Joly Pty Ltd v Director-General of the Department of Environment, Climate Change and Water - [2009] NSWLEC 217

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Joly Pty Ltd v Director-General of the Department of Environment, Climate Change and Water [2009] NSWLEC 217

PARTIES: APPELLANT
Joly Pty Ltd
FIRST RESPONDENT
Director-General of the Department of Environment, Climate Change and Water
SECOND RESPONDENT
Gregory William Roberts

FILE NUMBER(S): 10521 of 2009

CORAM: Pain J

KEY ISSUES: APPEAL :- appeal against remediation direction made under Native Vegetation Act 2003 - whether remediation direction acquisition of land and therefore invalid under State and Commonwealth constitutions - whether illegal clearing occurred on property as basis for remediation direction - whether undertaking by applicant to court to remediate appropriate resolution of appeal - whether remediation direction appropriate given need for noxious weed management - whether remediation direction can require repair of any damage - whether remediation of lost bird habitat relevant- whether terms of remediation direction a prohibition - remediation direction made

LEGISLATION CITED: Commonwealth of Australia Constitution Act 1900 (Cth) s 51(xxxi), 106, 109
Constitution Act 1902 s 5
Environmental Planning and Assessment Act 1979
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Interpretation Act s 33
Land and Environment Court Act 1979 s 17
Moree Plains Local Environmental Plan 1995
Native Vegetation Act 2003 s 38, 39
Native Vegetation Conservation Act 1997 s 47 (repealed)
Natural Heritage Trust of Australia 1997 (Cth)
Noxious Weeds Act 1993 s 7, 12
Soil Conservation Act 1938 s 15A
Threatened Species Act 1997

CASES CITED: Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1
Director-General of the Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256
Durham Holdings Pty Limited v The State of New South Wales (2001) 205 CLR 399
Holmes v Director-General of the Department of Infrastructure [2005] NSWLEC 264
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Oates v Director General of the Department of Infrastructure, Planning and Natural Resources [2004] NSWLEC 164
PJ Magennis Pty Ltd v The Commonwealth (1949) 80 CLR 382
Pye v Renshaw (1951) 84 CLR 58
Slack-Smith v Department of Land and Water Conservation (2003) 132 LGERA 1
Spencer v Commonwealth of Australia [2009] FCAFC 38
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1

TEXTS CITED: R S Geddes, Statutory Interpretation in Australia, 6th edition (2006, Federation Press)
National Lippia Working Group, Challenges, opportunities and strategies: Lippia Management (July 2008)
A Toomey, The Constitution of New South Wales (2004, Federation Press)

DATES OF HEARING: 23 November 2009
24 November 2009
25 November 2009

DATE OF JUDGMENT:
18 December 2009

LEGAL REPRESENTATIVES: APPELLANT
Mr P King
SOLICITORS
Levitt Robinson Solicitors
RESPONDENT
Mr E Muston
SOLICITORS
Department of Environment, Climate Change and Water

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

18 December 2009

10521 of 2009 Joly Pty Limited v Director-General of the Department of Environment, Climate Change and Water & Anor
JUDGMENT

1 Her Honour

: The Applicant is appealing against a direction to remediate an area of cleared land issued under s 38 of the Native Vegetation Act 2003 (the NV Act) on the property “Yarrol” which is in the Moree Plains local government area approximately 60 kilometres west of Moree. This appeal is brought pursuant to s 39 of the NV Act from a decision by Gregory William Roberts (the Second Respondent) to issue a remediation direction under s 38. The Second Respondent is an officer of the First Respondent, the Department of Environment, Climate Change and Water (DECCW). Pursuant to s 17(g) of the Land and Environment Court Act 1979, an appeal under s 39 of the NV Act can be heard and disposed of by this Court in Class 1 proceedings.

3 The DECCW Statement of Facts provides useful background to the proceedings:

1. The Remediation Notice was issued on 4 July 2009 and applies to a defined portion of the land comprising Lots 1, 24 and 27 in DP 750519 and Lot 23 in DP 750465 (“the Property”).

2. At the time that the Remediation Notice was issued, the owner of the Property was Joly Pty Ltd. Joly Pty Ltd holds the Property on trust for Mr John Hudson and Mrs Lynnette Hudson. The Property was previously owned by Mr and Mrs Hudson in their own right.

3. Between about 9 November 2006 and 5 March 2007 inclusive, Mr Hudson committed an offence under section 12 of the Act when he permitted clearing to occur on the Property in contravention of the Act (the ”Clearing Offence”). The Clearing Offence was found proven beyond reasonable doubt by his Honour Justice Lloyd in Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4. The decision of his Honour Justice Lloyd is the subject of an appeal to the Court of Criminal Appeal fixed for hearing on 12 February 2010.

4. The Clearing Offence has had an adverse effect on the environment – including:

a. the substantial destruction of the vegetation cleared;

b. loss of wildlife habitat which was dependent upon that vegetation; and

c. consequential and adverse impacts upon local wildlife which was reliant on that habitat and upon ecosystems connected to the vegetation cleared.

5. On 28 May 2007, a remedial notice applying to the Property was issued to John and Lynette Hudson. This remedial notice expired on 5 July 2008.

6. On 13 December 2007, a remedial notice applying to the Property was issued to the new landholders Joly Pty Limited. This remedial notice expired on 5 July 2008.

7. On 4 July 2008, a further remedial notice applying to the Property was issued to Joly Pty Limited. This remedial notice operated for a period of one year from 4 July 2008.

4 The Applicant relied on a Statement of Facts most of which was not relevant to the issues ultimately raised at the hearing.

Terms of Notice

5 The terms of the remediation direction now sought are as follows:

DIRECTION TO CARRY OUT REMEDIAL WORK
BACKGROUND
A. The Department of Environment and Climate Change (“DECC”) has responsibility for the administration and enforcement of the Native Vegetation Act 2003 (NSW) (“the Act”).

B. Joly Pty Limited ACN 124 866 986 (“the Landholder”) is the owner of Lots 1, 24 and 27 in DP 750519, and Lot 23 in DP 750465 (‘the Property”).

DIRECTION TO CARRY OUT REMEDIAL WORKS

C. In order to:

a. repair any damage caused by the clearing; and

b. rehabilitate any land affected by the clearing (including the taking of steps to allow the land to regenerate); and

c. ensure that the property will not be damaged or detrimentally affected, or further damaged or detrimentally affected, by the clearing;

the Landholder is required to perform or cause to be performed the following remedial works on the property:

1.1. The Landholder must remove and exclude all stock from the Remediation Area by 24 December 2009.

1.2. The Landholder must inspect the Remediation Area at least once every month for the duration of this Direction to determine whether stock have entered the Remediation Area.

1.3. If any stock are found within the Remediation Area, or if the Landholder becomes aware that there is any evidence that any

1.4 stock have entered the Remediation Area, the Landholder must immediately remove such stock from the Remediation Area.

2. Pig Management

2.1. The landholder must trap or shoot pigs within the Remediation Area on at least 3 days per month. If trapping, the traps must be pre-baited on at least 3 days during the week prior to the trapping occurring.

2.2. The Landholder must inspect the Remediation Area at least once every month for the duration of this Direction to determine whether pigs have entered the Remediation Area.

2.3. If any pigs are found within the Remediation Area, or if the Landholder becomes aware that there is any evidence that any pigs have entered the Remediation Area, the Landholder must immediately remove such pigs from the Remediation Area.

3. Vehicle Management

3.1. The Landholder must remove all vehicles from the Remediation Area by 24 December 2009.

3.2. The Landholder must inspect the Remediation Area at least once every month for the duration of this Direction to determine whether vehicles have entered the Remediation Area.

3.3. If any vehicles are found within the Remediation Area, or if the Landholder becomes aware that there is any evidence that any vehicles have entered the Remediation Area, the Landholder must immediately remove such vehicles from the Remediation Area.

3.4. This clause does not apply to:

3.4.1. any vehicles under the control of officers from a New South Wales or Commonwealth government department or agency or a local council or any vehicle under the control of a person accompanying or assisting such officers;

3.4.2. any vehicle being used in conjunction with any licensed kangaroo culling activities taking place upon the Remediation Area; or

3.4.3. any vehicles (not including bulldozers) which are reasonably necessary to carry out the works required by this Direction and which are actually being used to carry out such works.

4. Fence Inspection

4.1. The Landholder must inspect the Fence around the Remediation Area at least once every month for the duration of this Direction to determine whether there are any breaches in the Fence.

4.2. If any breaches in the Fence are found the Landholder must, within 72 hours of the inspection, repair any breaches in the Fence.

5. Cleared Vegetation Inspection

5.1. The Landholder must inspect the Remediation Area at least once every month for the duration of this Direction to determine if any disturbance or fire is found to have occurred in respect of the Cleared Vegetation in the Remediation Area.

6. Timing of Inspections of the Remediation Area

6.1. Each inspection required by this Direction must take place by no later than the 28^th day of each month.

6.2. The first inspection must take place by no later than 28 December 2009.

7. Report of Inspections

7.1. Following each inspection required by this Direction, the Landholder must, within 5 days of the inspection, provide a written report to:

Manager Native Vegetation - Armidale Region

Department of Environment and Climate Change

PO Box 494,

Armidale NSW 2350

or by fax to 02 6772 2336.

The report must include the following:

7.1.1. The date of the inspection.

7.1.2. The status of each matter referred to in clauses 1, 2, 3, 4 and 5 of this Direction.

7.1.3. Details of any works carried out as a result of the inspection.

7.2. This clause applies for the duration of the Remediation Period.

DURATION
D. The duration of this Direction is a period of 3 years, commencing on the date of this Direction.

DEFINITIONS

E. In this Direction the following definitions apply:

“Cleared Vegetation” means all cleared native vegetation within the Remediation Area, including trees, shrubs, branches, leaves and other debris, whether living or dead.

“Exotic species” means species introduced from outside of the area concerned; in the case of New South Wales, from overseas and/or interstate
Note: The source of this definition is Harden, G.W. ed. 1990-2002. Flora of New South Wales: Volumes 1 – 4, University of NSW Press.

“Landholder” means Joly Pty Limited ACN 124 866 986

“Native vegetation” has the same meaning as in section 5 of the Native Vegetation Act 2003 that is, any tree (including a sapling or shrub, or any scrub), understorey plants, groundcover or plants occurring in a wetland, of a species that existed in New South Wales prior to European settlement.

