (Bruce affidavit of 4 March 2009).

In his oral evidence, Mr Bruce supplemented his description of the clearing and filling undertaken on Lot 1. Mr Bruce said it took about three to four days just to clear the trees. He cleared using an excavator. The excavator would nudge the tree then snap it over. He left about 500 mm of stump. He confirmed that of the trees which were knocked over, 30 per cent were dead or dying and 70 per cent were alive.

On the low-lying flat, Mr Bruce said he stripped the topsoil and pushed it to the side to make a bund wall. Sedges were in the ground in the topsoil. Mr Bruce said it was necessary to remove the sedges as you could not put fill on grass because the grass would rot. You use the topsoil and sedges as a bund to stop runoff from the cleared area into the lake.

Mr Bruce was again shown various photographs. A photograph taken by Ms Lawley on 16 November 2007 (photograph 100-3326) showed a pile of soil at the north-western end of the cleared area with a pile of timber behind. Mr Bruce said that was a pile of fill brought into the site and not topsoil stripped from Lot 1 or Lot 2. A photograph taken by Mr McKay on 19 October 2007 (photograph 022) depicted a pile of timber in the north-western end of the clearing. Mr Bruce said the timber appeared to be pushed over by the excavator. This was the same pile of timber behind the pile of fill depicted in Ms Lawley's photograph of 16 November 2007.

In relation to the bund wall, Mr Bruce was shown one of Ms Lawley's photographs taken on 16 November 2007 (photograph 100-3337) showing the sedges in the topsoil pushed to the side to form a bund against the silt fence on the lake-side and a drainage ditch on the land-side of the bund. Mr Bruce's answers as to how he made the bund were in response to this photograph.

Another photograph (photograph 100-3338) showed trees at the south-eastern end of the clearing towards the boundary of Lot 1 with Lot 2. Mr Bruce said one tree had already come down in the storm [this was a large Melaleuca quinquenervia ] but the other tree rubble pushed over was done by him or his workers. In the foreground of the photograph there were sedges pushed aside in the bund. Mr Bruce denied in cross-examination by Mr Venn's solicitor that he had pushed Lantana down to the silt fence to make the bund.

Mr Murphy was subcontracted by Mr Bruce to spread and profile the fill from 31 October 2007. Mr Murphy described his instructions:

"I was to push the fill from the southern end towards the lake foreshore and spread it around. I was also instructed to cut out a hump that existed halfway down the cleared area creating a gradual slope from the southern edge to the foreshore. I have marked in red on the aerial photograph marked 'KM-B' the general area I was in when I received my instructions. I have also marked in blue on the aerial photograph marked 'KM-B' the general instructions I received." (Murphy affidavit of 13 March 2009, para 12).

On the aerial photograph marked "KM-B", Mr Murphy wrote the words "cut in here" on the elevated area and "fill" on the slope running down to the low-lying flat and wrote "angle" on the slope between the elevated area and the low-lying flat.

Mr Murphy said he did the work as instructed on 31 October and 1 November 2007. Mr Murphy also said:

"At one stage Mick [Bruce] asked me to clean out the vegetation under the canopy of trees on the eastern side of the clearing. I have marked in blue on the aerial photograph marked 'KM-B' the area that I was asked to clean out by Mick. I'm not sure what the type of vegetation was but it had some vines and what I would describe as rubbish vegetation. It only took me half an hour to finish that off, pushing the vegetation to around the base of a pile on the foreshore side of the area I cleaned up. I have marked an arrow in blue on the aerial photograph marked 'KM-B' where the pile was. I believe the pile was just grass and dirt from the already cleared area." (Murphy affidavit of 13 March 2009, para 18).

The area Mr Murphy marked with a blue arrow and which he said he cleared is on the eastern edge of the cleared area on the slope between the elevated area and the low-lying flat.

Mr Murphy looked at photographs taken on 7 November 2007 by Mr Eaton, (photographs PICT 0019 to PICT 0025). Mr Murphy said "the photographs accurately depict the work that I carried out on the Property. I am able to identify the marks left by the bucket blade of the machine I was operating. I can also recognise the marks left by the 'back blading' that I did, referring to the method used to create the grade downhill towards the foreshore." (Murphy affidavit of 13 March 2009, para 22).

One of the photographs taken on 7 November 2007 by Mr Eaton (photograph PICT 0021) depicts a pile of vegetation on the low-lying flat at the base of the eastern edge of the slope at the location to which Mr Murphy said he pushed the vegetation he cleared on 1 November 2007. This is a pile of vegetation Mr Venn asserted was vegetation that had been transported from elsewhere.

The observational evidence of National Parks officers

Next, there is the evidence of the observations and photographs of clearing and filling by a variety of persons from the National Parks & Wildlife Service ("NPWS") or Department of Environment, Climate Change and Water ("DECCW"), Wyong Shire Council, and the Friends of Colongra who attended Lot 1 at various times during May 2007 to July 2008.

There were four witnesses from NPWS or DECCW. Mr John Eaton, a Bush Regeneration and Volunteer Co-ordinator for NPWS, attended Lot 1 on 5 July 2007 with other persons including Mr Gifford and Mr Dalton. Mr Eaton said he approached the cleared area from the western side, in an area of subsidence between the swamp and lake foreshore. He said:

"I observed that area approximately half a hectare in size appeared to have been cleared of vegetation down to mineral earth. There were at least two piles of what looked like vegetation and soil in the Cleared Area, one at the western edge." (Eaton affidavit of 23 July 2010, para 11).

Mr Eaton also said "[t]here were a large number of tyre tracks apparent in the Cleared Area as well as what appeared to be scrape marks on the earth and some trees from machinery" (para 13).

Mr Eaton returned to Lot 1 many times thereafter. On 7 August 2007, Mr Eaton observed fill in piles in the cleared area but none appeared to have been spread (para 14).

On 7 November 2007, Mr Eaton took photographs and Mr Eaton observed that more fill had been brought into the area, piles of fill still existed but fill had also been spread (para 18). A large amount of the cleared area had been filled and profiled (para 19). Mr Eaton's photographs of the filled and profiled areas were the photographs shown to Mr Murphy. Mr Eaton observed an earthen wall in the nature of a bund between the northern end of the clearing and the lakefront. The earthen wall appeared to be recently formed (para 20).

On 16 November 2007, Mr Eaton attended Lot 1 with Mr Ball and Ms Lawley, both from Wyong Shire Council and took photographs (para 21). Mr Eaton observed four more piles of fill had been placed in the south-western corner of the clearing since his visit on 7 November 2007 (para 23) and that more fill had been placed and spread in the south and south-western areas of the clearing, including around the base of trees (para 24). Mr Eaton "observed that standing trees at the very eastern end of the clearing (present on 5 July 2007 and adjacent to a lawn area) had been pushed over as depicted in photograph PICT 0066" (para 25). This location is on the low-lying flat towards the boundary of Lot 1 with Lot 2. The photograph shows the silt fence and earthen bund.

On 22 November 2007, Mr Eaton attended Lot 1 with Ms Hines and observed and took photographs of more piles of fill that had been placed in the southern cleared area where he had observed fill on 16 November 2007 and in the south-eastern corner of the clearing (paras 27 and 28).

On 3 July 2008, Mr Eaton attended Lot 1 with volunteers from the Friends of Colongra, as well as Mr Gifford, Ms Conyers and Mr James. He observed and took photographs of heavy machinery in the cleared area depositing fill on to the ground, piles of soil in the cleared area and "a number of apparently live trees had been placed into a stack" (para 30).

Mr Eaton attended Lot 1 on 15 and 22 July 2008 and took further photographs.

Mr Gifford, a Ranger with NPWS, attended Lot 1 with Mr Eaton on 5 July 2007. Mr Gifford states:

"I observed that area approximately 200 m long and 100 m wide, immediately adjacent to the lakefront, appeared to have been cleared of the majority of vegetation piled into stacks within the Cleared Area. Trees, including live Casuarina glauca , appeared to have been pushed over by mechanical means and were amongst the stacked material. I observed tyre marks and other signs of machinery, including marks on prone, tree trunks and scrape marks, present in the area." (Gifford affidavit of 12 March 2009, para 4).

Mr Gifford also attended Lot 1 with others, including Mr Eaton and Ms Conyers, on 3 July 2008. He observed and took photographs of: heavy machinery in the cleared area; fill present in piles on the ground; fill had been spread in the cleared area, raising the profile of the cleared area; and "live trees, including Casuarina glauca had been pushed over by mechanical means and placed into stacks." (Gifford affidavit of 12 March 2009, paras 20-22).

On 15 July 2008, Mr Gifford attended Lot 1 with Mr Eaton and "observed that fill that had [been] deposited in the Cleared Area was spread around the base of apparently mature Eucalypt trees" (para 26). Mr Gifford took a close up photograph of the "base of a Casuarina glauca tree which was located in the north-eastern corner of the Cleared Area" (PICT 024) (para 27). The picture shows the snapped base of the tree. Mr Gifford photographed what he described as "the northern side of the Cleared Area" (but the photograph depicts the low-lying flat towards the boundary of Lot 1 and Lot 2) showing tyre marks and vegetation laying prone on the ground (para 29).

