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
v

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”) was issued to the then holder of the subject WLL, Donald Grant MacDonald, on 11 November 1994. The area the subject of the permit is described as 1,485 hectares being part of the subject WLL as illustrated on the airphoto diagram provided therewith “for the purpose of cultivation after receding flood waters”. Consent was granted for a term of 20 years subject to 17 conditions and 7 special conditions. Under the heading “Explanatory Notes” there is a statement that the permit is presented as explanatory paragraphs followed by conditions. There are 8 explanatory paragraphs.

5 The speech by the Minister when the amendment bill was introduced to the Legislative Assembly for a second time in November 1979 discloses that the requirement for a lessee to obtain a cultivation permit before undertaking cropping is to vest the Commissioner with legal power to prevent a lessee from ploughing any land on which there are no trees without approval in order to control the resultant risk of erosion by wind and water and to conserve seed resources for nature species.

6 The subject land comprises 24,743 hectares and incorporates the usually dry lakebed of Narran Lake itself. It is estimated that floodwaters will inundate the lakebed approximately three times every 10 years. The first explanatory note attached to the Cultivation Permit says that the permit is issued specifically for the purpose of cultivation after receding floodwaters, that is, it is only to follow a flood event. The explanation appears only to be confirmation of the operative part of the permit.

7 The applicants commenced share farming on Narran Lake in early 2001. At that time the holders of the lease were three daughters of the late Mr MacDonald. Between about early 2001 and February 2002 Mr Keech grew wheat, barley, sorghum and other crops pursuant to an oral share farming agreement with the MacDonald sisters. The crops were grown as floodwaters, which had entered the lake, receded.

8 The subject land was offered for sale at auction on 7 March 2002 and, after bidding successfully, the applicants became the purchasers. Prior to bidding at the auction Mr Keech became aware, following a conversation with Peter Smith, the Walgett representative of the Commissioner, that the area previously cultivated on Narran Lake exceeded the area permitted by the Cultivation Permit. Mr Keech says that Mr Smith informed him that the cultivation “will have to be brought back into the right area and back to the permitted size. You will just have to bring the area under cultivation back into line with the Licence”. Mr Keech says that he was never given an indication that the Cultivation Permit would or might be revoked. The area covered by the Cultivation Permit is located just north of a lakebed cultivation area on “Kia Ora”, the adjoining property owned by Mr and Mrs Keech.

9 On 6 May 2002 Mr Keech received a copy of a letter addressed to his solicitors by the Commissioner dated 30 April 2002 enclosing a Notice to Show Cause dated 30 April 2002 and addressed to the daughters of the late Mr MacDonald. The Notice to Show Cause recited that cultivation had been carried out in excess of the cultivation area allowed by the Cultivation Permit and that inspection revealed approximately 3,800 hectares had been cultivated. The recipients of the notice were invited to show cause why any or all of the possible actions under s 18DA of the Western Lands Act should not be taken. A period of 14 days was allowed from the date of the notice to make written representations.

10 A further letter was addressed to the applicants’ solicitors from the Commissioner on 14 June 2002. In this letter the solicitors were advised that a final decision regarding the breach of the Cultivation Permit had been made and that pursuant to 18DA(8) of the Western Lands Act the permit was revoked on 14 June 2002.

11 On 17 June 2002 Mr Keech was granted an interview with the Commissioner in Dubbo. He was given the following explanation for revocation of the Cultivation Permit:-

“The decision to cancel the Cultivation Permit was taken due to the nature of the breach and the fact that the MacDonald sisters have had 2 previous significant breaches relating to clearing and cultivation areas in excess of the Cultivation Permit on their other property “Bairnkine”. This is their 3rd breach. I had no other option as we are only able to fine them $10,000. The only other option was to revoke the Licence.”

12 In that conversation Mr Keech says that the Commissioner agreed with him that he and his wife as sharefarmers have managed the farm well, have not caused any damage to the subject land or upset any native species and that the subject land was in better condition than the land next to it that had not been farmed. The Commissioner informed Mr Keech that he could re-apply for the permit but that, in his opinion, he would have a slim chance “because I think National Parks and the Aboriginals would object”. Mr Keech has told the Court that the National Parks and Wildlife Service (“NPWS”) was the unsuccessful under-bidder at the auction. He is also aware that significant interests in the subject land had been shown by Aboriginal interests prior to the auction.

