Forgall Pty Ltd v Chief Executive of the Office of Environment and Heritage

Case •

[2012] NSWLEC 1219

•

10 August 2012

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Forgall Pty Ltd v Chief Executive of the Office of Environment and Heritage [2012] NSWLEC 1219
Hearing dates:11,12 April, 21, 22 May, 7 June 2012, 13 July 2012
Decision date: 10 August 2012
Jurisdiction:Class 1
Before: Brown ASC
Decision:

1. The appeal against a direction for remedial work made pursuant to s 38(1) of the Native Vegetation Act 2003 for part of the property at Lot 2 DP 1148343, 474 Saltwater Road, Wallabi Point is allowed.

2. The direction for remedial work made by the Respondent on 20 of November 2010 is revoked and in lieu, the Court makes a direction under s39 of the Native Vegetation Act 2003 and s39 of the Land and Environment Court Act 1979 in the form attached and marked "A".

3. The exhibits are returned.

Catchwords: APPEAL: Direction for Remedial Work - concession that clearing of native vegetation occurred on part of site (Areas A to F) - whether direction for remedial work should be given for clearing of native vegetation on another part of site (Area G) - terms of direction for remedial work
Legislation Cited: Native Vegetation Act 2003
Native Vegetation Conservation Act 1997
Native Vegetation Conservation (Savings and Transitional) Amendment Regulation 2004
Rivers and Foreshores Improvement Act 1948
State Environmental Planning Policy No. 46
Cases Cited: Corporation Pty Ltd (No2) [2011] NSWLEC 229
Director-General of the Department of Environment, Climate Change and Water v Walker
Category:Principal judgment
Parties: Forgall Pty Ltd (Applicant)
Chief Executive of the Office of Environment and Heritage (Respondent)
Representation: Counsel
Mr P Larkin SC and Ms L Byrne, barrister (Applicant)
Ms G Preston, barrister (Respondent)
Solicitors
Adamson Legal and Conveyancing (Applicant)
Office of Environment and Heritage (Respondent)
File Number(s):10004 of 2011

Judgment

  1. ACTING SENIOR COMMISIONER: This is an appeal, pursuant to s 39(1) of the Native Vegetation Act2003 (the NV Act), against a Direction for Remedial Work (the Direction) made pursuant to s 38(1) of the NV Act for part of the property at Lot 2 DP 1148343, 474 Saltwater Road, Wallabi Point. Lot 2 has an area of approximately 81.4 ha. The Direction originally related to Lot 6 in 258637. The applicant purchased Lot 6, with an area of 41.43 ha, in 1988 and Lot 2 was created through the amalgamation of Lot 6 and land to the west.

  1. The Direction, the subject of the appeal, identified 10 separate areas (Areas 1 to 10). These areas are located in the south-west area of what was Lot 6 and more centrally near the southern boundary of Lot 2. With further survey work the areas were redefined to provide for 7 areas (Areas A to G). These areas are identified on Remedial Map 1 (see Attachment 1 to the Direction at end of judgment). References to Area 10 in the evidence are taken to be a reference to Area G.

  1. During the hearing, the applicant made the following concessions (Exhibit T):

1. The applicant concedes (for the purposes of these proceedings only) that the Court has the jurisdiction to make an order (under s 38 of be Native Vegetation Act and s 39 of the Land and Environment Court Act) in respect of the areas A, B, C, D, E and F bounded in red shown on Exhibit J, not including the area of the APZ bounded in yellow because the clearing has had an adverse effect on the environment, in that more weeds have grown as a result of the clearing.
2. The Applicant accepts that an order can be made, in some terms, over those areas.
3. The preceding paragraph does not prejudice the Applicants rights to give evidence and make submissions concerning the duration of the order and the conditions upon which it is made (for example, as to the lack of fencing, weeding, reporting, and so on).
4. No concessions are made with respect to Area G shown on Exhibit J.

  1. The effect of the concession is that the contentions are limited to:

1. whether a Direction should apply to Area G, and

2. the terms of the Direction for Areas A to F, and Area G if a Direction is required.

The legislative framework

  1. Clearing of native vegetation is defined in s 7 as:

7 Meaning of clearing native vegetation
For the purposes of 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.

  1. Section 12 of the NV Act states:

12 Clearing requiring approval
(1) Native vegetation must not be cleared except in accordance with:
(a) a development consent granted in accordance with this Act, or
(b) a property vegetation plan.
(2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act.
(3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4.

  1. There was agreement that vegetation clearing had occurred in Area G between 25 August 1997 and 17 May 2000 and 26 May 2006 and 19 March 2009 (respondent written submissions, par 2). It was also agreed that no development consent was granted by the Minister in accordance with s 13 of the NV Act (s 12(1)(a)) or that a property vegetation plan existed for Area G (s 12(1)(b)).

  1. In relation to a Direction, ss 38(1) and (2) state:

38 Directions for remedial work
(1) If the Director-General is satisfied:
(a) that any native vegetation has been cleared in contravention of this Act, or
(b) that the clearing of native vegetation on any land has caused, or is likely to cause, on or in the vicinity of the land, any soil erosion, land degradation or siltation of any river or lake, or any adverse effect on the environment,
the Director-General may, by notice in writing, direct the landholder, or the person having the control or management of the clearing, to carry out specified work in a specified manner and within a specified time.
(2) Any one or more of the following types of work may be directed to be carried out by a notice under this section:
(a) work to repair any damage caused by the clearing,
(b) work to rehabilitate any land affected by the clearing (including the taking of steps to allow the land to regenerate),
(c) work to ensure that specified land, or any specified river or lake, will not be damaged or detrimentally affected, or further damaged or detrimentally affected, by the clearing.

  1. For a Direction to be given, the jurisdictional pre-conditions in either s 38(1)(a) or (b) must be established. If established, s 38(2) identifies the work that may be directed to be carried out.

The dispute - Area G

  1. Area G is irregular in shape but generally rectangular and has an area of approximately 0.143 ha. It is located near the southern boundary of the site with Saltwater National Park, Saltwater Gully to the west and an approved shed to the east.

  1. Mr Larkin SC, for the applicant, submits that there is no basis for a Direction for Area G. He submits that a Direction is not required for Area G as the jurisdictional pre-conditions in both s 38(1)(a) and (b) have not been satisfied because:

1. the clearing of native vegetation has not be in contravention of the NV Act (s 38(1)(a)) because:

1.1 the clearing of native vegetation was carried out as part of the historical activities on the site,

1.2 the clearing of native vegetation was permitted by the development consent granted by the council for the erection of a shed (s 12(1)(a)),

1.3 the clearing of native vegetation was permitted as it was "routine agricultural management activities" (RAMA) being the maintenance of the area as a place for the parking and storage farm equipment or a "Rural Structure" (s 11(1)(a), s 22),

1.4 the clearing of native vegetation was permitted as it was "regrowth" as no revegetation of Area G was required under the remedial notice served under the Rivers and Foreshores Improvement Act 1948 (RFI Act) in 2000 by the Department of Land and Water Conservation (DLWC) (s 19(1)), and

1.5 the clearing of native vegetation was permitted as it was not "protected regrowth" (s 19(1)).

