Director-General Department of Land and Water Conservation v Jackson And Ors

[2003] NSWLEC 81

>

Reported Decision: 125 LGERA 304

Land and Environment Court

of New South Wales

CITATION:	Director-General Department Of Land And Water Conservation v Jackson And Ors [2003] NSWLEC 81
PARTIES:	PROSECUTOR: Director-General Department Of Land And Water Conservation DEFENDANTS: Jackson And Ors
FILE NUMBER(S):	50014; 50015; 50016; 50017; 50018; 50019 of 2002
CORAM:	Bignold J
KEY ISSUES:	Environmental Offences :- clearing native vegetation-Preliminary questions of law whether clearing excluded from operation of Act-whether clearing within statutory exemption conferred by SEPP No 46.
LEGISLATION CITED:	Native Vegetation Conservation Act 1997, s 12(f) Interpretation Act 1987, s 33
CASES CITED:	Accident Touring and Advisory Committee v Combined Motor Industries Pty Ltd (1987) VR 529; Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292; Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; Jones v Wrotham Park Settled Estates (1980) AC 74; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421; Penrith City Council v Waste Management Authority (1990) 71 LGRA 376; Saif Ali v Sydney Mitchell and Co (A Finn) (1980) AC 198; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 53; Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275
DATES OF HEARING:	14/03/2003
DATE OF JUDGMENT:	03/31/2003
LEGAL REPRESENTATIVES:	PROSECUTOR: Mrs J Kelly, Barrister SOLICITORS State Crown Solicitor DEFENDANTS: Mr J Ayling SC SOLICITORS Kemp Strang

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 50014-19 of 2002

Coram : Bignold J

31 March 2003

DIRECTOR GENERAL DEPARTMENT OF LAND AND WATER CONSERVATION

Prosecutor

v

BRUCE GORDON JACKSON

Defendant

DIRECTOR GENERAL DEPARTMENT OF LAND AND WATER CONSERVATION

Prosecutor

v

WILLIAM BYRON FINDLEY

DIRECTOR GENERAL DEPARTMENT OF LAND AND WATER CONSERVATION

Prosecutor

v

BUDVALT PTY LIMITED (ACN 003 989 268)

JUDGMENT

A. INTRODUCTION

1. Three Defendants have been charged with related offences against s 17 of the Native Vegetation Conservation Act 1997 (the NVC Act). In all, there are six charges of such offences and in respect of each charge, each Defendant has entered a plea of not guilty. The Defendants have consented to the charges being heard together at the one trial which has been fixed for hearing for four weeks commencing on 19 May 2003.

2. However, in advance of that trial, the parties have asked the Court to determine the following two preliminary questions of law—

1. Whether any clearing within the meaning of s 5, of the

NVC Act that may have occurred as a result of either—

(a) the construction, or

(b) the inundation of water, or

of the Marra Water Storage (“the Water Storage”) would be excluded from the operation of the NVC Act pursuant to s 12(f) of that Act.

2 Whether the Water Storage is a “rural structure” or a “farm structure” within the meaning of Schedule 3, paragraph (3) of State Environmental Planning Policy No. 46. .

3. The Court is asked to determine these questions upon the basis of the agreed facts contained in the Statement of Agreed Facts (Exhibit 1) which I shall presently recite. The parties have tendered the Statement of Agreed Facts, not only for the purpose of the Court’s determination of the preliminary questions of law, but for all purposes in the proceedings. Moreover, the parties have signified their willingness to be bound so far as concerns the trial of the charges, by the Court’s determinations of the preliminary questions of law.

4. Before reciting the Agreed Facts and proceeding to determine the questions of law, I should say a little more about (i) the relevant charges; and (ii) the relevant provisions of the NVC Act.
B. THE CHARGES

5. As earlier noted, each charge alleges an offence against the NVC Act, s 17(1) which provides as follows:

A person who contravenes this Part is guilty of an offence under this Act.

6. The reference to “this Part” is a reference to Part 2 of the NVC Act, which is headed “Clearing native vegetation and clearing protected land” (the terms “clearing”, “native vegetation” and “protected land” being respectively defined by s 5, 6 and 4(1) of the Act).

7. The particular “contravention” of Part 2 alleged in each of the six Summonses is a contravention of s 21 of the NVC Act which provides as follows:

21. Clearing native vegetation on land not subject to plan
(1) This section does not apply to:

(a) any land to which a regional vegetation management plan applies, or

(b) State protected land.


(2) A person must not clear native vegetation on any land except in accordance with:

(a) a development consent that is in force, or

(b) a native vegetation code of practice.

8. According to the particulars endorsed upon the respective Summonses (Exhibit 2) two separate acts of clearing native vegetation are alleged against each of the three Defendants—the first act of clearing involved the construction of the walls of a water storage dam and of the adjacent borrow pit situate on the rural property known as “Miralwyn” situate near Carinda in the State’s Central West Region and the second act of clearing involved the pumping of water from the Barwon River into the constructed water storage dam so as to inundate the enclosed land.

9. Four of the six charges are laid against two individuals, being alleged to be directors of the Defendant Corporation, against which the other two charges are laid . The four relevant Summonses laying those charges against the two named Directors expressly rely upon s 65 of the NVC Act which provides as follows:

65. Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:

(a) the corporation contravened the provision without the actual, imputed or constructive knowledge of the person, or

(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.


(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.

(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.

(4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular intention, is evidence that the corporation had that intention.

C. THE RELEVANT PROVISIONS OF THE NVC ACT

10. The long title to the NVC Act is “An Act relating to the conservation and sustainable management of native vegetation and the clearing of land, to amend the Soil Conservation Act 1938 and certain other Acts, to repeal State Environmental Planning Policy No 46—Protection and Management of Native Vegetation”.

11. Section 3 sets forth the following objects of the NVC Act—

Objects of Act

The objects of this Act are:

(a) to provide for the conservation and management of native vegetation on a regional basis, and

(b) to encourage and promote native vegetation management in the social, economic and environmental interests of the State, and

(c) to protect native vegetation of high conservation value, and

(d) to improve the condition of existing native vegetation, and

(e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation, and

(f) to prevent the inappropriate clearing of vegetation, and

(g) to promote the significance of native vegetation,

in accordance with the principles of ecologically sustainable development.

12. The various means provided by the NVC Act for the attainment of these statutory objects can be summarised as follows—

(i) Part 2 imposes controls on the clearing of native vegetation and the clearing of protected land;

(ii) Part 3 provides for the making of Regional vegetation management plans;

(iii) Part 4 provides for the adoption of a Native Vegetation Code of practice.

(iv) Part 5 provides for the making and enforcement of “property agreements”;

(v) Part 6 empowers the Director-General to issue “stop work” orders and “remedial work” orders.

(vi) Part 7 makes administrative arrangements including the establishment of Regional Vegetation Committees and the Native Vegetation Advisory Council, each having defined statutory functions;
(vii) Part 8 contains miscellaneous provisions including provisions for the civil and criminal enforcement of the NVC Act.

13. The determination of the questions of law only requires detailed consideration of the provisions of Part 2. However, the scope and application of that Part depends upon a number of crucial provisions contained in Part 1 of the NVC Act. In particular, Part 1 contains the express objects (s 3), several definitional provisions (ss 4, 5, 6, 7 and 8) and specific exclusions from the operation of the Act (ss 9, 10, 11 and 12).

14. As noted earlier, the NVC Act defines a number of key concepts or terms, including “clearing”, and “native vegetation” which are defined by ss 5 and 6 respectively as follows:

Definition of "clearing"

5(1) In this Act, "clearing" native vegetation means any one or more of the following:


(a) cutting down, felling, thinning, logging or removing native vegetation,

(b) killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation,

(c) severing, topping or lopping branches, limbs, stems or trunks of native vegetation,

(d) substantially damaging or injuring native vegetation in any other way.