13 After lengthy negotiations prior to settlement of the purchase Mr Keech was able to negotiate a reduction in the purchase price by $130,000 to take account of the revocation of the Cultivation Permit.

The evidence

14 It is Mr Keech’s evidence that at the date of swearing his affidavit on 19 December 2002 Narran Lake was subject to severe drought. However, the land that has been cultivated is being held together by stubble from the crops and is not suffering from soil erosion. Furthermore, he says, the adjacent land that has not been subject to cultivation has large cracks and there is no cover to prevent soil erosion.

15 Mr Keech has lived on Kia Ora since 1961 and says that in 31 years the Narran Lake lakebed has flooded, on average, three times every 10 years. He believes that he would have been able to plant crops in three years during the balance of the term of the Cultivation Permit if it had not been revoked. Accordingly, the applicants claim they will suffer a potential loss of income. He has undertaken to the Court that if the Court upholds the appeal against the decision of the Commissioner the applicant will cultivate the land in accordance with the conditions of the Cultivation Permit, including only cultivating the 1,485 hectares that are authorised under its terms.

16 There is a dispute in relation to the actual area cultivated on Narran Lake. Mr Keech estimates the cultivated area to be 2,600 hectares relying upon instruments installed in farm machinery, although the Acting Resource Information Manager for the Far West Region with the New South Wales Department of Infrastructure, Planning and Natural Resources (formerly the Department of Land and Water Conservation) (“IPNR”), Aaron David John Colbran, calculates the area cropped within the lake is equivalent to 2,546 hectares. Mr Colbran used a technique equivalent to that applied to the Resource Assessment and Monitoring System. Soil Scientist and Agronomist, Robert William Cumming, who was retained by the applicants as a consultant, estimated the area likely to have been cropped as approximately 2,800 hectares being the area below the 120m AHD contour. His estimate is based upon air photographs which, according to Mr Cumming, show that the lakebed is wet to the edge of the 120m AHD contour. However, the evidence of Mr Cumming is directed to a determination of the extent of the filling of the lakebed and the area that is likely to meet the criteria for lakebed cropping. The area of 3,800 hectares nominated in the Notice to Show Cause is clearly an error.

17 Margaret Robyn Pritchard is the investigating officer employed by IPNR as a Natural Resource Project Officer. She and another officer undertook a property inspection prior to transfer of the subject WLL in order to determine, as a matter of routine, whether there were any compliance issues relating to the conditions of the lease and whether it was appropriate for the Minister to consent to the transfer of the lease. She concluded from field investigation and comparison with satellite imagery that cultivation had occurred outside the area permitted for cultivation on the lakebed. In the course of evidence, the Court expressed serious doubt that Ms Pritchard had the expertise to determine the area of the land in the manner that she did. Nevertheless, she concluded that the total area that had been cropped outside the permit area was approximately 1,820 hectares.

18 Ms Pritchard contributed to the preparation of a memorandum from Ross Sawtell, the Resource Compliance Manager to the Regional Director, dated 17 April 2002. It is alleged in the memorandum that the total area cultivated and cropped was 3,796 hectares or around 2.55 times the area approved. It goes on to allege that the breach of the Cultivation Permit is not restricted to cultivating and cropping outside the permit area but that conditions relating to the share farming agreement, the requirement for obtaining of approval prior to cultivation, the maintenance of a paddock history and chemical use have also been breached.

19 Ms Pritchard says she did not consider issuing a rectification notice as being a feasible option because the species composition of re-generative native vegetation will vary according to the seasons and period of inundation. She anticipated that over time native vegetation would re-grow naturally following flooding or exceptionally intense rainfall events.