Ms Bronwyn Conyers, the Area Manager for the Lakes Area of the Central Coast Hunter Range Region of NPWS, attended Lot 1 with Mr John Eaton and others on 3 July 2008 and took photographs. Ms Conyers states:

"I observed that there was heavy machinery in the Cleared Area that appeared to be depositing fill onto the ground. I observed that piles of soil had been placed into the Cleared Area and a number of live trees had been placed into a stack." (Conyers affidavit of 12 March 2009, para 6).

Mr Steven James, an officer with the Specialist Investigations Unit of DECCW, attended on 3 July 2008 with others and recounted:

"I observed that there were a number of trucks including a truck (registration YEC 234) and a truck with trailer (registration 173 QLG) which had an excavator on the back of the trailer within the Cleared Area. I observed that the machinery in the Cleared Area appeared to be depositing fill onto the ground. I observed piles of soil in the centre of the Cleared Area and a stack of trees in the western area of the Cleared Area." (James affidavit of 22 June 2010, para 14).

The observational evidence of the Council officers

Four officers of Wyong Shire Council attended Lot 1 during 2007 and 2008 and observed the clearing and filling.

Mr Paul McKay, a Ranger with Wyong Shire Council, attended Lot 1 on 19 October 2007 in response to a reported illegal fire. This was the occasion when the Charmhaven Rural Fire Service attended the burning of stacks of trees and vegetation on Lot 1. Mr McKay took 13 photographs (the photographs have been reproduced in evidence with the incorrect date of "18 Aug" instead of 19 October 2007). Mr McKay's photographs were shown to Mr Bruce.

Mr McKay says that he "saw fire brigade personnel were placing water onto large piles of 'green waste'". (McKay affidavit of 5 March 2009, para 6). Mr McKay marked on an aerial photograph (PM-A) the location of the three piles of green waste that were being burnt and numbered them 1 to 3. Pile 1 is on the elevated area near the truck turning circle where the track from Mr Venn's front entrance on Lot 2 emerges into the cleared area. Pile 2 is further along in the cleared area but still on the elevated area. Pile 3 was at the base of the slope on the low-lying flat in the middle of the cleared area.

Mr McKay said:

"The 'green waste' was made up of what appeared to be recently felled live trees. I am not sure of the species of the trees apart from being able to identify some Casuarinas. The area in the vicinity of the piles of 'green waste' appeared to have been cleared of vegetation and I could see tracks from machinery or large trucks throughout the area. There were apparently live trees laying prone on the ground which appeared to have been knocked over and were still adjacent to their respective stumps. The trees laying prone on the ground appeared to be healthy and in good condition, some with machinery track marks leading up to them." (McKay affidavit of 5 March 2009, para 8).

By reference to his photographs, Mr McKay identified the various piles that were burning; the clearing on the low-lying flat showing fallen trees pushed together; cleared ground showing broken plant parts and roots; three Casuarina trees between piles 1 and 3 snapped off and lying on the ground; a tree stump in the ground; pile 3 containing apparently live vegetation; and a pile of apparently live vegetation at the eastern edge of the clearing (McKay affidavit of 5 March 2009, para 11).

Mr Brett Ball, an Environmental Health Officer with Wyong Shire Council, attended Lot 1 with Ms Jessica Noble on 1 November 2007. Mr Ball said he and Ms Noble met Mr Venn and walked to the cleared area on Lot 1. Mr Ball said:

"While at the property, I observed that a bobcat was operating in the area of the clearing, moving fill around. There were piles of fill in the area of the clearing as well as trees that appeared to have been pushed over and stacked." (Ball affidavit of 5 March 2009, para 22).

Mr Ball and Ms Noble spoke to the bobcat operator, Mr Keith Murphy (para 22).

Mr Ball attended Lot 1 again on 16 November 2007 with Ms Lawley from Wyong Council and Mr Eaton. Mr Ball observed that: "more piles of fill had been placed in the southwestern corner of the cleared area"; "fill had been placed and spread around the base of standing trees"; "stacks of apparently live trees in the western end of the cleared area" and "stacks of apparently live trees in the eastern end of the cleared area" (Ball affidavit of 5 March 2009, paras 29-32).

Ms Jessica Noble, formerly an Environmental Health Officer with Wyong Shire Council, attended Lot 1 with Mr Ball on 1 November 2007. Ms Noble and Mr Ball walked to the cleared area with Mr Venn. Ms Noble said:

"I observed that a bobcat was operating in the area of the clearing, moving fill around. There were piles of fill in the area of the clearing as well as apparently live trees that appear to have been pushed over and stacked." (Noble affidavit of 5 March 2009, para 17)."

Ms Noble had a conversation with the bobcat operator, Mr Keith Murphy (para 17).

Ms Danielle Lawley, formerly a Development Planner (Ecologist) with Wyong Shire Council, attended Lot 1 with Mr Ball and Mr Eaton on 16 November 2007. Ms Lawley took photographs but the date stamp was incorrectly set and recorded as "02/01/2004" instead of "16/11/2007" (Lawley affidavit of 5 March 2009, para 7). Ms Lawley's photographs were shown to Mr Bruce.

By reference to her photographs, Ms Lawley describes the area of clearing, the fill placed around the base of trees at various locations, apparently live trees in a stack, other stacks of trees and apparent damage to the trunk of an apparently live tree that was part of a stack in the clearing (Lawley affidavit of 5 March 2009, paras 9-20).

The observational evidence of a bush regenerator

Mr John Dalton, a volunteer Bush Regenerator with the Friends of Colongra, had visited Lot 1 and surrounding areas many times since 2000 with the last time before the clearing and filling commenced being in October 2006. Mr Dalton attended Lot 1 on two occasions during the period of clearing and filling. On 5 July 2007, Mr Dalton attended with Mr Eaton and Mr Gifford and others. Mr Dalton "observed that the trees previously in the cleared area had been removed and placed in stacks; the understorey and ground cover had been removed and the ground was just bare earth" (Dalton affidavit of 12 March 2009, para 16). On 7 November 2007, Mr Dalton attended Lot 1 again with Mr Eaton and Mr Gifford and others. Mr Dalton said:

"We attended the cleared area and saw that fill had been brought in and placed in piles. I saw that the fill was clearly foreign to the area because it was in piles, it had clay and rocks in it and it was a different colour and texture to the pre-existing soil. The cleared area had been capped with fill and profiled on two levels, an upper level away from the lake and a lower level, towards the lower section near the lake foreshore. The stacks of trees were still present and there was fresh grass and weeds growing out of some of the piles of dirt." (Dalton affidavit of 12 March 2009, para 17).

Mr Dalton's oral evidence was corroborative of his affidavit evidence.

The observational and expert evidence of Dr Keith

Dr Keith, a Senior Principal Research Scientist with the DECCW, gave observational and opinion evidence that native plants were picked in the period of May 2007 to July 2008.

First, Dr Keith says that during his site inspection on 30 June 2009, he observed in the Disturbed Area dead remains of stems and roots of Casuarina glauca and Melaleuca quinquenervia . His photograph P630021 showed these dead remains in the Disturbed Area of Lot 1. Dr Keith stated:

"During my site inspection, I observed breakages of the stems and roots and scars on the wood of the dead remains which, in my opinion, were consistent with the use of heavy machinery to clear native vegetation. The state of decay of the bark and wood of specimens that I observed within the Disturbed Area during my inspection was consistent with timing of death during the time of the Relevant Conduct advised in the Letter of Instruction [ie between 4 May 2007 and 3 July 2008] ... Reference to photographs (labelled 100-3334 and 100-3335 in Attachment C) taken within the Disturbed Area on 16 November 2007 shows dead remains of Casuarina glauca and Melaleuca quinquenervia in a stockpile of vegetation. Retention of foliage on the branches of these remains indicates that tree death occurred within weeks of the date of these photographs ie. during the time of the Relevant Conduct advised in the letter of instruction ... Photograph 100-3326 (Attachment C) taken on 18 November 2007 shows a stand of Casuarina glauca adjacent to the northern boundary of the Disturbed Area. A tree in the centre of this photograph has dead foliage and damage to bark on its trunk consistent with use of heavy machinery. The accumulation of landfill around the base of the tree is also consistent with use of heavy machinery. This tree was dead at the time of my field inspection (30 June 2009). In my opinion, these field observations and photographs indicate a high likelihood that the Relevant Conduct caused these Identified Indigenous Species to be picked" (Keith's expert report, pp 12 and 13).

