Greentree v Director-General of the Department of Land and Water Conservation

[2002] NSWLEC 53

Land and Environment Court

of New South Wales

CITATION:	Greentree v Director-General of the Department of Land and Water Conservation [2002] NSWLEC 53
PARTIES:	APPLICANT Ronald Lewis Greentree RESPONDENT Director-General of the Department of Land and Water Conservation
FILE NUMBER(S):	10169 of 2002
CORAM:	Pain J
KEY ISSUES:	Construction and Interpretation :- whether order is invalid due to errors on its face Jurisdiction :- whether judicial review grounds are maintainable in Class 1 proceedings
LEGISLATION CITED:	Interpretation Act 1987 s 33 Land and Environment Court Act 1979 s 17(g), s 20, s 22, s 39, s 124 Native Vegetation Conservation Act 1997 s 3(f), s 46, s 47, s 48, s 63
CASES CITED:	Attorney General v Hallett [1952] AC 427; Calvin v Carr [1980] AC 574; Corporate Affairs Commission of New South Wales v Yuill (1991) 172 CLR 319; Donaldson v Broomby (1982) 40 ALR 525; Egan v Hawkesbury City Council (Mahoney, Meagher and Cripps JJA, NSWCA, 21 April 1993, unreported); Helman v Byron Shire Council (1995) 87 LGERA 349; NSW Crime Commission v Murchie (2000) 49 NSWLR 465; Saraswati v The Queen (1991) 172 CLR 21; Schaffer Corporation Ltd v Hawkesbury County Council (1992) 77 LGRA 21; Twist v Randwick Municipal Council (1976) 136 CLR 106; 36 LGRA 443
DATES OF HEARING:	18 April 2002
DATE OF JUDGMENT:	04/23/2002
LEGAL REPRESENTATIVES:	APPLICANT Mr SM Littlemore QC with Ms P Lane (Barrister) SOLICITORS Tress Cocks & Maddox RESPONDENT Mr GTW Miller QC with Ms J Kelly (Barrister) SOLICITORS Department of Land and Water Conservation

JUDGMENT:

IN THE LAND AND Matter No. 10169 of 2002
ENVIRONMENT COURT Coram: Pain J
OF NEW SOUTH WALES Decision Date: 23 April 2002

Ronald Lewis Greentree

Applicant

v

Director-General of the Department of

Land Water and Conservation

Respondent

Judgment

1. These are Class 1 proceedings exercising a right of appeal in relation to a Stop Work Order issued under s 46 of the Native Vegetation Conservation Act 1997 (the NVC Act). The Applicant informed the Court at the start of the hearing, set down for three days, that it wished to pursue two legal issues concerning the validity of the Stop Work Order and seek declarations that the Stop Work Order is void. No Notice of Motion seeking leave to raise these issues, as required by the Land and Environment Court Rules Pt 13 r 14, (the Court Rules) has been filed. The points of law are contained in a letter dated 15 April 2002, from the Applicant’s solicitors to the Respondent’s solicitor, which was handed up to the Court. The points of law are as follows:

1. The Stop Work Order is void for invalidity.

2. The Stop Work Order is void, in that it was issued ultra vires .

(a) The Director did not form the opinion specified by s 46(1) of the Act; and/or
(b) The Director acted unreasonably, in that he purported to form the opinion when there was no material to support that opinion; and/or
(c) The Director acted under dictation, merely approving the recommendation of a Departmental Officer; and/or
(d) The Director failed to take into account relevant considerations, being the Applicant’s right to clear pursuant to the exemptions that apply to the Act; and/or
(e) The Director took into account an irrelevant consideration, being his departmental officer’s wish to have clearing stopped on the land for the purpose of investigating whether an offence had taken place and/or
(f) The Director acted for an improper purpose, in that he issued the order so as to obtain information pursuant to Section 50 of the Act, which was not a lawful purpose.