2. any native vegetation that has been cleared is not "likely to cause, on or in the vicinity of the land, any soil erosion, land degradation or siltation of any river on lake, or any adverse effect on the environment" (s 38(1)(b)).

  1. As a further submission, Mr Larkin, for the applicant, submits that even if the jurisdictional pre-conditions in s 38(1)(a) or (b) are satisfied, the Court should use its discretion not to give a Direction on the basis of the small size of Area G (0.143 ha compared to the area of Lot 2 of 81.4 ha) and the likely minimal amount of environmental harm, if any.

  1. Ms Preston, for the respondent, rejects each of the submissions of Mr Larkin that there is no basis for a Direction for Area G, including the submission that the Court use its discretion not to issue a Direction.

Section 38(1)(a) - was clearing done in contravention of NV Act?

The shed/RAMA - background

  1. The shed was approved by Greater Taree City Council (the council) on 27 March 2007 as a "Machinery shed". The shed is 31.38 m x 12.38 m with an area of 288.49 sq m. The shed is divided into two areas, an open "Storage Area" and an enclosed "Machinery Shed". An enclosed toilet/shower area, 2.8 m x 1.2 m, is located in a corner of the building. The location of the shed is shown on the plan accompanying the development application (Sheet 1 of 3) as being 220 m from Saltwater Road and 10 m from the southern boundary. No other references to natural features, such as Saltwater Gully or internal roads are shown on Sheet 1. On 11 December 2007, the council issued a Construction Certificate for the shed.

  1. A later modification application was approved by the council on 1 June 2009 and provided for a first-floor level within the existing shed and other minor modifications. By letter dated 26 May 2009, Mr Sherif, the director of the applicant company, identified the intended use of the shed as:

Ground floor: Tractors, Farm machinery and other farm related items, building materials.
First floor: As dry temporary storage for antiques or very old building materials such as leadlight windows, doors and other related items for the new house in Saltwater which is hopefully to start soon.
Also as dry storage for valuable items such as oil paintings, handmade carpets and various other antiques for which I have little space in my existing residence.

  1. It was agreed that the council informally sought the relocation of the shed to its current location, supposedly further east from Saltwater Gully than the approved location and some 30 m outside Area G, to provide a greater separation for the on-site disposal system from Saltwater Gully.

The applicants submissions

  1. Mr Larkin submits that when the council suggested the relocation of the shed further from Saltwater Gully, this action did not mean that the clearing undertaken by the applicant under the consent in Area G was not lawful. The applicant held a development consent which authorised clearing within Area G, and as such clearing is not prohibited pursuant to s 12(1)(a) of the NV Act. For as long as the development consent stands, and is not declared invalid, it is not open for the respondent to contend that the consent is in breach of the NV Act.

  1. Mr Larkin further submits the shed is a RAMA within the meaning of s 11, being for the "operation and maintenance of rural infrastructure" and clearing is authorised by cl 22(1). The submission of Mr Larkin is that the RAMA, in this case, not only includes the shed, but an artificially constructed flat area, in the vicinity of the shed for the parking of farm equipment. Further, Mr Larkin submits that Area G is also captured by the Rural Structures exemption in State Environmental Planning Policy No. 46 - Protection and Management of Native Vegetation (SEPP 44), as the clearing of the area was "necessary for the construction, operation and maintenance of farm structures..."(see par 39).

The respondents submissions

  1. Ms Preston submits that while the applicant relies on clearing for the shed as being a RAMA, s 22(2) does not authorise the clearing of native vegetation if it is done for a work, building or structure before the grant of any statutory approval or other authority required for the work on, building or structure. In this case, the respondent's evidence of the Mr John Palmer, an officer employed by the respondent, indicates that Area G was cleared between August 1997 and May 2000 and again between April 2005 and August 2005. These times pre-date the development consent granted for the shed so any RAMA defence is not available to the applicant.

  1. Ms Preston further submits that, notwithstanding the development consent for the shed by the council, at no time was there a valid consent under the NV Act for the clearly of native vegetation within Area G. The clearing in Area G was in contravention of s 12 of the NV Act as it was done without the consent of the Minister and was not otherwise permitted under the NV Act.

  1. For these reasons, Ms Preston submits that the jurisdictional pre-condition in s 38(1)(a) is established.

Findings

  1. The submissions on the shed approval and the RAMA defence raise a number of issues that need to be considered separately.

  1. First, and while the hearing proceeded on the basis that the 27 March 2007 approval for the shed was located within Area G, I am not satisfied that this supports the extent of clearing relied upon by the applicant. The approved plan (Sheet 1, Exhibit H) shows a dimension of 220 m from the Saltwater Road property boundary to the proposed shed.

  1. To identify the location of the shed, as constructed, I have used two separate plans, being the plan identified as Attachment 1 in Tab 2 of Exhibit 1 and the plan identified as Attachment 6 in Tab 17 of Exhibit 1. Both plans have an identified scale, the property boundary is marked and the shed is visible. In the plans, the existing shed is approximately 180 m from the Saltwater Road property boundary. The closest point of Area G from the Saltwater Road property boundary is around 220 m. Even if Mr Larkins submissions were to be accepted, the approval of the shed could not authorise the clearing of the vast majority of Area G. At best, a relatively small area of Area G may have been required to be cleared, if the shed was constructed in its approved location.

  1. Second, I do not accept that the opportunity for the clearing of native vegetation as a RAMA is available to the applicant. Section 11 states:

11 Meaning of routine agricultural management activities
(1) For the purposes of this Act, routine agricultural management activities mean any of the following activities on land carried out by or on behalf of the landholder:
(a) the construction, operation and maintenance of rural infrastructure:
(i) including (subject to the regulations) dams, permanent fences, buildings, windmills, bores, air strips (in the Western Division), stockyards, and farm roads, but
(ii) not including rural infrastructure in areas zoned as rural-residential under environmental planning instruments or on small holdings (as defined in the regulations),

  1. Section 22 states:

22 Routine agriculture management activities
(1) Clearing for routine agricultural management activities is permitted.
(2) This section does not authorise any clearing of native vegetation:
(a) if it exceeds the minimum extent necessary for carrying out the activity, or
(b) if it is done for a work, building or structure before the grant of any statutory approval or other authority required for the work, building or structure.

  1. Even if the shed was approved within Area G and that the approval of the shed by the council authorised the clearing of vegetation, I agree with the submission of Ms Preston that the clearing of native vegetation is not permitted as a RAMA, pursuant to s 22(2)(b), as it was cleared between August 1997 and May 2000 and again between April 2005 and August 2005 and as such pre-dates the approval granted by the council for the shed on 27 March 2007.