20 After receiving submissions by the owners’ consultant in response to the Notice to Show Cause Ms Pritchard revised her assessment of the area cropped outside of the permit area by raising it to approximately 2,310 hectares. She also concluded that soil erosion was not the real concern. However, there were, in her opinion, significant concerns, namely the large size of the breach area, the impact of the breach on the wetland ecology, including possible impact on fish, invertebrates and freshwater flora during flooding and also in respect of the impacts on the cultural heritage of the dry lakebed. She says she identified the impacts of cultivation outside the area of the permit as follows:-

§ loss of native fauna habitat;

§ reduction in soil cracking by the simplification of soil structure;

§ reduction in native flora regeneration;

§ simplification of flora diversity by the replacement of native grasses/forbs with the monoculture cropping and/or weed introduction;

§ connectivity has been impacted for native fauna species across the Lakebed.

21 After discussions with other departmental officers, Ms Pritchard recommended to the Commissioner that action be taken to revoke the permit. In making this recommendation she took into account that Mr Keech was the sharefarmer who had carried out the cultivation in 2001-2002 on Narran Lake and that he was also the purchaser of the subject land. It also appears that she took into account investigations into alleged breaches of cultivation permits held by Mr Keech in respect of other properties. None of these allegations have been proved, they are not admitted by Mr Keech and no action has been taken in respect of them.

22 In the final submission made to the Commissioner on 13 June 2002 Ms Pritchard commented upon the lack of an explanation or any reason or reasons why the breach occurred as a notable omission on the part of the owners as well as the fact that there was no evidence of remorse or apology or stated intention that a breach would not occur in the future. She again re-iterated that the critical issue was whether or not the area cultivated was permitted. She disputed the claim by the owners consultant that no native species exist in the lakebed. While recognising it was not a critical issue she speculated that native flora species in the lakebed would be expected to germinate as the water recedes. Having regard to at least three investigations of activities that were found to be breaches relating to cultivation outside of the permit boundaries and clearing outside of consent boundaries and clearing native vegetation without consent on other properties held by the then owners and Mr Keech, she expressed the view that revocation of the Cultivation Permit is neither excessive nor inappropriate. Her final recommendation was to the effect that the Commissioner consent to the transfer of the subject WLL to Mr Keech but that the Cultivation Permit be revoked. The Commissioner acted on this recommendation.

23 In addition to the reasons set out above, Ms Pritchard has generated additional reasons which, she says, support the revocation action. These include the following:-

(1) the identification of the lake or lakebed of Narran Lake in a Environmentally Sensitive zone in Brewarrina Local Environmental Plan 2000 (“the LEP”). It is also listed as a Heritage Item in Sch 1 of the LEP;

(2) the draft Brewarrina Regional Vegetation Management Plan prepared under the Native Vegetation Conservation Act (1997) that has been placed on public exhibition shows Narran Lake as being Riparian Management with a buffer zone of 300 metres; and

(3) confirmation that the area cultivated by Mr Keech in 2001-2002 had been cultivated prior to 1998. Accordingly, she deduced, from reading on the effects of lakebed cropping, that the environmental impact of cropping twice in the same area is likely to be more significant than if the area had been cropped only once.

24 Although the Court ultimately accepts the evidence of Ms Pritchard on the basis that she is able to report on the investigations undertaken and the process leading up to the revocation of the Cultivation Permit the Court agreed, following an examination on the voir dire in relation to her expertise, that she did not have the relevant level of expertise to give evidence in respect of technical matters, although in some respects it came down to a question of the weight to be given to her evidence where technical knowledge is relied upon.

25 The respondent relies on the evidence of Paul Kevin Hagarty, a Registered Valuer, to support a submission that the added value of the Cultivation Permit to the market value of the lessee’s interest in the subject WLL, including the special value attributable to Mr and Mrs Keech as adjoining owners, is considered to be $500,000.

26 The only other witness called on in support of the applicants’ case was Mr Cumming. In the opinion of Mr Cumming the cultivation of an area in excess of the permit authority had a low impact on the lakebed and did not have a negative effect on the local system. Furthermore, once-only cropping following floodwater recession, he says, has minimal effect on soil and there is no significant soil erosion or soil depletion on Narran Lake. In his opinion, there are unlikely to be seed resources present in the main lakebed and, accordingly, cultivation of the area in excess of the cultivation permit is unlikely to reduce the seed resource of any native flora species.