(2) In this Act, "clearing" protected land means any one or more of the following:

(a) cutting down, felling, thinning, logging or removing any vegetation on protected land,

(b) killing, destroying, poisoning, ringbarking, uprooting or burning any vegetation on protected land,

(c) severing, topping or lopping branches, limbs, stems or trunks of any vegetation on protected land,

(d) substantially damaging or injuring any vegetation on protected land in any other way.


(3) For the purposes of subsection (2), "vegetation on protected land" means:

(a) any native vegetation on the protected land, and

(b) any tree on the protected land (regardless of whether it is dead or alive, standing or fallen, or whether it is indigenous),


but does not include any type of non-indigenous vegetative groundcover.

(4) For the purposes of this Act, "clearing" native vegetation, or "clearing" protected land, does not include sustainable grazing. Sustainable grazing is the level of grazing that, in the opinion of the Director-General, the vegetation concerned is capable of supporting without resulting in a substantial long-term modification of the structure and composition of the vegetation.

(5) For the purposes of this Act, the clearing of land by burning during a bush fire within the meaning of the Rural Fires Act 1997 does not affect any requirement of this Act with respect to any subsequent clearing of the land (whether by burning or otherwise).

6. Definition of "native vegetation"

(1) In this Act, "native vegetation" means any of the following types of indigenous vegetation:

(a) trees,

(b) understorey plants,

(c) groundcover,

(d) plants occurring in a wetland.

(2) For the purposes of this definition, "groundcover" means any type of herbaceous vegetation, but it is only to be regarded as native vegetation for the purposes of this Act if it occurs in an area where not less than 50% of the herbaceous vegetation covering the area comprises indigenous species. In determining that percentage, not less than 10% of the area concerned must be covered with herbaceous vegetation (whether dead or alive).

(3) For the purposes of this Act, "native vegetation" does not include any mangroves, seagrasses or any other type of marine vegetation within the meaning of the Fisheries Management Act 1994.

15. The reference to “indigenous vegetation” contained in the definition of “native vegetation” is a reference that expression which is defined or qualified by s 4(2) which provides as follows:

For the purposes of this Act, vegetation is indigenous if it is of a species of vegetation, or if it comprises species of vegetation, that existed in the State before European settlement

16. It is to be noted that already in these defined terms, exclusions from their ambit are expressly created. Thus, “sustainable grazing” is excluded from the ambit of “clearing (s 5(4)) and mangroves, seagrass etc are excluded from the ambit of native vegetation” (s 6(3)) and “groundcover”, an express component of “native vegetation” is further qualified by the operation of s 6(2).

17. Section 9, 10 and 11 create express exclusions from “the operation of the Act” where such exclusions are formulated by reference to (i) specified land or classes of land (s 9) or (ii) land within specified local government areas (ss 10 and 11).

18. Sections 9 and 10 are in the following terms:—

9. Land excluded from operation of Act

This Act does not apply to the following land:

(a) land that is within a zone designated "residential" (but not "rural-residential"), "village", "township", "industrial" or "business" under an environmental planning instrument,

(b) land to which State Environmental Planning Policy No 14---Coastal Wetlands applies,

(c) land to which State Environmental Planning Policy No 26---Littoral Rainforests applies,

(d) land that is a State forest, national forest, flora reserve or timber reserve under the Forestry Act 1916,

(e) land that is acquired under section 15 of the Forestry Act 1916 for the purposes of a State forest (not being any such land that is acquired for the purpose of a timber plantation within the meaning of the Timber Plantations (Harvest Guarantee) Act 1995),

(f) land that is dedicated or reserved under the National Parks and Wildlife Act 1974,

(g) land that is acquired under section 145 of the National Parks and Wildlife Act 1974 for the purpose of obtaining land for dedication or reservation under that Act or for the purpose of preserving, protecting and preventing damage to relics or Aboriginal places,

(h) land that is subject to a conservation agreement entered into under Division 7 of Part 4 of the National Parks and Wildlife Act 1974,

(i) land that is subject to an interim protection order made under Part 6A of the National Parks and Wildlife Act 1974,

(j) land to which an interim heritage order or listing on the State Heritage Register under the Heritage Act 1977 applies,

(k) land that is critical habitat,

(l) Lord Howe Island.

10. Certain other land excluded from operation of Act: Schedules 1 and 2

(1) This Act does not apply to any land within a local government area specified in Schedule 1. However, this Act does apply to land within any such local government area to the extent to which the land comprises State protected land.

(2) This Act does not apply to any land within a local government area specified in Schedule 2.

19. Schedule 1 to the NVC Act is in the following terms:

Schedule 1---Local government areas partially excluded from Act

(Sections 10 (1) and 11 (1) (a))

Ashfield, Auburn, Bankstown, Baulkham Hills, Blacktown, Botany Bay, Burwood, Camden, Campbelltown, Canterbury, Concord, Drummoyne, Fairfield, Hawkesbury, Holroyd, Hornsby, Hunters Hill, Hurstville, Kogarah, Ku-ring-gai, Lane Cove, Leichhardt, Liverpool, Manly, Marrickville, Mosman, Newcastle, North Sydney, Parramatta, Penrith, Pittwater, Randwick, Rockdale, Ryde, South Sydney, Strathfield, Sutherland Shire, Sydney City, Warringah, Waverley, Willoughby, Wollongong, Woollahra.

20. No land is specified within Schedule 2 to the NVC Act.

21. Section 11 enables the Governor to make an order, on the recommendation of the Minister, to amend Schedules 1 and 2 by inserting in or omitting from, either schedule the name of a local government area. Subsection (3) and (4) impose limitations on the Minister’s power to recommend such amendments to schedules 1 and 2 by providing as follows:

(3) The Minister may recommend an order inserting the name of a local government area only if the Minister is of the opinion that adequate provision, consistent with the objects of this Act, has been made with respect to the conservation and management of native vegetation in that area through the operation of a local environmental plan applying to that area.

(4) The Minister may recommend an order omitting the name of a local government area only if the Minister is of the opinion that adequate provision, consistent with the objects of this Act, has not been made with respect to the conservation and management of native vegetation in that area through the operation of a local environmental plan applying to that area.

22. Finally, s 12 excludes the operation of the Act by reference to specified “types of clearing” by providing as follows:

12. Clearing excluded from operation of Act

This Act does not apply to the following types of clearing:

(a) any clearing authorised under the State Emergency and Rescue Management Act 1989 in relation to an emergency within the meaning of that Act,

(a1) any clearing authorised under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act,

(b) any clearing carried out in accordance with a bush fire management plan under the Rural Fires Act 1997,

(c) any clearing authorised under the Noxious Weeds Act 1993,

(d) any clearing carried out in accordance with a property management plan approved by the Director-General of National Parks and Wildlife for the purposes of the Threatened Species Conservation Act 1995,

(e) any clearing authorised under a licence issued under Division 1 of Part 6 of the Threatened Species Conservation Act 1995,

(f) any clearing that is, or that is part of, designated development within the meaning of the EPA Act,

(g) any clearing authorised to be carried out under Division 3 or 4 of Part 7 of the Fisheries Management Act 1994,

(h) any clearing authorised under a licence issued under Division 6 of Part 7A of the Fisheries Management Act 1994,

(i) any clearing carried out in accordance with a licence issued under section 131 of the National Parks and Wildlife Act 1974,

(j) any clearing authorised under the Mining Act 1992,

(k) any clearing authorised under the Petroleum (Onshore) Act 1991,

(l) any clearing that consists of plantation operations within the meaning of the Plantations and Reafforestation Act 1999 on an authorised plantation in accordance with any conditions of the authorisation and with the Plantations and Reafforestation Code under that Act,

(m) any clearing that involves the removal or lopping of any tree or other vegetation in accordance with section 88 of the Roads Act 1993,

(n) any clearing carried out in accordance with a consent under Division 3 of Part 9 of the Roads Act 1993,

(o) any clearing carried out in accordance with a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948,

(p) any clearing carried out in accordance with a licence, permit, authority or approval under the Water Act 1912.