“Noxious weeds” means any plant declared under the Noxious Weeds Act 1993 to be a noxious weed for New South Wales or the local government area within which the property is located

“Remediation Area” means all subRemediation Areas shown schematically on the map in Annexure A, excluding rural infrastructure present within the Remediation Area as of the date of this Direction such as roads, buildings and dams.

“Stock” means all livestock (including, but not limited to, cattle, horses, sheep, alpacas & goats). It does not include native wildlife.

“the Fence” means any fence on Lots 1, 24 and 27 in Deposited Plan 750519, and Lot 23 in Deposited Plan 750465 which prevents access to the Remediation Area, whether or not the fence is located in or on the boundary of the Remediation Area.

“Vehicles” means any vehicle or machinery, including but not limited to cars, trucks, tractors and bulldozers.

WARNING AND INFORMATION ABOUT THIS DIRECTION

(OMITTED)

2 These terms are similar to those of the direction appealed against by the Applicant. The variations in the new proposed direction set out above are:

A specific direction that the landholder must trap or shoot pigs on at least three days per month (cl 2.1) in place of a direction that all pigs be removed by 5 July 2009
In relation to vehicle management, the addition of a clause providing that the removal of vehicles does not apply to any vehicle being used in conjunction with any licensed kangaroo culling activities (cl 3.4.2)
The removal of a direction that, if any disturbance of risk or fire was found in respect of the cleared vegetation, the landholder was to restore the cleared vegetation to its former position and condition including by replacing any vegetation removed and removing any risk of fire.
An extension in the duration of the direction from one year to three years
Necessary amendments to times for compliance with different aspects of the direction

Applicant’s revised contentions

filed in Court on 28 November 2009

3 There were significant changes immediately prior to the hearing resulting in the Applicant’s Amended Statement of Contentions as follows:

(a) The power to issue a remedial direction pursuant to section 38 of the Act is limited by the purposes outlined in section 38 of the Act for which the power is conferred.

(b) The Remediation Direction contains directions that have previously resulted in the growth and spread of Lippia, a noxious weed, the presence of which retards the rejuvenation of the area the subject of the Remediation Notice.

(c) The cultivation of crops/native vegetation in the remediation area is a more suitable method for the rejuvenation of native vegetation in that area than the directions contained in the Remediation Notice.

(d) …

(f) A Remediation Notice should not place the Applicant in the position of either breaching the Remediation Notice, breaching its other statutory obligations (and in particular, its obligations pursuant to the Noxious Weeds Act 2005 (NSW) to control noxious weeks) or incurring exorbitant costs in requiring the Applicant to manually manage the spread of a noxious weed over 486 hectares of land.

(g) The Remediation Notice should not include a condition that it is effectively impossible to meet as in the keeping of wild pigs and/or neighbour’s stock from the Remediation Area.

(h) The Applicant contends that the presence of the noxious weed on the Remediation Area restricts the rejuvenation of native vegetation, and in particular, the rejuvenation of native undergrowth.

(i) The Proposed Remediation Notice replicates essentially similar conditions to those previously imposed and that such conditions have failed to prevent the increased spread of Lippia upon the Remediation Area and have, rather, had the effect of increasing the presence of Lippia upon the Remediation Area.

(j) The Applicant contends that any exercise of the power pursuant to section 38 to issue a Remediation Notice is limited to the requirement to undertake specific works, rather than the issue of general prohibitions, so as to impose a “negative” obligation upon the Applicant rather than a positive obligation contemplated by the Act.

(k) The Appeal should be upheld on a legal basis as the Remediation Notice issued pursuant to the Act, regulates all commercial and farming activity on the land, and effects a complete prohibition on agriculture on the land and in so doing constitutes an acquisition of property other than on just terms, in contravention of a s 51 (xxxi) and section 109 of the Constitution.

(l) The Clearing the subject of the Remediation Notice was not done in contravention of section 12 of the Native Vegetation Act 2003 (NSW), and in particular was authorised by operation of section 12(1)(a) of that Act

DECCW’s contentions

4 As the Applicant’s contentions changed substantially just prior to the hearing, not all DECCW’s contentions are relevant and not all are therefore identified below. The relevant DECCW contentions are as follows:

10. The respondents contend that the Court must determine whether or not a direction should be given under s38 of the Act and, if so, what actions should be required by that direction having regard to the objects identified in s38(2) of the Act.

11. This decision is to be made as at the time of the hearing and on the basis of the material available to the Court (as distinct from 4 July 2009 on the basis of the material available to the decision maker as would seem to be suggested by many of the applicant’s contentions).

12. The respondents contend that the decision to issue the Remediation Notice pursuant to s38 of the Act was correct. In doing so, it is contended that the actions required by the Remediation Notice are positive actions which (both collectively and independent of one another) are necessary and appropriate to:

a. repair damage caused by the Clearing Offence;

b. rehabilitate the land affected by the Clearing Offence;

c. allow the Property to regenerate following the Clearing Offence; and

d. ensure that the Property is not further damaged or detrimentally affected by the Clearing Offence.

13. However, the respondents contend that the actions required by the Remediation Notice should continue for a period of 13 years as the regeneration of the land affected by the Clearing Offence will take at least that long.

14. In answer to those of the specific contentions raised by the applicant in its Statement of Facts and Contentions filed 30 September 2009 which are relevant to the determination of the issue raised by the proceedings, the respondents say that:

a. contrary to contentions (b)(i)

, (b)(iii)

and (f)

, the Remediation Notice, whilst issued in similar terms as previous notices issued under s38 of the Act, requires positive steps to be taken which are necessary and appropriate having regard to the objects of s38 of the Act;

b. contrary to contentions (b)(i)

, (d)

and (e)

(

, the steps required to be taken by previous notices issued under s38 have permitted some regeneration of the vegetation removed by the Clearing Offence, notwithstanding the presence of the weed species Lippia;

c. contrary to contention (b)(ii)

, the growing of crops on the Property is not the best or the most appropriate strategy for regeneration of native vegetation. Growing crops on the Property would remove all, or nearly all, of the recovering understorey. This course of action would exacerbate the damage caused by the Clearing Offence and have a negative impact upon the rehabilitation of the Property. Accordingly, growing crops on the Property would be entirely inconsistent with the objects of s38 of the Act;

d. contrary to contention (b)(iv)

, there are no alternative, more effective, methods of rejuvenating the Property which do not involve equivalent financial detriment to the applicant;

e. contrary to contention (b)(v

), compliance with the Remediation Notice will not require the applicant to breach any statutory obligations;

f. contrary to contention (g)

, s38 of the Act does not contravene ss51(xxxi) or 109 Commonwealth of Australia Constitution Act.

Legislation

5 Section 38 of the NV Act provides:

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.

(3) A direction under this section may be varied or revoked by a further notice.

(4) A person who does not comply with a direction under this section is guilty of an offence.

Maximum penalty:

(a) in the case of a corporation—2,000 penalty units and 200 penalty units for each day the offence continues, or

(b) in any other case—1,000 penalty units and 100 penalty units for each day the offence continues.

(5) If a person fails to comply with a direction 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 direction in any court of competent jurisdiction as a debt due by that person to the Crown.

(7) In this section:

lake

includes a lagoon, wetland, or other body of still water, whether permanent or temporary.

river

includes any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream.

Evidence on constitutional issue

6 Craig Longman, solicitor for the Applicant, swore an affidavit on 10 November 2009. Mr Longman annexed to his affidavit the following agreements between the Commonwealth government and the NSW government, inter alia:

a) Intergovernmental Agreement between the Commonwealth and the State of New South Wales to deliver the Natural Heritage Trust

Natural Heritage Trust of Australia

Bushcare: The National Vegetation Initiative

b) Intergovernmental Agreement on a National Action Plan for Salinity and Water Quality: Initiative of the Council of Australia Governments

Native Vegetation Conservation Act

c) Agreement between the Commonwealth of Australia and State of New South Wales – Relating to the National Action Plan for Salinity and Water Quality

d) Intergovernmental Agreement between Commonwealth and the State of New South Wales to deliver the extension of the Natural Heritage Trust

National Objectives and Targets for Biodiversity Conservation 2001-2005

7 The Applicant also referred to Briefing Paper No. 6 of 1999 – Native Vegetation in New South Wales: An Update. This referred to the National Vegetation Initiative set up as part of the Commonwealth’s National Heritage Trust. The initiative is a five year program to provide $318 million for the protection of remnant native vegetation at risk from clearing and to expand revegetation activities.

Experts relevant to remediation of land

8 Neal Foster has been a senior natural resource officer with DECCW since June 2006. His role includes designing and implementing research and development projects relating to wetland and river management and representation of DECCW on the National Wetlands and Waterbirds Taskforce and the NSW Ramsar Wetlands Managers Network. Mr Foster swore an affidavit for the purposes of Director-General of the Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256 (see par 3 DECCW’s Statement of Facts point 3). Mr Foster inspected the remediation area on 3 November 2009 with the other experts called by DECCW and subsequently prepared an expert report for these proceedings (exhibit 1). This was his first opportunity to inspect the property since the clearing took place although he has undertaken numerous aerial inspections.

9 The effects of the clearing on the property that he identifies were the destruction and removal of habitat used by threatened and migratory bird species, the loss of an endangered ecological community (EEC) and an increased potential for soil erosion due to the exposure of sensitive areas by the removal or reduction of groundcover. Significant breeding habitat (rookery) of several bird species was destroyed. The loss of vegetation also removed hollow-bearing trees, which are required for nesting or shelter by many wildlife species including birds, bats, arboreal mammals and reptiles. He gave written and oral evidence about the types of birds which had used the cleared area for nesting, some of which are endangered and migratory species. It will in Mr Foster’s opinion take from decades to hundreds of years for the hollows to be recreated in the species coolibah or poplar box. He observed that regenerating vegetation such as lignum had been chewed or broken off by cattle.

10 Dr Chris Nadolny is a senior resource officer in terrestrial ecology with DECCW and has been in that position since 1998. His role involves carrying out investigations and providing advice related to conservation and management of native vegetation in agricultural landscapes in NSW. Dr Nadolny provided an expert report for the purposes of the Hudson prosecution relating to the identification of the species which had been cleared. He inspected the property in 2007. He inspected the remediation area on 3 November 2009 with the other experts retained by DECCW in order to assess the progress of the remediation and subsequently prepared an expert report for these proceedings (exhibit 2).