27 Although Mr Cumming has wide experience in respect of soil testing and analysis, his expertise does not allow the Court to place significant weight on his opinions in respect of other matters.

28 Dr Kim Jenkins, a Research Fellow in Ecosystem Management at the School of Environmental Science and Natural Resource University of New England, prepared an assessment of the environmental effect of cultivating and cropping 2,310 hectares in excess of the permit area on Narran Lake on 27 February 2003. She incorrectly assumed that cropping extended into the centre of the lakebed. Dr Jenkins visited the site in February 2003. She observed that previous research on lake soils in the Narran Lake area suggested that cropping beyond the permit area did not cause soil erosion or a deterioration in the soil structure or physical condition of the soil. It is her opinion, however, that lakebed cropping is likely to reduce the seed resources of terrestrial and aquatic plants present in lake soils in the same way that cultivation and cropping reduces the reservoir of aquatic microinvertibrate eggs in cropped lake soils.

29 She observed differences in vegetation between cropped and uncropped areas two years after flooding which, in her view, suggested the cropping limits for colonisation of terrestrial plants between floods. She says that cropping beyond the permit area on Narran Lake has substantially reduced the area of the lake that was left uncropped and it is therefore likely that when Narran Lake next floods the diversity and productivity of aquatic microinvertibrates will be reduced severely due to the area that was cropped. This in turn, according to Dr Jenkins, will affect the availability of food for fish, waterbirds and other invertebrates. Any impacts on terrestrial vegetation and aquatic processes would also be a serious concern to native fish recruitment and their use of lake habitats for foraging.

30 Given the significant number of waterbirds which use the lake as habitat during flooding, Dr Jenkins says it is critical that permit conditions are followed, particularly on lakes such as Narran Lake that are known to support such high numbers and diversity of waterbirds so that the impacts on waterbirds are restricted to specified parts of the lakes. According to her, 65 species of waterbirds have been reported in the Narran Lake system since 1991 and 46 species have been recorded breeding in the system. Cropping beyond the permit area potentially impacted on the foraging habitat and available food of five threatened waterbird species.

31 Referring to Mr Keech’s claim that the land that has been cultivated is being held together by stubble from the crops and is not suffering from soil erosion, Dr Jenkins opines that this also means that most areas of the lakebed were rendered unsuitable habitat for native small animals and reptiles. Moreover, cropping beyond the permit has reduced the areas that have never been cropped and this has potentially reduced habitat diversity within the lake and depleted stores of seeds and eggs that may preferentially settle in the middle of the lake only.

32 Dr Jenkins goes on to say that not only did cropping beyond the permit area on Narran Lake have high ecological impact within the lake and region, it contributes to an already significant cumulative impact on inland lakes and dryland river ecosystems in the Murray-Darling Basin. Finally, she expresses concern that if cropping is allowed outside permit areas on dry lakebeds there will be significant impacts on ecological sustainability and conservation values of inland lakes.

33 It is clear from her evidence that Dr Jenkins has a general bias towards the prohibition of cropping on lakebeds, altogether. Although this evidence is expressed in terms of the impact of cropping beyond the areas allowed under the permit, her observations and opinions are obviously based upon a general and wider concern about the impact of lakebed cropping in any circumstances. It is apparent to the Court that Dr Jenkins has significant expertise and personal knowledge dating back over many years in respect of the ecosystems which exist on lakebeds in western New South Wales and in particular Narran Lake. She is a co-author of the publication “Guidelines for Managing Cropping on Lakes in the Murray-Darling Basin” published in June 1997. She was not required for cross-examination.

34 It is important to note the identification of Narran Lake as a listed site under the Ramsar Convention, thereby receiving world recognition as a wetland of international importance as well as its State and National significance as an area of extensive and frequently available breeding and feeding habitat in a natural condition for a large number of waterbirds species, including one of Australia’s largest ibis and waders protected under international agreement. The Ramsar listing recognises the Narran Lakes Nature Reserve as a relatively undisturbed terminal lake system providing substantial habitat for waterbirds that have both national and international significance. In addition, Dr Jenkins points out that the riparian zone of the Narran River provides essential habitat for major migration of birds and mammal species allowing them to escape regional droughts.

