Holmes v Director General of the Department of Infrastructure Planning and Natural Resources
[2005] NSWLEC 264
•05/24/2005
Land and Environment Court
of New South Wales
CITATION: Holmes v Director General of the Department of Infrastructure Planning and Natural Resources [2005] NSWLEC 264
PARTIES: APPLICANT:
Joseph Richard HolmesRESPONDENT:
Director General of the Department of Infrastructure, Planning and Natural ResourcesFILE NUMBER(S): 10791 of 2004
CORAM: Lloyd J
KEY ISSUES: Question of Law :- validity of Remediation Notice issued pursuant to s 47 of the Native Vegetation Conservation Act 1997 (NSW) - severability - entire notice ultra vires
LEGISLATION CITED: Interpretation Act 1987 (NSW), ss 32, 33
Land and Environment Court Act 1979 (NSW), ss 17(g), 39
Native Vegetation Conservation Act 1997 (NSW), ss 3, 46, 47, 48, 63; Pt 2
Soil Conservation Act 1938 (NSW), s 15A(1)
State Environmental Planning Policy No 46CASES CITED: B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440 (CA);
Bank of New South Wales v The Commonwealth (1948) 76 CLR 1;
Beckwith v The Queen (1976) 135 CLR 569;
Buttsworth v Director-General of Department of Land and Water Conservation (2003) 127 LGERA 170;
Calvin v Carr [1980] AC 574 ;
Capral Aluminium Limited v Workcover Authority (NSW) (2000) 49 NSWLR 610;
City of South Perth v Churchill (1982) 56 LGRA 350;
Coleman v Gray (1994) 55 FCR 412;
Cox v Hazell Pty Limited v Gidney [1981] NSWLR 468;
Director-General of the Department of Land and Water Conservation v Greentree (2002) 124 LGERA 233;
Donkin v Stead (1982) 29 SASR 306;
El Cheikh v Hurstville City Council (2002) LGERA 293;
Helman v Byron Shire Council (1995) 87 LGERA 349;
J & J O'Brien Pty Limited v South Sydney City Council (2002) 121 LGERA 223;
Kingston v Keprose Pty Limited (1987) 11 NSWLR 44;
Larkin v Parole Board (1987) 10 NSWLR 57 (CA);
McClenahan v North Sydney Council [2004] NSWCA 208;
Metropolitan Coal Company of Sydney Limited v Australian Coal and Shale Employee's Federation (1917) 24 CLR 85;
Minister for Primary Industries and Energy v Austral Fisheries Pty Limited (1993) 40 FCR 381;
MLC Properties Pty Limited v Camden Council (1999) 96 LGERA 52;
Metal Manufacturers Limited v Lewis (1988) 13 NSWLR 315 (CA);
Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302;
Mulcahy v Blue Mountains City Council [No 2] (1995) 87 LGERA 422;
Norcal Pty Limited v D'Amato (1988) 15 NSWLR 376 (CA);
Olsen v City of Camberwell [1926] VLR 58;
O'Sullivan v Truth & Sportsman Limited [1956] SASR 58 (FC);
Parramatta City Council v Brickworks (1972) 128 CLR 1 ;
Piper v Corrective Services Commission (NSW) (1986) 6 NSWLR 352 (CA) ;
Potter v Minahan (1908) 7 CLR 277;
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355;
Re Bolton; Ex parte Beane (1987) 162 CLR 514;
Slack-Smith v Director-General of Department of Land and Water Conservation [2003] NSWLEC 189;
Sloane v McDonald Industries (Sales) Pty Limited (1989) 17 NSWLR 86;
Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134;
Twist v Randwick Municipal Council (1976) 136 CLR 106;
Wade v NSW Rutile Mining Co Pty Limited (1969) 121 CLR 177;
Waugh v Kippen (1986) 160 CLR 156DATES OF HEARING: 26/04/2005
DATE OF JUDGMENT:
05/24/2005LEGAL REPRESENTATIVES: APPLICANT:
RESPONDENT:
Mr S M Littlemore QC and Ms P M Lane (barrister)
SOLICITORS:
PricewaterhouseCoopers Legal
Ms S A Duggan (barrister) and Mr C D Norton (barrister)
SOLICITOR:
Christine Hanson
Department of Infrastructure, Planning and Natural Resources
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
LLOYD J
Tuesday, 24 May 2005
LEC No. 10791 of 2004
HOLMES V DIRECTOR GENERAL OF THE DEPARTMENT OF INFRASTRUCTURE, PLANNING AND NATURAL RESOURCES [2005] NSWLEC 264
BackgroundJUDGMENT
1 LLOYD J: On 28 May 2004, the respondent, the Director General of the Department of Infrastructure, Planning and Natural Resources (DIPNR) served a Notice of Remediation on the applicant, Mr Joseph Richard Holmes, pursuant to s 47(1)(b) of the Native Vegetation Conservation Act 1997 (NSW) (“the NVC Act”). The notice was made in relation to the applicant’s property “Loxley”, Lot 4, DP 752898, Parish of Myall Cowal, County of Flinders, Local Government Area of Bogan.