2. After some discussion, argument was heard on the first of these legal issues as I considered that it was a preliminary point of law which could be properly raised in these Class 1 proceedings. The Respondent did not consider he was prejudiced by the failure of the Applicant to comply with the Court Rules in raising it. I am prepared to deal with this alleged irregularity in the Order itself as it is a discrete legal matter requiring no substantial investigation of the Director-General’s powers to issue it, unlike the second legal issue raised by the Applicant.

Invalidity of Stop Work Order due to errors on its face

3. The Applicant argues that there are errors on the face of the Stop Work Order issued by the Respondent which render it invalid. It has identified two grounds which are the basis for this argument (which are set out in 1(a) and (b) above).

4. Firstly, the Applicant argues that the terms of the Stop Work Order are not reflective of the opinion that the Director-General has to form under s 46(1) of the NVC Act “that a person is contravening, or is about to contravene, Part 2”. If the Director-General is of that opinion he may, by notice in writing given to the person, order the person not to carry out the clearing concerned.

5. The Stop Work Order provides that “I Robert Patrick Smith, Director-General of the Department of Land and Water Conservation, am of the opinion that [that] (sic) you have cleared and are about to clear native vegetation in contravention of Part 2.”

6. The Applicant argues that the Order does not correctly state the opinion on which the Order must be based under section 46(1), i.e. “that a person is [emphasis added] contravening, or [emphasis added] is about to contravene.” Rather the Stop Work Order states that the Director-General’s opinion is “that you have cleared [past tense] and [emphasis added] are about to clear native vegetation.” The Applicant argues this does not satisfy the requirements of s 46(1), which must be strictly construed.

7. The Applicant points out that under s 47(1)(a) of the NVC Act:

the Director-General, if satisfied, that any native vegetation… has been cleared in contravention of Part 2 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.

Section 47 is clearly directed to past clearing, unlike s 46(1) which relates only to current and possible future clearing.

8. The second basis of arguing invalidity is that the Stop Work Order fails to identify with certainty the land over which it is to operate. The Stop Work Order states:

…you have cleared and are about to clear native vegetation in contravention of Part 2 of the NVC Act 1997 on part of the property known as ‘Eastwood’, being Lot 7 DP 750444 Folio Identifier 7/750444 Parish of Collyu County of Benarba and Crown Road Reserve crossing Lot 7 DP 750444 for which enclosure permit 42454 is held (the Land). You are therefore ordered pursuant to s 46(1) of the NVC Act not to carry out clearing of native vegetation on the Land.

9. It is submitted by the Applicant that the appropriate way the Order should read is “that you are clearing or [not and] are about to clear in contravention of Part 2 the land, part of Eastwood being Lot 7.” The Applicant argues that the Stop Work Order fails to specify the particular clearing that the Director’s opinion relates to and rather can be read as purporting to restrain all clearing on the whole of the Land.

10. The Applicant further submits there should be a description of the size of the land to which the Order applies. The Stop Work Order should include a description of the part where there is opinion that contravention is taking place.

11. The Applicant contends that the implications of the Stop Work Order are serious and can have significant consequences for the Applicant if not complied with, as substantial penalties for non-compliance are provided for. Accordingly the Order must comply strictly with the legislative power to make it. Reference was made to Donaldson v Broomby (1982) 40 ALR 525 which deals with the statutory power of arrest without warrant as analogous to this case dealing as that case does with fundamental rights of freedom. It was submitted that the security of land and right to use land for one’s own purposes is a common law right except to the extent prohibited by law. This right, it is argued by the Applicant, is analogous to the rights considered in Donaldson .

12. A Privy Council case Attorney General v Hallett [1952] AC 427 was also referred to by the Applicant. This dealt with the wartime regulation of certain crops. It was said this case affirms the need to give statutes which encroach upon the rights of the person a strict construction.

13. The Respondent argued that the NVC Act does not proscribe the terms in which the Stop Work Order must be issued. No detail is provided in the legislation of the form a Stop

Work Order should take.