23. Whereas these express exclusions from the ambit of the NVC Act would appear to have general application, in the particular case of the operation of Part 2 of the Act, they have obvious application in delimiting the scope and ambit of the controls wrought by Part 2 on the activity of “clearing native vegetation or clearing protected land”.

24. Those controls differentiate between cases involving the clearing of native vegetation or protected land where a regional vegetation management plan applies to the relevant land (Division 2) and cases involving the clearing of native vegetation or protected land where no regional vegetation management plan applies to the relevant land (Division 3).

25. However, in both cases, the principal form of control that is commonly employed is the requirement that development consent granted by the Minister in accordance with Part 4 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) be obtained to the clearing of native vegetation or the clearing of protected land without which consent the clearing is prohibited. That function of the Minister under Part 4 of the EP&A Act is achieved by the combined operation of ss 14 and 15 of the NVC Act which provide as follows:

14. Consent authority for clearing

For the purposes of the EPA Act, the Minister is the consent authority for any development application made under that Act for any clearing that requires development consent because of this Part.

15. Granting of development consent

(1) If development consent is, because of this Part, required to clear native vegetation or any protected land, that development consent may be obtained by the Minister making a determination, in accordance with Part 4 of the EPA Act, to grant development consent.

(2) For the avoidance of doubt, Part 4 of the EPA Act applies to and in respect of that development consent in the same way as it applies to and in respect of development consent that may be required by an environmental planning instrument.

(3) The Director-General must keep a register, in the form approved by the Minister, of the following:

(a) development consents granted by the Minister under Part 4 of the EPA Act for any clearing that requires development consent because of this Part,

(b) decisions on appeal pursuant to Part 4 of the EPA Act from any determination made by the Minister under that Part in relation to any such clearing.

(4) The register is to be available for public inspection, without charge and during ordinary business hours, at the head office of the Department of Land and Water Conservation and at the relevant regional office of that Department. Any person is entitled to make copies of any entry in the register.

26. The provisions of Part 2 that “require” development consent to clear native vegetation or protected land are ss 18 19 in a case where a regional vegetation management plan relevantly applies and ss 21 and 22 in a case where such a plan relevantly does not apply.

27. As earlier noted, all of the present charges allege an offence under s 17 by virtue of alleged contraventions of s 21(2) and both these provisions have been earlier recited.

28. All of the foregoing provisions of the NVC Act are relevant to the first question of law which is raised in the present case, which in particular focussses attention on the exclusionary operation of the type of “clearing” identified in s 12(f).

29. However, there are other provisions of the NVC Act, being the savings and transitional provisions contained in Schedule 4 enacted by s 68, that are relevant to the second question of law raised in the case.

30. The relevant savings and transitional provisions, which are contained in cll 2 and 3 of Schedule 4, provide as follows:

2 Definition

In this Part:

SEPP 46 means State Environmental Planning Policy No 46---Protection and Management of Native Vegetation as in force immediately before its repeal by this Act.

3 Existing development consents and exemptions under SEPP 46

(1) The repeal of SEPP 46 by this Act does not affect any development consent for clearing native vegetation as required by SEPP 46 and in force immediately before that repeal, except to the extent that:

(a) the development consent is taken to be development consent as required by Part 2 of this Act, and

(b) the clearing is to be subject to this Act.

(2) Subject to the regulations, the clearing of native vegetation for a purpose or extent described in Schedule 3 to SEPP 46 continues, after the repeal of SEPP 46 by this Act, to be clearing that is exempt from any requirement under Part 2 of this Act for development consent.

(3) Subclause (2), and any regulation made for the purposes of that subclause, ceases to have effect in relation to the clearing concerned if the land to which the clearing relates becomes land to which a regional vegetation management plan applies.

31. State Environmental Planning Policy No 46—Protection and Management of Native Vegetation (SEPP 46) came on 10 August 1995. It was repealed by the NVC Act, s 70.

32. Clause 3(2) of Schedule 4 refers to “the clearing of native vegetation for a purpose or extent described in Schedule 3 to SEPP 46”.

33. That Schedule which was given effect by cl 11 of SEPP 46 (“This Policy does not require development consent for any clearing of native vegetation described in Schedule 3”) provided as follows:

SCHEDULE 3 – EXEMPTIONS

Clearing of native vegetation for the purpose of the following:

(a) Minimal Clearing. The clearing of up to 2hectares per annum for any contiguous land holding in the same ownership.

(b) Minimal Tree Cutting. The cutting of no more than 7 trees per hectare in any period of one year for on-farm uses, including fence posts and firewood.

(c) Stock Fodder. The lopping of native vegetation for stock fodder in any period of declared drought if the vegetation’s continued health is not affected.

(d) Mistletoe Control. The lopping of native vegetation for mistletoe control to the minimum extent necessary for the vegetation’s continued health.

(e) Rural Structures. The clearing to a minimum extent of native vegetation if it is necessary for the construction, operation and maintenance of farm structures (such as farm dams, tracks, bores, windmills, fences, fence lines, stockyards, loading ramps, sheds and the like).

(f) Burning. The clearing of native vegetation if it is authorised under the Bush Fires Act 1949.

(g) Public Utilities and Emergency Work. The clearing, to a minimum extent, of native vegetation for the maintenance of public utilities (associated with the provision of power lines, transmission of electricity, water, gas, electronic communications or the like), or which may reasonably be thought likely to be at risk of causing personal injury or damage to property.

(h) Planted Native Vegetation. The clearing of native vegetation planted for forestry, agriculture, agroforestry, woodlots, gardens and horticultural purposes.

(i) Private Native Forestry. The clearing of native vegetation in a native forest in the course of its being selectively logged on a sustainable basis or managed for forestry purposes (timber production).

(j) Regrowth. The removal of native vegetation, whether seedlings or regrowth, of less than 10 years of age if the land has been previously cleared for cultivation, pastures or forestry plantation purposes.

(k) Noxious Weeds. The clearing of native vegetation proclaimed as a noxious weed.

(l) Vermin Control. The clearing of native vegetation to the minimum extent necessary for vermin control.

34. In passing, it may be noted that SEPP 46 was an obvious predecessor to the NVC Act although its ambit and scope was basically confined to controlling the clearing of native vegetation to similar effect (by requiring the grant of development consent by the Minister for clearing of native vegetation) to that which is now provided by Part 2 of the NVC Act in respect of the clearance of native vegetation from land that is not the subject of a regional vegetation management plan. In imposing these controls which operated directly under the EP&A Act, SEPP 46 adopted similar meanings, as are now adopted by the NVC Act for the key concepts “clearing” and “native vegetation”.
D. THE AGREED FACTS

35. The Statement of Agreed Facts (Exhibit 1) affirms the following facts:

1. At all relevant times, Budvalt Pty Limited owned the property known as

Miralwyn (the land) near Carinda in the central west of New South Wales. The land is located south of the Barwon River and immediately east of the Macquarie and Barwon Rivers’ confluence..

2. No regional vegetation management plan within the meaning of the NVC Act applies to the land.

3. No native vegetation code of practice within the meaning of the NVC Act applies to the land.

4. Budvalt Pty Limited constructed the Marra Water Storage or Westend Cell 3 (“the Water Storage”) on the land between about mid-March 1999 and about early October 1999.

5. Budvalt Pty Limited filled the Water Storage with water some time between early October 1999 and April 2000.

6. These proceedings concern allegedly unlawful clearing of native vegetation contrary to the NVC Act, s 21(2)(a), being an offence pursuant to s 17(1) of the Act during the construction and the consequential inundation with water of the Water Storage.