Secondly, Dr Keith expresses the opinion that there was clearing of sedges, rushes and reeds on the low-lying flat in the Disturbed Area of Lot 1. Dr Keith states:

"[E]xamination of a photograph labelled 100-3337 in Attachment C and taken during 16 November 2007 shows recent earthworks on the low-lying flat within the Disturbed Area. Dead remains of Identified Indigenous Species are visible on this photograph within a row of stockpile vegetation and soil running parallel to a mesh erosion fence. The state of decay of plant material within the stockpile and the colouration of bare soil and the lack of regrowth on the land-side of the stockpile suggest that the stockpile was constructed contemporaneously with the earthworks. Together with the spatial juxtaposition of the stockpile and the area of earthworks, this indicates that death of the Identified Indigenous Species visible within the stockpile is likely to have been a result of the earthworks within the Disturbed Area. Close examination of the stockpile shown in the foreground of photograph 100-3337 indicates that the dead remains include robust sedges and rushes consistent with Juncus kraussii subsp australiensis and/or Baumea juncea . Living specimens of one or both of these species are visible in the photograph 100-3337 adjacent to the stockpile on the lake-side of the erosion fence. During my field inspection, I confirm the existence of both Juncus kraussii subsp australiensis and Baumea juncea at this location on the lake-side of the erosion fence. Both species are listed as characteristic species of Swamp Oak Floodplain Forest in Paragraph 1 of the Final Determination. In my opinion, these field observations and photographs indicate a high likelihood that the Relevant Conduct caused these Identified Indigenous Species to be picked". (Dr Keith's expert report, pp 13-14).

Thirdly, Dr Keith expresses the opinion that Casuarina glauca trees growing on the low-lying flat towards the boundary of Lot 1 with Lot 2 were removed as part of the clearing. Dr Keith states:

"[C]omparison of a pair of photographs (labelled 5 and 6 in Attachment C) taken before and after the Relevant Conduct shows that specimens of Identified Indigenous Species have disappeared from the Disturbed Area on Lot 1 during the intervening period. The trunks of two standing Casuarina glauca trees are visible in the left middle ground of Photograph 5 taken on 4 May 2007. I have labelled these 'reference trees' on Photograph 5 in Attachment C. The view between these 'reference trees' to the lake is obstructed by a number of (at least 12) standing specimens of Casuarina glauca in the background of the photograph. Casuarina glauca is identifiable on the photograph by its distinctive fine branchlets and foliage and compact grey bark. The trunks of the same two reference trees are visible in the left middle ground of Photograph 6, which was taken on 2 February 2009, after the Relevant Conduct. By comparison with photograph 5, very few (no more than 3-4) specimens of Casuarina glauca are visible between the reference trees and the view to the lake is relatively unobstructed. In my opinion, this, together with evidence of dead remains of Casuarina glauca rooted in the area of the missing trees (photograph labelled P6300021), indicates that trees of Casuarina glauca were picked during the Relevant Conduct". (Dr Keith's expert report, p 14).

Fourthly, Dr Keith expresses the opinion that Swamp Oak Floodplain Forest vegetation occurred on the part of the low-lying flat which forms a narrow strip from the cleared area towards the boundary of Lot 1 with Lot 2 but that vegetation in this narrow strip was removed in the clearing. Dr Keith states:

"The plan in Attachment A shows a narrow strip of the Disturbed Area at its southern extremity. A photograph labelled 100-3357 in Attachment C taken on 16 November 2007 shows recent earthworks within this narrow strip on the right-hand side of the photograph and labelled 'narrow strip'. Typical examples of Swamp Oak Floodplain Forest can be seen on photograph 100-3357 both lake-side and land-side of this strip. During my field inspection, I confirmed the existence of Swamp Oak Floodplain Forest at these locations on either side of the narrow strip. Given the similarity of vegetation, soils, hydrology and landform observed on either side of the narrow strip during my field inspection, I consider that it is highly unlikely that any ecological community other than Swamp Oak Floodplain Forest occurred on this narrow strip prior to the earthworks taking place. This interpretation is corroborated by the existence of dead remains of Casuarina glauca and Melaleuca quinquenervia rooted within this narrow strip and shown in Attachment C (photograph labelled P6300021) and dead remains of Juncus kraussii subsp australiensis and/or Baumea juncea within a linear stockpile, as described above, on the lake-side of the narrow strip visible in photographs 100-3357 and 100-3337". (Dr Keith's expert report, pp 14-15).

Fifthly, Dr Keith refers to aerial photography as well as photographs on the ground to conclude that Casuarina glauca trees were destroyed within the Disturbed Area by 16 November 2007. Dr Keith states:

"[A]erial photography (in Attachment B) taken on 18 December 2006 prior to the Relevant Conduct shows Identified Indigenous Species on the Disturbed Area, including a number that are identifiable as Casuarina glauca . Careful examination of high-resolution aerial photography allows the canopies allows the trees of Casuarina glauca to be distinguished from those of other species. Casuarina glauca is identified in Paragraph 4 of the Final Determination as the dominant species of Swamp Oak Floodplain Forest. The distinctive tone and texture of leaf canopies of Casuarina on aerial photography are related to the 'needle-like' branchlets on which leaves are reduced to tiny teeth encircling the stem of the branchlet. This contrasts with the tone and texture of canopies of other tree species that have well-developed leaves, such as species of Eucalyptus and Melaleuca . By examining the photograph marked 100-3357 in Attachment C, I identified numerous specimens of Casuarina glauca within and near the Disturbed Area. During my field inspection, I verified the identity of specimens that were still standing adjacent to the Disturbed Area on its lake-side (visible in photograph 100-3337), adjacent to and west of the narrow strip referred to above (and visible in photograph 100-3357) and adjacent to and north of the Disturbed Area (and visible in photograph 100-3326). Examination of photograph 100-3357 taken on 16 November 2007 (see Attachment C) shows an absence of trees and recent landfill and earthworks in foreground and background areas corresponding to locations where trees were present on the aerial photograph taken on 18 December 2006. Reference to photograph 010 (Attachment C) taken on 18 August 2007 [sic, in fact 19 October 2007 in a photograph taken by Mr McKay] shows that a number of these trees had been destroyed before that date. This indicates that trees of Casuarina glauca were destroyed within the Disturbed Area between 18 December 2006 and 18 August 2007 [sic, 19 October 2007], consistent with the assumed date of the relevant conduct ... I also verified that a number of Casuarina glauca trees that were visible within the Disturbed Area on the aerial photograph in Attachment B were no longer in existence at the time of my field inspection. In my opinion, these field observations and photographs indicate a high likelihood that the Relevant Conduct caused specimens of Casuarina glauca to be picked (Dr Keith's expert report, p 15).

Sixthly, Dr Keith expressed the opinion that the earthworks and filling within the Disturbed Area had the effect of destroying native ground vegetation. Dr Keith states:

"[F]urther examination of the aerial photograph in Attachment B shows that open areas are interspersed amongst trees of Casuarina glauca . The tone and texture of these open areas on the aerial photograph are consistent with native ground vegetation including dense growth of reedland species, Juncus kraussii subsp australiensis and Baumea juncea . The tone and texture of this native ground vegetation is distinct from that of lawn, which is visible on the same aerial photograph to the south of the Disturbed Area on Lot 2 and the southern extremity of Lot 1 (see plan in Attachment A). An area of native ground vegetation (shown in Photograph marked 100-3357 in Attachment C) remained intact at the time of my field inspection. Ground-truthing of this site verified the presence of Baumea juncia and numerous other smaller Identified Indigenous Species listed as present within remnant vegetation in Attachment D1. The presence of these ground-vegetation species and the existence of mosaics of reedland (open areas) with forest and woodland are both characteristics of Swamp Oak Floodplain Forest described in Paragraphs 1 and 5 of the Final Determination. Several open areas of ground vegetation that were visible on the aerial photograph were no longer in existence at the time of my field inspection. Reference to photograph 010 (in Attachment C) taken on 18 August 2007 [sic, 19 October 2007] shows that an area of ground vegetation had been destroyed before that date. Photograph 100-3330 (Attachment C) taken on 18 November 2007 shows burial of native ground vegetation beneath landfill to a depth of up to one metre. In addition to smothering above-ground components of Identified Indigenous Species in the ground vegetation, burial beneath such a depth of landfill is virtually certain to cause death of the below ground components of Identified Indigenous Species. These include soil seed banks and dormant structures such as bulbs, corms, rhizomes, rootstocks or lignotubers, which are referred to in Paragraph 2 of the Final Determination. Emergence of shoots from buried seeds or such vegetative structures typically occurs from depths of less than 5 cm below the soil surface, ie. much shallower than the depth of landfill that was spread across parts of the Disturbed Area during the Relevant Conduct. Consequently, Identified Indigenous Species are unlikely to emerge from beneath the landfill. The lack of Identified Indigenous Species that I observed growing on the landfill surface during my inspection (see Attachment D1) is consistent with this expectation. In my opinion, these field observations and photographs indicate a high likelihood that the Relevant Conduct caused Identified Indigenous Species in the ground vegetation of Swamp Oak Floodplain Forest to be picked." (Dr Keith's expert report, pp 16-17).