2 The notice states:
- General Provisions
The Notice is to continue for a period of ten (10) years from the date of signature.
Works to be undertaken
The following works are to be undertaken:
(a) The landholder must ensure that native vegetation within the Remediation Areas is not cleared for the duration of the Notice. This prohibition includes clearing pursuant to any exemptions permitted by Schedule 3 of [State Environmental Planning Policy No. 46].
(b) Fencing sufficient to exclude stock from the Remediation Areas is to be installed within three (3) months of the date of this Notice.
(c) Stock are to be removed from the Remediation Areas within seven (7) days hereof and be excluded for the duration of this Notice.
(d) Cleared vegetation presently in the Remediation Areas must not be moved, removed or burnt except with the written consent of the Regional Director.
3 The applicant has appealed against the decision of the respondent to issue the notice: the NVC Act, s 48.
4 On 7 April 2005, the Chief Judge made an order on the application of the applicant that the following question of law be heard and determined separately and prior to the hearing of any other determination of the facts and law in the applicant’s appeal:
(The decision of any question separately from any other question is permitted by Pt 3, r 2 of the Supreme Court Rules , which applies to this Court by dint of Pt 6, r 1 of the Land and Environment Court Rules ).
Is the Notice issued to the Applicant by the Respondent, dated 28 May 2004, a valid notice for the purposes of the NVC Act having regard to:
(a) whether the directions for work either in whole or in part are directions authorised by s 47 of the said Act; and
(b) whether, to the extent that any part of the said directions for work may not be authorised by s 47 of the Act, any of the direction/s are capable of being severed from the Notice?
5 The applicant submits that the notice is ultra vires s 47 of the NVC Act. Relevantly, s 47 provides:
47 Notices for remedial work
(1) If the Director-General is satisfied:(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) that any native vegetation, or any protected land, has been cleared in contravention of Part 2, or
(b) that the clearing of native vegetation on any land, or the clearing of protected 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.(3) A direction under this section may be varied or revoked by a further notice.
(a) work to repair any damage caused by the clearing,
(b) work to rehabilitate any land affected by the clearing,
(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.
(4) A person who does not comply with a Notice under this section is guilty of an offence and is liable to a penalty not exceeding 1,000 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 100 penalty units for each day the offence continues.
(5) If a person fails to comply with a Notice under this section, the Director-General may authorise any other person to enter the land and carry out the specified work.
(6) The Director-General may recover the cost of that work from the person given the Notice in any court of competent jurisdiction as a debt due by that person to the Crown.
(7) Until repayment, the cost is to be a charge on the land.