7. At all material times, the land was in part used for growing irrigated cotton.

8. At all material times, the land was the subject of licences granted pursuant to the Water Act 1912, Part 2, section 12 which authorised the extraction of water from the Barwon River or associated watercourses and irrigation of a maximum of approximately 6,000 hectares of land using a maximum of 113,832 megalitres of water per annum. Those licences are 80SL040294, 80SL051650 and 80SL095365 (the licences).

The Environmental Planning and Assessment Act 1979

13. The land is zoned Non-Urban A also referred to as 1(a), under the Walgett IDO 1968 (the IDO).

14. The IDO adopts the model provisions published in the Government Gazette No. 88 of July 17, 1970 (as amended). )

15. Agriculture is permitted pursuant to the IDO in the Non-Urban A zone without development consent of council.

16. Growing irrigated cotton is agriculture within the meaning of the IDO.

17The water storage meets the criteria set out in the second definition under the artificial waterbodies definition in Schedule 3 of the Environmental Planning and Assessment Regulation 1994 (Schedule 3) having a maximum aggregate surface area of water of more than 20 hectares and a maximum total water volume of more than 800 megalitres.

18. The Water Storage is on a floodplain within the meaning of Part 3 of Schedule 3.

19Tail-water is neither sludge nor effluent within the meaning of those terms in Schedule 3.

The Water Act 1912

20. The Water Storage is constructed on a designated floodplain pursuant to s 165 of the Water Act 1912 and requires approval under Part 8 of that Act. The parties disagree whether such an approval has been given.

E. DETERMINATION OF QUESTIONS OF LAW

36. I now proceed to separately consider and determine each of the questions of law, recognising that the answer to each question is primarily to be found in the proper construction of the relevant statutory provisions.
(i.) Question 1 – NVC Act, s 12(f)?

37. The answer to the first question depends upon the true meaning and effect of the NVC Act, s 12(f). It is only after that meaning has been established by the process of statutory construction that the question as formulated (being a question of mixed law and fact) can be answered.

38. As will shortly appear, the true meaning of s 12(f) in my judgment, is not readily established, despite the obvious literal meaning of the statutory expression, being one of 16 “types of clearing” that are specifically excluded from the operation of the Act. That literal meaning is that the relevant exclusion is in respect of “clearing” (as defined by s 5) “that is, or that is part of, designated development within the meaning of the EPA Act”.

39. A question immediately arises as to whether the expression “designated development within the meaning of the EPA Act” is to be understood as having a fixed or an ambulatory meaning because during the life of the NVC Act, the expression in the EP&AAct has had different meanings on three separate occasions. More relevantly, the expression had a different meaning during the specified periods in which the several offences are alleged to have been committed (“mid March 1999 and early October 1999” and “early October 1999 and April 2000”: vide pars 4 and 5 of the Statement of Agreed Facts) from the meaning that it had when the NVC Act was enacted (16 December 1997) and came into force (1 January 1998) or from the meaning that the expression currently has. This is the result of relevant changes made to the EP&A Act or to the Regulation made thereunder. (As will appear it is the Regulation that principally gives content to the concept “designated development”).

40. The parties’ competing arguments have adopted the common position that the relevant meaning of the relevant expression is that which it had throughout the periods during which the several offences are alleged to have been committed. That meaning is slightly different from the meaning that the relevant expression had upon enactment of the NVC Act.

41. An ambulatory understanding of the expression “designated development within the meaning of the EPA Act” is supported by s 68(1) of the Interpretation Act 1987 which provides (“except insofar as the contrary intention appears….”: s 5(2)):

In any Act or instrument, a reference to some other Act or instrument extends to the other Act or instrument, as in force for the time being .

42. In the present case, where the relevant reference is to a concept or term “designated development within the meaning of the EP&A Act” the Interpretation Act, s 68(1) operates to require that expression to be understood in an ambulatory sense ie “designated development within the meaning of the EP&A Act as in force for the time being”.

43. Accordingly, for the foregoing reasons, I proceed to interpret s 12(f) upon the basis that the relevant expression has the meaning in the present case that it bore constantly throughout the relevant period in which the alleged offences are alleged to have been committed (ie from March 1999 to April 2000). All relevant statutory provisions hereafter recited or referred to are in the form that they had when they were in force during the relevant period.

44. The concept or term “designated development” was relevantly defined in the EP&A Act, s 4(1) as “having the meaning given by s 77A”. Section 77A appears in Division 2 of Part 4 of the Act. Part 4 is headed “Development Assessment” and Division 2 is headed “The procedures for development that needs consent”.

45. The EP&A Act, s 77A relevantly provided:

Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations ”.

46. The EP&A Act, s 29 provides as follows:

Designated development: declaration by environmental planning instruments

An environmental planning instrument may contain provisions declaring any class or description of development (whether by reference to the type, purpose or location of development or otherwise) to be designated development for the purposes of this Act.

47. The Environmental Planning and Assessment Regulation 1994, cl 49(1) (the EPA Regulation) provides as follows:

Development described in Schedule 3 is declared to be designated development for the purposes of the Act.

48. Accordingly, “designated development” may be declared by one of two separate modes—(i) by an environmental planning instrument; and (ii) by Regulation. However, it is common ground that in the present case there is no relevant environmental planning instrument that declares “designated development” and accordingly, the exclusive source of the declaration of “designated development” in the present case is the EPA Regulation.

49. Schedule 3 to the EP&A Act Regulation is divided into four parts as follows:

Part 1 - What is designated Development?

Part 2 - Are alterations or additions designated development?

Part 3 - What do terms used in this Schedule mean?

Part 4 - How are distances measured for the purposes of this Schedule?

50. Part 1 contains an extensive list of activities or developments enumerated in alphabetical order below the following prefatory words—

Development for the undermentioned purposes or development of the undermentioned types is designated development:

51. Included in the list are two particular entries upon which the Defendants rely, namely “artificial water bodies” and “waste management facilities or works” which are respectively expressed as follows:

Artificial waterbodies:

(1) with a maximum aggregate surface area of water of more than 0.5 hectares located:


(a) in or within 40 metres of a natural waterbody, wetland or an environmentally sensitive area, or

(b) in an area of


(i) high watertable; or

(ii) acid sulphate, sodic or saline soils; or

(2) with a maximum aggregate surface area of water of more than 20 hectares or a maximum total water volume of more than 800 megalitres, or

(3) if more than 30,000 cubic metres per year of material is to be removed from the site.

Waste management facilities or works that store, treat, purify or dispose of waste or sort, process, recycle, recover, use or reuse material from waste and that:


(1) dispose (by landfilling, incinerating, storing, placing or other means) of solid or liquid waste:

(a) that includes any substance classified in the Australian Dangerous Goods Code or medical, cytotoxic or quarantine waste, or

(b) that comprises more than 100,000 tonnes of clean fill (such as soil, sand, gravel, bricks or other excavated or hard material) in a manner that, in the opinion of the consent authority, is likely to cause significant impacts on drainage or flooding, or

(c) that comprises more than 1,000 tonnes per annum of sludge or effluent, or

(d) that comprises more than 200 tonnes per annum of other waste material, or


(2) sort, consolidate or temporarily store waste at transfer stations or materials recycling facilities for transfer to another site for final disposal, permanent storage, reprocessing, recycling, use or reuse and:

(a)handle substances classified in the Australian Dangerous Goods Code or medical, cytotoxic or quarantine waste, or

(b) have an intended handling capacity of more than 10,000 tonnes per year of waste containing food or livestock, agricultural or food processing industries waste or similar substances, or

(c) have an intended handling capacity of more than 30,000 tonnes per year of waste such as glass, plastic, paper, wood, metal, rubber or building demolition material, or


(3) purify, recover, reprocess or process more than 5,000 tonnes per year of solid or liquid organic materials, or

(4) are located:


(a) in or within 100 metres of a natural waterbody, wetland, coastal dune field or environmentally sensitive area, or

(b) in an area of high watertable, highly permeable soils, acid sulphate, sodic or saline soils, or

(c) within a drinking water catchment, or

(d) within a catchment of an estuary where the entrance to the sea is intermittently open, or

(e) on a floodplain, or

(f) within 500 metres of a residential zone or 250 metres of a dwelling not associated with the development and, in the opinion of the consent authority, having regard to topography and local meteorological conditions, are likely to significantly affect the amenity of the neighbourhood by reason of noise, visual impacts, air pollution (including odour, smoke, fumes or dust), vermin or traffic.