11 In his report he considered that the clearing was likely to cause three environmentally adverse effects, being the destruction of wildlife habitat including for threatened species and migratory birds, destruction of an EEC and a significant release of greenhouse pollutants. He also considered wind erosion could result from works intended to prepare the area for cropping. The remediation notice is intended to work to repair the damage caused by the clearing, to rehabilitate any land affected by the clearing and work to ensure that specified land will not be detrimentally affected or damaged by the clearing.

12 At par 13 of his report he identifies the type of vegetation cleared from the property as (a) coolabah - river coobah - lignum woodland on less frequently flooded areas of floodplain, (b) river coobah - lignum which occurs in lower, more frequently flooded areas, (c) belah forests generally in infrequently flooded floodplain areas and (d) shrubby woodlands on lighter (red) soils. He saw coolabah – river coobah and river coobah – lignum regenerating when he visited the property. In cross-examination he agreed that any remediation plan had to take into account lippia management but he did not consider lippia will critically stop remediation in any of the cleared area. Lippia is an invasive ground plant which is occupying a lot of the groundcover. In the right circumstances native vegetation can outcompete it, depending on factors such as lack of water, whether rainfall or flooding. Continued stock access for grazing also favours lippia over native species as stock eat the latter before the lippia.

13 Dr Todd Soderquist is a senior threatened species officer at DECCW. He agrees with the vegetation community descriptions of Dr Nadolny. There was an area of coolabah black box in the northern and eastern parts of the property that was of very good quality which was cleared. He prepared an expert report for the purposes of the Hudson prosecution. Dr Soderquist visited the site on 22 June 2009 in order to ascertain whether an offence had occurred due to non-compliance with other existing remedial direction. He also inspected the site with the other DECCW experts on 3 November 2009 and prepared an expert report (exhibit 3). He states that he has otherwise visited the property on a number of occasions. He expressed concern about the large number of cattle seen during the inspection on 3 November 2009 with access to the remediation area. There was also evidence that sufficient numbers of cattle had been in the remediation area to damage the vegetation that was regenerating. The aim of remediation is to regenerate trees to the point where they will survive cattle grazing and to enable a return of wetland breeding ground for birds. The vegetation cleared was habitat for a number of threatened species.

14 All three DECCW experts expressed concern that stock, particularly cattle and also sheep, in the remediation area had resulted in adverse impact on the regeneration that had occurred. They refer to significant damage to regenerating woody plants such as lignum, coolibah and river coobah. The exclusion of stock by appropriate fencing is important to the regeneration process. The vegetation cleared generally requires approximately three years of good growth to grow tall enough to withstand stock grazing. Feral pig management and vehicle management to prevent further damage is also necessary. They consider a strategy to control lippia is necessary given its spread as a groundcover but further investigation is necessary to determine the best methods. The ploughing and cropping by cultivation proposed by the Applicant (see par 41) will not achieve any recovery of natural habitat that supports the threatened species and communities harmed by the clearing. It will remove all or nearly all of the currently recovering overstorey and thus set back the potential for recovery by decades. The proposed direction enables further regeneration to occur and the success of the regeneration will need to be monitored over that time.

15 Dr Rachel McFadyen, now retired, was the chief executive officer of the Co-Operative Research Centre for Australian Weed Management (the CRC) until 2008 and has expertise in the management of weeds in natural vegetation and on grazing lands. At the time of her expert report (exhibit D), dated 6 November 2009, Dr McFadyen had not attended the property. She prepared her report based on a number of different materials including a video of the property taken by DECCW officers on 22 June 2009. She subsequently visited the property in November 2009. The country is highly modified with artificial water channels and there is no natural wetland, accepting that flooding is seasonal. The natural flooding cycle has been altered by the Copeton Dam (commissioned in 1979) and water use for irrigation upstream. These conditions have favoured the spread of lippia in the first place and it is not possible to return to an ideal condition in such a highly modified water regime. She considers lippia can dominate native vegetation in this habitat other than country which is subject to long term flooding. Consequently native grasses at ground level cannot recover. Overstorey trees may also have difficulty in regenearating as lippia can successfully outcompete these for moisture in dry conditions.

16 Her principal concern is how to manage the extensive lippia growing in the cleared area. She did not consider that ensuring stock removal and leaving the cleared area alone would result in the reduction of lippia given its wide spread extent. It can successfully outcompete native vegetation particularly in dry conditions as it is able to attract moisture with its deep tap root. The removal of lippia requires active management such as cultivation, as proposed by the Applicant, or the use of cell grazing. This is the intensive grazing of small areas infested by lippia for short periods over time. Her main criticism of the proposed remediation direction is that it is unlikely that there will be any reduction of lippia in the absence of any active management measures. It will seriously inhibit the return of vegetation at the understorey level. De-stocking on its own will not be sufficient to achieve a reduction in lippia. In her opinion the remediation direction will not control lippia. It assumes native vegetation can recover in the presence of lippia and she does not agree for all vegetation types. She did not consider seedlings could regenerate with the extent of lippia across the cleared area. The remediation area will be in the same state or worse in three years if the direction is made. Cultivation of areas infested by lippia is necessary.

17 A joint experts’ report was tendered (exhibit 4). The matters in agreement are as follows:

1. The purpose of remediation direction for ‘Yarrol’ is to enable restoration of the area of native ecosystem affected by illegal land clearing during 2007. This restoration process applies to all vegetation levels including over-storey, mid-storey and understorey. The following requirements are agreed as facilitating this restoration:

A. It is a reasonable requirement that the Landholder conduct inspections on at least a monthly basis to determine the presence of livestock, approximate pig densities, unauthorised vehicle access, fence breaches or damage, changes in disturbance or risk of fire in the remediation area, and other incidents of importance to restoration.

B. It is a reasonable requirement that the Landholder provide a short report on the findings of the above inspections and resulting actions on a monthly basis.

C. It is a reasonable requirement that the Landholder immediately remove, or cause to be removed, stock found in the remediation area or which have access to the remediation area.

D. It is a reasonable requirement that the Landholder control the pig population on the remediation area. The experts recognise that this is a continuing process. The Direction needs to specify a minimum number of days per month that trapping or other control methods should be conducted per month (e.g. 3), with the results providing an additional method of assessing the effectiveness of control.

E. It is a reasonable requirement that no vehicles be allowed in the remediation area except as exempted under the Direction, and that the Landholder immediately remove unauthorised vehicles. The wording of exemption 3.4.2 needs to be expanded to make it clear that it permits reasonable access for management of the area. The Landholder or agents working for them are being required to make extensive monthly inspections, to set up and inspect pig traps and potentially to manage kangaroos, all of which will require frequent trips by vehicles.

F. The Landholder cannot reasonably prevent fires initiated by natural causes such as lightning. Therefore Requirement 5 in the remedial direction needs to be reworded so that it expresses the intent that no further action is taken by the Landholder to burn fallen timber and other vegetation.

G. It is a reasonable requirement that the Landholder repair fence breaches within 72 hours of discovery.

2. It is agreed that macropod density in the remediation area should be assessed and, if found to be in high abundance such that recovery of native vegetation is being significantly hindered, that control methods be considered (e.g. a commercial shooter, whose vehicular access would then fall under the Direction exceptions).

3. The construction of a major storage dam (Copeton Dam) located in the headwaters of the valleyhas changed the water regime leading to shorter, less frequent floods that appear to have favoured Lippia over native wetland species.

4. A return to frequent and longer floods would allow the native wetland grasses particularly Water Couch to regrow, and this grass is capable of out-competing Lippia in wetlands receiving regular flooding.

5. Lippia is not a problem on the lighter soils in the remediation area. Grasses and other native vegetation such as chenopods are present on these soils. [The density of this vegetation and the effect of long-term grazing of cattle on the site, was not resolved between experts. See below Clause 15.]

6. On the heavier soils, Lippia is having a negative impact on native groundcover species. The density of Lippia, and its variability across the remediation area needs to be quantified so changes can be assessed over time.

RM [referring to the evidence Dr McFadyen] : Since the original remediation direction in 2007, Lippia has increased on the heavy soils. Lippia comprised more than 50% of groundcover in 2007 (CN 5) [report of Dr Nadolny at par 5] and RM estimates it is now 80 - 90%, i.e.it dominates groundcover in much of the remediation area (CN 21; NF 22) [report of Dr Nadolny par 21 and Mr Foster par 22] .

7. The Direction should be re-written to make it clear that stock removal is a temporary measure, and that the long-term aim is to develop a system of adaptive management which is anticipated to incorporate stock grazing.

8. All stock should be removed from the remediation area for a specified period (the length of which is not agreed upon, see below Clause 16) in order to determine the ability of native grasses and other groundcover species to naturally recover, grow and seed.

9. All stock should be removed from the remediation area for specified period (the length of which is not agreed upon, see below Clause 16) in order to permit the tree and shrub species which were cleared, crushed and grazed to recover and grow beyond the reach or serious impact of future stock grazing.

10. Recovery of native vegetation needs to be independently assessed at the end of the specified period. The period of stock exclusion time and environmental conditions needed before the next step in the remediation is implemented is not agreed upon.

11. Once (or if: see disagreement below Clause 18) the native vegetation recovers, an adaptive management approach to remediation must be implemented that considers options for recovery of the natural ecosystem based on the results of iterative site assessment, and includes grazing by stock on at least a short-term basis.

12. Once an adequate native pasture has been established and the over-storey and mid-storey have recovered enough to sustain short-term grazing, then rotational (cell) grazing is the most likely method by which to manage Lippia and maintain the native vegetation. If rotational grazing cannot be implemented effectively and conscientiously, then very short-term grazing by a large herd of cattle across the remedial area can be considered if the anticipated effect will simulate the high-intensity of rotational grazing.

13. It is reasonable to implement infrastructure modifications to facilitate potential environmental flooding of suitable remediation sites. There is a strong potential that environmental flows would also speed the return of grazing on the site.

14. It is reasonable to potentially use seeding of native species, especially grasses, to increase vegetative cover and provide for a new seed bank.

18 The experts also set out matters not agreed, under the following headings:

19 The experts also gave concurrent oral evidence, largely about the areas of disagreement. In relation to the effect of cattle grazing (par 22(i), (ii)), Dr McFadyen did not see on her visit to the property in November 2009 evidence of grazing damage, with lignum bushes growing well and no cattle in the remediation area. The DECCW expert witnesses were aware of stock in the remediation area over a two year period in breach of the current and earlier remediation directions. They considered the majority of the impact of grazing was from cattle rather than kangaroos, pigs and sheep. Dr McFadyen accepted that the DECCW experts had more knowledge of the property over time than she did and did not seek to disagree with their observations of stock numbers and impact in the remediation area.