  1. Third, I also do not accept that the applicant established that the shed and the area adjoining the shed was a RAMA. Section 22(2)(a) does not allow unlimited clearing but only authorises land to be cleared for a RAMA, if it is cleared to the "minimum extent necessary" for carrying out activities associated with a RAMA. To gain the benefit of s 22(1) and satisfy s 22(2(a), it would be necessary, in my view, to provide at a minimum, evidence in relation to:

  • the types and frequency of activities to be undertaken as "rural infrastructure",
  • the types and number of plant and machinery required to undertake the activities,
  • alternative locations for the storage of plant and machinery, without the need for clearing of vegetation, and importantly,
  • why the clearing is the minimum extent necessary for the identified activity or activities.

  1. Without this or similar evidence, it is not possible to determine whether the land is cleared to the minimum extent necessary, as required by s 22(2(a).

  1. I also do not accept if Area G was used intermitentaly for the parking of rural vehicles, that this necessarily authorises the clearing of vegetation in Area G under the Rural Structures exemption of SEPP 44. As with the RAMA argument, the availability of the Rural Structures exemption is also reliant on "clearing to a minimum extent of native vegetation". No evidence was provided to support this fundamental requirement of the exemption.

  1. Fourth, I accept that the approval of the shed, by the council, did not authorise the removal of any native vegetation under the NV Act as the shed and associated clearing is not permitted by Division 2 or 3 of the NV Act or s 6 of the Native Vegetation Regulations 2005 or is excluded from the NV Act by Division 4. I agree with the submission of Ms Preston that approval by the Minister is required by s 13 and that as that approval had not been granted, it reasonably follows that the clearing of Area G was unlawful.

  1. While I accept the submission of Mr Larkin that the development consent for the shed is valid until there is a finding to the contrary, the question is not about the validity of the consent but rather whether consent by the Minister was obtained under s 13. The approval under the EPA Act for the shed does not override or displace the need to obtain approval under s 13. It is a moot point, in any event, given the comments in the preceding paragraphs on the approved location of the shed, s 22(2), the shed and adjoining area as a RAMA and the Rural Structures exemption under SEPP 44.

Was clearing of Area G lawful?

  1. The parties were in dispute as to whether Area G was lawfully cleared. While there was agreement that the 2 ha exemption in SEPP 44 allowed clearing up to 26 March 2004 and that clearing of any regrowth from clearing under the 2 ha exemption was lawful, the parties disagreed on:

1. the extent of the historic clearing,

2. the effect of the RFI Act and the remedial notice in 2000, and

3. the applicability of the "protect regrowth" provisions of the NV Act.

The statutory requirements

  1. Section 10 states:

10 Meaning of protected regrowth
(1) For the purposes of this Act, protected regrowth means any native vegetation that is regrowth and that is identified as protected regrowth for the purposes of this Act in:
(a) a property vegetation plan, or
(b) an environmental planning instrument, or
(c) a natural resource management plan of a kind prescribed by the regulations, or
(d) an interim protection order under this section.
(2) For the purposes of this Act, protected regrowth also includes any native vegetation that is regrowth and that has been grown or preserved (whether before or after the commencement of this Act) with the assistance of public funds granted for biodiversity conservation purposes.

  1. Section 19(1) provides:

19 Clearing of non-protected regrowth permitted
(1) Clearing of native vegetation that is only regrowth, but not protected regrowth, is permitted.
(2) .

"Regrowth" is defined in s 9 of the NV Act, as follows:

(1) For the purposes of this Act, remnant native vegetation means any native vegetation other than regrowth.
(2) For the purposes of this Act, regrowth means any native vegetation that has regrown since the earlier of the following dates:
(a) 1 January 1983 in the case of land in the Western Division and 1 January 1990 in the case of other land,
(b) the date specified in a property vegetation plan for the purposes of this definition (in exceptional circumstances being a date based on existing rotational farming practices).
...
(4) Regrowth does not include any native vegetation that has regrown following unlawful clearing of remnant native vegetation or following clearing of remnant native vegetation caused by bushfire, flood, drought or other natural cause.

The applicants submissions

  1. Mr Larkin submits that historic activities on the site resulted in clearing of native vegetation. Before the applicant purchased the property in 1998, Lot 6 was not in a pristine condition given the history of clearing on the site that included:

  • the use of the Wallabi Point/Saltwater area as an important cultural and spiritual place for local indigenous people for camping and other activities,
  • clearing was intermittently carried out for 50 years or so for a range of uses including logging, minerals sands exploration and mining, farm activities, and bushfire protection,
  • around the 1970s, a substantial drain was constructed through the land by the council to drain water from the Wallabi Point residential development to the north and based on the evidence of the applicants expert, Area G was most likely formed with material used to construct the drain, and
  • after 1998, Area G was cleared for use as a parking place for rural vehicles and for survey purposes for a potential house site.

  1. Mr Larkin provides a table of the relevant statutory instruments to support his submission that the removal of vegetation from Area G is lawful as it is regrowth. The relevant statutory instruments, and their operative dates are:

Statutory instrument

Commencement date

Repeal date

State Environmental Planning Policy No 46

10 August 1995

1 January 1998

Native Vegetation Act 1997

1 January 1998

1 December 2005

Native Vegetation Conservation (Savings and Transitional) Amendment Regulation

26 March 2004

1 December 2005

Native Vegetation Act 2003

1 December 2005

In force

  1. Mr Larkin submits that no limitations were placed on the clearing of native vegetation prior to the coming into effect of SEPP 44 on 10 August 1995. SEPP 44 did not contain an absolute prohibition on the clearing of native vegetation as Schedule 3 provides exemptions for clearing of native vegetation. The relevant exemptions are:

(a) Minimal Clearing. The clearing of up to 2 hectares per annum for any contiguous landholding in the same ownership (the 2 ha exemption).
.
(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, stock yards, loading ramps, sheds and the like).(the Rural Structures exemption).
.
(j) Regrowth. The removal of native vegetation, of less than 10 years of age if the land has previously been cleared for cultivation, pastures or forestry plantation purposes (the Regrowth exemption).

  1. The exemptions continued with the Native Vegetation Conservation Act1997 (1 January 1998 to 1 December 2005) and up to the enactment of the Native Vegetation Conservation (Savings and Transitional) Amendment Regulation 2004 on 26 March 2004 when the 2 ha exemption was abandoned. The Rural Structures exemption and the Regrowth exemption continued but not in the exact same form.

  1. Mr Larkin submits that as Area G only has an area of 0.14 ha, it follows that any vegetation removal in Area G that occurred after 1 January 1990, as a consequence of clearing through the 2 ha exemption is "regrowth" as defined and may be lawfully cleared pursuant to s 19(1) and s 12(3) of the NV Act.

  1. Mr Larkin notes that Area G was inspected by council officers in June 1998, April 1999, January 2000 and no issue was taken on these inspections to any clearing because any clearing was within the 2 ha exemption.