The Applicant’s Submissions
Validity of the Notice
6 Mr S M Littlemore QC and Ms P M Lane, appearing for the applicant, submit that the notice is ultra vires s 47 as it does not comply with the following statutory requirements:
a) The notice does not specify the positive work to be carried out to repair damage, to rehabilitate affected land, or to protect it from damage or detriment: the NCV Act , s 47(2) : Slack-Smith v Director-General of Department of Land and Water Conservation [2003] NSWLEC 189, per Talbot J at pars [85] and [88]. The notice purports to prohibit the applicant from carrying out certain work on the property, and is therefore not a notice to undertake remedial work. It is submitted that s 47 of the NVC Act , requiring the carrying out of positive work, may be contrasted with s 15A(1) of the Soil Conservation Act 1938 (NSW) (“the SC Act” ), which enables the giving of a notice to abstain from doing an act as well as requiring the doing of an act. Section 15A(1) of the SC Act states:
b) The notice does not specify the manner in which the work is to be carried out;
If the Commissioner is of the opinion that:
(a) any act or thing done or proposed to be done on or in relation to any land, or
(b) the failure to do any act or thing on or in relation to any land,
has caused or is likely to cause soil erosion or land degradation on that land or on other land and that the erosion or degradation or its effects can be mitigated or avoided, the Commissioner may by notice served personally or by post on the owner or occupier of, or on the holder or grantee of any timber rights over, the firstmentioned land require that owner, occupier, holder or grantee, within the time specified in the notice, to:
(c) abstain from doing, or
(d) do or permit to be done,
such acts and things as may be specified in the notice.
c) The notice does not specify the time period within which the work is to be carried out. The provision that the notice “ is to continue for a period of ten years ”, is utterly without power and highlights the illegitimacy of the notice as a whole; and
d) The notice does not specify the work to be carried out sufficiently that a third party could carry out the work in default of the applicant: the NVC Act , s 47(5) .
7 Mr Littlemore QC and Ms Lane further submit that the notice is ultra vires as direction (a) purports to prohibit the applicant from carrying out clearing deemed to be lawful under exemptions to the NVC Act. They argue that lawful clearing under the exemptions allowed under State Environmental Planning Policy No. 46 – Protection and Management of Native Vegetation (SEPP 46) is not in breach of Pt 2 of the Act and therefore cannot be restrained by the respondent by the notice: Director-General of the Department of Land and Water Conservation v Greentree (2002) 124 LGERA 233, per Pain J at 11-12.
8 More specifically, Mr Littlemore QC and Ms Lane submit that directions (a) to (d) in the notice are ultra vires based on the following submissions:
- a) Direction (a) is unarguably and admittedly a prohibition as it specifies work that the applicant must not carry out, and further it would be impossible to specify the work, manner or period in which the restraint is to be carried out and it could not be carried out by a contractor.
b) Although direction (b) specifies positive “work”, being the building of a fence, the manner of the building is not specified (as required by s 47(1)), otherwise a dispute may arise due to the ambiguity of the direction.
c) Similarly, although direction (c) appears to be partly valid in that it requires the positive act of removing stock, it also provides that “ stock are to … be excluded ” which is plainly a prohibition. Also, direction (c) does not provide for specific work positively to be carried out within a specific period, and it is also not labour that could be performed by a contractor authorised to enter the land.
d) Direction (d) is negative, not positive; it does not specify any form of labour or the manner or time period of any labour; and is incapable of being carried out by a contractor.
9 Furthermore, Mr Littlemore QC and Ms Lane submit that directions (b) and (c) are both aimed to achieve the exclusion of stock from the land to prevent damage to the land; however, only one mode of exclusion is necessary, being either the fencing out of stock or the removal and exclusion of stock, but not both. As such, if direction (b) is valid, direction (c) with be redundant; and if direction (b) is invalid, direction (c) will be applicable.