Dr Keith's opinions were supplemented in his oral evidence at the hearing. Dr Keith restated, by reference to the aerial photograph taken on 18 December 2006 of the Disturbed Area, the difference between the pale tone and fine texture of the maintained lawn on Lot 2 and part of Lot 1 and the darker tone and coarse texture of the ground cover areas visible between the trees on Lot 1, particularly in the low-lying flat. Dr Keith also contrasted the brighter green tone of the cleared areas between trees on the elevated area, which Dr Keith stated is Lantana camara , with the darker tone and different texture of the ground cover between the trees on the low-lying flat, indicating the absence of Lantana camara .

Dr Keith referred to photograph 100-3357 taken on 16 November 2007 on the low-lying flat which showed remnant ground vegetation of native sedges and rushes. Dr Keith said that this was in the area that he had referred to in the aerial photograph. His inference is that this type of native vegetation ground cover, of native sedges and rushes, would have extended along much of the area previously shown in the aerial photograph taken on 18 December 2006.

Dr Keith also referred to a photograph taken by Mr McKay on 19 October 2007 (photograph 022) which shows ground cover remaining on the low-lying flat. Dr Keith says this had a grey/green tone which is indicative of native ground cover. He also noted that the soil was dark in colouration which is indicative of in situ native soils.

Dr Keith was again taken to photograph 100-3337 taken on 16 November 2007 which he had referred to in his affidavit. Dr Keith said that native sedges and rushes remain in the stockpile bund. Dr Keith referred to photograph 100-3357 which was taken on 16 November 2007 which showed sedges on the right hand or lake-side of the stockpile bund as well as on the left hand side in the island or patch of remnant vegetation. Dr Keith drew the inference that there was similar vegetation on either side and it was likely to have extended between the remnant patch and the silt fence. Dr Keith referred to photograph 015 taken by Mr McKay on 19 October 2007 which showed the same area on the low-lying flat after it had been disturbed. Dr Keith noted the colour and tone of the native in situ soils. At this point of time, the area had not been greatly disturbed on the ground. It was therefore likely that there was similar vegetation of sedges and rushes extending across the low-lying flat.

Dr Keith noted that subsequently fill was placed over the top of the low-lying flat. Dr Keith confirmed his opinion expressed in his affidavit that the placing of fill over the area where sedges and rushes previously grew would smother and prevent reshooting of the plants. Dr Keith said the vegetation would shoot from a depth of up to 5cm of fill but for larger depths it is increasingly less likely. Dr Keith said that his site inspection in 2009 confirmed what he would have expected would have been the result having regard to the depth and fill placed over the site. Dr Keith said that the site was primarily covered by introduced or exotic species with very few native species.

Dr Keith also referred to photographs taken by Mr Eaton (photograph PICT 0020) on 7 November 2007. Dr Keith said that the photograph depicted fill around rough barked apple trees, Angophora floribunda . Dr Keith expressed the opinion that if the fill came up to 1 m deep, it would reduce the health of the trees and reduce their probability of survival. Dr Keith explained that fill changes the conditions around the trunk and allows penetration by fungal pathogens and termites. Signs in the canopy would be a progressive defoliation and appearance of dead branches. There also can be decortication or loss of tissue. Dr Keith also said that placing of fill compacts the soil, reduces air spaces and reduces the oxygen available to roots.

Adoption of evidence of picking of plants

I accept and adopt the evidence of each of these witnesses that plants were picked in the ways described between May 2007 and July 2008. Mr Venn did not require any of the witnesses for cross-examination. Nevertheless, three of the witnesses, Mr Eaton, Mr Dalton and Dr Keith did attend and give further oral evidence at the hearing and Mr Venn's solicitor asked some questions of each of these persons. Nevertheless, their essential evidence that there was picking of plants was not challenged and the witnesses did not withdraw or modify their statements of facts or inferences that plants were picked in the ways they described.

Rejection of Mr Venn's denials of picking of plants

Notwithstanding all of this evidence, Mr Venn continued to maintain that there was no picking of live native plants except for "two or three apple gums about 100mm diameter." (Venn second affidavit of 11 May 2011, para 95). Mr Venn's position was that any other vegetation picked was either dead trees or exotic weeds such as Lantana and Bitou Bush. Mr Venn said:

"The trees in the mid section I had cleared were dead and mostly melaleuca with a few casuarinas. They had no branches, just dead sticks in the air ... It was a waterlogged, detritus filled ooze and nothing was growing. It was a dead place. And not even lantana grew, because it was so waterlogged and salty". (Venn second affidavit, para 50 and see also para 84).

and

"The reeds that had sprung up after the subsidence started to die as the water rose and the land was eroded away." (Venn second affidavit, para 85).

Mr Venn said that Mr Bruce started work about 8 May 2007 and:

"took about a day and a half to two to make the road, widen the access road, clear a turning area, push over and stack the dead trees, lantana and bitou bush and dump some fill at the bottom of the ooze". (Venn second affidavit, para 100).

However, Mr Venn did concede that while taking the corner off the existing road and creating a turning circle "two or three apple gums about 100mm diameter were removed". (Venn second affidavit, para 95).

Mr Venn's answer to the photographic and observational evidence of apparently live trees in the stacks of vegetation on the site, including those stacks being burnt, was that the trees were transported to Lot 1 either from Lot 2 or from off site. Mr Venn said a severe storm in June 2007 brought a number of trees down, including at the entrance gates and on the front garden lawn area of Lot 2 (paras 103 and 104 and see also paras 126, 128, 130 and 134 of Venn second affidavit). Mr Venn said that Mr Bruce "helped get the timber cut up, moved and stockpiled down on the Work Area on Lot 1 so they could be burnt later on" (para 105 and see also paras 127, 130, 134, 137 of Venn second affidavit). Mr Venn said that Mr Bruce also gathered up dead trees that had fallen on the Lot 2 shoreline at the same time (para 105 and see also para 134, 135-137 of Venn second affidavit).

Mr Venn also claimed that Mr Bruce brought in three loads of vegetative waste from other jobs (para 121 of Venn second affidavit) and the remaining timber and added vegetative waste was burnt on 8 December 2008 (para 123 and 138 of Venn second affidavit).

In summary, Mr Venn said he did not pick plants in the period 4 May 2007 to 3 July 2008 or otherwise (para 124 of Venn second affidavit). He said:

"I have removed dead trees in May 2007, together with some weeds. I moved other dead trees from along the Lot 2 shoreline and one from on the land to the stack to be burnt. I have had the trees that have come down after storms gathered up and put on the stack for burning" (para 125 of Venn second affidavit).

I do not accept Mr Venn's evidence in relation to picking of plants. First, Mr Venn did not undertake the clearing and filling on Lot 1, rather Mr Bruce and Mr Murphy did. I prefer their evidence as to what they did in clearing and filling (summarised earlier in the judgment) over Mr Venn's belief as to what they did. I also accept the evidence of Mr Bruce and Mr Murphy in relation to the vegetation placed on the stacks to that of Mr Venn. Their evidence was that they placed both live and dead trees and vegetation on the stacks in the work area. Mr Bruce said he did not personally take any fallen trees from Lot 2 down to Lot 1, however he accepted that Mr Venn had asked him to remove two fallen trees.

Secondly, the observational and photographic evidence of the various persons who visited Lot 1 between May 2007 and July 2008 was compelling and mutually corroborative of the picking of live native plants and contradicts Mr Venn's accounts. Mr Venn's accounts are in defiance of the facts.

Thirdly, Dr Keith's observational and opinion evidence, which I also find persuasive, logical and supported by the evidence, contradicts Mr Venn's accounts.

Fourthly, satellite and aerial photography of Lot 1 and surrounding lands, including after the June 2007 storm, disproves Mr Venn's assertion that the part of Lot 1 that was cleared and filled was a "dead area" with just dead sticks in the air, with nothing growing. Green canopies of trees and green ground cover are clearly visible on Lot 1, in contrast to the obviously dead trees in the inundation area to the north of Lot 1, on Lot 3 in DP 1029487.

Fifthly, Mr Venn's particular statements in his affidavits about locations of activities, events and things had an air of verisimilitude, but on being challenged in cross-examination were proven to be incorrect on a number of occasions. For example, Mr Venn repeatedly described the part of Lot 1 that was cleared and filled as a dead area and included photographs to support his assertion. Yet these photographs were proven to be taken in and to depict the dead zone to the north of and outside the cleared area near the boundary of Lot 3 in DP 1029487. Mr Venn, in his affidavits and the annexed maps and captioned photographs, sought to describe with authority and exactitude, the boundaries between Lot 1 and Lot 2 and the activities, events and things that occurred on each Lot. Yet, when challenged in cross-examination, Mr Venn expressed ignorance on where the boundaries were or on what Lot particular things were located. In response to one challenge as to incorrect captioning of a photograph, he explained that his solicitor prepared most of the affidavit and he didn't go through it with a fine toothcomb checking every detail.