The issues

35 The Court did not have the benefit of a statement of issues from either party until the case had progressed into its third day and only then on the insistence of the Court that by then had become frustrated by the numerous technical objections to evidence and arguments about semantics without the benefit of a full and complete understanding of the issues involved.

36 The respondent’s statement of issues is as follows:-

Whether or not the cultivation permit should be revoked having regard to:
a) the nature and the extent of the breaches of the permit;
b) the environmental consequences of the breaches;
c) the objects of the Western Lands Act ;
d) public interest – including:
i) nature of environmental harm caused by the breaches;
ii) environmental and cultural values of the Narran Lake system;
iii) legislative intent
e) circumstances of the case including:
i) circumstances of the breaches;
ii) adequacy of other remedies to address consequences of the breaches.

37 In response the applicants’ have prepared a statement of issues as follows:-

1. Whether there has been contravention of the Cultivation Permit by the Applicants, except for the area farmed.

2. Whether, if there has been such contravention, in the exercise of discretion, the power of revocation (or suspension) of the Cultivation Permit should be invoked.
Particulars to be relied upon for the exercise of discretion:
(a) 1(a) – 1(e) of the respondent’s statement of issues; and
(b) Circumstances of the decision to revoke.
3. Whether, if there has been such contravention, and sanction is considered warranted, a lesser sanction than revocation of the Cultivation Permit (for example, suspension, notice to rectify the contravention) is appropriate.
Particular
Economic impact on the permit holder.

38 It is consistent with the respondent’s case that the breach of the terms of the Cultivation Permit has had adverse consequences for the environment and that the way to deal with those consequences is to prohibit further cultivation.

The principles applicable to the exercise of the Court’s discretion

39 Section 18DA of the Western Lands Act does not of itself contain a statement of objectives. However, the context of the introduction of s 18DA was to prohibit the holder of a WLL held for grazing purposes from cultivating the land held under the lease unless approval is first given to such cultivation by the Commissioner. The obvious concern of the Minister when introducing the bill to be read a second time was to enable consideration to be given to the effect of wind and water erosion and the retention of a reservoir of native species so that there will be a seed resource to restore the area after cropping is complete.

40 The Western Lands Act was further amended in 2002 when the objects of the Act were introduced in s 2. These include the following:-

(e) to ensure that land in the Western Division is used in accordance with the principles of ecologically sustainable development referred to in section 6 (2) of the Protection of the Environment Administration Act 1991,

(f) to promote the social, economic and environmental interests of the Western Division,

41 The reference to s 6(2) of the Protection of the Environment Administration Act 1991 is important in the current context. Section 6(2) states that ecologically sustainable development requires the effective integration of economic and environmental consideration in decision making processes and provides for its achievement through the implementation of the precautionary principle, inter-generational equity, conservation of biological diversity and ecological integrity and improved valuation, pricing and incentive mechanisms to ensure that the cost of containment, avoidance or abatement of pollution, disposal of waste and the achievement of environmental goals is met by the appropriate persons.

42 Section 39 of the Land and Environment Court Act 1979 vests the Court with all the functions and discretions which the Commissioner had in determining whether to revoke the Cultivation Permit and that the appeal shall be by way of re-hearing. At a re-hearing the Court must determine for itself the issues that could have been raised before the consent authority at first instance, in accordance with the law and by reference to the circumstances as they exist at the date of the hearing of the appeal (Ristevski v Mahoney (1984) 52 LGRA 324).

43 The Court agrees with submissions made by Ms Duggan, who appears on behalf of the respondent, that the relevant power of the Court is limited to the discretion in s 18DA, namely whether to:-

(a) Take no action in respect of the Cultivation Permit; or

(b) Suspend the Cultivation Permit; or

(c) Revoke the Cultivation Permit.

44 The suggestion by Mr Grant, who appears on behalf of the applicants, that the wider enforcement powers contained in Pt 11 of the Western Lands Act, including the imposition of a fine, may be exercised is rejected (Strathfield Municipal Council v Drew (1985) 1 NSWLR 338; North Sydney Municipal Council v PD Mayoh Pty Ltd (1988) 66 LGRA 352 and Gibson v Mosman Municipal Council (2001) 114 LGERA 416).