Severability of the Notice
10 Mr Littlemore QC and Ms Lane submit that to the extent that any element of the notice is intra vires, the notice remains invalid because the intra vires element cannot be severed from the whole. The following submissions are said to support this conclusion:
a) At common law there is no presumption of severability of statutory instruments, and the notice must stand or fall as a whole: Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 per Dixon J at 369-370.
b) The reasoning of Dixon J in Bank of NSW applies with particular force in this case, as the “ [notice] in question operates as part of a regulatory scheme with penal provisions which operate by reference to, and which assume the efficacy of, [the notice] ”: Coleman v Gray (1994) 55 FCR 412, per Gummow J at 430. In particular, if direction (b) was held to be valid, due to its inherent ambiguity it would be very difficult to enforce the serious criminal consequences of a breach of the direction and may result in undue oppression to the applicant.
c) Upon the assumption, however, that the notice is an “ instrument” within s 32 of the Interpretation Act 1987 (NSW) ( MLC Properties Pty Limited v Camden Council (1999) 96 LGERA 52), that section permits the court to construe the notice distributively unless it appears that the invalid element forms part of an “ inseparable context ”: Bank of NSW , per Dixon J at 371. Importantly, s 32 must be applied consistently with the Bank of NSW principle: Sloane v McDonald Industries (Sales) Pty Limited (1989) 17 NSWLR 86, per Cole J at 101.
d) In determining the validity of the notice applying s 32, the same considerations apply as those which are used to determine the validity of delegated legislation which has been alleged to be ultra vires : Minister for Primary Industries and Energy v Austral Fisheries Pty Limited (1993) 40 FCR 381 at 401; and El Cheikh v Hurstville City Council (2002) LGERA 293. As such, the application of s 32 does not save instruments, and does not permit severance, where the valid part of the instrument would operate in a manner wholly different from the original document: Bank of New South Wales per Dixon J at 371; Sloane at 101; Olsen v City of Camberwell [1926] VLR 58 at 69. Further, in determining questions of severability, the Court must seek to preserve as far as possible the express intentions of the legislative body: Olsen at 68-69.
e) The intent of the original notice is that all use of the land be frozen: and that there be no clearing, farming, grazing or maintenance activity at all on the land for the period of the notice. As such, if direction (b) (the fencing condition) was the only direction held to be valid and all other directions were severed, the notice would no longer fulfil its intended purpose. For example, the deletion of direction (d) (the “no clearing” condition) would permit clearing and farming activities and, as such, the exclusion of stock provided for in direction (b) would have no environmental purpose once cultivation of the land is permitted. The mere erection of a fence has no object compatible with the intention of the original notice, being to remedy the effects of any clearing that may have occurred.
f) Similarly, direction (c) cannot be internally severed to remove the direction that “ stock are to … be excluded ” and as such the entire direction remains invalid. A vestigial order that commands removal of the stock within a week will not achieve any of the s 47(2) purposes of repair, rehabilitation or protection unless the stock are kept off the land.
11 Mr Littlemore QC and Ms Lane submit conclusively that the question of law should be answered in the negative: the entire notice is ultra vires s 47 and no part of it can be severed.
The Respondent’s Submissions
12 Ms S A Duggan and Mr C D Norton, appearing for the respondent, reply upon the following submissions, as I understand them.
Jurisdictional Nature of the Proceedings and the Consequences of Determining Questions of Validity in Class 1 Proceedings
13 Ms Duggan and Mr Norton, for reasons which are not entirely clear to me, seek to meet the applicant’s submissions by referring to the nature of the appeal. The relevance of the respondent’s submissions to the questions which I have to determine is elusive, but I should nevertheless record them since they are somehow relied upon. Those submissions are as follows.
a) By raising the question of law in Class 1 of the Court’s jurisdiction, the applicant seeks to challenge the validity of the s 47 notice and by inference suggest that the consequence of the alleged invalidity is to deny the Court the jurisdiction to proceed to determine the appeal.
b) Pursuant to s 17(g) of the Land and Environment Court Act 1979 (NSW) (“the Court Act ”), appeals brought under s 48 of the NVC Act , such as this, are to be conducted in Class 1 of the Court’s jurisdiction, and, accordingly, s 39 of the Court Act applies.
c) Class 1 proceedings are by way of hearings de novo where the merits of the case may be fully considered and as such the Court has all the functions and discretions of the respondent in respect of the notice: Court Act, s 39(2).