14. The Respondent submitted that the appropriate approach to statutory construction is to look at the plain ordinary words used by Parliament and give those words a purposive construction such as would enable the achievement of the objectives of the Act. In this case the Stop Work Order is a statutory injunction issued by administrative process and subject to an unlimited entitlement to appeal by the party aggrieved.

15. The Respondent relied on Corporate Affairs Commission Of New South Wales v Yuill (1991) 172 CLR 319 for the principles to be applied in ‘modern’ statutory construction. In Yuill McHugh J noted that the fundamental rule of statutory construction is to look to the intention of Parliament as “inferred from the terms of the enactment” (at 346). The “first step” is to look to the ordinary meaning of the provision, but this is only the first step (at 346). It is also necessary to have regard to other rules of statutory construction, which includes the purpose of the legislation (at 346). I take the Respondent’s argument to mean that I must look at the purpose of the statute as a whole in considering the provisions on which the Order is based.

16. In NSW Crime Commission v Murchie (2000) 49 NSWLR 465 to which the Respondent also referred, James J considered the case of Saraswati v The Queen (1991) 172 CLR 21 where McHugh J pointed to the necessity of adopting the construction which will promote the underlying purpose or object of an Act.

17. The Respondent considered in the context of the NVC Act's objects as a whole, and within the terms of the Stop Work Order, that the scope and intent of the Order was clear. It has been issued in terms that disclose the persons to whom it is addressed, on whose authority it has been issued and that the Director-General holds an opinion which is the basis of the power to issue the Order i.e. “that you …are about to clear native vegetation in contravention of Part 2”. The Stop Work Order does also contain words which are superfluous namely the opinion that “you have cleared …” native vegetation. It would be a strained construction, the Respondent argued, to say that the Director-General in forming his opinion could not take into account the previous clearing of land. The power is sufficiently grounded in the words “about to clear native vegetation”.

18. The Respondent also argued that the document is clear in relation to identifying the land to which the Order will apply. It states that the Order applies to “part of the property known as ‘Eastwood’” and defines by Lot and DP number the land the subject of the Order. The Respondent argued that the meaning of the Order is what the ordinary reader would conclude on reading the notice and the Order is clear in what it intends. By identifying the land by Lot and DP there is certainty in the description of the land the Order applies to.

19. I do not consider it necessary in these circumstances to apply the strict construction of the Order submitted by the Applicant. I apply s 33 of the Interpretation Act 1987 which states:

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

This approach is reflected in the Yuill and Murchie decisions referred to by the Respondent.

20. In my view the Stop Work Order is sufficiently clear on its face that it is valid and does comply with the provisions of s 46 of the NVC Act, particularly in light of the overall objects of the Act which include "to prevent the inappropriate clearing of vegetation", s 3(f) NVC Act.

21. While not ideally drafted, I do not consider that the ‘errors’ to which the Applicant has referred are fatal in the circumstances. The opinion which the Director-General must hold in order to issue a Stop Work Order is sufficiently articulated. The fact that there is also reference to “the opinion that you have cleared” does not detract from this, in my view, in such a way that the obligation of the Director-General to comply with s 46(1) of the NVC Act is negated. As to whether the land identified as the subject of the notice is clear I also find in the Respondent’s favour. I consider that the land is identified in a way that is adequate to give effect to s 46(1).

22. There was also argument on whether the irrelevant part of the opinion formed by the Director-General, that clearing had taken place, is severable. The Applicant argued that one cannot sever this part of the basis for the Director-General’s opinion as ‘and’ links the irrelevant opinion to the appropriate opinion test. The Respondent argued that it was severable. I do not think the Stop Work Order is so misleading that the question of severability arises.

23. On the question whether the area of land needs to be identified in the Stop Work Order as the Applicant submits, the Respondent put in argument that the Court cannot take into account the area of land as no evidence was presented on this point. The Applicant submitted that this was a further ground to demonstrate the invalidity of the Stop Work Order. It was even more uncertain as it was impossible to know the size of the area to which the Stop Work Order related. As I do not consider the description of the land by Lot and DP number is misleading in the Stop Work Order, I do not consider the area (in terms of size) of land need necessarily be identified.