This designation of waste management facilities or works does not include:

(a) development comprising or involving any use of sludge or effluent if:
(i) the dominant purpose is not waste disposal; and

(ii) the development is carried out in a location other than one listed in paragraph (4) above; or

(b) development comprising or involving waste management facilities or works specifically listed elsewhere in this Schedule.

52. The two terms “artificial water bodies” and “waste management facilities or works” (or some words or expressions included within them) are defined by Part 3 of Schedule 3 as follows—

effluent includes treated or partially treated wastewater from processes such as sewage treatment plants or from treatment plants associated with intensive livestock industries, aquaculture of agricultural, livestock, wood, paper or food processing industries.

sludge means semi-liquid particulate matter produced as a by-product of agricultural produce industries, aquaculture or mariculture, breweries or distilleries, livestock intensive industries, livestock processing industries, paper pulp or pulp product industries or sewerage systems or works.

waste includes any matter or thing whether solid, gaseous or liquid or a combination of any solids, gases or liquids that is discarded or is refuse from processes or uses (such as domestic, medical, industrial, mining, agricultural or commercial processes or uses). A substance is not precluded from being waste for the purposes of this Schedule merely because it can be reprocessed, re-used or recycled or because it is solid or intended for sale.

waterbody means:


(a) a natural waterbody, including:
(i) a lake or lagoon either naturally formed or artificially modified; or

(ii) a river or stream, whether perennial or intermittent, flowing in a natural channel with an established bed or in a natural channel artificially modifying the course of the stream; or

(iii) tidal waters including any bay, estuary or inlet; or

(b) an artificial waterbody, including any constructed waterway, canal, inlet, bay, channel, dam, pond or lake, but does not include a dry detention basin or other construction that is only intended to hold water intermittently.

53. Part 2 of Schedule 3 which is headed “ “Are alterations or additions designated development?” includes the following provision:

Is there a significant increase in the environmental impacts of the total development?

1. Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development.

54. It is at once to be noted that Part 1 of Schedule 3 to the EP&A Regulation does not declare to be designated development “clearing” of land or of native vegetation. One of the listed “purposes” or “types” of designated development, “aircraft facilities”, includes as a component of the development “in the case of facilities located (a) so as to disturb more than 20 hectares of native vegetation by clearing”. Other listed “purposes” or “types” of designated development (eg mines, extractive industries etc) include as a component of the development “the disturbance of specified areas of land by clearing and excavation activities”.

55. Accordingly, there is in Schedule 3 to the EP&A Regulation no declared purpose or type of “designated development” that simply involves clearing of native vegetation. This means that in the present case, one question of construction to arise is what is the meaning of “clearing that is part of, designated development within the meaning of the EP&A Act”?

56. Somewhat surprisingly, the competing arguments in the present case have not focussed attention upon what is meant by clearing being “part of designated development”. Rather, the parties’ common assumption appears to be that if the carrying out of “designated development” involves the physical activity or outcome of clearing native vegetation, it necessarily follows that that clearing is “part of” that designated development.

57. I am by no means convinced that the common assumption adopted in the competing arguments is sound or correct. That common assumption appears to regard the expression clearing that is “part of” designated development as if the clearing were an “incident of” the carrying out of designated development. But in my judgment, for clearing to be relevantly “part of” designated development, something more is required than that the clearing be an “incident” of designated development. This is especially so in the context of s 12(f) where the excluded type of clearing (and in my judgment “clearing” is here used in the sense defined by s 5) is “clearing that is, or is part of” designated development. In that context, to be “part of” something requires a quality of the part that is more essential and constituent than to be an “incident of” that something.

58. Moreover, the competing arguments have again commonly assumed that it is legitimate to consider the relevant clearing to be “part of” the relevant designated development in the sense that the clearing is occasioned in the course of the carrying out of that development. However, this common assumption is also dubious. An alternative construction is that the clearing must be part of the “designated development” as it is declared to be as a matter of definition. In this respect, I have already pointed out that the purpose or type of designated development being “aircraft facilities” expressly includes within the definition or concept the component “the clearing of more than 20 hectares of native vegetation”.

59. Notwithstanding the fact that the parties’ competing arguments have not addressed these particular aspects in the task of construing s 12(f), it is appropriate that I raise and consider the matters in the process of statutory construction, since that task is the Court’s, and not the parties’, ultimate responsibility: cf Accident Touring and Advisory Committee v Combined Motor Industries Pty Ltd (1987) VR 529 and Saif Ali v Sydney Mitchell and Co (A Firm) (1980) AC 198 cited in Pearce and Geddes “Statutory Interpretation in Australia” (1996) 4th ed at p 5.

60. However, in the present case I do not need to express a final opinion on these particular matters of construction in view of my overall construction of s 12(f) in respect of which I have had the benefit of full competing arguments from the parties. (This is an appropriate outcome in view of the absence of the benefit of argument on the other matters in question).

61. Nor, for the same reason, do I need to express any final view on the potential application to the present case of Part 2 of Schedule 3 to the EPA Regulation (which again was not a matter that was addressed in the competing arguments) other than to say that Part 2 operates so as to exclude from declaration as designated development (which would otherwise be the result by virtue of the operation of Part 1 of Schedule 3) such development which is in the nature of “alterations or additions” to existing or approved development “if in the opinion of the consent authority, the alterations or additions do not significantly increase, the environmental impacts of the total development…compared with the existing or approved development”.

62. In this respect, it may readily be inferred from the agreed facts that the creation of the water storage facility was relevantly an alteration or addition to the existing development of the rural property “Miralwyn” (including the existence on that property of two other large water storage dams). The mere fact that the relevant water storage facility is a large scale development does not disqualify it from being relevantly an “alteration or addition” to existing development, and once the conclusion is reached that a development is relevantly an alteration or addition, the crucial determinant in the operation of Part 2 of Schedule 3 to the EP&A Regulation is the consent authority’s opinion concerning the comparative environmental impacts of the relevant developments (existing and as altered).

63. The meaning and effect of Part 2 of Schedule 3 to the EPA Regulation is aptly illustrated by the decision of the Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 53 where the relevant development, held to be an alteration or addition, comprised an extension onto adjoining land, of an existing gold mine.

64. Although each of the matters that I have noted would need to be resolved as part of the overall process of construing s 12(f) in order to establish the true meaning and effect of s 12(f) it is possible to resolve the issues in dispute between the parties by effectively by-passing those matters and by assuming the correctness of the parties’ common assumptions and their application in favour of the Defendants’ argument that the literal meaning of s 12(f) is that clearing of native vegetation that “is, or is part of designated development within the meaning of the EPA Act” is a type of clearing that is excluded from the operation of the NVC Act.

65. It is from this point of commonality in the argument that the competing cases radically diverge with the Defendants submitting that the true meaning of s 12(f) is that yielded by its literal meaning, and the Prosecutor submitting that the literal meaning of s 12(f) does not yield its true meaning because to adopt the literal meaning of s 12(f) would be either to defeat the statutory purpose and objects of the NVC Act or to produce an unreasonable or absurd result, because a conclusion that the relevant exclusion from the operation of the NVC Act of clearing that is, or is part of, designated development would not carry any meaningful consequences, either for the EP&A Act or for the NVC Act. Rather, the result of adopting the literal meaning of s 12(f) would be to exclude such clearing from the operation of both the NVC Act and the EP&A Act.