d) Thus, the Court may, inter alia , make directions different from the directions in the notice and may cure defects in the initial notice given by the respondent: Twist v Randwick Municipal Council (1976) 136 CLR 106.
e) The respondent accepts the proposition that in exercising the functions of the respondent on appeal, the Court is incapable of curing a defect which is an essential statutory precondition to the exercise of the power which cannot be cured by the exercise of the functions of the respondent: Helman v Byron Shire Council (1995) 87 LGERA 349 at 359; J & J O’Brien Pty Limited v South Sydney City Council (2002) 121 LGERA 223. In Buttsworth v Director-General of Department of Land and Water Conservation (2003) 127 LGERA 170, Talbot J at par [29]-[30] accepted this approach. In that case, however, which also considered the validity of a s 47 notice, his Honour concluded that the appeal under s 48 could proceed irrespective of whether the original notice was valid, and that any injustice, ambiguity, or uncertainty could be cured by the Court exercising the power of the Director-General and by causing a further notice to issue.
f) The determination of the applicant’s question of law is only capable of affecting the Court’s jurisdiction to determine the appeal if the applicant can demonstrate that the alleged defects are essential statutory preconditions to the exercise of the discretion and are therefore incapable of being cured by the Court on appeal. The applicant cannot so demonstrate and accordingly even if the applicant’s allegations as to the defects in the directions are upheld, the determination would have no consequence in the hearing of the appeal: Calvin v Carr [1980] AC 574 at 589-590, Cox v Hazell Pty Limited v Gidney [1981] NSWLR 468, per Hutley JA at 476-477. The Court remains seized of the power and discretion to issue a new notice and can only do this after a full hearing on the merits.
14 The respondent submits that the notice is not ultra vires, either in whole or in part, in so far as:
- a) it does not require work to be done in positive terms;
b) it does not properly specify the time in which any such work is to be carried out;
c) it does not specify the work to be carried out sufficiently so that a third party could carry out the work in default of the applicant;
d) it includes requirements that are not permitted by law.
15 In support of the submission that the notice is intra vires, Ms Duggan and Mr Norton rely upon on the following submissions:
- a) The applicant’s construction of s 47, requiring work to be done in positive terms, is too narrow and is not warranted by the terms of the NVC Act . Accordingly, to this extent, the Court should decline to follow the decision of Justice Talbot in Slack-Smith .
b) As the term “work” is not defined in the NVC Act, a purposive approach to construction must be applied to ascertain its meaning from the actual language and context of the NVC Act : Interpretation Act 1987 (NSW), s 33; Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 per McHugh JA; Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302; and Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78].
c) The purpose of s 47 is the attainment of the objects set out in s 47(2) of the NVC Act , and more generally the objectives set out in s 3 of that Act. In applying a purposive approach, however, it is clear that the restrictive interpretation given to the meaning of “work” in Slack-Smith would not facilitate the achievement of the objects of the NVC Act or the purposes set out in s 47(2) of the Act. Thus, the legislature cannot possibly have intended to confine the types of actions that can be required under a s 47 notice to positive actions. In particular, it may be difficult to formulate a direction not to undertake any work on land and to permit natural regenerative process to take place. Moreover, in Buttsworth Talbot J recognised that the process of revegetating an area by natural processes may fit a description of work to rehabilitate land, even though the positive “work” involved may have been minimal, comprising merely the erection of fences and quarantining the remediation area. Furthermore, a restrictive construction may allow absurdities where a particular rehabilitation outcome could be within power if couched in positive terms, but ultra vires if couched in negative terms and this clearly could not have been the intent of the legislature.
d) The preferential construction of the term “work”, as used in s 47, is that of the type of “work” which may be specified in the order is any form of injunction, whether mandatory or prohibitory, which is a designed to achieve any of the outcomes prescribed by s 47(2), rather than the processes to be followed in order to attain that result: Parramatta City Council v Brickworks (1972) 128 CLR 1, per Gibbs J at 24; Mulcahy v Blue Mountains City Council [No 2] (1995) 87 LGERA 422 at 428. Therefore, the test of validity of a particular direction is whether the requirement under the direction is directed at attaining one of those outcomes.
e) The applicant’s submission that the notice is ultra vires on the ground that the directions cannot be carried out by a third person entering upon the land pursuant to s 47(5) of the NVC Act , is incorrect. There is no warrant for construing s 47(5) as imposing such a criteria on the works. Further, if there is a failure to comply with a s 47 direction there are other remedies available, such as civil enforcement proceedings under s 63, injunctive relief, or prosecution under s 47(4) of the Act.