20 In relation to a suitable period for stock exclusion, Dr McFadyen considered that stock should be excluded for the summer growing season only, with further assessment after that period to see whether the native herbage is recovering because lippia is likely to continue to dominate in the absence of active management in areas of heavy soils. The DECCW experts considered that the failure to exclude cattle and horses in the previous two years had set back native plant regeneration substantially. As there is nevertheless evidence of potential native vegetation recovery they considered a longer exclusion period than one summer (one growing season) was necessary to assess the potential for recovery hence the three year period proposed.

21 The best approach to the management of lippia was not agreed (par 22(iii), (iv), (v) of the joint report). Dr McFadyen estimated lippia covered 80-90 per cent of groundcover in the heavy soils part of the remediation area and in the rookery area. The DECCW experts considered lippia distribution was variable across the remediation area and required further assessment. There was no agreement about whether native grasses and other mid to upper storey plants would re-establish in the presence of current levels of lippia. Dr McFadyen considered that current studies in ungrazed reserves suggest that native grasses cannot successfully compete against lippia particularly in dry years regardless of whether stock are present. She considered competition from lippia and kangaroo grazing would prevent groundcover species recovery. She also considered other species such as the tree species would also have trouble regenerating through the lippia. She agreed that if there were favourable weather conditions and other pressures such as grazing were removed, apart from a managed grazing regime such as cell grazing, it was possible that native vegetation could outcompete. Her overall view was that this was unlikely. She accepted that cultivating the area and planting native grasses suitable for grazing would not result in the regeneration of the woodlands that were cleared.

22 The DECCW experts considered that available research indicates that native vegetation does have the ability to hinder lippia and reduce it under favourable conditions. Mr Foster considered that lignum in particular, which can tolerate dry conditions and is very important for bird habitat, was regenerating and would continue to regenerate in the area where there was lippia. Dr Soderquist noted that he had been on the property four times in the last two years and seen stock grazing on regenerating coolabah and river coobah at the mid-storey and upper storey levels which hampered that regeneration. That vegetation had otherwise been able to grow. He considered there were case studies in the 2008 lippia management book which suggested that if there is good native ground cover it can outcompete lippia.

23 The approach of cultivation of the remediation area over two years followed by seeding with native grasses suitable for grazing was not agreed. Dr McFadyen considered that was the only reasonable approach on much of the remediation areas away from the Gingham Channel which runs east-west across the southern part of the property. She considered the vegetation had been severely reduced by changes to flood regimes and lippia infestation over a long period, all events outside the control of the landholder. The DECCW experts considered cultivation should be a last resort as this would destroy any remnant native vegetation and ecosystem function in an environmentally critical area. Given that there was some regeneration occurring cultivation at this stage was not appropriate.

Applicant’s submissions
Remediation measures must be practical (contentions (b), (c))

24 The use of the property for the agricultural purposes of grazing and clearing is long standing, being for well over 100 years. The area is not a wetland, as confirmed by the evidence of Dr McFadyen, but is dry which explains the increase in lippia. The flow of water into the area has been affected by the building of the Copeton Dam in the 1970s and the use of consequential flows of water for irrigators.

25 The Applicant did not undertake the clearing the subject of the remediation notice. It is necessary to apply the most expedient approach to remediation given the circumstances that prevail now on the land, being the heavy infestation of lippia, which is a noxious weed.

26 A remediation direction must be strictly construed as it is a penal provision the breach of which gives rise to criminal proceedings under s 38(4). Further the remediation direction impinges on the ability of the Applicant to use the property in the way it has been used for an extensive period of time. Any direction must allow the reasonable use of property and not exclude the Applicant from its own property as a trespasser including by denying it the ability to use vehicles on part of the property or to stock the property. These are common law property rights which have existed since Magna Carta 1297.

27 The Applicant has prepared an undertaking based on the matters considered in the experts’ evidence:

Threatened Species Act

Limited purpose of direction (contentions (a), (f))

28 The direction must refer to work which is to repair the damage caused by clearing. “Damage” means actual damage arising from the clearing such as soil erosion and siltation of a water course, or damage to personal property. It does not include the restoration of bird habitat or the restoration of vegetation which was present prior to clearing. The restoration of bird habitat is not relevant in the context of this statutory scheme.

29 The proposal in the undertaking set out at par 41 will provide a carbon sink through the regrowth of perennial grasses. Nothing in the NV Act suggests that the native vegetation that should be replaced is what was there before the clearing.

30 Dr McFadyen was an impressive witness with expertise in weed management and rural land management who should be preferred to each of DECCW’s witnesses. Her evidence is that in three years the property will be in the same state as now whether or not cattle graze it. She was the only expert to consider the current condition and water flow on the property. The removal of lippia, a noxious weed the subject of a weed management plan issued by Moree Shire Council, is a major issue. The management plan refers to mechanical and chemical treatment in order to reduce lippia. Mechanical treatment is the appropriate way to proceed, which is achieved through cultivation. Dr McFadyen’s approach is consistent with s 7 and s 12 of the Noxious Weeds Act 1993 which relate to weed control orders and the obligation of occupiers of land to control noxious weeds. The direction should not result in a breach of other legislation. Her approach will result in the best outcome as contemplated by s 38 of the NV Act.

Direction an impermissible prohibition (contentions (g), (j))

31 The remediation direction is in the form of a prohibition on activity. Clauses 1.1-1.3 and 3.1-3.3 ban stock and vehicles from the property. This is impermissible, per Slack-Smith v Department of Land and Water Conservation (2003) 132 LGERA 1 and Holmes v Director-General of the Department of Infrastructure Planning and Natural Resources [2005] NSWLEC 264. The provision considered in those cases was s 47 of the now repealed NVC Act. Section 38(2) of the NV Act is similar to s 47 of the NVC Act except that the words (in brackets) “including the taking of steps to allow the land to regenerate” have been added to s 38(2) in relation to work to rehabilitate any land affected by the clearing. “Work” as defined in the Macquarie Dictionary (Revised third edition, 2001) involves exertion or positive action. Legislation must be construed on the basis of the presumption that legislation does not interfere with vested proprietary rights, see D C Pierce and R S Geddes, Statutory Interpretation in Australia, 6th edition (2006, Federation Press) at p 179. That principle also applies to the terms of any direction made under the legislation. The grazing of stock is an exercise of rights of property and for such rights to be extinguished by statute, express provision should be made. Clauses 5.1 and 7.1 – 7.2 are also not within power. “Disturbance” in cl 5.1 is too vague and uncertain. Also, determining if any disturbance or risk of fire exists requires the exercise of expert opinion which is not “works” within the meaning of s 38(2) of the NV Act. Finally cl 14 lacks specificity.

32 The direction should not include a condition that is impossible to meet, such as the exclusion of wild pigs.

No illegal clearing has occurred (contention (l))

33 Section 38(1) requires that there be illegal clearing before a remediation direction can issue. There is no contravention of the Moree Plains Local Environmental Plan 1995 (the LEP) which provides that routine agricultural activities can be carried out in the Rural 1(a) zone. The LEP was made under the Environmental Planning and Assessment Act 1979 (the EP&A Act) and provides that routine agricultural activities do not require development consent. That means there has been no contravention of the NV Act as development consent is not required and the clearing was not illegal. Oates v Director General of the Department of Infrastructure, Planning and Natural Resources [2004] NSWLEC 164 should be distinguished on its facts as it relates to the repealed NVC Act not the NV Act now in force.

Direction is acquisition of land (contention (k))

34 Taking away the use of land from the owner is the acquisition of land from the owner. The power of the government to acquire land gives rise to two issues. Firstly, the NV Act is not for the “peace, order and good government” of the citizens of NSW within the meaning of s 5 of the Constitution Act 1902 (the NSW Constitution).

35 Secondly, the direction is a taking of land amounting to an acquisition not on just terms. This results from the implementation of intergovernmental agreements between the Commonwealth and State governments as detailed in Mr Longman’s affidavit which led to the passing of the NV Act. There are cases where State laws have been held to be invalid because they infringe rights enshrined in constitutional provisions, see for example Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. Another example of a case where the High Court ruled that state law should be overturned was Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1 at 286.

36 Laws made by NSW in agreement with the Commonwealth evade the constitutional guarantee in s 51(xxxi) of the Commonwealth of Australia Constitution Act 1900 (the Commonwealth Constitution). Section 106 and s 109 of the Commonwealth Constitution preserve the NSW Constitution and provide that any State law inconsistent with Commonwealth legislation is invalid. Here the Applicant is required to meet obligations which prevent the normal use of the property without any compensation for that loss. Section 38 of the NV Act is invalid as an acquisition of property other than on just terms and has been implemented by the States in agreement with the Commonwealth for the purposes of avoiding s 51(xxxi) of the Constitution. Sections 106 and 109 of the Commonwealth Constitution mean that such inconsistency renders the provision of the NV Act invalid. Accordingly there was no contravention of the NV Act in the clearing of the land and there is no power for the Court to make the orders sought.

Undertaking

37 The Applicant proposed an undertaking that it make to the Court instead of the Court issuing a remediation direction. The terms of the undertaking are:

1. The Applicant undertakes to the Court that it will, without prejudice to its other arguments in the proceedings and in the event that the Appeal is allowed and no other order is made or an order is made that no remedial direction under section 38 of the Native Vegetation Act 2003 (NSW) is made, that it will:

A. Immediately commence a Noxious Weed Eradication program focused upon the removal of the noxious weed Lippia in the areas the subject of the proposed remedial direction and north of the Gingham Channel upon the Property (“t

he Subject Land

”) by cultivation in accordance with the Moree LEP and noxious weed management plan process.

B. Weather permitting, within twelve (12) months, cultivate the Subject Land with appropriate forage sorghum for a period of not more than two (2) years with a view to controlling the Lippia within the Subject Land.

C. Within three years from the date of this undertaking seed the Subject Land with one or more of the grasses of the kind listed in the

attached

schedule, and/or to be selected by agreement between the Applicant and First Respondent or DECCW [Armidale office].