66. In my judgment, there are cogent reasons that militate against the adoption of the literal meaning of s 12(f) as reflecting the true meaning of the provision, the foremost of which is that the fact that clearing is, or is part of designated development within the meaning of the EP&A Act of itself, carries no automatic consequences that that Act applies to control the activity of clearing native vegetation. This is because the control of “development” wrought by that Act is entirely dependent upon the existence of provisions of an environmental planning instrument imposing relevant controls. This result is directly achieved by the combined operation of ss 76, 76A and 76B which are contained in Division 1 of Part 4, the heading of which Division is “carrying out of development—the threefold classification”. Thus, it is legally possible for “designated development” being a species of “development” (a key concept in the Act which is defined comprehensively in s 4(1)) to be made the subject of a provision of an environmental planning instrument that may (i) “permit the carrying out of specified development without the need for development consent” (s 76(1)) or (ii) “provide that specified development may not be carried out except with development consent” (s 76A(1)) or (iii) “provide that specified development is prohibited” (s 76B). It is important to appreciate (i) that ss 76, 76A and 76B only operate “if” a relevant provision is contained in an environmental planning instrument and (ii) that such an instrument may (and not must) make such relevant provisions (see ss 24 and 26).

67. Moreover, it is legally possible that “designated development” so declared by an environmental planning instrument or by the EPA Regulation, simply to be uncontrolled by an environmental planning instrument with the legal result that despite the existence of the definition of the term “designated development” and despite the declaration of what is “designated development” there simply are no legal consequences in terms of the EP&A Act flowing from either of those facts.

68. In this respect, it must be appreciated that “designated development” is a defined term in the EP&A Act, possessing the legal function of a statutory definition such as was enunciated in the following passage of the joint judgment in the High Court’s decision in Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635:

The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense—or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way. As was said by Sutherland ( Statutes and Statutory Construction, 2nd ed, vol. 2, p. 687),

Such definitions can, in the nature of things, have no effect except in the construction of the statutes themselves

Consequently the effect of the Act and its operation in relation to dividends as defined by the Act must, we think, be found in the substantive provisions of the Act which deal with dividends .

69. The very existence of that legal possibility inevitably means that the Legislature or the draftsman of s 12(f) cannot have intended that s 12(f) operate so as to exclude from the operation of the NVC Act clearing which “is, or is part of, designated development”, merely as a matter of bare definition under the EP&A Act, but without any legal consequences (such as that controls on the carrying out of such development are imposed by the EP&A Act).

70. Such a result would clearly be absurd and unintended inasmuch as the clearing of native vegetation which would otherwise be controlled by the NVC Act (eg by virtue of s 21(2)) would be excluded from the operation of the NVC Act simply because as a matter of definition it was clearing that is, or is part of, designated development within the meaning of the EP&A Act, but in all other material respects, the clearing would not be controlled by the EP&A Act. The absurd result would be that such clearing is not controlled by either Act.

71. But a similar result, only slightly less absurd and unintended, would arise even in the case where an environmental planning instrument relevantly imposed controls of the types referred to in the EP&A Act, s 76B(1) and s 76C on the carrying out of designated development involving the clearing of native vegetation, because again by adopting the literal meaning of s 12(f) the exclusion from the operation of the NVC Act of “clearing of native vegetation that is, or is part of, designated development” would occur simply at the point and place of definition irrespective of whether the relevant controls imposed by s 76B(1) or s 76C are complied with at the time that the clearing activity is undertaken. This is because those controls and compliance with them, are simply irrelevant to the definition of “designated development” and to the question whether clearing of native vegetation “is or is, part of, designated development”.

72. That the literal meaning of s 12(f) does not yield its true meaning is confirmed by a consideration of (i) the purpose of s 12 within the overall statutory purpose and objects of the NVC Act and (ii) the statutory context of s 12(f).

73. The statutory objects of the NVC Act are expressly stated in s 3 which have earlier been recited. Those objects clearly would be defeated, especially object (f) (“to prevent the inappropriate clearing of vegetation”), by adopting the literal meaning of s 12(f) if so to do, would involve, as I have attempted to demonstrate it may, the unintended and absurd result that the exclusion from the operation of the NVC Act of the clearing of native vegetation that “is, or is part of designated development” was not predicated upon the subjection of that clearing activity to any control regime imposed by the EP&A Act (operating as an alternative to the control regime of the NVC Act). This would be the result either in the case of designated development that is not relevantly controlled by an environmental planning instrument because no relevant controls are imposed by that instrument, or in the case of designated development that is relevantly controlled by an environmental planning instrument because there is no requirement or guarantee (express or implied) in s 12(f) that those controls be satisfied. Indeed, any question of the existence of such controls, and of compliance with them, is simply irrelevant to the literal meaning of s 12(f) which exclusively fastens upon “designated development” as a matter of the definition. Thus it is possible on the basis of the literal meaning of s 12(f) that clearing as part of designated development, be carried out without obtaining any requisite development consent or by not observing any absolute prohibition on that development in terms of the EP&A Act.

74. Moreover, the statutory purpose and context of s 12(f) strongly militates against the adoption of the literal meaning of s 12(f) since all other paragraphs (15 in number) of s 12 exclude from the operation of the NVC Act specified types of clearing that is “authorised”, “permitted”, “licensed” or otherwise “sanctioned” under the several statutory regimes therein mentioned. In other words, except for s 12(f) all other excluded types of clearing are authorised by a specific legislative or statutory warrant.

75. This uniform structure to s 12 (except for par (f)) of course raises the obvious question as to why par (f) is worded so radically differently. Various speculative answers to this question were proffered and debated at the hearing but one thing that is clear beyond argument is that the statutory purpose of s 12 is to exclude from the operation of the NVC Act specified “types of clearing” where 15 of the 16 types of clearing are clearing which is “authorised”, “permitted”, “licensed” or otherwise “sanctioned” under some specified statutory warrant other than the NVC Act. This then provides the statutory purpose and context of the particular exclusion or exception provided by s 12(f), which, notwithstanding its verbal formulation of not adopting the structure otherwise uniformly adopted in respect of each of the other 15 types of specified clearing, nonetheless is intended to function as an exception to, or exclusion from, the operation of the NVC Act, in respect of the clearing of native vegetation. It is instructive to recall at this point that the control of clearing of native vegetation wrought by the NVC Act, Pt 2 operates independently of, and irrespective of, the operation of the EP&A Act. For example in terms of the EP&A Act, clearing of native vegetation may (or may not) be permitted (s 76A), require the grant of development consent (s 76B) or be absolutely prohibited (s 76C). Such “controls” may be imposed under the EP&A Act (vide the definition of “control” in s 4(1) of that Act) because “the clearing of native vegetation” relevantly falls within the definition of “development” (see s 4(1)) which includes the following element—

(f) any other act, matter or thing referred to in Section 26 that is controlled by an environmental planning instrument .

76. In this respect, it is to be noted that s 26 includes the following matters—

(a) protecting, imposing or utilising, to the best advantage, the environment;

………

(e) protecting or preserving trees or vegetation

77. Independently and irrespective of any such provisions operating under the EP&A Act controlling the clearing of native vegetation, the NVC Act, Part 2 operates to impose its own controls on that activity and interestingly the principal form of such control is the requirement that development consent granted by the Minister be obtained for such activity and that development consent is a development consent operating under Part 4 of the EP&A Act.

78. Thus even in a case where the clearing of native vegetation is a form of development that is “controlled” by an environmental planning instrument (and hence is controlled by ss 76A, 76B and s 76C of the EP&A Act). Part 2 of the NVC Act operates to prohibit the clearing of native vegetation unless there has been granted by the Minister a development consent under Part 4 of the EP&A Act for that activity: vide ss 18, 19, 21 and 22.

