Keech v The Western Lands Commissioner - [2003] NSWLEC 215

Land and Environment Court

of New South Wales

CITATION: Keech and Another v The Western Lands Commissioner [2003] NSWLEC 215

PARTIES:
APPLICANTS
Kevin Bruce Keech
Kim Marie Keech
RESPONDENT
The Western Lands Commissioner

FILE NUMBER(S): 30487 of 2002

CORAM: Talbot J

KEY ISSUES: Appeal :- revocation of cultivation permit under the Western Lands Act 1901 - issues of financial hardship and environmental harm

LEGISLATION CITED: Land and Environment Court Act 1979 s 39
Protection of the Environment Administration Act 1991 s 6(2)
Western Lands Act 1901 s 18DA(8), s 18DA(8A), s 18DA(10)
Western Lands (Leases and Productivity Schemes) Amendment Act 1979 s 2(3)

CASES CITED: Gibson v Mosman Municipal Council (2001) 114 LGERA 416;
North Sydney Municipal Council v PD Mayoh Pty Ltd (1988) 66 LGRA 352;
Ristevski v Mahoney (1984) 52 LGRA 324;
Strathfield Municipal Council v Drew (1985) 1 NSWLR 338

DATES OF HEARING: 25/08/2003, 26/08/2003, 27/08/2003, 28/08/2003

DATE OF JUDGMENT:
09/25/2003

LEGAL REPRESENTATIVES:

APPLICANTS
Mr A J Grant (Barrister)
SOLICITORS
Waterford Ryan
RESPONDENT
Ms S A Duggan (Barrister)
SOLICITORS
Department of Infrastructure, Planning and Natural Resources

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

30487 of 2002

Talbot J

25 September 2003

Kevin Bruce Keech

Kim Marie Keech

Applicants

Western Lands Commissioner

Respondent

Judgment

Introduction

1 Kevin Bruce Keech and Kim Marie Keech are the lessees under Western Lands Lease No. 7714 (“the subject WLL”) of a rural property known as “Narran Lake”, Walgett in north western New South Wales (“the subject land”). Section 18DA of the Western Lands Act 1901 (“the Western Lands Act”) prohibits the cultivation of any part of land the subject of a WLL unless the Western Lands Commissioner (“the Commissioner”) has consented in writing to the cultivation, the consent is in force and any condition to which the consent is subject is complied with. The Commissioner may give consent unconditionally or subject to such conditions as the Commissioner may specify or refuse consent.

2 Relevantly, for the present purposes, s 18DA(8A) provides that the Commissioner may, on the ground that any condition to which a consent is subject has been contravened or on any other ground revoke the consent after affording the lessee an opportunity to be heard. Alternatively, under ss (8A) the Commissioner may suspend the consent. Under s 18DA(10) a person may appeal to the Land and Environment Court against the suspension or revocation of a consent given under the section to the person or the person’s predecessor in title. These proceedings are such an appeal. It is the first time the Court’s jurisdiction has been invoked in this respect.

3 The subject WLL was first granted in 1961. Section 18DA was introduced into the Western Lands Act in 1979 and applies to a WLL whether granted or issued before or after the day appointed and notified under s 2(3) of the Western Lands (Leases and Productivity Schemes) Amendment Act 1979 which introduced s 18DA.

4 Cultivation Permit No. 94/19 (“the Cultivation Permit”)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWLEC 215
Decision Date: 09/25/2003

CaseChat Overview and Summary

The applicants, Kevin Bruce Keech and Kim Marie Keech, who had purchased a rural property known as “Narran Lake” in Walgett, New South Wales, sought to appeal the decision of the Western Lands Commissioner to revoke their Cultivation Permit. The permit had allowed the cultivation of 1,485 hectares of land after receding flood waters. The Commissioner had revoked the permit based on an alleged breach of the permit conditions by the applicants, who had cultivated approximately 2,310 hectares of land. The applicants argued that the Commissioner had acted unfairly and that the revocation of the permit would cause them significant economic hardship.

The key legal issues before the court were whether the cultivation permit should be revoked, the environmental consequences of the breaches, the objects of the Western Lands Act, and the public interest in the context of the case. The court considered the potential impacts of lakebed cropping on the environment, the precautionary principle, and the balance between economic and environmental interests as required by ecologically sustainable development. The applicants argued that a lesser sanction than revocation, such as suspension or a notice to rectify the contravention, would be more appropriate. The respondents argued that the revocation was justified due to the nature and extent of the breaches, as well as the environmental consequences.

The court found that the applicants had indeed cultivated more land than permitted by the Cultivation Permit. However, the court emphasised that the potential environmental harm caused by the breaches outweighed the economic detriment to the applicants. The court preferred the evidence of Dr. Kim Jenkins, who had significant expertise in the ecosystems of western New South Wales and had highlighted the adverse impacts of cropping beyond the permit area on the Narran Lake ecosystem. The court concluded that the precautionary principle should be applied, and that the potential for serious or irreversible environmental damage should not be postponed. Consequently, the court dismissed the appeal and confirmed the revocation of the Cultivation Permit.

Orders