D. Within the next 12 months, plant native vegetation of the variety described in Dr Nadolny’s report dated November 2009 paragraph 13 in the corridors copses and in the Channel country of Yarrol (as identified on the

attached

map) to the extent of 500 trees in accordance with the Commonwealth’s Caring for Country tree planting programme.

E. The Applicant will consent that the areas subject of the proposed remedial direction and south of the Gingham Channel are not to be cultivated and undertakes to continue to remove any stock found in those areas for a period of two (2) years.

Schedule of Native Grasses

Mitchell

Flinders

As agreed between the Applicant and DECCW

38 The Court should allow the appeal and make no direction or make no direction in light of the undertaking to the Court given by the Applicant which will result in the most appropriate remediation measures being taken.

DECCW’S submissions
Direction is not acquisition of land or beyond power

39 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 is authority that the power of the State legislature to make laws for “peace, order and good government” as stated in the NSW Constitution are not words of limitation. They do not confer a power on the courts in a State jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the State.

40 The prohibition in the Commonwealth Constitution against laws for the acquisition of property other than on just terms does not apply to State legislation, see Durham Holdings Pty Limited v The State of New South Wales (2001) 205 CLR 399. The State was not compelled to enact the NV Act and acquire property without compensation pursuant to the agreements entered into between NSW and the Commonwealth annexed to Mr Longman’s affidavit. The Full Federal Court’s judgment in Spencer v Commonwealth of Australia [2009] FCAFC 38 should be followed. As in Spencer, PJ Magennis Pty Ltd v The Commonwealth (1949) 80 CLR 382 can be distinguished and Pye v Renshaw (1951) 84 CLR 58 should be applied. Kable is also distinguishable.

Clearing was illegal

41 Under the Moree LEP agricultural use is permissible without consent on land zoned Rural 1(a). However under the NV Act, the Minister is the consent authority for the clearing of native vegetation and the LEP cannot provide any defence to the absence of Ministerial consent. There was illegal land clearing which forms the legal basis for a remediation direction. The fact that the Applicant did not own the land at the time of the offence is irrelevant. Oates is authority that the Moree LEP is legislation subordinate to the NV Act and therefore cannot be relied upon to override the provisions against clearing in the NV Act.

Remediation plan

42 The Applicant’s argument that its proposed undertaking would facilitate the creation of a carbon sink above what will occur by the implementation of the remediation direction is not supported by expert evidence.

43 An aim of the remediation plan for the land should be to make land available for agriculture. However, the ultimate aim is to remediate the land to the state it was in before clearing. This necessarily involves the removal of lippia, and the evidence of the experts is that this requires the exclusion of stock for some period.

44 The property can continue to provide important bird breeding habitat despite the altered stocking regime since the Copeton Dam was built. Mr Foster gave evidence about significant bird breeding events by migratory species in the early 1990s.

45 The evidence of the Applicant’s expert should not be preferred over that of DECCW’s experts as Dr McFadyen has only been on the site once in November 2009 after she had prepared her report and her expertise is limited to weed management. Further, the undertaking proposed by the Applicant is not consistent with the evidence of Dr McFadyen in respect of the management of lippia. Dr McFadyen was not able to conclude that if the undertaking proposed by the Applicant was put into effect then lippia would be eradicated and she considered that the management of lippia is important to the successful remediation of the site.

46 In respect of allowing stock on the remediation site, all the experts agreed that allowing stock to graze now will lead to the destruction of the remaining mid-storey plants. However, the period of stock exclusion is disputed. The experts agreed in their joint report at par 12 that only when the over-storey and mid-storey have recovered enough to sustain short-term grazing, then rotational (cell) grazing would be the most likely method by which to manage lippia and maintain the native vegetation. The DECCW experts expect that grazing on the property will be progressively reintroduced based on the success of the plan. This will involve both the recovery of the native vegetation and the management of lippia.

Scope of remediation notice

47 “Damage” as referred to in s 38 should not be read narrowly in the making of an order as this would be inconsistent with the objects of the NV Act. The damage caused by the clearing that needs to be repaired requires that the vegetation which was removed be replaced. This is necessary for the purposes of restoring the important species and habitats that were destroyed, as identified in the expert evidence of Dr Nadolny. Similarly Mr Foster gave expert evidence about the highly significant bird breeding ground that was damaged. The ground storey, mid-storey and over-storey are all important parts of this ecosystem which needs to be restored. There is no evidence that any regeneration resulting from the Applicant’s proposed undertaking would result in the creation of habitats suitable for the threatened species which were affected by the clearing.

48 The order proposed by DECCW is an order for “work” within the meaning of s 38 of the NV Act because it is a series of positive obligations requiring the landholder to do certain things. This includes the positive acts of excluding stock and vehicles from the land.

Undertaking not appropriate

49 An undertaking by the Applicant is an inappropriate mechanism for the resolution of this matter. The Applicant commenced these proceedings as an appeal from the remedial direction made by DECCW under s 38 of the NV Act. The proper role of the Court is to decide for itself what the appropriate direction for remediation is. Once a direction is made by the Court, the remediation direction will have to be complied with as if it were a direction of DECCW. This will affect the means by which the direction is enforced and is different from enforcing any undertaking made by the Applicant to the Court.

50 Further, the proposed undertaking of the Applicant involves further clearing of native vegetation which could cause the destruction of any remaining habitats and vegetation that have successfully regenerated. Such clearing would also be inconsistent with the purposes of s 38 of the NV Act and may involve breaches of other legislation including the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Time for remediation direction

51 The timeframe sought in both the remediation direction dated 4 July 2009 and that proposed by DECCW at the hearing is three years despite DECCW’s contention of 13 years. Any remediation plan must be flexible in order to deal with changing ecological circumstances on the property. The Applicant’s expert agreed that it is difficult to predict how any plan will work, particularly whether regeneration will occur within a period of three years. The experts agreed that success is in part dependent on whether or not good rainfall occurs. After three years DECCW submits that it will be necessary to assess what the next phase of regeneration should be.

Finding
Nature of appeal

52 There were discussions and submissions made before and at the hearing by the Applicant concerning the scope of the appeal. This is an appeal in Class 1 of the Court’s jurisdiction. The Court determines whether a remediation direction ought be made and on what terms. It considers the matter anew on the basis of the evidence before it. The statutory basis for a remediation direction principally that the clearing was illegal must be satisfied. In terms of the content of a remediation direction, which is a determination more in the nature of a merits decision, it is not appropriate to consider that this must be determined on the basis of an onus of proof falling on either party. The Court must determine what it considers is appropriate in the circumstances.

Whether s 38 of the NV Act is valid law

53 The Applicant has argued that s 38 has not been made for the “peace, order and good government” of the people of NSW in breach of s 5 of the NSW Government Constitution. Union Steamship held that a court cannot strike down a State law on that basis, as submitted by DECCW, see also A Toomey, The Constitution of New South Wales (2004, Federation Press) at p 170. There is no power (and possibly jurisdiction) for this Court to strike down s 38 of the NV Act on the basis there is a breach of s 5 of the NSW Constitution.

54 The Applicant referred to Kable as an example where a State law was declared invalid by the High Court because the law sought to confer judicial power on a State court in a way that was incompatible with the court’s exercise of Commonwealth judicial power. Kable was an unusual matter, raised quite different issues to this case and provides no relevant precedent. Nor do the issues in the Tasmanian Dams Case have any relevance to this matter.

55 The next issue raised by the Applicant is whether a remediation notice issued under s 38 amounts to the taking of property in breach of s 51(xxxi) of the Commonwealth Constitution. The Applicant relied on Spencer v Commonwealth of Australia [2008] FCA 1256 which was the judgment of the Federal Court at first instance. In Spencer, the applicant was challenging two Commonwealth laws because, it was argued, they caused the NSW government to pass the NV Act and its predecessor (the State Acts). He argued the State Acts had the effect of acquiring his property by prohibiting the clearing of native vegetation which he argued effected the acquisition or expropriation of certain interests in his family property. The Commonwealth statutes were laws with respect to the acquisition of property which did not provide for just terms and therefore were in breach of s 51(xxxi) of the Australian Constitution. At first instance the judge granted the Commonwealth’s application for summary dismissal of the proceedings because he considered that there was no reasonable prospect of success. Mr Spencer appealed.

56 The Full Federal Court in Spencer (Jagot J, Black CJ and Jacobson J concurring) upheld the decision of the trial judge in holding that the Commonwealth laws the subject of the challenge were not laws with respect to the acquisition of property or effected an acquisition of property of the applicant. A similar conclusion was reached in relation to the effect of the inter-governmental agreements. The Court referred to the relevant Commonwealth statutes, instruments and agreements at [8] – [9] as follows:

8 Section 51(xxxi) of the Constitution provides that the Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws". Section 96 is also relevant. It provides that "[d]uring a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit".

9 In [22] to [98] the primary judge summarised the principal provisions and operation of the Kyoto Protocol, the Commonwealth statutes, four inter-governmental agreements between the Commonwealth and New South Wales, and the State statutes. The primary judge identified the inter-governmental agreements as follows (at [53]):

•

A bilateral Agreement between the Commonwealth and the State of New South Wales to deliver the Natural Heritage Trust, made on 31 October 1997 (the 1997 Agreement).

•

The Inter-Governmental Agreement on a National Action Plan for Salinity and Water Quality in Australia (the Salinity Action Plan), made on 3 November 2000 (the 2000 Agreement).

•

A bilateral Agreement between the Commonwealth of Australia and the State of New South Wales Relating to the Salinity Action Plan, made on 17 May 2002 (the 2002 Agreement).

•

A bilateral Agreement between the Commonwealth of Australia and the State of New South Wales to deliver the extension of the Natural Heritage Trust, made on 14 August 2003 (the 2003 Agreement).