45 Much of the applicants’ case has been directed as a criticism of the way in which Ms Pritchard formulated the case against the applicants and the representations she made to the Commissioner at that time. Reliance is also based upon a Review of Environmental Factors prepared by Mr Sawtell in support of the original application for the Cultivation Permit on Narran Lake in 1994. Coincidentally, Mr Sawtell is the author of the memorandum submitted to the Commissioner to which Ms Pritchard made a contribution on 17 April 2002. In 1994, Mr Sawtell noted that the intention to crop once with both forage and grain sorghum and retaining stubble would allow natural vegetation re-generation and soil drying/cracking. Mr Sawtell consulted Sue Briggs of NPWS and CSIRO who had carried out extensive research and reported that she had no problems with the proposed permit as she concluded the cropping “should be fairly benign environmentally”. It is apparent from the evidence of Dr Jenkins that since 1994 she and Ms Briggs have completed the abovementioned publication, namely “Guidelines for Managing Cropping on Lakes in the Murray-Darling Basin”. Dr Jenkins draws heavily on the joint study completed in June 1997 as well as other studies between 1990 and 1997 which reflect the outcome of considerable recent research on the impacts of lakebed cropping on soil, native fauna and wetland invertebrates, including sites on the Narran Lake system and other lakes to the north.

46 In the context of a decision to revoke a permit, in the Court’s view, it is appropriate for it to have regard to the potential impacts of lakebed cropping as they are understood at the present time. The applicants have not assisted the Court with evidence beyond that of Mr Cumming. Clearly he has a wide expertise in relation to the impacts of agricultural pursuits on soil, although that expertise has not been directed specifically to the impact of soils in lakebeds as they are found in Narran Lake. The evidence of Dr Jenkins is to be preferred to that of Mr Cumming in respect of matters of ecological impacts on flora and fauna even though the specialty of Dr Jenkins appears to be the study of waterbirds.

47 The Court accepts that the cropping of substantial areas in excess of the areas permitted by the Cultivation Permit have dramatically decreased the potential for the eventual restoration of native flora and vegetation within the lakebed area generally. The increased area of altered vegetation has the potential to reduce vegetative diversity and productivity with a consequential reduction in seed resources for native vegetation. Food resources have been more extensively reduced and the altered pattern of soil cracking will further reduce the availability of habitat for small native mammals and reptiles.

48 The original permit contemplated that only 1,485 hectares would be used for the purpose of cultivation. Irrespective of which calculation presented by the various witnesses is accepted by the Court, it is clear more than 1,000 hectares in excess of the permitted area has been cropped. Setting aside any question of reprisal for that breach irrespective of how that may be formulated, the Court is concerned that the long-term impact of cropping over 1,000 additional hectares has compounded the impact of cropping on the lakebed so that even if there was a balance struck at the time the Cultivation Permit was granted on the basis of the recommendation made by Mr Sawtell in 1994, it does not necessarily follow that a future constraint back to the original area will eliminate the potential problems.

49 There are, therefore, two changed circumstances since Narran Lake was first assessed in 1994. Firstly, there are the various studies referred to by Ms Briggs and Dr Jenkins which lend credence to an argument that cropping should not take place at all. Secondly, the illegal exceedence by cropping on at least two previous occasions has changed the environmental circumstance under which the revocation of a permit should be considered. The application of the precautionary principle as enunciated in s 6(2) of the Protection of the Environmental Administration Act dictates that if the Court is uncertain about the scientific evidence and where there are threats of serious or irreversible environmental damage the opportunity to prevent environmental degradation should not be postponed. The advice that the Court has is that no further cropping should be permitted on Narran Lake at least until there has been an opportunity for recovery of the areas heretofore cropped, including the areas cropped in breach and the areas cropped pursuant to the Cultivation Permit. Ultimately, a balance along the lines of the balance struck in 1994 may again be achievable but at the present time the evidence is that the whole of the area previously cultivated and those areas within the Cultivation Permit that were not cultivated should be left free from cropping until the consequences of the exceedance has been overcome or at least extensively ameliorated by natural process.