- i. Applying the Respondent’s Preferred Construction: Purposive Approach
16 On the respondent’s preferred construction of s 47 outlined above, Ms Duggan and Mr Norton submit that the directions (a) to (d) in the notice are, on their face, directed towards the objectives set out in s 47(2) of the NVC Act.
17 Ms Duggan and Mr Norton rely upon the following submissions, as I understand them, in answer to the applicant’s submissions.
a) Contrary to the applicant’s submissions, the directions can prohibit clearing in accordance with the SEPP No. 46 exemptions. Direction (a) is within power as it has the consequence of achieving the objects of the NVC Act and the purposes of s 47(2).
b) Greentree is not authority for the proposition that clearing not in breach of Pt 2 of the NVC Act cannot be the subject of restraint under a s 47 direction. That case is confined to its facts and was about a stop work order issued under s 46 of the NVC Act . Section 46 is clearly directed at preventing future unlawful clearing. In contrast, s 47 deals with the repair of damage and rehabilitation of land affected by past clearing, which may or may not have been lawful. Section 47 allows the Director-General to restrict clearing activities that would otherwise have been lawful, including clearing permitted by the SEPP No. 46 exemptions.
c) Contrary to the applicant’s submissions, the notice directs that the work the subject of the notice be carried out within the specified time period of 10 years.
ii. Applying the Construction in Slack-Smith
18 Ms Duggan and Mr Norton submit that, even applying the construction in Slack-Smith that a notice must require work to be done in positive terms, the present notice is intra vires based on the following.
a) Direction (a) is intra vires as it is a requirement couched in positive terms to ensure native vegetation is not cleared. In particular, it will involve surveillance and inspection, as well as the issuing of directions to employees and contractors not to carry out clearing operations within the remediation area.
b) Direction (b) is clearly a requirement to do positive work, as it requires the erection of fencing. Contrary to the applicant’s submissions noted in par [8] above, the direction is not uncertain. The specification of obligations by way of the purpose to be achieved is common place in development consents, and is not void for uncertainty merely because there may be different ways of achieving that purpose, or because there is potential scope for dispute over whether the purpose has been achieved.
c) Direction (c) is a requirement to do positive work. Moreover, Talbot J held in Buttsworth that a requirement to remove and exclude stock was a permissible direction under s 47(2) (at par [25]).
d) There is no duplicity between direction (b) and direction (c). Direction (b) requires the installation of fencing sufficient to exclude stock within three months. Direction (c), however, is an additional requirement to ensure that stock are initially removed from the remediation area within seven days.
e) Direction (d) is a positive requirement to obtain the consent of the Regional Director prior to carrying out any moving, removal or burning of cleared vegetation in the Remediation Areas. The direction is a trigger and it does not matter that the applicant may never actually seek that consent.
Invalidity
19 Ms Duggan and Mr Norton further submit that even if the notice is found to be defective, either in whole or in part, the natural consequence is not a finding of invalidity unless it can be demonstrated that the legislature intended that an act done in breach of s 47 of the NVC Act would result in invalidity: Project Blue Sky. In the case of s 47 of the NVC Act, there is a clear intent to the contrary particularly when regard is had to: (a) the ability of the Director-General to amend a direction at any time (s 47(5) NVC Act); (b) the powers of the Court in Class 1 of the Court’s jurisdiction; (c) the adverse public consequences of invalidity; and (d) the ability of the Director-General to cure the alleged defect by issuing a new direction notwithstanding any finding of invalidity.