  1. Mr Larkin submits that the history relating to the remedial notice issued under the RFI Act is relevant. At an inspection in January 2000, the council observed a new track running east west that crossed Saltwater Gully. The gully had been filled and a pipe constructed under the crossing. At a further inspection in February 2000, it was observed that additional clearing had been undertaken, two dams had been constructed and a bank had been constructed across Saltwater Gully. In May 2000, the Water Administration Authority issued a remedial notice under s22 of the RFI Act in relation to the works across Saltwater Gully.

  1. Mr Larkin submits that the approach of the respondent that any clearing, without a permit, would have been in breach of the RFI Act is incorrect because firstly, the RFI Act is directed only towards rectifying obstruction of waters (and not revegetation) and secondly, the direction was changed so that the only revegetation that was required was to the west of the gully (on the opposite side of Saltwater Gully to Area G). Mr Larkin further submits that there is no evidence that the owner revegetated Area G with native species as part of the remedial notice under s 22 of the RFI Act. In November 2000, the council were advised that the applicant had completed the works required under the remedial notice to the satisfaction of the DLWC (that is, to the west of Saltwater Gully).

  1. Mr Larkin accepts that the "protected regrowth" provisions in the NV Act were engaged at 31 January 2007 however he maintains that clearing was lawful. Clearing could occur because of the Rural Structures exemption in SEPP 46 and the RAMA exemption in the NV Act.

The respondents submissions

  1. In relation to the historic clearing, Ms Preston submits that even if local indigenous persons had a history of camping in the general area of the property it is irrelevant to the issues in these proceedings. In any event, there is no evidence to indicate there was a campsite specifically in Area G and the existence of a campsite is not supported by the affidavits of Susan Elisabeth McPhee and Ronald James McPherson. Ms McPhee maintained that the property was " pristine, dense bushland over almost (the) entire property".

  1. Further, there is no evidence to suggest that past clearing was located within Area G as the drain allegedly constructed by the council is also located outside Area G. The evidence of Dr Meleo, the applicants geomorphologist, did not establish that Area G was constructed with material excavated from the drain and it is equally likely that Area G could have contained material carried out as part of the illegal works in 2000 and which was subject to the remedial notice.

  1. Ms Preston submits that the applicant misunderstands the law on "regrowth" which is set out in detail by Preston CJ in Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No2) [2011] NSWLEC 229 (at [130] to [144]) where His Honour distinguishes between vegetation that has grown anew from an original source ("grown") and grown again ("regrowth"). His Honour states that five points can be made about the regrowth defence under the NV Act:

1. the defence operates for native vegetation that has been cleared in contravention of s 12 and that vegetation must be established to be "only regrowth",

2. that native vegetation must be established to have "regrown" so as to be "regrowth" before it was cleared in contravention of s 12,

3. not all regrowth of native vegetation will fall within the meaning of "regrowth" for the purposes of s 9 as s 9(4) excludes certain types of regrowth, including "native vegetation that has regrown following unlawful clearing of remnant native vegetation.."

4. "regrowth" for the purposes of s 9 and s 19 only includes native vegetation that has a regrown after the relevant date, in this case of 1 January 1990,

5. the native vegetation cleared in contravention of s 12 must have been only regrowth and this requires each and every plant comprising the native vegetation cleared, to be established to be "regrowth", thereby meeting the requirements of s 9.

  1. Ms Preston submits that in 2000, s 22B of the RFI Act provided that it was an offence to a person to remove material from "protected land" unless authorised to do so by a permit under the RFI Act. According to the remedial notice issued by the DLWC in 2000, Saltwater Gully was "protected land" under the RFI Act.

  1. Ms Preston rejects the suggestion that the remediation notice excludes Area G as the remedial notice refers to "Revegetation of disturbed areas within 40 m of both sides of the creek". This must be a reference to Area G and as the remedial direction was complied with, so Area G must have been revegetated.

  1. In 2000,and the whole of Area G was protected land and any clearing (removing material) without a permit, would have been in breach of the RFI Act so it could not have been lawfully cleared. Relevantly, the regrowth defence was not available as s 9(4) of the NV Act provides:

(4) Regrowth does not include any native vegetation that has really grown following unlawful clearing of remnant native vegetation....

  1. Ms Preston submits that after 31 January 2007, any regrowth within 20 m of Saltwater Gully was classified as "protected regrowth" within the meaning of the NV Act. The "Natural Resource Management Plan - Vulnerable Land" made on 31 January 2007 under s 10(1)(c) of the NV Act and cl 31 of the Native Vegetation Regulation 2005 identifies as "protected riparian land" any land within 20 m of the bed or bank of the watercourse market in blue on the "Vulnerable Land Map" for the NSW (Exhibit 7). In this regard, Saltwater Gully is marked blue on that map. All native vegetation on protected riparian land, that is regrowth, is protected regrowth under the NV Act. It follows that any of the native vegetation cleared in Area G, that is within 20 m of Saltwater Gully was regrowth, would be "protected regrowth" within the meaning of s 10 of the NV Act and so could not lawfully be cleared as "regrowth" in 2008.

  1. Given that the clearing in 2000 was unlawful, even if the vegetation cleared in 2008 had regrown, Ms Preston submits that it would not meet the definition of regrowth in the NV Act. Also, there is clear evidence that Area G was revegetated with native vegetation in 2000. This includes the evidence of Mr John Palmer, an officer employed by the respondent, the issuing of a remedial notice from the DLWC and the completion of the revegetation. Consequently, a significant amount of vegetation in Area G at the time of clearing in 2008 was "growth" rather than "regrowth".

  1. Based on Walker, Ms Preston also submits that to establish that the vegetation clearing in Area G. was "only regrowth", it would need to be demonstrate that each and every native vegetation plant cleared in this area had regrown following lawful clearing and was not merely "growth". The onus of proof that the vegetation was regrowth rests with the applicant (Walker at [134]) and this onus of proof has not been discharged.

The evidence

  1. Mr John Palmer, a Vegetation Mapping Officer/Natural resource Project Officer/Resource Information Officer with respondent and with expertise in aerial photography interpretation provided an expert report based on his examination of aerial photographs (Exhibit 1, Tab 20). For Area G, Mr Palmer concludes:

  • 1989 - all of the site is covered by a dense layer of native woody vegetation, except Area G where this area appears to be partially cleared through an open canopy of trees.
  • 1993 -no signs of additional disturbance were noted from 1989.
  • 1996 - no signs of additional disturbance were noted from 1993.
  • 1997 - no signs of additional disturbance were noted from 1996.
  • 2000 -approximately 0 .8.ha of woody vegetation has been cleared with a smaller area in what appears to be clearing of dense under storey scrub within the Area G. large trees appear to have been retained. The area of under storey clearing is less than the 0.143 ha. Two piles of felled and stacked woody vegetation were observed nearby. The clearing of the woody vegetation was cleared between the dates of the 1997 and 2000, but pre-existed on-site prior to June 1989.
  • 2002 - there is a partial re-establishment of a dense, low woody vegetation cover or alternate a bleak, a partial cover all grafts over that part of Area G, that had been identified in 2000 as having been cleared. An unformed track linking Area G with the central part of the site was observed just east of the creek meander.
  • 2003 - no signs of additional disturbance were noted from 2002,
  • 2004 - no signs of additional disturbance were noted from 2003,
  • 2005 -Area G has had an understorey shrub layer cleared between 30 April 2005 and 21 August 2005. The clearing has removed woody vegetation that has re-established since the area was previously cleared between or was 1997 and May 2000. Larger trees appear to have been retained.
  • 2006 - no comment made on Area G.
  • 2008 - no comment made on Area G.
  • February 2009 - the previously cleared areas within Area G still show obvious signs of being cleared.
  • September 2009 - complete or partial removal of native woody vegetation within Area G. on the other areas and its replacement by a bare earth with little ground cover. Where woody vegetation remains, it appears to be lacking under storey or has been thinned to produce a more open structure.