79. If the requisite development consent is granted by the Minister, then the permitted clearing activity cannot be “prohibited, restricted or otherwise affected” by an environmental planning instrument (other than that which a regional vegetation management plan is by virtue of the NVC Act, s 36 deemed to be) vide ss 20 and 23 of the NVC Act.

80. The foregoing analysis of the prevailing effects of Part 2 of the NVC Act over the EP&A Act in respect of controlling the clearing of native vegetation, for completeness also needs to note that the NVC Act recognises the future possibility of land being excluded from the operation of the Act by virtue of Executive action pursuant to s 10 and 11 of the NVC Act but “only if the Minister is of the opinion that adequate provision, consistent with the objects of this Act, has been made with respect to the conservation and management of native vegetation in a local government area through the operation of a local environmental plan applying to that area”: (s 11(3)) (my emphasis). Thus, the NVC Act contemplates as a future possibility sole reliance upon the operation of a local environmental plan and the EP&A Act but only where such plan contains adequate provision for the conservation and management of native vegetation. However, for the present, and in the meanwhile, the controls imposed by the NVC Act on clearing native vegetation are to prevail over the operation of the EP&A Act.

81. It is against this background of the operation of the NVC Act (including its relationships (present and future) with the EP&A Act) that the true meaning and effect s 12(f) as one of 16 types of clearing that are specifically excluded from the operation of the NVC Act, is to be arrived at, by the process of statutory interpretation.

82. Having regard to the overall purpose and objects of the NVC Act and to its interrelationships with the EP&A Act, it is tolerably clear that s 12(f) of all the excluded types of clearing, is intended to be an exception to the manifest legislative policy that the controls of the NVCAct, Pt 2 are intended to operate independently of, and prevailingly over, the operation of the EP&A Act.

83. Thus, s 12(f) is intended to operate as an exclusion or exception to the operation of Part 2 of the NVC Act, which would otherwise require the grant of development consent by the Minister to the clearing of native vegetation irrespective of the operation of the EP&A Act.

84. Thus, the true nature of the exclusion wrought by s 12(f) is revealed and it is this, that where the clearing of native vegetation is, or is part of, “designated development” within the meaning of the EP&A Act, the controls operating under that Act in respect of the designated development involving clearing of native vegetation are deemed to be a sufficient control regime by themselves, without the need for the relevant controls operating under the NVC Act in respect of that clearing activity to also apply. Why should this be the case? The only reasonable and rational answer is that the Legislature must be taken to have concluded that of all the types of development involving the clearing of native vegetation, that might be conceivably controlled by the EP&A Act, “designated development” is a species of that development for which the controls operating under the EP&A Act are sufficient in themselves to justify the non-application of the controls operating by virtue of the NVC Act, Pt 2. Why should this be the case? Again the only reasonable and rational answer is that the special and particular requirements of the EP&A Act applicable to the carrying out of “designated development” (eg the necessity for a development application to carry out designated development to be accompanied by an environmental impact statement: vide s 78A(8)(a) and the consequent opportunities for public participation in the processing of such a development application: vide ss 79 and 98) were considered by the Legislature to yield the result of a proper and adequate environmental assessment of the impact of the proposed development including its impact on native vegetation. The decision of the Court of Appeal in Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 includes a detailed discussion of the concept of “designated development” and of the statutory purpose of an environmental impact statement which is required to support development applications for the carrying out of designated development.

85. But the foregoing understanding and appreciation of the statutory purpose of s 12(f) which is relevant to the purposive construction of the provision that is as required by the Interpretation Act 1987, s 33 far transcends the literal meaning of s 12(f) and clearly demonstrates why that literal meaning is not the true meaning of s 12(f).

86. This finally brings me to a consideration of the purposive approach to establishing the true meaning of s 12(f), which is the approach required by s 33 of the Interpretation Act to be adopted.

87. The nature and scope of the purposive approach to statutory interpretation is extensively and convincingly discussed in the judgment of McHugh JA (as he then was) in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421 to 424 inclusive, which though contained in a dissenting judgment, has been subsequently followed by decisions of the Court of Appeal eg Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 and Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292.

88. The extended discussion in Kingston includes the following passage at 423/424, it being sufficient for present purposes to confine quotation to the first and last paragraphs of the passage:

A purposive and not a literal approach is the method of statutory construction which now prevails: cf Fothergill v Monarch Airlines Ltd [1981] AC 251 AT 272-273, 275, 280, 291. In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act. The Acts Interpretation Act 1901 (Cth), s 15AA, and the Interpretation Act 1987 (NSW), s 33, both require this approach to statutory construction.

…...

…...

Once the object or purpose of the legislation is delineated, the duty of the Court is to give effect to it in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose of object. Where the court can see the purpose of a provision from an examination of its terms, little difficulty should be met in giving effect to that purpose. The days are gone when judges, having identified the purpose of a particular statutory provision, can legitimately say, as Lord Macmillan said in Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641, of the means used to achieve the purpose: The legislature has plainly missed fire. Lord Diplock, in an extra judicial comment on that decision has said, that if…the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed: The Courts As Legislators, The Lawyer and Justice (Sweet & Maxwell) (1978) at 274.

89. Earlier in his judgment at 422, McHugh JA had cited the decision of the House of Lords in Jones v Wrotham Park Settled Estates (1980) AC 74 as an illustration of the legitimacy of the Court giving legislation “a strained construction” because by inadvertence, Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved. At 423, McHugh JA, resumed his reference to that case by stating:

Lord Diplock said (at 105) that if the application of the literal or grammatical meaning would lead to results which would defeat the purpose of a statute the court may read words into the legislation. But his Lordship said that words could only be read into a statute if three conditions were fulfilled. First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.

90. In each of the two cited later decisions of the Court of Appeal which adopted McHugh JA’s approach in Kingston, the Court in adopting a purposive construction remedying the perceived “legislative inadvertence” applied the three conditions stipulated by Lord Diplock in Jones’ case (which is alternatively cited as Wentworth Securities Ltd v Jones). In this respect, I note that F.A.R. Bennion in his leading text “Statutory Interpretation” 3rd ed (1997) makes the following perceptive comment at 733:

Lord Diplock’s third point is, with respect, erroneous. In an earlier case the House of Lords had adopted a purposive-and-strained construction while expressly ruling out any need to formulate the missing words. DPP v Schildkamp [1971] AC 1. The truth is that it is almost invariably possible to formulate the same legislative proposition in numerous different ways. All drafters know that no two of them, given a set of instructions, will produce a Bill in identical wording, or anything like it. Of course the case is different when it is merely a question of supplying an accidentally omitted word or two, but this belongs in the realm of rectifying rather than purposive construction.

91. In Tokyo Mart Mahoney JA at 283 distinguished two different types of “legislative inadvertence”, saying that one of which could, but the other could not, be remedied by the process of statutory interpretation. His Honour explained:

Legislative inadvertence may consist, inter alia, of either of two things. The draftsman may have failed to consider what should be provided in respect of a particular matter and so fail to provide for it. In such a case, though it may be possible to conjecture what, had he adverted to it, he would have provided, the court may not, in my opinion, supply the deficiency. In the other case, the legislative inadvertence consists, not in a failure to address the problem and determine what should be done, but in the failure to provide in the instrument express words appropriate to give effect to it. In the second case, it may be possible for the court, in the process of construction, the remedy the omission.

92. In my judgment, the legislative inadvertence in the case of s 12(f) is an example of the second type identified by Mahoney JA, namely that there has been a failure to provide in s 12(f) appropriate words to give effect to the true and intended meaning.. As such, in my opinion, it is open to the Court in the process of construction to remedy the legislative omission.

93. In Tokyo Mart, Mahoney JA at 281 and 282 constructed a hypothetical dialogue with the legislative draftsman as to what he would have provided in the language of the statutory provision if relevant factual matters had been drawn to his attention which suggested that the legislative language employed may have required some elaboration or clarification. The dialogue proceeded upon the basis that the legislative purpose of the provision had been clearly established.