Severability
20 The respondent submits that the question of severability does not arise as the alleged defects do not speak of invalidity or, alternatively, are capable of being cured by the appeal.
21 However, Ms Duggan and Mr Norton submit that, to the extent that the Court may find any of the individual directions to be invalid, they are severable from the direction as a whole.
22 Ms Duggan and Mr Norton submit that the intent of the Director-General in making the s 47 direction, discernible from the terms of the direction, was to fence off and restrict the use of the cleared area so as to allow potential regeneration of native vegetation. To the extent that any of the directions are found to be invalid, they may be severed, and the remaining are nevertheless still directed towards that purpose and are not changed in operation.
23 Ms Duggan and Mr Norton submit that the Court would answer the applicant’s question in the affirmative. Nevertheless, regardless of the Court’s conclusions in this respect, they submit that the matter should proceed to a hearing on the merits of the appeal.
Conclusion
24 Although I have set out the submissions of the parties in some detail, the resolution of the question in dispute can, however, be readily resolved by the following considerations.
25 In determining whether the notice is ultra vires s 47 of the NVC Act, the Court must give effect to the statutory purpose as disclosed by the objects of the Act (s 3), as well as giving effect to the legislative intention from the words used in the section: Kingston at 423. See Norcal Pty Limited v D'Amato (1988) 15 NSWLR 376 (CA) at 384 and 388; Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Metal Manufacturers Limited v Lewis (1988) 13 NSWLR 315 (CA) at 319; Project Blue Sky, per Brennan CJ at 372-375.
26 An important further consideration, however, is that the Court must construe the notice strictly and in favour of the applicant since a breach may result in a criminal prosecution: NVC Act, s 47(4). This principle of interpretation has been widely accepted in many Australian courts: B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440 (CA) at 453; Beckwith v The Queen (1976) 135 CLR 569, per Gibbs J at 576, approved in Waugh v Kippen (1986) 160 CLR 156, per Gibbs CJ, Mason, Wilson and Dawson JJ at 162-164; Capral Aluminium Limited v Workcover Authority (NSW) (2000) 49 NSWLR 610 at 629-630; City of South Perth v Churchill (1982) 56 LGRA 350; Donkin v Stead (1982) 29 SASR 306, per Zelling J at 309; Larkin v Parole Board (1987) 10 NSWLR 57 (CA); Metropolitan Coal Company of Sydney Limited v Australian Coal and Shale Employee’s Federation (1917) 24 CLR 85; Piper v Corrective Services Commission (NSW) (1986) 6 NSWLR 352 (CA) at 361; Potter v Minahan (1908) 7 CLR 277; O'Sullivan v Truth & Sportsman Limited [1956] SASR 58 (FC), per Napier CJ at 71-72; Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at 139; Wade v NSW Rutile Mining Co Pty Limited (1969) 121 CLR 177. In Wade the High Court held that if parliament intends to derogate from the common law rights of citizens, it should make its law in that respect plain (at 185). In that case, Windeyer J adopted the principle cited in Potter, where O’Connor J noted that (at 304):
Where rights are infringed, where fundamental principles are overthrown, where the general system of laws is departed from, the legislative intention must be expressed with irresistible clearness.
27 Moreover, in Metropolitan Coal Company of Sydney, the High Court confirmed (at 99) that in interpreting a provision it is proper to adopt a meaning which interferes with a person’s legal rights to a lesser extent and produces less hardship.
28 In construing s 47 strictly, in accordance with the principles outlined above, it is clear that any direction given by the respondent may only require the carrying out of specified work in positive terms. Talbot J so held in Slack-Smith (at pars [85] and [88]).
29 As the applicant’s submissions show, s 47 may be contrasted with s 15A(1) of the SC Act, noted in par [6] above, which expressly enables the giving of a notice to either abstain from doing and act, or to do or permit an act to be done. Section 47 of the NVC Act, however, only authorises a notice directing the carrying out of specified work. Unlike s 15A(1) of the SC Act, this is not the language of prohibition.