50 The Court recognises that one of the objects of the Western Lands Act stated in s 2 is to promote the social, economic and environmental interests of the Western Division. The fulfilment of that objective is not achieved by taking one or other of the nominated interests and addressing it without regard to the other interests. The Court acknowledges that Mr and Mrs Keech may well suffer an economic detriment in the event that flooding of the lake occurs at some time during the unexpired term of the Cultivation Permit and they are prevented from taking advantage of cropping an area of 1,485 hectares as the flood waters recede. Without necessarily accepting the assessment made by Mr Hagarty, it is the nevertheless obvious to the Court that the price bid by Mr and Mrs Keech, when purchasing the subject land from the MacDonald interests, took account of the value to the leaseholder of the Cultivation Permit. Some compensation was achieved in the negotiation process that took place between bidding at the auction, execution of the contract and completion of the sale. The revocation of the current permit does not foreclose the prospect of an application for an alternative or replacement permit. The position that the Court has reached is that accepting the prospect of a financial loss to Mr and Mrs Keech, nevertheless, there is not sufficient justification shown for the re-instatement of a cultivation permit in respect of the full area of 1,485 hectares.

Conclusion

51 The fact that Mr and Mrs Keech are in one sense the innocent victims of the breach of the permit conditions by a predecessor in title is clearly unfortunate for them. However, the evidence of potential environmental harm weighs heavily against the detriment to Mr and Mrs Keech and tips the balance of probabilities in favour of confirming revocation of the Cultivation Permit.

52 The Court has not placed significant weight on the submission raised by Ms Duggan that Mr and Mrs Keech as sharefarmers have had the benefit of cultivating an area in exceedance of that permitted and that, in any event, they should have taken more care to investigate whether the cropping they were undertaking was in accordance with the conditions. The evidence is that they cultivated the area in question by working the area used by the original sharefarmers. They thereby fell into error without an overt intention to take advantage of the historical breach. The Court makes no adverse finding against Mr and Mrs Keech in that regard. In a sense they are the unfortunate victim of circumstance but nevertheless the personal economic disadvantage to them does not outweigh the potential impact upon the environment. Any financial advantage that Mr and Mrs Keech stood to benefit from is, in any event, tenuous. It is dependant upon unpredictable weather conditions which might lead to the necessary amount of flooding in Narran Lake that is required to create any opportunity to cultivate pursuant to the Cultivation Permit.

53 The fact that a critical factor driving the decision of the Commissioner at the time of the determination to revoke the Cultivation Permit might have been a reprisal or punishment for disregarding conditions of the permit is not an issue upon which the Court has relied except as a peripheral circumstance of the case. Any breach of the conditions of the actual permit by Mr and Mrs Keech was, in the Court’s view, inadvertent and unfortunate. Any alleged breach by them of another permit or even inappropriate behaviour in respect thereof has not been proved. Notwithstanding that the advice to the Commissioner appears to have relied to a significant extent upon the fact and extent of breach, the Court has been able to find that the environmental consequences of the continuation of the Cultivation Permit over the total area, in the circumstances as they now exist are, on balance, unacceptable.

54 There is no answer to the evidence of Dr Jenkins that would assist the Court to reach a different conclusion. Mr Cumming is the only expert witness to be heard in response to the evidence of Dr Jenkins. His expertise does not extend to the matters that the Court has found to be most relevant. A mere suspension of the Cultivation Permit is not an option that the Court is prepared to adopt on the basis of the evidence as it stands. If there is to be an application for a return to a use for cropping in the future the Court will need to be assured that the ecological balance has, at that time, been sufficiently restored to justify further cultivation of the lakebed. Rectification can, in the Court’s view, be best achieved in the meantime by allowing natural regeneration processes to take over.

55 The Court makes the following formal orders:-

(1) The appeal is dismissed.

(2) The exhibits may be returned.

I hereby certify that the preceding 55 paragraphs are a true and accurate record of the reasons for judgment herein of the Honourable Justice RN Talbot