More generally, Mr Venn was reluctant to concede he might be incorrect in his accounts that only dead trees were removed or that no injury to live native plants occurred, even when presented with photographic or other evidence to the contrary. This included satellite photographs taken in December 2006 and June 2007 showing live green trees on Lot 1 where Mr Venn had said the trees were dead, as well as photographs of trees pushed over still with leaves, scrape marks and other injury to live trees consistent with being caused by an excavator, stacks of timber pushed together, sedges in the ground or pushed aside to form the earthen bund.

Many times in cross-examination in response to a proposition put to him which was inconsistent with his account or a proposition that his account was incorrect, Mr Venn merely said words to the effect of "if you say so". Sometimes, Mr Venn would venture a speculative answer not previously raised by him in his affidavits or oral evidence in chief. One example was when he was shown a photograph (photograph 100-3362) of a long, jagged, vertical scar to the bark of a standing tree consistent with mechanical damage by an excavator, in the area of the pile of fill in the north-western edge of the cleared area, Mr Venn said that the scar could be caused by anything, indeed even "a beetle could cause that". Another concerned a surveyor's peg with the word "Lot 1" written on it that was placed in an obvious position on the boundary of Lot 1 and Lot 2 in the middle of the lawn area on the foreshore but which then disappeared. Mr Venn denied knowledge of seeing it before its disappearance but then volunteered that it was probably taken by a scout as it would have been a good sword.

When Mr Bruce raised with Mr Venn the concerns Mr Mergan had put to him, Mr Venn said:

"Don't worry about the Council, don't worry about anybody. Don't worry about the Council, they can't come in here. No-one can come in here, this is my land. Keep going on with the work."

Notwithstanding these warnings about the lack of consent, Mr Venn directed the clearing and filling to proceed.

On 19 October 2007, after much of the clearing had occurred and during the burning of the cleared vegetation, Mr McKay of Wyong Shire Council asked Mr Venn whether he had approval to clear the land or light the fires, Mr Venn did not respond to the first part of the question as to whether he had approval to clear the land but responded to the second part of the question by saying "I didn't know you needed approval to light the fires." (McKay affidavit of 5 March 2009, para 9).

On 1 November 2007, two Council officers, Mr Brett Ball and Ms Jessica Noble, inspected the site in response to Mr McKay's service report regarding the alleged unapproved works being carried out by Mr Venn. They met with Mr Venn and Mr Ball said:

"We're here to investigate the alleged clearing of land, placing of fill and burning of material"

to which Mr Venn replied, "[t]he clearing is part of the 1995 consent" (Ball affidavit of 5 March 2009, para 15; Noble affidavit of 5 March 2009, paras 11 and 12).

Mr Ball had brought with him a copy of the 1995 development consent which he opened to the conditions. Mr Ball asked about the conditions requiring submission to the Council of information on fill and delivery routes and a dilapidation report. Mr Venn asserted repeatedly that he had provided the information to the Council. Mr Ball and Ms Noble each replied to Mr Venn that the Council's records do not show any information on delivery routes for fill or dilapidation reports being submitted to the Council. Mr Venn then changed his response to say "Oh well, the Scout Association handles all the paperwork" (Ball affidavit of 5 March 2009, para 15; Noble affidavit of 5 March 2009, paras 13-15). Mr Ball later asked Mr Venn about the Council's Tree Preservation Development Control Plan and if he was aware of it, to which Mr Venn replied:

"I am aware of it, I have not actually read it myself but my legal people have read it and advised me it was ok to proceed with tree removal. My solicitors are in charge of the works not me" (Ball affidavit of 5 March 2009, para 23; Noble affidavit of 5 March 2009, para 18).

On 4 December 2007, Mr Tom Bagnat, the Regional Manager, Central West Hunter Range Region of NPWS, wrote to Mr Venn saying:

"I write to you regarding vegetation clearing and land fill work allegedly being carried out by you on Lot 1, DP 509889 at Macleay Drive, Budgewoi.

Lot 1, formerly under the management and ownership of Delta Power Pty Ltd, is now part of the Colongra Swamp Nature Reserve, which is managed by the Parks and Wildlife Group of the Department of Environment and Climate Change. Reservation of Lot 1 as a Nature Reserve under the provisions of s. 30A of the National Parks and Wildlife Act 1974 took effect on February 21 st 2007. A copy of the relevant NSW Government gazettal notice is enclosed.

In addition to Lot 1 being part of the Colongra Swamp Nature Reserve, the site of recent work is on land which supports vegetation identified as an Endangered Ecological Community under Schedule 1 of the Threatened Species Conservation Act 1995 .

Our records indicated that no development consent exists to carry out any work on Lot 1.

There are a number of offences that may have occurred as a result of the vegetation clearing and land fill work on Lot 1. For example, it is an offence to pick (including pull up, destroy, remove or injure) any plant that is part of an endangered ecological community under s. 118A(2) of the National Parks and Wildlife Act 1974. The maximum penalty is $220,000 or imprisonment for 2 years or both.

It is also an offence to damage or remove any vegetation on a nature reserve, under s. 156A of the National Parks and Wildlife Act 1974. The maximum penalty is $110,000 or imprisonment for 6 months or both.

We therefore ask that you immediately cease any further work on Lot 1, and that you contact Glenn Gifford ... as soon as possible to discuss this matter." (Venn first affidavit of 16 February 2011, Tab 17, p. 1).

Mr Venn replied to this letter on 8 January 2008 asserting:

"The work presently being done on the property is being done on my property. I have a DA for the work, requiring the issue of a DA"

and describing the work of clearing and filling he was undertaking (quoted in para 35 above of the judgment).

The evidence of Mr Venn's denial that his conduct constituted breaches of the Parks Act, earlier summarised in the relevant parts of the judgment, together with his declining, before the proceedings were commenced, to give when requested an undertaking to stop the conduct, also gives rise to an apprehension that Mr Venn may, in the future, act in breach of the Parks Act.

Thirdly, having regard to Mr Venn's unwillingness to accept that his past conduct amounted to picking of plants of endangered ecological communities, there is a need for restraining orders to be made in terms that are specific, clear, unambiguous and enforceable. Mr Venn needs to understand the requirements of and the obligations imposed by the Parks Act: see Strathfield Council v Xu Hong Lin and Wei Jiang t/as Play Electronics (1994) 130 LGERA 344 at 349.

Fourthly, Mr Venn's undertaking was conditional upon finding that Lot 1 is "part of a nature reserve or an endangered ecological community of the kind alleged". These two limbs of the condition of the undertaking evidently are based on s 156A(1) and s 118A(2) of the Parks Act respectively. I have found that the endangered ecological communities of Swamp Oak Floodplain Forest and River-Flat Eucalypt Forest existed at the time of Mr Venn's conduct between May 2007 and July 2008, and continue to exist on the part of Lot 1 that was cleared and filled. This is not the same as finding that "Lot 1 in Deposited Plan 509889 is part of .. an endangered ecological community of the kind alleged". Hence the second limb of the condition of the undertaking may not be satisfied. I have also found that Lot 1 was not validly reserved as a nature reserve. The first limb of the condition of the undertaking is not satisfied. I note however that s 156A(1) applies not only to land reserved but also to land acquired under the Parks Act. Mr Venn's undertaking does not address the situation of Lot 1, even if not reserved, nevertheless being acquired under the Parks Act. I have found that on registration of the transfer on 10 February 2009, Lot 1 was acquired under Part 11 of the Parks Act. Hence, s 156A(1) will apply to any future conduct of Mr Venn involving work on, harm to or picking of plants from Lot 1.

Fifthly, Mr Venn's undertaking only relates to refraining from doing certain actions, not taking any action including remedying any harm caused by the conduct in breach of the Parks Act. The undertaking is therefore insufficient.

The terms of the restraining orders should, generally, be as sought by the plaintiff. However, I would vary the wording to be more precise. The terms I propose are set out at the conclusion of the judgment.

Orders remedying harm caused by breach

The plaintiff, in its proceedings under s 193 of the Parks Act, seeks orders not only to restrain breaches of the Parks Act but also orders to remedy breaches of the Parks Act. The reference to "remedy" a breach in s 193 of the Parks Act is sufficient to encompass orders by the Court requiring rehabilitation of the land harmed by the conduct in breach of the Parks Act: see similarly in Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [105] and see also [106], [309], [315]. The Court's jurisdiction under s 20(2) of the Land and Environment Court Act 1979 to enforce an obligation imposed by, amongst other laws, the Parks Act (see s 20(3)(a)) is also sufficient to enable remedial orders being made.