  1. Mr Palmer concludes that clearing of re-established woody vegetation, as a native understorey and/or groundcover in Area G occurred between April and August 2005. Prior removal of native woody vegetation has been assessed as taking place in Area G between August 1997 and May 2000.

  1. A joint report was prepared by Mr Palmer and Dr AnneMarie Clements for the applicant on available aerial photos and there were no points of disagreement on the interpretation of the aerial photography.

  1. Mr David Bell, the Regional Operations Officer, for the respondent swore an affidavit on 30 November 2011 (Exhibit 1, Tab 16) in relation to his inspection of Area G on 19 March 2009, including 13 photographs and a commentary on each photograph. His photographs of the inspection reveals recent clearing, bare dirt with beginnings of green vegetation returning, a pile of cleared vegetation, a windrow of cleared vegetation, a large root ball with foliage still present on branches, new vegetation, a eucalypt stump beginning to dry out but appearing to be recently felled and a windrow of cleared vegetation showing a large Scribbly Bark Gum with root ball beginning to dry out but also appearing to be recently felled.

Findings

Did historic activities result in clearing of native vegetation?

  1. While there can be little doubt that local indigenous people traversed the site over time and potentially camped there, I am not satisfied that any clearing associated with these activities was significant in terms of clearing of native vegetation. The affidavit of Warner Boyce Sanders (Exhibit R), an elder of the Guiwan tribe, identifies such activities from the 1940s to the 1980s, including the use of the area to the north-west of the shed near Area G. Mr Sanders states that this area was always cleared and was used as a camp when he was a child because of the availability of fresh water. There was dispute between the parties whether the camp site, based on the general description of its location, was actually located in Area G. The uncertainty over the location places considerable doubt on whether any reliance should be placed on the camp site for the purposes of considering historic clearing, particularly considering the evidence from previous owners.

  1. The affidavit of Susan Elisabeth McPhee (Exhibit 1, Tab 18), indicates that she owned Lot 6 from 19 September 1994 til the time the property was purchased by the applicant on 7 May 1998. She states that:

At the time I purchase the property it was pristine, dense bushland over almost entire property. There was an access road along the southern boundary down to the creek and one track that ran in a generally north south direction off that access road near the eastern side of the property.

  1. Ms McPhee identifies two other clearing events on the property relating to a fire break and a track from the south western corner in a generally western direction.

  1. The affidavit of Mr Ronald James McPherson (Exhibit 1, Tab 19), indicates that he (with others) owned Lot 6 prior to Ms McPhee. He states that:

At no stage did the group undertake any formal clearing on the property. I recall Dennis cleared a small area in front of the property near the road to camp on weekends with his family.
The property during the time we owned it was covered with thick bush. I remember there was a lot of Tea Tree on the property. Our group did not cultivate any other plants on the property than what occurred there naturally

  1. The affadavits of Alan Frederick Smith (Exhibit 1, Tab 22), Terry John Tullipan (Exhibit 1, Tab 23) and Terrence Yewdall (Exhibit 1, Tab 25) support the observations of Ms McPhee and Mr McPherson.

  1. Again, and while Lot 6 may have been subject to intermittent clearing for a range of uses involving logging, mining and farm activities, the extent of any clearing was likely to be minimal as it was not identified by Ms McPhee or Mr McPherson or in the interpretation of the aerial photographs by Mr Palmer.

  1. The evidence on the use of Area G as an area for depositing fill from the drain was uncertain, at best. Mr Sanders identifies the drain being constructed "sometime in about the 1970's" Dr Meleo stated that the landform of Area G was consistent with excavated nmaterial being placed on the land but he did not go as far as to state that excavated material from the drain was actually placed in Area G. I note that any attempts to gain access to any information on the drain were unsuccessful. Again, the use of Area G for excavated material from the drain was not identified by Ms McPhee or Mr McPherson.

  1. Overall, I am not satisfied that any historic activities resulted in any meaningful clearing of native vegetation in Area G.

The remediation notice under the Rivers and Foreshores Improvement Act 1948

  1. There was also considerable dispute over the remediation notice although I accept the respondents conclusions for the following reasons.

  1. Under the RFI Act, the vast majority of Area G was "protected land", being within 40 m of Saltwater Gully. The remediation notice issued on 10 May 2000 stated that the DLWC is satisfied that the works carried out "have acted in a way to cause, or likely cause the flow of protected waters to be obstructed or detrimentally affected in contravention of section 22B".

  1. The RFI Act defines "protected land" as:

protected land means
(a) land that is the bank, shore or bed of protected waters, or
(b) land that is not more than 40 m from the top of the bank, shore or bed of protected waters (measured horizontally from the top of the bank or shore), or
(c) materials at any time deposited, naturally the other was and whether or not in layers, on or under land referred to in paragraph (a) or (b).

  1. The remedial notice identifies four directions, the second relevantly states:

•Revegetation of disturbed areas within 40 m of both sides of the creek is to be undertaken with locally occurring Australian native species.

  1. By letter dated 10 August 2000 from the DLWC, and with reference to the remedial notice issued on 10 May 2000, the following comments are made:

Revegetation of the western bank of Saltwater Gully must be undertaken as specified in the Remedial Notice dated 10th May 2000. The remedial notice will not be complete until this work has been undertaken.

  1. There was disagreement over the interpretation of letter dated 10 August 2000 from the DLWC and specifically why the reference to revegetation "within 40 m of both sides of the creek" in the remediation notice was inconsistent with the reference to the "western bank of Saltwater Gully" in the DLWC letter.

  1. Mr Larkin submits that the inconsistency effectively means that the DWLC reviewed its position in regard to revegetation of the protected lands and required only the "western bank of Saltwater Gully" to be revegetated. I do not accept this interpretation. In my reading of Exhibit E, the DLWC correspondence on 10 August 2000 was in response to a submission by the applicants consultants (McGlashan & Crisp) to the remedial notice. The DLWC correspondence sought only to respond to the McGlashan & Crisp submission and not amend the remedial notice. The DLWC response stated that it was "satisfied with the suggested treatment" but requiring additional measures to be undertaken (1 - 6 on page 1). The correspondence also required:

Revegetation of the western bank of Saltwater Gully must be undertaken as specified in the Remedial Notice dated 10th of May 2000. The remedial notice will not be complete until this work has been undertaken.