24. Accordingly, I consider the Stop Work Order is valid in relation to the issues raised by the Applicant in the first point of law.

Is it appropriate to raise the second point of law in Class 1 proceedings?

25. The second legal issue the Applicant wishes to pursue is seeking a declaration that the Stop Work Order is void on various administrative review grounds. These grounds raise issues such as whether the Director-General has power to issue the Order because of the alleged breaches of numerous administrative law principles. The issue arises as to whether such proceedings are maintainable in Class 1 proceedings rather than Class 4 proceedings.

26. The Applicant argues that s 48 of the NVC Act provides an appeal right to the Land and Environment Court in Class 1 and that appeal can encompass judicial review grounds, and consequential declaratory orders. Indeed the Applicant appears to consider that a Class 1 appeal is the only form of appeal or court action in the Land and Environment Court available to him. For reasons set out below I do not think this argument is correct.

27. Section 48(1) of the NVC Act states that:

A person aggrieved by the decision of the Director-General to make an order, or to give a direction, under this Part may appeal against the decision to the Land and Environment Court within 30 days of the service of the notice of the order or direction.

Appeal proceedings pursuant to s 48 of the NVC Act are in Class 1 of the Court’s jurisdiction as provided for in s 17(g) of the Land and Environment Court Act (the Court Act).

28. The nature of Class 1 proceedings is that these are essentially “merit” appeals and the Court stands in the decision maker’s shoes in these types of matters. The rules of evidence do not apply. Section 39 of the Court Act defines the Court’s powers on appeal under Class 1. Section 39(2) states that the Court shall:

for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal .

29. Class 1 proceedings are different in nature to Class 4. Section 20 specifies the Court’s jurisdiction in Class 4 matters before the Court. It includes proceedings under s 63 of the NVC Act. Section 20(2) of the Court Act provides:

The Court has the same civil jurisdiction as the Supreme Court would, but for s 71, have to hear and dispose of proceedings

(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract;
(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract
(c) to make declarations of right in relation to any such right, obligation or duty to the exercise of any such function

30. Under s 20(3) of the Court Act a planning or environment law includes the NVC Act. Section 63(2) of the NVC Act provides any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

31. Section 63(1)(a) of the NVC Act states:

a reference to a breach of this Act is a reference to:

(i) a contravention of or failure to comply with this Act, or
(ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act

32. Section 63(1)(b) of the NVC Act provides:

in this section a reference to this Act includes a reference to any of the following:
…

(v) an order or direction under part 6.

Part 6 is the part of the NVC Act under which Stop Work Orders the subject of this appeal are dealt with.

33. It is pursuant to provisions such as s 20 in the Court Act and s 63 in the NVC Act that Class 4 proceedings can be commenced in the Land and Environment Court seeking judicial review of administrative decisions and seeking consequential declaratory orders that decisions are void. Similar provisions appear in numerous other environmental and planning laws and have been the basis for judicial review proceedings before this Court.

34. The parties both relied on the decision in Helmanv Byron Shire Council (1995) 87 LGERA 349 with respect to the scope to raise legal issues in Class 1 proceedings. In Helman it had been argued that the validity of a consent could only be challenged in Class 4 proceedings and not Class 1 proceedings. The Court (Handley JA, Priestly JA and Kirby ACJ agreeing) held (at 360) that:

The existence of the Land Court’s jurisdiction in Class 4 proceedings provides no justification for confining the scope of its jurisdiction in class 1 proceedings. A party by appealing against a decision does not ordinarily lose his rights to challenge the validity of that decision in the appeal.

35. The Court of Appeal, after noting that this Court has a practice of “frequently entertain[ing] legal objections in merits appeals” held that such challenges regarding the validity of a decision were permissible in Class 1 proceedings. The Applicant relied on this point to support their argument that a challenge to the validity of the Stop Work Order on judicial review grounds seeking declaratory Orders could be mounted in these Class 1 proceedings.