The plaintiff seeks for Mr Venn to remedy his breaches in three main ways: first, to arrange for a survey of the common boundary between Lot 1 and Lot 2 and the erection of a fence along the surveyed boundary; secondly, to remove signs Mr Venn has affixed to trees or other vegetation on Lot 1; and thirdly, to arrange for an assessment of the environmental harm caused by the fill and waste pit on Lot 1 and the preparation of a remediation action plan which should form the basis for further remedial orders.

Mr Venn opposed the making of all such remedial orders.

Surveying and fencing

The plaintiff seeks an order that Mr Venn arrange for a surveyor to survey and mark with labelled surveying pegs the whole of the common boundary between Lot 1 and Lot 2.

The plaintiff seeks the survey in order to facilitate and ensure compliance with both the restraining and remedial orders of the Court, which depend for their efficacy upon clear identification and understanding of the boundaries of Lot 1, as well as to mark the location of the fence to be erected along the common boundary of Lot 1 with Lot 2. The plaintiff submits the need for a survey is underscored by the evidence, including of Mr Venn himself, as to the lack of appreciation and confusion by Mr Venn and others who worked at or visited the site as to the location of the boundary between Lot 1 and Lot 2.

I agree with the plaintiff, for the reasons the plaintiff gives, that there is a clear and present need for the boundary between Lot 1 and Lot 2 to be surveyed and marked with labelled surveying pegs.

The plaintiff nominated Mr Greg Smith, surveyor, of Daly Smith Pty Ltd, to undertake the survey. Mr Smith had undertaken survey work on the site and gave evidence in the proceedings. Although there may be some advantage in using Mr Smith because of his prior work on the site, I do not consider the Court should mandate that Mr Venn is to use Mr Smith as the surveyor.

The plaintiff seeks an order that Mr Venn arrange for a cyclone wire fence not less than 1.8 metres in height to be erected along the length of the common boundary between Lot 1 and Lot 2 and that such fence contain dual locked gates allowing vehicular access between Lot 1 and Lot 2. The plaintiff again nominated the person who should undertake the work.

The plaintiff seeks the fence and the dual locked gates so as to exclude Mr Venn and his agents from accessing Lot 1 except for the purpose of undertaking remedial works ordered by the Court.

Mr Venn opposed the order because, first, he should not be excluded from entering and using Lot 1, secondly, he should not have to pay for the full cost of a dividing fence between Lot 1 and Lot 2 but only half of the cost and thirdly, he should not have to pay for a fence of the description sought by the plaintiff but only the cheapest type of fence.

I consider Mr Venn should be responsible for, and pay the cost of, erecting a fence along the boundary between Lot 1 and Lot 2. A fence is necessary to facilitate and ensure compliance with the restraining and remedial orders of the Court. Whilst the survey and marking of the boundary with surveying pegs will clearly demarcate Lot 1 from Lot 2, such demarcation will only persist so long as the surveying pegs remain visible. The evidence establishes that a previous surveyor's peg on the low-lying flat at the boundary between Lot 1 and Lot 2 disappeared. Mr Venn speculated that a scout took it to use as a sword. Mr Venn has given a lease over Lot 2 to the Scouts Association and otherwise permits scouts to camp and use Lot 2 as well as Lot 1 for their recreational activities. Without a fence there is no real means of ensuring that Mr Venn and his invitees, such as scouts, remain on Lot 2 and not use and carry out activities on Lot 1. A fence is necessary to ensure compliance with the restraining orders. Furthermore, if Lot 1 is rehabilitated, a fence will ensure that persons are prevented from entering the rehabilitated vegetation and land and thereby causing damage.

I do not consider it appropriate to nominate in the court order the person who should erect the fence; it is sufficient to state that the person be a qualified fencing contractor. I also do not consider that I should specify the type of fence to be erected before the plaintiff and Mr Venn have had an opportunity to consult and agree upon the specifications for the fence. It may be that the cyclone wire fence specified by the plaintiff is the most effective and economical fence for the purpose, but this should first be discussed by the parties. If agreement is not able to be reached as to the specifications of the fence, the parties can exercise the liberty to apply which I will grant and I can rule on the specifications. I consider that the gates should be able to be locked, but that each of the plaintiff and Mr Venn should be able to open the lock, rather than there being dual locks. The purpose of the lock is to ensure compliance with the restraining and remedial orders, not to promote or negate the parties' respective claims for ownership of Lot 1.

Removal of signs

Mr Venn has over the years affixed on trees and other vegetation and otherwise placed signs on Lot 1. These signs bear various writings including "Keep Out" and "Private Property". The signs have caused, are causing and will continue to cause damage to the trees and vegetation. Nails and other fasteners damage the trees. The plaintiff seeks an order that Mr Venn remove or cause to be removed all such signs. I agree that this course is appropriate. It is not an onerous task.

Remediation action plan and subsequent rehabilitation

The most substantive order sought by the plaintiff is for Mr Venn to arrange for an assessment of the environmental harm caused by the fill and waste material he placed or caused to be placed on Lot 1 and the preparation of a remediation action plan which will recommend the action needing to be taken to remediate and rehabilitate the Disturbed Area and the waste pit on Lot 1.

The evidence, particularly of Dr Keith, establishes that the fill has caused and is continuing to cause environmental harm. The fill is preventing re-growth of vegetation from underneath the fill; damaging the health of trees and other vegetation around which fill has been placed; and inhibiting germination of seeds or recolonisation by native species of plants by reason of being imported soil and other materials and not the natural soil of the particular area of the endangered ecological communities.

The fill has also been observed to contain asbestos. Mr Steven James, an investigator with the Specialist Investigation Unit of DECCW, observed and photographed asbestos sheeting in the fill spread on Lot 1. He collected a sample which was sent for laboratory testing (James affidavit of 22 June 2010, paras 85-89). The laboratory testing detected asbestos (affidavit of Matthew Mansfield of 12 May 2011, paras 8 and 9 and certificate of analysis dated 9 July 2009).

Mr Venn also has had dug and has deposited waste materials in a dump hole or waste pit on Lot 1. Mr Venn said he has had, over the years since 1975, a number of waste pits into which he has disposed of rubbish (respondent's submission dated 19 May 2011, para 132). The current hole was dug by Mr Bruce at the direction of Mr Venn on Lot 1. Various waste materials have been deposited in this hole.

The plaintiff first seeks an order that Mr Venn arrange for a contamination assessment of the fill (which would include any asbestos) and the waste pit to be undertaken and a remediation action plan to be prepared. The plaintiff seeks a further order that Mr Venn remove the material Mr Venn or his servants or agents deposited in the hole.

The plaintiff submits that there needs to be further investigation and assessment of the fill and waste pit to ascertain the environmental threat posed and then formulate appropriate and cost effective remedial action. Such a step-wise approach acknowledges the uncertainties, including imperfect knowledge, promotes research and investigation to reduce uncertainties, and then proposes cost-effective solutions to the environmental problems. Such a step-wise approach was adopted by the Court in making orders to remediate environmental harm caused by clearing of native vegetation and an endangered ecological community in Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 at [13]-[15] and [46].

The plaintiff nominates the person to undertake the contamination assessment and to prepare the remediation action plan as Mr Michael Frankcombe, a rehabilitation practitioner with experience in the rehabilitation of disturbed and degraded areas, who gave evidence in the proceedings. Mr Frankcombe recommended rehabilitation be undertaken in six stages. Stage 1 involved undertaking a combined Phase 1 and Phase 2 contamination assessment of the fill and waste pit and then preparation of a remediation action plan. The justification for carrying out this stage is to determine the type and extent of soil contamination and determine the volume of contaminated and non-contaminated material for excavation and disposal. The knowledge gained from stage 1 would inform the action undertaken on the remaining stages and the costing. The following stages would involve, in general terms: excavation and removal of contaminated material (stage 2); investigation and preparation for revegetation works (stage 3); undertaking revegetation works (stage 4); monitoring establishment of vegetation and undertaking maintenance (stage 5); and weed control (stage 6) (Frankcombe expert report of 5 May 2011, p. 4, Table 5.1). The plaintiff submits Mr Frankcombe should be engaged to undertake Stage 1.

I agree with the plaintiff that it is appropriate in the circumstances to adopt a step-wise approach involving, first, a contamination assessment of the fill and waste pit followed by preparation of a remediation action plan, and secondly, the determination by the Court of what further orders should be made to remedy the environmental harm caused by Mr Venn's conduct, including actions of the type recommended by Mr Frankcombe in his stages 2 to 6.

I also agree that Mr Venn as the person who caused the environmental harm should be responsible for remedying it. Such a course implements the polluter pays principle. Expressed simply, this principle holds that those who generate pollution or waste should bear the costs of containment, avoidance or abatement. The principle requires the polluter to take responsibility for the external costs to the environment and the community arising from its pollution. This can be done by the polluter cleaning up the pollution and restoring the environment as far as practicable to the condition it was in before being polluted. The polluter ought also to make reparation for any irremediable harm caused by the polluter's conduct such as death of biota and damage to ecosystem structure and functioning: Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [230] and see also Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [70], [157].