  1. Importantly, I do not accept that this part of the DLWC correspondence amends the remedial notice by removing the eastern 40 m wide area from Saltwater Gully (or Area G) from the remedial notice. There is no correspondence that makes any reference to any amendment to the remedial notice. It may be that that the McGlashan & Crisp submission did not indicate the revegetation of the western bank of Saltwater Gully, consistent with the second point of the remedial direction and that the DLWC correspondence simply sought to reiterate the original terms of the remedial notice. There may be some other explanation, however in the absence of any evidence to indicate that the remediation notice was amended, I must accept that the terms are those set out in the remediation originally notice issued by the DLWC that requires "Revegetation of disturbed areas within 40 m of both sides of the creek is to be undertaken with locally occurring Australian native species". Unfortunately, the McGlashan & Crisp submission was not included in Exhibit E.

  1. What is undisputed however is that in November 2000, the DLWC were satisfied that the applicant had completed the works required by the remedial notice, that, in part, required the "revegetation of disturbed areas within 40 m of both sides of the creek is to be undertaken with locally occurring Australian native species".

  1. I am satisfied that Area G was revegetated with locally occurring Australian native species consistent with the endorsement by the DLWC in November 2000 that the remediation notice had been complied with. This is consistent with the evidence of Mr Palmer that in 2000 vegetation has been cleared but with large trees retained and in 2002 there was a partial re-establishment of a dense, low woody vegetation cover over that part of Area G that had been identified in 2000 as having been cleared.

  1. It is not necessary to address the submission of Mr Larkin that the RFI Act is directed only towards rectifying obstruction of waters and not necessarily the revegetation of areas, although it is clearly not an interpretation adopted by the DLWC when they issued the remediation notice on 10 May 2000. I accept that the remedial notice is lawful until declared otherwise.

  1. I also do not accept Mr Larkins submission that the clearing was lawful through the 2 hectare exemption or the Rural Structures exemption as these exemptions do not override other statutory obligations, such as the RFI Act, that also apply to Area G.

  1. I am also not satisfied that the applicant has established that the native vegetation cleared in Area G was "only regrowth". The applicant did not establish that each and every plant comprising the cleared native vegetation in Area G was regrowth. On this basis it has not been established that the native vegetation cleared is "only regrowth" within the meaning of s 19(1) of the NV Act

  1. For the purposes of the NV Act, the revegetation in 2000, is "growth" rather than "regrowth" and the clearing of the native vegetation between 26 May 2006 and 19 March 2009 was unlawful.

Was the native vegetation cleared defined as "protected regrowth"?

  1. Even though Mr Larkin reasonably expressed concern over the availability of the "Vulnerable Land Map" for the site, it nonetheless is a mandatory consideration. There can also be no question of the location of the "protected regrowth" in Area G. It is land within 20 m of the bed or bank of the watercourse marked in blue on the "Vulnerable Land Map" for NSW. A measurement of 20 m from the blue line captures around 50% of Area G.

  1. Again, I do not accept Mr Larkins submission that the clearing was lawful through the 2 hectare exemption or the Rural Structures exemption as these exemptions do not override other statutory obligations, such as the NV Act that also apply to Area G. I have rejected the RAMA defence for the reasons set out in the earlier paragraphs.

  1. For the purposes of the NV Act, the clearing of the native vegetation between 26 May 2006 and 19 March 2009 was unlawful within 20 m of the watercourse marked in blue on the "Vulnerable Land Map" for NSW.

  1. For the reasons in the preceding paragraphs, I am satisfied that the jurisdictional pre-condition in s 38(1)(a) is established so a Direction for Remedial Work made pursuant to s 38(1) of the NV Act may be issued.

Section 38(1)(b) - was there an adverse effect on the environment?

The submissions

  1. In relation to s 38(1)(b), Mr Larkin submits that the clearing of Area G was obvious from the aerial photography, however it cannot be that any clearing at all, of any description, produces an adverse effect on the environment or causes any soil erosion, land degradation or siltation. To properly address s 38(1)(b), the scale of soil erosion, land degradation siltation or adverse effect on the environment must be of such a magnitude as to be relevant to the purposes that the power was given, and would generally be relevant to the objects of the NV Act. In this context, Mr Larkin submits that the jurisdictional pre-condition in s 38(1)(b) is not established.

  1. Ms Preston does not accept that the Direction is justified merely on the basis of minor erosion. Soil erosion near any water system is a serious matter given that siltation can occur. The disturbance to soil in Area G is not minor, as demonstrated by the photographs taken on site by Mr Bell on in November 2011 and the evidence of Dr Robert Gibson, an environmental scientist. To consider any potential environmental harm by considering an individual area provides an artificial result, when the cumulative effect of the individual areas should be considered. Ms Preston submits that the clearing of native vegetation within the remedial area could cause the following adverse environmental effects, either on or in the vicinity of the remedial areas by:

  • the removal of remnant native vegetation that provides food resources for fauna,
  • harm to "key habitat",
  • soil erosion,
  • siltation of Saltwater Gully,
  • increased risk of weed establishment,
  • possible inflow of nutrients of improved pasture into Saltwater Gully,
  • increased fire risk into the adjoining National Park and nature reserve,
  • increased risk of incursions by feral animals into the adjoining National Park and nature reserve,
  • alteration of microclimate of adjacent uncleared vegetation, and
  • in combination with other local clearing events, a loss in native vegetation extent and biodiversity.

  1. Also, the respondent has provided sufficient evidence to establish that the clearing has resulted in environmental harm to Area G, including destroyed vegetation, stacked in windrows and significantly disturbed soil based on the inspections and observations of Mr Bell.

The evidence

  1. Dr Meleo provided evidence for the applicant and Dr Gibson provided evidence for the respondent on the issue of potential environmental harm. They agreed that the site has a subdued topography, with no defined drainage features other than Saltwater Gully and the artificial drainage channel covering part of site, but not Area G. There are some slopes in Area G that are greater than 1° particularly on the eastern bank of Saltwater Gully. They also agreed that the soils found in the eastern part of the site are sandy in nature, with localised seasonal waterlogging. They are also generally non-cohesive and susceptible to high wind erosion hazard, particularly when dry, disturbed and cleared.

  1. Dr Meleo agrees with Dr Gibson that his observations on 4 August 2011 indicate that the soils located to the east of Area G, were sandy and appeared to be well-drained and showed small areas of recent soil erosion, particularly rill erosion and alluvial fan. Even though the soils are now currently well covered, he accepts that the soils were not always well covered, as shown in the photos taken by Mr Bell on 19 March 2009. Dr Meleo however states that the site and surrounding areas were inspected for evidence of past and present soil erosion but no landscape features were identified that would suggest that soil erosion had, or was presently, occurring on the subject land, including Area G. Dr Meleo states that the land is not likely to be susceptible to soil erosion because the surface gradient is low (zero to 1.5°), has no defined drainage features (except Saltwater Gully) and vegetation was, in general, sufficient to protect the ground surface from water borne sediment transport.