57 Jagot J set out the facts of Magennis at [16], being that the State Act in issue provided for an agreement between the Commonwealth and NSW governments concerning the acquisition of land by the State at a value which did not exceed a certain amount. The High Court held that the NSW law was a law with respect to the acquisition of property. The State Act was inoperative because it approved an invalid agreement. An amended scheme was considered in Pye whereby the Commonwealth/State agreement applied to land resumed for the purpose of a State Act dealing with soldier settlement. The High Court held that the fact that the State Act provided for land acquisition on unjust terms was of no legal consequence. As stated by the High Court:

As has already been pointed out, the legislative power of the State is not affected by s 51(xxxi) of the Constitution. If a State Act provides for the resumption of land on terms which are thought not to be just, that is of no consequence legally: it cannot affect in any way the validity of the Act or of what is done under the Act. And the effect of Act No 14 of 1950 is to make it perfectly clear that all relevant legislation of the Parliament of New South Wales is intended to take effect unconditioned by any Commonwealth legislation and irrespective of the existence of any agreement between the Commonwealth and the State of New South Wales. To adopt the language of Webb J, already quoted, it cannot now be correct to say that, properly construed, the State Acts contemplate the existence of a valid agreement or of any agreement or scheme. There is no possible ground of attack on the validity of this legislation, there is no ground whatever for saying that it is inoperative, and all courts are bound to give effect to it according to its tenor

58 At [19] Jagot J accepted the following propositions of the Commonwealth:

Pye v Renshaw, properly analysed, also negates Mr Spencer’s submissions based on: - (i) an alleged intent to overreach s 51(xxxi), (ii) the alleged improper use of a "mere device" to circumvent the constitutional guarantee, and (iii) the significance of the terms of the inter-governmental agreements. As the Commonwealth submitted (at [28] of its written submissions), Pye v Renshaw establishes the following relevant propositions:

(a) Even if the appellant were in a position to demonstrate that the National Heritage Act or the Financial Assistance Act were enacted for the purpose or object or "motive" of inducing the state to exercise its powers to apply restrictions to the appellant’s land, that would not demonstrate invalidity.

(b) Nor would it be sufficient to demonstrate that the statutes had the

effect

of authorising or permitting the Commonwealth to provide financial assistance to New South Wales on terms that such restrictions be applied. Were it otherwise, the appropriation enactment in Pye would have been held invalid.

(c) It is irrelevant for present purposes that the appellant claims to have suffered some form of detrimental effect to his property interests or that he claims the Commonwealth receives some form of benefit. In Pye, the detriment to the property holder was clear (potential loss of freehold title) and the Commonwealth received a ‘benefit’ in that it achieved its aim of settling former members of its defence forces at below market cost.

(d) It also follows that the terms of agreements, grants or arrangements made pursuant to the National Heritage Act or the Financial Assistance Act could not have any bearing on the validity of those laws themselves.

See also, in support of proposition (a) above, the primary judge’s reference at [110] to the decisions in Huddart Parker Ltd v The Commonwealth [1931] HCA 1; (1931) 44 CLR 492 at 515 to 526 and Murphyores Incorporated Pty Ltd v The Commonwealth [1976] HCA 20; (1976) 136 CLR 1 at 20 in support of the observation that "it is not appropriate to characterise a law by reference to the motives that inspire it or the consequences that flow from it".

59 Her Honour held that Pyev Renshaw was not distinguishable and resulted in the applicant’s cause of action having no basis.

60 In this case the Applicant is seeking to argue that s 38 of the NV Act is invalid because it is in breach of s 51(xxxi) of the Commonwealth Constitution being a law regarding the acquisition of land. The breach arises, it is argued, by virtue of the Commonwealth/State agreements identified in the affidavit of Mr Longman and summarized above in par 10. A threshold issue is whether s 38 of the NV Act is a law regarding the acquisition of property. Section 38 and the notice itself do not purport explicitly to acquire the part of the property, Yarrol, the subject of the notice. The remediation notice is directed to the remediation of land. No case has been referred to by the Applicant where the exercise of regulatory control over land such as occurs under s 38 of the NV Act has been held to be an acquisition of land. The closest case is Spencer which considered that two Commonwealth Acts and Commonwealth/State agreements which gave rise to the State of NSW passing the NV Act and its predecessor were not laws regarding the acquisition of property. The inter-governmental agreements relied upon by the appellant in Spencer identified at [9] of the judgment are the same as those relied on by the Applicant in this matter. On that basis alone this ground must fail.

61 Pye would otherwise appear to be a complete answer to this ground as accepted at [19] of Spencer. Further, the decision of the Full Federal Court in Spencer is directly contrary to the Applicant’s position. The Full Federal Court’s decision is presently on appeal to the High Court but stands in the meantime. While not directly binding upon me it is persuasive and I consider I should adopt the findings.

62 Further support for this finding is found in Durham which was referred to by DECCW. In Durham a NSW law vested certain land in the Crown and there was provision for payment of compensation under an agreement which was limited. The applicant argued that the part of the State law which gave rise to the agreement was invalid because there was a legal presumption that acquisition of land by the government must be on just terms of compensation. In refusing to grant leave to appeal, this proposition was rejected by the High Court (per the joint judgment of Gaudron, McHugh, Gummow, Hayne JJ, Callinan J and Kirby J concurring), which held that a State government can deprive a person of property without just compensation.

63 I consider s 38 is a valid law and a remediation direction issued under it can restrict activity on the Applicant’s land.

Whether illegal clearing?

64 The then owner of the property, John Hudson, was convicted of illegal clearing under s 12(1) of the NV Act in this Court in Director-General of the Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256. As the Applicant’s counsel made clear only at the outset of the hearing that he wished to dispute that illegal clearing had occurred, which would have essentially required DECCW to present the evidence in the Hudson prosecution which was not available due to the late notice, I allowed argument on the issue of whether there was illegal clearing on the property on a limited basis. This basis was that the application of the LEP permitted the clearing as part of normal agricultural activities. I conclude DECCW’s submissions at par 45 are correct. The LEP is subservient to the NV Act on the basis of the principle identified in Oates. The NV Act s 13 requires that the relevant Minister give consent for any clearing and none was obtained before the clearing the subject of the direction was carried out. The statutory basis for issuing the s 38 direction exists.

Whether undertaking appropriate

65 The Applicant has proposed that an undertaking be given to the Court. In Class 1 proceedings the Court must make its own decision as to the appropriateness and content of a particular direction for remediation. It is questionable whether that role is fulfilled by the Court accepting an undertaking from the Applicant, assuming that the action proposed would otherwise fall within the Court’s jurisdiction to make a remediation direction. I do not consider an undertaking should be accepted as the appropriate mechanism to achieve the remedial work referred to in s 38 of the NV Act. Indeed the Court’s role is defined by s 39 of the NV Act. That section refers to the making of a direction. Whether the actions proposed in the undertaking set out at par 41, namely the cultivation of the land with sorghum for two years and the planting of native grasses suitable for grazing, could or should be the subject of a remediation direction can be considered.

Whether further remediation direction appropriate

66 The direction the subject of these proceedings is the fourth direction to remediate land issued by DECCW to the owner of the property. The clearing to which it is directed occurred in 2006/2007. The first direction was issued to John and Lynette Hudson and, following the sale of the property by the Hudsons to the Applicant, the next three were issued to the Applicant. This direction is proposed for a three year period as that is the timeframe that the experts called by DECCW consider is needed to enable appropriate regeneration and an assessment of the progress of remediation. The evidence of Dr Nadolny is that remediation measures will continue to be necessary over a 10 to 15 year period.

67 There was discussion at the hearing about whether it was open under s 38 to issue more than one remediation direction in relation to a property. The expert evidence I have heard makes abundantly clear that the remediation of native vegetation of the kind cleared on the property is a complex process which is very likely to require different management strategies over many years. Whether these succeed or need to be changed depends on imponderables such as rainfall. It is therefore likely that more than one remediation direction will be necessary particularly if there is not a co-operative approach to the remediation of land between DECCW and the owner of a property the subject of a direction. There is no limit on the number of remediation directions which can be issued under s 38 of the NV Act so that the fact this is the fourth direction is not of itself problematic.

Scope of direction

68 A fundamental issue raised by the Defendant’s submissions is the type of native vegetation which should be the subject of a direction to remediate. The Defendant argues that native vegetation, namely native grasses suitable for grazing, which is consistent with the longstanding use of the property for grazing purposes, is the appropriate native vegetation to be regenerated. The remediation of the native vegetation that was cleared is not explicitly required by s 38 of the NV Act. A related submission of the Defendant was that the remediation of bird habitat is not relevant to the NV Act.

69 In order to apply a purposive construction to an act it is necessary that it be in conformity with the objects of the Act (s 33 of the Interpretation Act NSW)). The objects of the NV Act in s 3 are:

(a) to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and

(b) to prevent broadscale clearing unless it improves or maintains environmental outcomes, and

(c) to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and

(d) to improve the condition of existing native vegetation, particularly where it has high conservation value, and

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

in accordance with the principles of ecologically sustainable development.

70 Section 38 provides that where illegal clearing has occurred a remediation notice can be issued. Under subsection (2) a direction can require work to repair damage and work to rehabilitate land affected by the clearing, including the regeneration of the land. That power to issue a direction includes the power to require regeneration of the type of native vegetation cleared. Accordingly the broad scope of the remediation direction sought is in accordance with the NV Act and can be directed to the regeneration of the native vegetation cleared. “Work to repair any damage caused by the clearing” (s 38(2)(a)) reflects the broad power conferred on the Director to issue a direction and therefore also on this Court.

71 The remediation direction can include measures which are aimed at repairing any damage caused by the clearing (s 38(2)(a)). Contrary to the submissions of the Applicant, there is no statutory basis to limit the meaning of “any damage” in s 38(2)(a) to soil erosion and siltation or damage to personal property. Provided it can be seen to come within the objects of the NV Act the construction of “any damage” should be wide. It includes in this case loss of significant bird habitat, as identified in the report of Mr Foster. It is consistent with the objects of the NV Act (particularly (a), (c) and (e)) that vegetation that is important bird habitat be remediated so that it can fulfil that environmental function.

72 Section 38(2)(b) refers to the rehabilitation of land affected by the clearing (including the taking of steps to allow the land to regenerate). I consider that the direction can and should be focussed on the remediation of the cleared land through the regeneration of native vegetation that was cleared, taking into account its significance as important bird breeding habitat.

Management of lippia/stock

73 The experts’ evidence is summarised above at par 12-27. Those matters agreed are set out in par 21. The DECCW experts and Dr McFadyen did not agree on the period of time stock should be excluded or the correct approach to the management of lippia and the likelihood of native vegetation that was cleared re-establishing. They consequently did not agree on the most appropriate approach in the remediation direction.

74 The four main types of native vegetation cleared, as identified by Dr Nadolny (par 16), consisted of groundcover, mid-storey and upper storey vegetation. The evidence of the DECCW experts is that there is some regeneration of the mid and upper storey vegetation of some species, namely coolibah, river coobah and lignum. There has also been good regeneration of poplar box. Evidence of regeneration was questioned by Dr McFadyen as to whether seedlings could grow through the lippia. I accept that the DECCW experts did see this was occurring and were able to determine whether regeneration was occurring in light of their experience of and knowledge about the remediation area since the clearing in 2006/2007.