The polluter pays principle is one of the principles of ecologically sustainable development. The objects of the Parks Act include the conservation of habitat, ecosystems and ecosystem processes, and of biological diversity at the community, species and genetic levels (s 2A(1)(a)(i) and (ii) of the Parks Act). The objects of the Parks Act are to be achieved by applying the principles of ecologically sustainable development (s 2A(2)). The principles of ecologically sustainable development are defined in s 5 of the Parks Act to mean the principles of ecologically sustainable development described in s 6(2) of the Protection of the Environment Administration Act 1991. One of these is in para (d), being improved valuation, pricing and incentive mechanisms, namely that environmental factors should be included in the valuation of assets and services, such as "(i) polluter pays - that is those who generate pollution and waste should bear the cost of containment, avoidance or abatement".

Hence, an order to remedy a breach of the Parks Act should seek to achieve the objects of the Parks Act by applying the principles of ecologically sustainable development, including the polluter pays principle.

Mr Venn opposes the Court making any remedial orders for two main reasons. First, Mr Venn submits his conduct of clearing and filling Lot 1 has had a beneficial effect on the environment, improving it from being a "waterlogged, detritus filled ooze" (Venn second affidavit of 11 May 2011, paras 47 and 50). Mr Venn asserts "he has not damaged the land: he has recovered land and partially rehabilitated it" (letter dated 14 April 2010 from Ms Kardell (Mr Venn's solicitor) to DECCW in Venn second affidavit, Tab 37, p 6).

Secondly, Mr Venn asserts he cannot afford to pay for the work of rehabilitating the land harmed by his conduct. He says whilst he might be asset rich (he owns Lot 2), he is income poor being only a pensioner.

In relation to the waste pit, Mr Venn says that, if anything at all needs to be done, the hole should simply be filled in, covering the waste.

As to Mr Venn's first reason, I reject Mr Venn's assertion that his conduct of clearing and filling Lot 1 and disposing of rubbish in the waste pit has had a beneficial effect on the environment. Mr Venn's perception of his conduct as improving the environment is anthropocentric and idiosyncratic and not supported by the evidence. The evidence to which I have referred earlier in finding that Mr Venn picked plants of endangered ecological communities, particularly that of Dr Keith, establishes that material environmental harm has been caused by Mr Venn's conduct including to the endangered ecological communities of Swamp Oak Floodplain Forest and River-Flat Eucalypt Forest on Lot 1.

As to Mr Venn's second reason, there is a paucity of evidence of Mr Venn's financial means. Mr Venn simply asserted in his oral evidence in chief that he had "no money to pay for remediation" and he and his wife were "only pensioners". Mr Venn did not tender any financial statements, including any balance sheet or statement of assets and liabilities, any profit and loss or income statements or bank statements. The plaintiff tendered a statement of the land value of Lot 2 owned by Mr Venn prepared by the Land and Property Information Division of the Land & Property Management Authority for the 2010-2011 valuing year. The land value excluding any structural improvements was $800,000 (Exhibit J).

It is incumbent on a person who wishes for the Court to exercise its discretion not to make otherwise appropriate orders to remedy the person's statutory breach, on the basis of a lack of financial means to put before the Court adequate and accurate financial information and statements establishing that financial position. As has been said in the different context of sentencing for an environmental offence, largely indefinite financial circumstances should not be used to mitigate the fine to any appreciable extent: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 353 and Bentley v BGP Properties Pty Ltd at [275]. Equally, in the context of making orders in civil proceedings to remedy a statutory breach, largely indefinite financial circumstances should not be used to decline making otherwise appropriate remedial orders.

In any event, any economic prejudice to the person in breach caused by making remedial orders needs to be balanced against the prejudice to the public interest if remedial orders were not to be made.

First, the breaches of the Parks Act in this case are serious, and not merely technical, and have caused material environmental harm: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339.

Secondly, there is the public interest in the proper enforcement of public welfare statutes, such as planning and environment laws including the Parks Act: Warringah Shire Council v Sedevcic at 339-340; Lane Cove Council v Sarkozy (1996) 130 LGERA 240 at 245-246. There is the public interest in the proper and reliable public administration of the planning and environment laws: Ellison v Warringah Shire Council (1985) 55 LGRA 1 at 13. There is also the public interest in protecting the environment and components of it: Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 at [56].

Thirdly, the plaintiff, being the Director-General of the government department with responsibility for administering the Parks Act, is one of the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary. Hence, a court is less likely to deny equitable injunctive relief where the proceedings are brought by such a public official or authority than it would in litigation between private citizens: Warringah Shire Council v Sedevcic at 340.

Fourthly, although the fill and the waste pit is now a "static" development (see Warringah Shire Council v Sedevcic at 340), the environmental harm is continuing and furthermore there is an apprehended or threatened breach by Mr Venn who intends to continue to mow and otherwise use Lot 1, which damages the vegetation on it.

There is no "hard and fast exception" that the discretion to decline relief will be more readily exercised in the case of a static development than otherwise. Courts have ordered static developments, such as buildings erected in breach of planning law, to be demolished: see Tynan v Meharg & Newcastle City Council (1998) 101 LGERA 255 at 260 and Barton v Orange City Council [2008] NSWLEC 104 at [50], [54].

In this case, also, the step-wise approach that I favour, namely, undertaking a contamination assessment which informs a remediation action plan then making further remedial orders, will balance the public interest in enforcing the law and remedying the breach and environmental harm against any degree of irremediability occasioned by the breach and the expense or inconvenience which would follow the law's enforcement: Warringah Shire Council v Sedevcic at 340. It will prevent relief being granted, which "would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation": ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82.

Finally, it is relevant that the breach of the Parks Act did not come about because Mr Venn was in any way misled about the Parks Act or his obligations under it: Lane Cove Council v Sarkozy at 246. As found above, Mr Venn deliberately undertook the clearing and filling of Lot 1 notwithstanding knowledge that such conduct was at risk of being illegal.

In summary, the weighing exercise falls heavily in favour of making orders remedying the breach. I consider Mr Venn should be ordered to arrange for a qualified remediation practitioner to undertake contamination assessment of the fill and waste pit and prepare a remediation action plan as recommended by Mr Frankcombe in his stage 1. However, I do not consider it appropriate that the Court mandate that Mr Frankcombe undertake the work, although there would be some efficiencies if he were to be engaged by Mr Venn.

I also consider it would be premature to order, before such assessment has been undertaken, the removal of materials from the waste pit. Such removal might prove to be the most appropriate remedial action but this should first be assessed and recommended in the remediation action plan.

After the assessment has been undertaken and the remediation action plan prepared, the matter should return to the Court to determine the further orders that should be made to remedy the breach and environmental harm caused.

ORDERS OF THE COURT

The Court makes:

1. A declaration that between about May 2007 and July 2008 Mr Venn, in breach of s 118A(2) of the National Parks and Wildlife Act 1974 ("the Parks Act"), picked plants of two endangered ecological communities, the Swamp Oak Floodplain Forest of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions ("the Swamp Oak Floodplain Forest") and the River-Flat Eucalypt Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions ("the River-Flat Eucalypt Forest"), on Lot 1 of Deposited Plan 509889 ("Lot 1").

2. An order that, except to the extent necessary to comply with these or any further orders of the Court, Mr Venn refrain, and Mr Venn ensure that his agents, contractors, lessees, licensees and invitees (and use his best endeavours to ensure that any other persons) refrain, from picking plants of the Swamp Oak Floodplain Forest or the River-Flat Eucalypt Forest on Lot 1 contrary to s 118A(2) of the Parks Act.

3. An order that, except to the extent necessary to comply with these orders of the Court, Mr Venn refrain, and Mr Venn ensure that his agents, contractors, lessees, licensees and invitees (and use his best endeavours to ensure that any other persons) refrain, from damaging and/or removing any vegetation, rock, soil, sand, stone or similar substances on or in Lot 1 contrary to s 156A(1)(b) of the Parks Act, including without limitation refrain from:

(a) mowing, slashing, cutting down, pushing over, lopping, removing, destroying or otherwise damaging vegetation, whether dead, dying or alive;

(b) depositing fill, excavated natural material, rock, soil, sand, stone or similar substance or demolition waste or building materials;

(d) depositing, discarding or storing materials, equipment or waste;

(e) affixing signs including nailing signs to plants; and

(f) carrying out organised recreational or educational activities, including camping, canoeing, training and Scout activities.

4. An order that, except to the extent necessary to comply with these or any future orders of the Court, Mr Venn refrain, and Mr Venn ensure that his agents, contractors, lessees, licensees and invitees (and use his best endeavours to ensure any other persons) refrain, from accessing Lot 1 from Lot 2 in Deposited Plan 509889 ("Lot 2") by vehicular means.