36. The Respondent also referred to statements in Helman that “an appeal in which the merits can be fully considered may cure an invalidity in the primary decision: see Twist v Randwick Municipal Council (1976) 136 CLR 106; 36 LGRA 443 and Calvin v Carr [1980] AC 574. However the powers of the Land Court on a merits appeal are in general no greater than those of the consent authority”.

37. The matters that can come before this Court are divided into various Divisions, s 16(2) of the Court Act, and different practice and procedures apply in these Divisions, reflecting the different legal and administrative nature of the matters. There are important differences between Class 1 and Class 4 proceedings. While preliminary points of law may be raised for determination in the course of Class 1 proceedings, judicial review matters are more appropriately pursued in Class 4. This is clearly contemplated by the provisions of s 20 of the Court Act particularly s 20(2).

38. Helman is not authority for the proposition, in my view, that any legal challenge to an administrative order, regardless of its nature, is maintainable in Class 1 proceedings. Helman was not dealing specifically with judicial review proceedings, as in this case. While legal questions of invalidity of a decision can be raised in Class 1 matters, a challenge to the power of the decision-maker to make the decision at all is not appropriate in Class 1 proceedings, in my view.

39. An important consideration is also the nature of the relief sought by the Applicant, namely declaratory Orders that the Stop Work Order is void. While the letter of 15 April 2002 containing the Applicant’s points of law does not specifically refer to seeking a declaration that the Order is void ab initio, but does refer to the decision being ultra vires, comments in argument from the Applicant suggest this is likely to be sought as relief in these proceedings. Proceedings claiming such declaratory orders are generally in the Class 4 jurisdiction of the Court. For consideration of the differences between Class 1 and Class 4 proceedings in a different legislative context, a Class 1 appeal under s 97 of the Environmental Planning and Assessment Act 1979, the decision of Pearlman J in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 30 is instructive in terms of the distinction drawn between Class 1 and Class 4 proceedings:

… the [s 97] appeal is not an attack on the validity of the Council’s decision, requiring the Court to judicially review the Council’s decision. The Council decision may well be valid, but the objectors are not content with it.

If the objectors were impugning the validity of the Council’s determination, then the appropriate proceedings would be Class 4 proceedings pursuant to s 123 of the Act, which provides that any person may bring proceedings in the Court for an order to remedy or restrain a breach, of the Act. Those proceedings, in respect of the breach raise squarely the Court’s discretion under s 124 of the [EP&A] Act to make such order as it thinks fit to remedy or restrain the breach.

Schaffer

was later appealed and overturned by the Court of Appeal, but on unrelated matters [see Egan v Hawkesbury City Council (Mahoney, Meagher and Cripps JJA, NSWCA, 21 April 1993, unreported)].

40. There are also important practice and procedure differences between Class 1 and Class 4 proceedings. The nature of judicial review proceedings means that these are more appropriately conducted in Class 4 where there are Court rules relating to the appropriate form of pleadings and the conduct of interlocutory matters, and the rules of evidence apply. These significant practice and procedure requirements are largely absent in Class 1 proceedings.

41. The Applicant sought to rely on s 22 of the Court Act which provides:

The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.

I do not think the application of s 22 of the Court Act means that all issues the Applicant wishes to raise must be or can be dealt with in these Class 1 proceedings. It is open to the Applicant to commence Class 4 proceedings to pursue the issues raised in the second point of law. It is more appropriate those issues be considered in Class 4 proceedings.

42. Accordingly I consider if the Applicant wishes to maintain judicial review proceedings seeking a declaration that the Stop Work Order is void this must be pursued in Class 4 proceedings before this Court.

Finding

43. I make the finding on the first preliminary question of law raised by the Applicant that the Stop Work Order is valid for the reasons set out in paragraphs 19 to 24.

44. I make no finding in relation to the alleged invalidity of the Stop Work Order in relation to the second question of law raised by the Applicant.