  1. This was not a conclusion accepted by Dr Gibson who maintained that when the soils are exposed by land clearing and when the soil surface is disturbed by the movement of vehicles, the soils are at risk, particularly by the actions of flowing water. The sandier soils in the Area G, when free of vegetation and disturbed are also susceptible to wind erosion. The observations of soil erosion in Area G were clear from his inspection however with the re-establishment of groundcover vegetation this has greatly reduced the potential for further erosion, so long as the groundcover vegetation remains in place.

Findings

  1. A direction for remedial work may be given, pursuant to s 38(1)(b), if " the clearing of native vegetation on any land has caused, or is likely to cause, on or in the vicinity of the land, any soil erosion, land degradation or siltation of any river or lake, or any adverse effect on the environment",

  1. I agree with Mr Larkin that it cannot be said that any clearing at all, of any description, produces an adverse effect on the environment or causes soil erosion, land degradation or saltation. However in this case, I am satisfied that the clearing of Area G, notwithstanding its relatively small area, is likely to cause soil erosion and siltation, largely because of its proximity to Saltwater Gully. While some parts of Area G are relatively flat, there can be no dispute that this area, falls toward Saltwater Gully. When combined with the sandy nature of the soil and the susceptibility to erosion, including wind erosion, the potential for soil erosion and siltation is increased for Area G if sufficient groundcover is not available.

  1. I also agree with the evidence of Dr Gibson that weed species have a greater chance of establishment on disturbed or cleared land rather than naturally vegetated land through human activities and increased soil nutrient levels with a consequent potential impact on the nearby National Park and nature reserve.

  1. I do not accept that the clearing of vegetation in Area G, in isolation, would be in conflict with s 38(1(b) in relation to fauna food sources, fire risk, feral animals, microclimate or biodiversity.

  1. For the reasons in the preceding paragraphs, I am satisfied that the jurisdictional pre-condition in s 38(1)(b) is established so a Direction for Remedial Work made pursuant to s 38(1) of the NV Act may be issued.

  1. I am also satisfied that my findings in the preceding paragraphs are sufficient to warrant a Direction for Remedial Work so Mr Larkins submission that the Court should use its discretion not to give a Direction should be rejected.

The terms of the Direction to Carry Out Remedial Work

  1. The applicant disagreed on the terms of the Direction to Carry Out Remedial Work proposed by the respondent in a number of areas. These are:

The time for the remedial works and revocation of the Remedial Direction

  1. Condition c)(i) and (ii) requires works to be undertaken within 15 years from the date of the issue of the Direction, where no other time is specified (Direction c)(i)) or until with the Direction is revoked by the Office of Environment and Heritage (OEH) (Direction c)(ii)).

  1. The applicant proposes an amendment that requires works to be undertaken by 1 July 2023 (Direction c)(i)) or until with the Direction is revoked by the Restoration Ecologist in accordance with condition 7.10 of the Direction (Direction c)(ii)).

  1. I accept the respondents version of these conditions. According to Mr Larkin, the maximum statutory period is 15 years and this should apply from the date of the Direction. For reasons set out later in the judgment, I do not accept that the Restoration Ecologist should have the power to revoke the Direction.

Fencing

  1. Condition 1.1 requires fencing to be maintained "to ensure stock and feral animals" did not enter the remedial areas. The applicant seeks the deletion of the words "and feral animals".

  1. I agree with the applicant that any reference to "feral animals" should be deleted as the applicant should not be responsible for matters that are beyond his ability to control. The reference to "feral animals" in other parts of the Direction are also deleted.

  1. Condition 1.2 provides requirements for fencing with a condition that requires fencing to consist of "star pickets and single wire strung between the pickets on the top rung ". The applicant seeks to substitute the type of fencing by providing for the remediation areas " being roped off by star pickets and ropes, or flagging or the like".

  1. I accept that the fencing proposed by the respondent. In my view, star pickets and single wire strung between the pickets on the top rung is not unreasonably onerous and better achieves the objective of protecting the remediation areas. The applicants version of fencing is less certain, particularly when fencing includes "flagging and the like".

  1. Condition 1.3 provides requirements for the placement of signs on the fencing. The applicant seeks the deletion of this condition in total.

  1. Again, the requirement for signage is not overly onerous and reinforces the objective of protecting the remediation areas. The condition should remain.

  1. Condition 1.6 provides that gates are to remain closed at all times and opened only to allow access required by the Direction. The applicant seeks the deletion of this condition in total.

  1. I accept that the restriction on gates proposed by the respondent. In my view, the restriction better achieves the objective of protecting the remediation areas.

  1. Condition 1.7 provides requirements for the inspection of the remediation areas and requires that each area be inspected four times each reporting period, with a minimum 80 days between each inspection for the purpose of determining whether the fence continues to meet the requirements in conditions 1.1 to 1.6. A "reporting period" means each annual period commencing from the date of issue of the Direction and each subsequent year.

  1. I accept that the definition of "reporting period" is appropriate however I agree that the inspection of the remediation areas four times each reporting period is excessive and should be reduced to twice a reporting period.

Management of stock

  1. Condition 2 provides requirements for the management of stock. The dispute between the parties centres on whether the remediation areas should be inspected four times each reporting period (respondent) or per annum (applicant).

  1. For consistency, the remediation areas should be inspected twice each reporting period.

Entry of persons/ vehicles and machinery

  1. Conditions 3.1 and 4.1 provide that all "practicable steps" must be made to ensure no persons or vehicles and machinery, respectively, enter the remedial areas. The applicant seeks to substitute these words with "reasonable precautions".

  1. In my view, the practical differences are so minimal that the respondents version can be adopted.

Expert ecologist

  1. Condition 5 sets out the requirements for the engagement of a Restoration Ecologist. The applicant seeks the following additional words to be added to condition 5.2:

OEH must not object unreasonably, and may only object or the ground that the proposed ecologist is not appropriately qualified to perform the tasks required under this direction

  1. The applicant also seeks to add condition 5.4 that states:

In the event that the Restoration Ecologist resigns or in the opinion of the Landowner is no longer willing or able to fulfil his/her functions in a proper or timely manner, the Landowner may from time to time appoint a replacement Restoration and Ecologist, and the provisions of paragraphs 5.1 - 5.3 apply to any such appointment.

  1. I agree that the words "OEH must not object unreasonably" should be included in condition 5.2 however I do not agree that limitations should be placed on the appointment of an ecologist for the position of Expert Ecologist. It may well be that there are other matters, beyond qualifications, that may make an ecologist unsuitable for the position.

Preliminary works

  1. Condition 6.1 requires the removal of the waste from within Area C within 14 days and the applicant proposes two months.

  1. Given the amount of work required to address the Remedial Direction and the absence of any identified environmental harm, I accept the applicants time of two months.

  1. Condition 6.2 requires the removal of all weeds from Area F within one month. The applicant proposes to amend this condition to extend the time to two months and include the following words "which in the opinion of the Restoration Ecologist have the potential to significantly inhibit the regeneration of native vegetation".