75 A key issue to consider in light of that regeneration is the management of lippia which is distributed as groundcover over parts of the cleared area. The experts disagree about the precise extent of the distribution but the evidence of Dr McFadyen suggests that it is substantial.

76 The DECCW experts considered the cultivation approach proposed by Dr McFadyen as a means of lippia management, contained in the Applicant’s undertaking, will result in the destruction of all the regeneration of vegetation that has occurred and prevent further regeneration of that type of vegetation. That is not disputed by Dr McFadyen except that cultivation would not necessarily destroy existing stands of woodland trees which could be left. The focus of her evidence is the control of lippia by appropriate cultivation with native grasses that are suitable for pasture being returned to the cleared area. She accepted that the cultivation approach would substantially remove potential for future regeneration of the native vegetation that was cleared.

77 The management and control of lippia is not a certain science as was clear from evidence of the experts in the joint report and in their oral evidence and from National Lippia Working Group, Challenges, opportunities and strategies: Lippia Management (July 2008), which report was annexed to Dr McFadyen’s affidavit. Dr McFadyen also agreed with the proposition that there have been few experiments done on the effects of de-stocking without management methods on lippia. She gave evidence however of studies where lippia has invaded areas that have never been grazed. Dr McFadyen impressed me as a forthright and competent witness who considers that the lippia will require active management. That active management approach will mean however that the currently regenerating native vegetation particularly at the upper and mid storeys will be lost. If the goal is the remediation of the native vegetation that was lost due to clearing the cultivation proposed by the Applicant will not achieve that objective. It will result in the destruction of the native vegetation now regenerating and largely remove the potential for that to occur in the future. I consider that native vegetation cleared should continue to have an opportunity to further regenerate so that the approach of de-stocking for a period proposed by DECCW is preferable. Ideally action taken in the future will include active management measures for lippia referred to by the experts, such as cell grazing, if the circumstances are appropriate. It is difficult at this point to determine appropriate measures sufficiently to include them in this remediation direction.

78 The Applicant submitted that DECCW’s approach of destocking for three years is not viable given the current infestation of lippia and that this is supported by Dr McFadyen’s view. Dr McFadyen supports exclusion for one year. The DECCW experts consider one year is insufficient. In light of their longer association and knowledge of developments on the property, the DECCW experts’ concerns about the impact of cattle grazing in the cleared area are important. They consider that stock grazing is one of the main reasons regeneration of mid to upper storey plants has not progressed further in the last two years. I consider I should adopt their approach, which underpins the proposed remediation direction in relation to the exclusion of stock for three years. The period of three years is to provide opportunity for regeneration to occur for a reasonable period in order to assess whether the current remediation direction is effective.

Terms of direction

79 As submitted by the Applicant, the breach of a remediation direction can give rise to a criminal offence and must be narrowly construed. This Court has held in Holmes and Slack-Smith that a direction must not contain a prohibition. In Slack-Smith the applicants were issued with a notice to carry out remedial work pursuant to s 47 of the repealed NVC Act. Class 4 proceedings challenging the decision of the relevant department to issue the notice were commenced in this Court. The notice was challenged on the basis that the conditions required the applicants to abstain from doing certain things rather than carry out positive works as required by that section. Considering that failure to comply with a remedial direction could give rise to criminal liability under s 47(4), Talbot J held that only the part of direction requiring work to be done in positive terms could survive the challenge to validity and that those invalid directions could be severed from the notice. Severed conditions included a requirement that the lessee not cultivate, crop, plant or harvest any seeds or plants or undertake any work to improve pasture and that the lessee not undertake any clearing in the remediation area except in accordance with the NVC Act and after consultation with a resource compliance manager. His Honour contrasted the terms of s 47 of the repealed NVC Act with s 15A(1) of the Soil Conservation Act 1938 which expressly enables the giving of a notice to either abstain from doing an act, or to do or permit an act to be done. Section 47 of the NVC Act was not in the language of prohibition.

80 Similarly, Holmes was an appeal against a direction to remediate issued under s 47 of the repealed NVC Act. Lloyd J considered as a preliminary question of law whether the direction issued was invalid on grounds that, inter alia, the notice did not specify positive work to be carried out but rather prohibited the carrying out of certain work. Lloyd J considered the statutory purpose of the NVC Act in determining whether the notice was invalid. His Honour considered that the Court was to construe the notice strictly and in favour of the appellant since, pursuant to s 47(4) of the NVC Act, a breach could give rise to criminal prosecution. Lloyd J followed the conclusion of Talbot J in Slack-Smith that s 47 provided for remedial directions to require the carrying out of specified work in positive terms only. His Honour held that not all the directions in the notice were expressed in positive terms. It was not possible to sever those parts of the notice that were invalid because the valid parts would have acted in a manner wholly different from the intent of the original document.

81 As identified at par 21, the experts reached agreement on a number of matters concerning remediation issues such as that remediation of the understorey, mid-storey and understorey was contemplated. They agreed various measures were appropriate including a monthly inspection by the landholder, the provision of a short report by the landholder, the removal of stock in the remediation area, control of wild pigs, no vehicles be allowed, no burning off of fallen trunks and vegetation, and repairing fences within 72 hours, within the remediation area. DECCW amended the terms of the direction, set out above at par 5, to reflect those matters agreed where these were not already in the direction.

82 I consider the terms of the direction now sought by DECCW as set out in par 5 should be made subject to a couple of changes. All the clauses in the proposed direction require positive actions to be taken by the Applicant and can be made consistently with the requirement to do that. Clause 1, stock management, contains positive actions to remove and exclude stock, undertake a monthly inspection and remove stock in the remediation area. The exclusion of stock while not expressed in positive terms does require positive action by the Applicant to achieve and is acceptable and necessary. Clause 2, pig management, also contains positive steps. Clause 3, vehicle management, specifies particular actions must be taken. Clause 4, fence inspection, requires particular actions concerning inspection and repair of fences and regular inspections and reporting in cl 6 and cl 7. These clauses largely reflect the agreement reached in the joint experts report.

83 In making the direction I do not consider it will give rise to any breach of the Noxious Weeds Act as encompassed in the weed management plan made by Moree Council. That weed management plan requires that if mechanical methods for lippia removal are to be used, direct written instructions need to be obtained from a local control authority if timber clearing is involved or through an application to clear approved by the appropriate State government department. This remediation direction would be relevant to the consideration of any instruction or approval to mechanically remove lippia or in the determination of any application to clear.

84 I further note that there was evidence from Dr McFadyen of the desirability of assessing at the end of each growing season whether regeneration is occurring. That this was appropriate and necessary was agreed by the DECCW experts but is not a measure that can fit readily into a remediation direction made under s 38 of the NV Act.

Orders

86 The Court makes the following orders:

Native Vegetation Act

ANNEXURE A

DIRECTION TO CARRY OUT REMEDIAL WORK

BACKGROUND

A. The Department of Environment and Climate Change ("DECC") has responsibility for the administration and enforcement of the Native Vegetation Act 2003 (NSW) (“the Act”).

B. Joly Pty Limited ACN 124 866 986 ("the Landholder") is the owner of Lots 1, 24 and 27 in DP 750519, and Lot 23 in DP 750465 ("the Property").

DIRECTION TO CARRY OUT REMEDIAL WORKS

C. In order to:

a) repair any damage caused by the clearing; and

b) rehabilitate any land affected by the clearing (including the taking of steps to allow the land to regenerate); and

the Landholder is required to perform or cause to be performed the following remedial works on the property:

1. Stock Management
1.1. The Landholder must remove and exclude all stock from the Remediation Area by 1 February 2010.

1.2. The Landholder must inspect the Remediation Area at least once every month for the duration of this Direction to determine whether stock have entered the Remediation Area.

1.3. If any stock are found within the Remediation Area, or if the Landholder becomes aware that there is any evidence that any stock have entered the Remediation Area, the Landholder must immediately remove such stock from the Remediation Area.

2. Pig Management

2.1. The landholder must trap or shoot pigs within the Remediation Area on at least 3 days per month. If trapping, the traps must be pre-baited on at least 3 days during the week prior to the trapping occurring.

2.2. The Landholder must inspect the Remediation Area at least once every month for the duration of this Direction to determine whether pigs have entered the Remediation Area.

2.3. If any pigs are found within the Remediation Area, or if the Landholder becomes aware that there is any evidence that any pigs have entered the Remediation Area, the Landholder must immediately remove such pigs from the Remediation Area.

3. Vehicle Management

3.1. The Landholder must remove all vehicles from the Remediation Area by 1 February 2010.

3.2. The Landholder must inspect the Remediation Area at least once every month for the duration of this Direction to determine whether vehicles have entered the Remediation Area.

3.3. If any vehicles are found within the Remediation Area, or if the Landholder becomes aware that there is any evidence that any vehicles have entered the Remediation Area, the Landholder must immediately remove such vehicles from the Remediation Area.

3.4. This clause does not apply to:

3.4.1. any vehicles under the control of officers from a New South Wales or Commonwealth government department or agency or a local council or any vehicle under the control of a person accompanying or assisting such officers;
3.4.2. any vehicle being used in conjunction with any licensed kangaroo culling activities taking place upon the Remediation Area; or

3.4.3. any vehicles (not including bulldozers) which are reasonably necessary to carry out the works required by this Direction and which are actually being used to carry out such works.

4. Fence Inspection

4.1. The Landholder must inspect the Fences around the Remediation Area as identified by the thick black line in Attachment 1 to this remediation direction at least once every month for the duration of this Direction to determine whether there are any breaches in the Fence.

4.2. If any breaches in the Fence are found the Landholder must, within 72 hours of the inspection, repair any breaches in the Fence.

5. Cleared Vegetation Inspection

5.1. The Landholder must inspect the Remediation Area at least once every month for the duration of this Direction to determine if any disturbance or fire is found to have occurred in respect of the Cleared Vegetation in the Remediation Area.

6. Timing of Inspections of the Remediation Area

6.1. Each inspection required by this Direction must take place by no later than the 28^th day of each month.

6.2. The first inspection must take place by no later than 1 February 2010.

7. Report of Inspections

7.1. Following each inspection required by this Direction, the Landholder must, within 5 days of the inspection, provide a written report to:

Manager Native Vegetation - Armidale Region
Department of Environment and Climate Change
PO Box 494,
Armidale NSW 2350
or by fax to 02 6772 2336.