5. An order that Mr Venn, within 14 calendar days of the date of these orders, do all things reasonably necessary to cause a registered surveyor (who can be, but need not be, Mr Greg Smith, surveyor, of Daly Smith Pty Ltd) to survey and mark with labelled surveying pegs the whole of the common boundary between Lot 1 and Lot 2.

6. An order that Mr Venn, within 28 calendar days of Order 5 being performed, and subject to Order 7, do all things reasonably necessary to cause a qualified fencing contractor to erect a fence along the length of the common boundary between Lot 1 and Lot 2, such fence to include a gate or gates (with locks capable of being opened by both the plaintiff and Mr Venn) at an appropriate location or locations allowing vehicular access between Lot 1 and Lot 2.

7. An order that Mr Venn, prior to causing the erection of the fence under Order 6, consult with and obtain the agreement in writing of an officer nominated by the plaintiff as to the specifications of the fence, gates and locks and the location of the gate or gates.

8. An order that Mr Venn, within 14 calendar days of the date of these orders, remove or cause to be removed signs or labels (together "signs") from Lot 1, including signs affixed to trees or bearing the words "keep out" and "private property" and nails affixing or materials supporting signs, previously placed by Mr Venn or anyone on his behalf on Lot 1, including on vegetation in Lot 1.

9. An order that Mr Venn, within 28 days of the date of these orders, do all things reasonably necessary to cause an appropriately qualified and experienced rehabilitation practitioner (who can be, but need not be, Mr Michael Frankcombe of KMH Environmental) to:

(a) undertake a combined Phase 1 and Phase 2 contamination assessment of the fill and waste pit on Lot 1;

(b) prepare a remediation action plan;

being Stage 1 of the proposed rehabilitation stages referred to in the expert report of Mr Michael Frankcombe, "Colongra Swamp Nature Reserve, Estimate of Remediation and Rehabilitation Costs", 5 May 2011 ("the Frankcombe Report").

10. An order that Mr Venn, within 7 calendar days of each of the Orders 5, 6, 8 and 9 being performed, give notice in writing to an officer nominated by the plaintiff that each of the orders have been complied with and, in the case of Order 9, provide a copy of the assessment and remediation action plan.

11. For the purpose of these orders, "do all things reasonably necessary" includes without limitation:

(a) the arranging and giving of access to Lot 1 from Lot 2 for the purposes of the carrying out of these orders; and

(b) the payment of all reasonable fees and expenses arising from these orders, including the pre-payment of those fees and expenses.

12. An order that the proceedings be adjourned to 30 August 2011 at 9.15am for the purposes of hearing and determining the further orders for remediation and rehabilitation of Lot 1 (including orders requiring undertaking the measures and works recommended in the remediation action plan prepared pursuant to Order 9 and in Stages 2 to 6 inclusive of the proposed rehabilitation stages in the Frankcombe Report), which should be made.

13. An order reserving liberty to the parties to apply on 5 days' notice for any further or other orders (including orders revoking or varying or supplementing or replacing these orders in whole or part upon sufficient cause, such as unforseen or changed circumstances, being shown).

14. An order granting liberty to apply generally on 5 days' notice.

15. An order reserving the question of the costs of the proceedings.

**********

Decision last updated: 08 July 2011

Medium Neutral Citation:	Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118
Hearing dates:	7 March 2011, 13 May 2011, 23-27 May 2011, 1 June 2011, 17 June 2011 (supplementary written submissions)
Decision date:	08 July 2011
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	Declaration and injunctions as set out at [348]
Catchwords:	Civil enforcement - proceedings for orders to remedy and restrain breach of statute - picking of plants of endangered ecological communities - owner of private land directed clearing and filling of adjoining land - whether clearing and filling constituted picking of plants - whether plants picked were part of endangered ecological communities - past breach established - threatened or apprehended breach - appropriate orders to remedy and restrain breach - declaration of past breach - orders restraining future breach - orders remedying past breach. Civil enforcement - proceedings for orders to remedy and restrain breach of statute - damaging and removing vegetation and soil from land reserved or acquired under National Parks and Wildlife Act 1974 ("Parks Act") - owner of private land directed conduct of clearing and filling of adjoining land - conduct damaged and removed vegetation and soil - whether adjoining land had been acquired under Parks Act at time of conduct - transfer of land not registered until after conduct - whether land acquired before registration of transfer - whether adjoining land reserved under Parks Act as nature reserve at time of conduct - land eligible to be reserved includes land acquired under the Parks Act and lands of the Crown - whether adjoining land was land acquired under the Parks Act at time of reservation - whether adjoining land was lands of the Crown at time of reservation - whether adjoining land was vested in Minister administering Parks Act - alternatively whether adjoining land was lands vested in a public authority - whether Delta Electricity is a public authority - whether public authority granted concurrence to reservation of adjoining land as nature reserve - past breach not established - threatened or apprehended breach - adjoining land since been acquired under Parks Act - appropriate orders to restrain future breach. Civil enforcement - proceedings for orders to remedy and restrain breach of statute - whether time barred - proceedings for an offence to be commenced within two years after date of offence - civil enforcement proceedings not proceedings for an offence - time bar not applicable. Declarations and injunctions - civil enforcement proceedings - whether declaration should be made in addition to injunctive orders to remedy and restrain breaches of statute - declaration of breach appropriate to be made in circumstances -appropriate injunctive orders to restrain and remedy breaches - application of polluter pays principle to require polluter to remedy environmental harm caused by breach - whether discretion to decline relief should be exercised.
Legislation Cited:	Annual Reports (Statutory Bodies) Act 1984 s 24A Civil Procedure Act 2005 s 4 Sch 1 Criminal Procedure Act 1986 s 246 Energy Services Corporations Act 1995 s 4, 5, 6, 11, Pt 1 Sch 1 Environmental Planning and Assessment Act 1979 Pt 5 Independent Commission Against Corruption Act 1988 Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Rules 2007 r 5.3 Land and Environment Court Act 1979 ss s 20(1)(cg), 21(h) National Parks and Wildlife Act 1974 ss 5(1), 30A, 30B, 30C, 118A(2), 145, 146, 148, 156A(1), 176, 189(1), 190(1), 191(1A), 193, Pt 4 Div 1, Pts 4A, 5, 11 Public Finance and Audit Act 1983 Pt 4 Real Property Act 1900 s 41(1) State Owned Corporations Act 1989 ss 4, 20A, 20F, 20H, 20N, 20O, 20P, 20T, 20U, 24A, 28(2), 36(2), 37A(4), Sch 5 Threatened Species Conservation Act 1995 Pt 3 Sch 1, s 4 Uniform Civil Procedure Rules 2005 rr 1.5, 1.6, Pt 6 r 6.2
Cases Cited:	ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Australian Securities Investment Commission (ASIC) v Atlantic 3 Financial (Aust) Pty Ltd [2006] QSC 132 Barry v Heider (1914) 19 CLR 197 Barton v Orange City Council [2008] NSWLEC 104 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Commissioner of Taxation v Bank of Western Australia Ltd (1995) 61 FCR 407; (1995) 133 ALR 599 Committee of Direction of Fruit Marketing v Delegate of the Australian Postal Commission (1980) 144 CLR 577 Corin v Patton [1990] HCA 12; (1990) 169 CLR 540 Council of the City of Sydney v Mae [2009] NSWLEC 84 Ellison v Warringah Shire Council (1985) 55 LGRA 1 Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2009) 148 LGERA 299 Federal Commissioner of Taxation v Silverton Tramway Co Ltd (1953) 88 CLR 559 Great Lakes Council v Lani (2007) 158 LGERA 1 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 Lane Cove Council v Sarkozy (1996) 130 LGERA 240 Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127 Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; (2004) 138 LGERA 383 Renmark Hotel Inc v Federal Commissioner of Taxation (1949) 79 CLR 10 Strathfield Council v Xu Hong Lin and Wei Jiang t/as Play Electronics (1994) 130 LGERA 344 Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 Tynan v Meharg & Newcastle City Council (1998) 101 LGERA 255 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Watt v Lord [2005] NSWSC 53 Western Australian Turf Club v Commissioner of Taxation of the Commonwealth of Australia (1978) 139 CLR 288 Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244 Woolworths Ltd v The Warehouse Group (Aust) Pty Ltd [2003] NSWLEC 31; (2003) 123 LGERA 341
Texts Cited:	Keith D A & Scott J "Native vegetation of coastal floodplains - a diagnosis of the major plant communities in New South Wales" (2005) 11 Pacific Conservation Biology Journal 81-104 D J Whalan, The Torrens System in Australia, (1982) LawBook Co, Sydney
Category:	Principal judgment
Parties:	Director-General of the Department of Environment Climate Change and Water (Applicant) Mr Anthony De Lisle Venn (Respondent)
Representation:	Mr D K Jordan, Barrister (Applicant) Ms C Kardell, Solicitor (Respondent) NSW Department of Environment, Climate Change and Water (Applicant) Ms C Kardell, sole practitioner (Respondent)
File Number(s):	40826 of 2010