30 The notice in the present case is itself generally couched in the terms of a prohibition. Direction (a) is expressly stated to be a prohibition – “This prohibition…”. Direction (b) admittedly requires the doing of work in positive terms, namely the installing of fencing. Section 47(1) requires, however, that the direction in the notice must also specify the manner of carrying out the work. This particular direction does not specify the manner of installing the fencing. As the applicant points out, if in default the Director-General authorises another person to enter the land and carry out the work, then it would leave open for dispute the kind of fence to be erected. Direction (c) is partly the doing of work in positive terms and is partly a prohibition. Direction (d) is also a prohibition.
31 Moreover, as Mr Littlemore QC submitted, since any failure to comply with the notice has potential penal consequences, the question then arises as to whether such a failure can be the subject of a criminal prosecution.
In particular, during submissions in chief, Mr Littlemore QC, submitted that the power the legislature has given to the Director-General to ride over the applicant’s civil rights must be strictly construed according to the way the Parliament has given that power. He submitted that as the notice takes away the civil rights of the applicant, the applicant is entitled to know the specific requirements of the notice and to know that the notice is in conformity with the NVC Act. In relation to direction (b), Mr Littlemore QC argued that as the respondent has not specified the manner or location of the work, being fencing, the applicant cannot know whether he will be offending against a criminal provision (s 47(4)) and subsequently may be subjected to the expense of defending himself in a prosecution. As such, he argued that a casual or laissez fair approach on the part of the respondent in taking away the applicant’s civil rights is untenable and, consequently, it would be unconscionable to say that the notice is intra vires.
32 Mr Littlemore QC further submitted (in reply) that the notice cannot be valid, as the respondent contends that it has the power to give the notice even though it could not be the subject of criminal prosecution for non compliance and this is clearly contrary to the legislative intention evinced by sub-ss 47(4) and (5) of the NVC Act.
I find that in the context of a penal provision it is self-evident that Mr Littlemore’s submissions on this point must be accepted.
33 Neither can it be said that the directions in the notice are “expressed with irresistible clearness”: Potter, per O’Connor J at 304. Even if the directions were clear and unambiguous, only part of the notice requires the doing of work in positive terms. The question then arises as to whether the parts that are expressed in positive terms can be severed from the parts which are invalid. In a regulatory scheme with penal consequences, I am inclined to the view that the applicant’s submissions noted in par [10] above must be accepted. That is, the intent of the notice that all use of the land be frozen would not be achieved. If the direction to install fencing is valid and the direction to remove stock is valid, that would not prevent the applicant in the present case from cultivating the land for cropping. The valid parts of the notice would operate in a manner wholly different from the intent of the original document, which was apparently to exclude any such activity on the land and to allow the regeneration of native vegetation thereon. In these circumstances severance of the notice is not possible: Bank of New South Wales at 371.
34 In the light of these conclusions it is possible to answer the separate question that I have to determine. That question is answered by stating that the notice is not a valid notice and neither is it capable of severance so as to be partly valid.
35 It remains to note that many of the submissions advanced by Ms Duggan and Mr Norton are not relevant. I refer, in particular, to the submissions noted in par [13] above. The Chief Judge made an order that the question set out in par [4] above be heard and determined separately and prior to the hearing and determination of any other question in the proceedings. That is the only question that I am able to determine: McClenahan v North Sydney Council [2004] NSWCA 208. That is, the terms of the order provide that the proceedings before me are limited to a determination of that question alone: McClenahan at par [13].
36 Moreover, in view of my finding as to the invalidity of the notice, the matters raised in the respondent’s submissions noted in par [13] above may not arise. In the absence of a valid notice there would seem to be no point in the applicant continuing with his appeal. He may choose to simply discontinue the proceedings.
37 The Court orders that:
- 1. The question of law is answered in the negative.
2. The question of costs is reserved.
I hereby certify that the preceding 37 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.
Dated: 24 May 2005Associate
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