  1. Given the amount of work required to address the Direction, I accept the applicants time of two months for the removal of all weeds from Area F however in the absence of any evidence to identify weeds that may not "significantly inhibit the regeneration of native vegetation" and the uncertainty this creates, the additional words proposed by the applicant should not be included.

  1. Conditions 6.4 and 6.5 address Area G and were to be deleted by the applicant on the basis that Area G should not be subject of the Direction for remedial work. For reasons set out earlier in the judgment, Area G should be included in the Direction for remedial work and consequently, conditions 6.4 and 6.5 should be retained, including the requirement that all rubbish and machinery is to be removed within 14 days, given the relatively small size of Area G.

Monitoring and weeding

  1. Condition 7.1 requires a fixed monitoring point for each remediation area to be established within 21 days. The applicant seeks to amend this time to two months.

  1. Given the amount of work required to address the Direction, I accept the applicants time of two months.

  1. Condition 7.2 requires photographs to be taken from various locations, and to be repeated every six months until "the date that is 10 years from the date of the Direction, and thereafter every 12 months for the duration of the Remedial Direction". The applicant proposes an amendment that replaces these words with " until trees within the Remediation Area are 5 m tall. Thereafter, the photographing is to be done annually while this direction is in force".

  1. I agree with the applicant's version of this condition as it provides a performance-based approach to the need for photography and reduces unnecessary work by the applicant.

  1. Condition 7.3 requires that each time photographs are taken in accordance with condition 7.2, a copy of the photographs are to be provided to the Restoration Ecologist within 7 days. The applicant seeks 14 days and also that the photographs be referred to the OEH.

  1. I agree with the applicants version of this condition as it provides a more reasonable timetable for the provision of the photographs however a copy to the OEH is unnecessary because the photographs, and the accompanying report of the Restoration Ecologist are to be referred to the OEH, in accordance with condition 7.4.

  1. Condition 7.4 provides requirements for reporting (conditions 7.4(a)-(f)) when photographs are taken in accordance with condition 7.2. The applicant seeks the deletion of this condition in total.

  1. I accept the use of consistent reporting conditions for the photography is necessary and appropriate to ensure that the remediation is comparable to previous reports and conclusions made on the progress of the remediation.

  1. Condition 7.5 provides that a copy of the photographs required by condition 7.2 and the report required by condition 7.4 is provided to the OEH within 35 days of the photographs being taken. The applicant seeks the deletion of this condition in total.

  1. I agree that this clause should be included as it provides a reasonable timeframe for the report referred to in condition 7.4 and the photographs referred to in condition 7.2, to be submitted to the OEH.

  1. Condition 7.7 requires the Landowner to follow any written direction on recommendation of the Restoration Ecologist as soon as practicable, and in any case within 14 days. The applicant seeks three months to respond to any written direction.

  1. In my view, an appropriate time would be one month, given the extent of the remediation areas, and the potential range and amount of exotic species in the remediation areas.

  1. Condition 7.8 requires the Landowner to follow any written direction or recommendation of the Restoration Ecologist in relation to regeneration works in the remedial areas. The applicant seeks to add the following additional words "if, in the opinion of the Restoration Ecologist, the making of such written direction or recommendation is necessary to prevent a significant inhibition to the regeneration of native vegetation".

  1. I do not accept that any limitations should be placed on any written direction or recommendation of the Restoration Ecologist in relation to regeneration works in the remedial areas so the applicants changes should not be included.

  1. Condition 7.9 provides that when the Landholder is the opinion that native vegetation groundcover, shrubs, mid-storey and canopy are established in an ecologically similar manner to the surrounding remnant native vegetation, the Landholder may seek the opinion of the Restoration Ecologist on this point.

  1. The respondent seeks to qualify this condition by providing that the extent of re-established vegetation is based on:

(a) they are ecologically similar to the surrounding vegetation; or
(b) it is likely that the vegetation of the Remediation Area will continue to regenerate without human intervention so as to function in a ecologically similar way to the surrounding vegetation.

  1. I am satisfied that the respondents condition adequately addresses the question of whether native vegetation groundcover, shrubs, mid-storey and canopy are established in an ecologically similar manner to the surrounding remnant native vegetation. The question is clear and the Restoration Ecologist should not be limited in preparing a response.

  1. Condition 7.10 relates to condition 7.9 and provides that the Landholder may provide a written opinion of the Restoration Ecologist, consistent with condition 7.9, to the OEH to provide a variation or revocation of the Direction.

  1. I do not accept that the Restoration Ecologist should be given the power to vary or determine whether the Remedial Direction should be varied or revoked as this power should rest with the OEH. The ability of the Remedial Ecologist to make recommendation for a variation or revocation is appropriate, based on the criteria in condition 7.9.

Reporting

  1. Condition 9.1 requires the Landholder to provide to the OEH, within three months of the Direction, an Initial Report on whether or not certain conditions of the Direction have been complied with. The applicant seeks the deletion of this condition in total.

  1. I see no reason why the applicant should not prepare an Initial Report in response and whether the terms of the Direction have been complied with. Condition 9.1 should remain.

  1. Condition 9.2 provides mailing addresses for the report's required by conditions 7 and 9.1. The applicant seeks the deletion of this condition in total.

  1. It is not clear what is controversial about the addresses provided in this condition as they simply provide advice on where to send the documentation required by the Direction. The condition may remain.

Exceptions

  1. The applicant proposes new condition 9.1 that identifies exceptions to the Direction for the clearing of vegetation, including approvals under the NV Act, the EPA Act and the Rural Fires Act.

  1. The potential clearing of native vegetation is controlled by number of Acts beside the NV Act, and each is subject to specific requirements. As the applicants proposed condition 9.1 attempts to restate the law, it may be deleted.

Definitions and Interpretations

  1. Definitions and Interpretations are contained in a table at the rear of the Direction.

  1. The applicant seeks the deletion of the definition for "Reporting period" on the basis that the term is no longer used in the Remediation Direction, if their submissions are supported by the Court.

  1. For reasons earlier in the judgment the definition for "Reporting period" should remain.

Orders

  1. The orders of the Court are:

1. The appeal, pursuant to s 39(1) of the Native Vegetation Act2003, against a direction for remedial work made pursuant to s 38(1) for part of the property at Lot 2 DP 1148343, 474 Saltwater Road, Wallabi Point is allowed.

2. The direction for remedial work made by the Respondent on 20 November 2010 is revoked and in lieu, the Court makes a direction under s39 of the Native Vegetation Act 2003 and s39 of the Land and Environment Court Act 1979 in the form attached and marked "A".

3. The exhibits are returned.

_________

G T Brown

Commissioner of the Court

Amendments

27 August 2012 - Final word "dismissed" replaced with "allowed" in Order 1.The word "not" deleted from Paragraphs 21, 83 and 94.


Amended paragraphs: Order 1, Para 21, 83 and 94

Decision last updated: 27 August 2012

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