The report must include the following:
7.1.1. The date of the inspection.

7.1.2. The status of each matter referred to in clauses 1, 2, 3, 4 and 5 of this Direction.

7.1.3. Details of any works carried out as a result of the inspection.

7.2. This clause applies for the duration of the Remediation Period.

DURATION

D. The duration of this Direction is a period of 3 years, commencing on the date of this Direction.

DEFINITIONS

E. In this Direction the following definitions apply:

“Cleared Vegetation” means all cleared native vegetation within the Remediation Area, including trees, shrubs, branches, leaves and other debris, whether living or dead.

“Exotic species” means species introduced from outside of the area concerned; in the case of New South Wales, from overseas and/or interstate
Note: The source of this definition is Harden, G.W. ed. 1990-2002. Flora of New South Wales: Volumes 1 – 4, University of NSW Press.

“Landholder” means Joly Pty Limited ACN 124 866 986

“Native vegetation” has the same meaning as in section 5 of the Native Vegetation Act 2003 that is, any tree (including a sapling or shrub, or any scrub), understorey plants, groundcover or plants occurring in a wetland, of a species that existed in New South Wales prior to European settlement.

“Noxious weeds” means any plant declared under the Noxious Weeds Act 1993 to be a noxious weed for New South Wales or the local government area within which the property is located

“Remediation Area” means all subRemediation Areas shown schematically on the map in Annexure A, excluding rural infrastructure present within the Remediation Area as of the date of this Direction such as roads, buildings and dams.

“Stock” means all livestock (including, but not limited to, cattle, horses, sheep, alpacas & goats). It does not include native wildlife.

“the Fence” means any fence on Lots 1, 24 and 27 in Deposited Plan 750519, and Lot 23 in Deposited Plan 750465 which prevents access to the Remediation Area, whether or not the fence is located in or on the boundary of the Remediation Area.

“Vehicles” means any vehicle or machinery, including but not limited to cars, trucks, tractors and bulldozers.

WARNING AND INFORMATION ABOUT THIS DIRECTION
It is an offence against section 38 of the Native Vegetation Act 2003 (“the Act”) to fail to comply with this Direction. The maximum penalty that a court may impose for this offence is, for a corporation, $220,000 plus $22,000 for each day the offence continues and for an individual, $110,000 plus $11,000 for each day the offence continues.
If you fail to comply with this Direction the DECC may authorise any other person to carry out the works (section 38(5) of the Act). The DECC may then recover the cost from you (section 38(6) of the Act).
If you fail to comply with this Direction the DECC may seek an order from the Land and Environment Court requiring you to rectify that contravention (section 41 of the Act).
Under section 39 of the Act, a person aggrieved by the decision to make this Direction may appeal to the Land and Environment Court within 30 days of this Direction being served on you. However, even if an appeal is lodged, you must comply with this Direction, unless the Court orders otherwise.
The DECC may conduct inspections to determine whether this Direction is being complied with.
Words and expressions have the same meaning as words and expressions used in the Native Vegetation Act 2003, except where a word is specifically defined in this Direction.
For the purposes of this Direction, “native vegetation legislation” means the Native Vegetation Act 2003 and the regulations under that Act.
You may not carry out any routine agricultural management activity (as defined by the Act) within the Remediation Area for the duration of this Direction to the extent that such an activity conflicts with the work directed to be carried out by this Direction (clause 22 of the Native Vegetation Regulation 2005).
Any native vegetation which regrows within the Remediation Area may be “remnant native vegetation” under the Act, in which case approval may be required to clear such native vegetation.
This Direction is issued under section 38 of the Act.

Attachments:

Attachment 1 - Map of the Remediation Area – Image dated 30 July 2007

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Citations

Joly Pty Ltd v Director-General of the Department of Environment, Climate Change and Water [2009] NSWLEC 217

Most Recent Citation

Terranora Group Management Pty Ltd v Director-General Office of Environment & Heritage [2013] NSWLEC 198

Cases Citing This Decision

1

Terranora Group Management Pty Ltd v Director-General Office of Environment & Heritage [2013] NSWLEC 198

Cases Cited

13

Statutory Material Cited

13

Holmes v Director General of the Department of Infrastructure Planning and Natural Resources [2005] NSWLEC 264

Oates v Director General of the Department of Infrastructure Planning and Natural Resources [2004] NSWLEC 164

Kable v Director of Public Prosecutions (NSW) [1996] HCA 24

CITATION:	Joly Pty Ltd v Director-General of the Department of Environment, Climate Change and Water [2009] NSWLEC 217
PARTIES:	APPELLANT Joly Pty Ltd FIRST RESPONDENT Director-General of the Department of Environment, Climate Change and Water SECOND RESPONDENT Gregory William Roberts
FILE NUMBER(S):	10521 of 2009
CORAM:	Pain J
KEY ISSUES:	APPEAL :- appeal against remediation direction made under Native Vegetation Act 2003 - whether remediation direction acquisition of land and therefore invalid under State and Commonwealth constitutions - whether illegal clearing occurred on property as basis for remediation direction - whether undertaking by applicant to court to remediate appropriate resolution of appeal - whether remediation direction appropriate given need for noxious weed management - whether remediation direction can require repair of any damage - whether remediation of lost bird habitat relevant- whether terms of remediation direction a prohibition - remediation direction made
LEGISLATION CITED:	Commonwealth of Australia Constitution Act 1900 (Cth) s 51(xxxi), 106, 109 Constitution Act 1902 s 5 Environmental Planning and Assessment Act 1979 Environment Protection and Biodiversity Conservation Act 1999 (Cth) Interpretation Act s 33 Land and Environment Court Act 1979 s 17 Moree Plains Local Environmental Plan 1995 Native Vegetation Act 2003 s 38, 39 Native Vegetation Conservation Act 1997 s 47 (repealed) Natural Heritage Trust of Australia 1997 (Cth) Noxious Weeds Act 1993 s 7, 12 Soil Conservation Act 1938 s 15A Threatened Species Act 1997
CASES CITED:	Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1 Director-General of the Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256 Durham Holdings Pty Limited v The State of New South Wales (2001) 205 CLR 399 Holmes v Director-General of the Department of Infrastructure [2005] NSWLEC 264 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Oates v Director General of the Department of Infrastructure, Planning and Natural Resources [2004] NSWLEC 164 PJ Magennis Pty Ltd v The Commonwealth (1949) 80 CLR 382 Pye v Renshaw (1951) 84 CLR 58 Slack-Smith v Department of Land and Water Conservation (2003) 132 LGERA 1 Spencer v Commonwealth of Australia [2009] FCAFC 38 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1
TEXTS CITED:	R S Geddes, Statutory Interpretation in Australia, 6th edition (2006, Federation Press) National Lippia Working Group, Challenges, opportunities and strategies: Lippia Management (July 2008) A Toomey, The Constitution of New South Wales (2004, Federation Press)
DATES OF HEARING:	23 November 2009 24 November 2009 25 November 2009
DATE OF JUDGMENT:	18 December 2009
LEGAL REPRESENTATIVES:	APPELLANT Mr P King SOLICITORS Levitt Robinson Solicitors RESPONDENT Mr E Muston SOLICITORS Department of Environment, Climate Change and Water

*“Cleared Vegetation”*	means all cleared native vegetation within the Remediation Area, including trees, shrubs, branches, leaves and other debris, whether living or dead.
*“Exotic species”*	means species introduced from outside of the area concerned; in the case of New South Wales, from overseas and/or interstate *Note:* The source of this definition is Harden, G.W. ed. 1990-2002. Flora of New South Wales: Volumes 1 – 4, University of NSW Press.
*“Landholder”*	means Joly Pty Limited ACN 124 866 986
*“Native vegetation”*	has the same meaning as in section 5 of the Native Vegetation Act 2003 that is, any tree (including a sapling or shrub, or any scrub), understorey plants, groundcover or plants occurring in a wetland, of a species that existed in New South Wales prior to European settlement.
*“Noxious weeds”*	means any plant declared under the Noxious Weeds Act 1993 to be a noxious weed for New South Wales or the local government area within which the property is located
*“Remediation Area”*	means all subRemediation Areas shown schematically on the map in Annexure A, excluding rural infrastructure present within the Remediation Area as of the date of this Direction such as roads, buildings and dams.
*“Stock”*	means all livestock (including, but not limited to, cattle, horses, sheep, alpacas & goats). It does not include native wildlife.
*“the Fence”*	means any fence on Lots 1, 24 and 27 in Deposited Plan 750519, and Lot 23 in Deposited Plan 750465 which prevents access to the Remediation Area, whether or not the fence is located in or on the boundary of the Remediation Area.
*“Vehicles”*	means any vehicle or machinery, including but not limited to cars, trucks, tractors and bulldozers.

“Cleared Vegetation”	means all cleared native vegetation within the Remediation Area, including trees, shrubs, branches, leaves and other debris, whether living or dead.
“Exotic species”	means species introduced from outside of the area concerned; in the case of New South Wales, from overseas and/or interstate Note: The source of this definition is Harden, G.W. ed. 1990-2002. Flora of New South Wales: Volumes 1 – 4, University of NSW Press.
“Landholder”	means Joly Pty Limited ACN 124 866 986
“Native vegetation”	has the same meaning as in section 5 of the Native Vegetation Act 2003 that is, any tree (including a sapling or shrub, or any scrub), understorey plants, groundcover or plants occurring in a wetland, of a species that existed in New South Wales prior to European settlement.
“Noxious weeds”	means any plant declared under the Noxious Weeds Act 1993 to be a noxious weed for New South Wales or the local government area within which the property is located
“Remediation Area”	means all subRemediation Areas shown schematically on the map in Annexure A, excluding rural infrastructure present within the Remediation Area as of the date of this Direction such as roads, buildings and dams.
“Stock”	means all livestock (including, but not limited to, cattle, horses, sheep, alpacas & goats). It does not include native wildlife.
“the Fence”	means any fence on Lots 1, 24 and 27 in Deposited Plan 750519, and Lot 23 in Deposited Plan 750465 which prevents access to the Remediation Area, whether or not the fence is located in or on the boundary of the Remediation Area.
“Vehicles”	means any vehicle or machinery, including but not limited to cars, trucks, tractors and bulldozers.