94. If I were to adopt that same approach in the present case, I would have no doubt that once the legislative draftsman was made aware that the concept or term “designated development” was a defined term under the EP&A Act which only became enlivened or relevant in the operation of the substantive provisions of that Act which provisions only operated if relevant controls were contained in an operative environmental planning instrument he would immediately respond by saying that his intention was to exclude from the application of the NVC Act clearing that is, or is part of, designated development within the meaning of the EP&A Act, the carrying out of which development has been authorised by the grant of a relevant development consent. The emphasised words remedy the legislative inadvertence.

95. Such a response would accord with the clear statutory purpose of s 12(f) as I have discerned it within the overall statutory purpose and objects of the NVC Act and its relationships with the EP&A Act.

96. It also would be supported by contextual considerations, namely that the specified exclusions from the Act contained in s 12 are uniformly exclusions of “clearing” that is authorised by some statutory or legislative warrant

97. Somewhat surprisingly, the Prosecutor submitted that the unintentionally omitted legislative words would have been likely to be the words that I have emphasised in the following suggested formulation of s 12(f):

Clearing that is, or is part of, designated development within the meaning of the EP&A Act for which development consent under that Act is required” .

98. In my judgment, this suggestion does not capture the likely response from the legislative draftsman in the hypothetical dialogue that I have earlier set forth. Nor does it reflect the statutory purpose and context of s 12(f) within the overall statutory objects of the NVC Act.

99. Not only is such a suggestion contrary to the uniform structure of the manner in which the several exclusions have been drafted, but it is contrary to the uniform policy or concept that the excluded clearing be clearing that has already been authorised by some other relevant statutory regime and not include clearing that is yet to be authorised (and indeed which may never be so authorised).

100. This is not simply a matter of legislative language. More importantly, it is a matter of legislative policy and purpose. Why would the NVC Act exclude from its operation clearing that is part of designated development that requires development consent (which may or may not be granted) and why would it exclude such clearing upon the basis that it is first necessary to determine whether the relevant designated development requires the grant of development consent before it may lawfully be carried out?

101. None of these imponderables or difficulties is encountered in the relevant legislative draftsman’s response that I have suggested, which is based upon the clear foundation of the legislative purpose of providing for the exclusion that is contained in s 12(f).

102. Accordingly, applying a purposive interpretation of s 12(f), I would interpret that provision as meaning that the exclusion from the NVC Act is in respect of clearing that is, or is part of, designated development within the meaning of the EP&A Act the carrying out of which development has been authorised by the grant of a relevant development consent under that Act.

103. If it be demurred that the interpretation I have adopted goes beyond that which may be legitimately yielded by the process of statutory interpretation (and I am confident that my interpretation does not so offend, in the light of the modern approach to statutory interpretation) then the results of rejecting my conclusion would be as follows:

(i) the literal meaning is not the true meaning of s 12(f);

(ii) it is not possible to remedy the relevant legislative inadvertence or omission by the process of statutory interpretation; and

(iii) in these circumstances where it is not possible to give meaningful effect to s 12(f) the attempted exclusion of the type of clearing as is described in s 12(f) must be held to have failed its purpose.

104. I of course appreciate that it is a rare case, indeed, where a legislative provision is held to have no meaningful effect: see Bennion at pp 352 et seq and 943-945. But in the present context where s 12(f) seeks to identify one of 16 types of clearing that are excluded from the operation of the NVC Act a failure of that legislative purpose confined to s 12(f) would not be a disastrous result. It would simply mean that one of 16 specified types of clearing that are excluded from the operation of the NVC Act has been held to be ineffective to achieve its intended legislative purpose. The apparent resulting legislative gap is in fact no gap at all, because the NVC Act continues to apply.

105. In expressing these latter opinions, I am not to be taken as indicating or suggesting a lack of confidence or certainty in the interpretive result that I have reached in the present case by applying the purposive approach to the construction of s 12(f).

106. Having regard to the meaning of s 12(f) that I have in the process of statutory interpretation adopted, it follows on the facts of the present case (which are silent on the question whether development consent has been granted under the EP&A Act for designated development involving the clearing of native vegetation) that Question 1 must be answered in the negative.
(ii.) Question 2—Exemption under SEPP 46?

107. It must be emphasised that this question does not seek a determination whether the Water Storage falls within the ambit of the exemption originally provided by cl 11 of SEPP 46 and now sustained by cl 3(2) of Schedule 4 to the NVC Act.

108. Rather, the question is far more narrow seeking a determination whether the Water Storage is relevantly a “rural structure” or “farm structure” within the meaning of par (e) of Schedule 3 to SEPP 46.

109. This is a question of mixed fact and law. The legal aspect of the question concerns the true meaning of par (e) of Schedule 3 and in particular the true meaning in that context, of the words “rural structures” and “farm structures”. The factual aspect of the question is whether, having established the meaning of the words “rural structures” and “farm structures”, the Water Storage falls relevantly within the ambit of those words.

110. The words “Rural structures” and “farm structures” are not defined by SEPP 46 although the words “farm structures” are illustrated by the bracketed matter immediately following those words, which states:

(such as farm dams, tracks, bores, windmills, fences, fence lines stockyards, loading ramps, sheds and the like).

111. The Prosecutor submitted that having regard to the objects of the NVC Act, the exempt “clearing” described in Schedule 3 of SEPP 46 should be read down so as to apply only to small amounts of clearing. Presumably this submission is intended to be extended to a reading down of the words “farm structures” as illustrated by the bracketed matter in par (e) of Schedule 3 to SEPP 46.

112. In my judgment, the terms “rural structures” and “farm structures” are not used in any specialised or technical sense in SEPP 46. Rather, they are ordinary words of English and are to be understood as having their ordinary and natural meanings.

113. Although it is clear that to fall within the ambit of the exemption expressly provided by par (e) of Schedule 3 to SEPP 46, the clearing must be—

(i) “clearing to a minimum extent of native vegetation”; and

(ii) necessary for the construction, operation and maintenance of farm structures

those limiting qualities of the exempt form of clearing do not justify or require a reading down of the words “farm structures” or of the various illustrations of farm structures that are contained in the bracketed material. That material includes “farm dams”.

114. In my judgment, the proper meaning to be given to the word “farm structures” in the context of par (e) of Schedule 3 to SEPP 46 is the ordinary and natural meaning of those words including the illustrative meanings contained in the bracketed material.

115. Having established the true meaning of the words “farm structures” (those words being, in my opinion, more relevant to the exemption than the words “Rural structures” which appear to function merely as a heading or marginal note to the relevant words of exemption) the remaining task is to decide, as a matter of fact, whether the Water Storage falls within the ambit of the words “farm structures”.

116. On the basis of the agreed facts, only one finding is reasonably open, namely that the Water Storage is relevantly a “farm structure” within the true meaning of those words in the context of par (e) to Schedule 3 to SEPP 46, and I so find.

117. Accordingly, for all the foregoing reasons, I answer Question 2 in the affirmative.
F. CONCLUSIONS AND ORDERS

118. For all of the foregoing reasons, I order that the two preliminary questions be determined as follows:

Question 1— Whether any clearing within the meaning of s 5, of the NVC Act that may have occurred as a result of either—(a) the construction, or (b) the inundation of water, or (c) the construction and inundation of water, of the Marra Water Storage (“the Water Storage”) would be excluded from the operation of the NVC Act pursuant to s 12(f) of that Act.

Answer—No, on the basis of the agreed facts.

Question 2—Whether the Water Storage is a “rural structure” or a “farm structure” within the meaning of Schedule 3, paragraph (e) of State Environmental Planning Policy No. 46..

Answer—Yes, on the basis of the agreed facts.