Parry v Andrews

[2019] NSWLEC 86

Land and Environment Court

New South Wales

Medium Neutral Citation:	Parry v Andrews [2019] NSWLEC 86
Hearing dates:	15 April 2019
Date of orders:	19 June 2019
Decision date:	19 June 2019
Jurisdiction:	Class 6
Before:	Preston CJ
Decision:	The Court: (1) Grants leave to appeal against the convictions imposed on the appellant, Michael Andrew Parry, by the Local Court on 4 July 2018 for two offences against s 201(1) of the Fisheries Management Act 1994. (2)   Dismisses the appeal. (3)   Orders the appellant to pay the costs of the appeal of the respondent, as agreed or assessed, with such costs to be paid within 28 days after an agreement as to the amount of costs has been made or the issue of a certificate of assessment of any such costs, whichever is earlier.
Catchwords:	APPEAL – appeal from Local Court – appeal against conviction for environmental offence – carry out reclamation work without permit – construction of retaining wall and concrete boat ramp on water land – whether involved “reclamation work” – meaning of “reclamation work” – whether works proved to involve reclamation work
Legislation Cited:	Crimes (Appeal and Review) Act 2001 ss 33, 36, 49, 67, 72 Fisheries Management Act 1994 ss 3, 198, 198A, 201 Protection of the Environment Administration Act 1991 s 6
Cases Cited:	Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 Hongzhi Sun v Grant Barnes, Department of Industry (No 2) [2018] NSWLEC 203 Mouawad v The Hills Shire Council (No 2) [2013] NSWLEC 172
Texts Cited:	J E Moore, “Land by the Water” (1968) 41 Australian Law Journal 532 Macquarie Dictionary
Category:	Principal judgment
Parties:	Michael Andrew Parry (Appellant) Anthony Hugh Andrews (Respondent)
Representation:	Counsel: Mr P A Horobin (Appellant) Ms A Bonnor (Respondent)   Solicitors: Maloney Anderson Legal (Appellant) NSW Department of Primary Industries (Fisheries) (Respondent)
File Number(s):	2018/274825
Publication restriction:	Nil

Judgment

Convictions and sentences for environmental offences are imposed

1. Mr Michael Parry was convicted by the Local Court at Wentworth of two offences against s 201(1) of the Fisheries Management Act 1994 (“FM Act”) of carrying out reclamation work without the authority of a permit issued by the Minister. The first offence involved construction of a timber retaining wall inside the banks of the Murray River at Gol Gol (the retaining wall offence) and the second offence involved construction of a concrete boat ramp on the bank of and encroaching into the Murray River (the concrete boat ramp offence). The Local Court fined Mr Parry $5,000 for the retaining wall offence and $2,500 for the concrete boat ramp offence, ordered a moiety of the fines to be paid to the prosecutor, and ordered Mr Parry to pay the prosecutor’s costs in the amount of $12,000.

Leave to appeal against convictions and sentences is sought

2. Mr Parry sought leave to appeal against the convictions and sentences under s 33(1)(a) of the Crimes (Appeal and Review) Act 2001 (“CAR Act”). Mr Parry had the right to appeal against the convictions and sentences for the offences under s 31(1) of the CAR Act within 28 days after the sentences were imposed (which was on 4 July 2018). Mr Parry’s solicitor, in error, initially appealed on 27 July 2018 against the convictions and sentences to the District Court, rather than to the Land and Environment Court. He later withdrew the appeal in the District Court, and recommenced, by summons seeking leave to appeal filed on 13 August 2018, in this Court, which has the jurisdiction to hear appeals against convictions and sentences for environmental offences. This application for leave to appeal was made within three months after the convictions and sentences were imposed on 4 July 2018 (see 33(2) of the CAR Act).

3. This Court must not grant leave to appeal under s 33 of the CAR Act unless it is satisfied that it is in the interests of justice that leave be granted: s 36(2) of the CAR Act. The prosecutor, who is the respondent on the application for leave to appeal, did not oppose leave to appeal being granted.

4. The cause of the delay was the commencement of the appeal in the wrong court, being the District Court instead of this Court. The appeal to the District Court was lodged within the 28 days appeal period, but in the wrong court. The error was explained by Mr Parry’s solicitor: he had simply made a mistake believing that appeals from the Local Court went to the District Court. Upon being informed by the prosecutor’s lawyers on 31 July 2018 that this Court was the appropriate jurisdiction to hear and determine appeals against convictions and sentences for environmental offences, he took steps to commence proceedings in this Court, doing so on 13 August 2018.

5. In these circumstances, I am satisfied that it is in the interests of justice to grant Mr Parry leave to appeal against the convictions imposed by the Local Court.

6. Although Mr Parry initially sought leave to appeal against both the convictions and the sentences, he later decided only to press for leave to appeal against the convictions and to seek leave under s 67(1) of the CAR Act to withdraw his application for leave to appeal against the sentences. The prosecutor did not oppose such leave being granted. At the hearing, I granted leave to Mr Parry to withdraw his application for leave to appeal against the sentences.

7. I therefore now grant Mr Parry leave to appeal under s 31(1) of the CAR Act against the convictions imposed by the Local Court for the offences against s 201(1) of the FM Act.

The grounds of appeal against the convictions

8. Mr Parry contended that Magistrate Pearce of the Local Court erred in convicting Mr Parry of the two offences in three ways:

“1. On a question of law to the extent the construction of the term ‘reclamation work’ did not require a finding that the work had resulted in accretion or advancement on the water land;

2. In finding that the prosecution had discharged its evidentiary burden in proving that the appellant had carried out work that was ‘reclamation work’; and

3. Further to the second ground, in drawing conclusions of mixed fact and law based on admissions made by the appellant.”

9. The primary ground was the first ground, as the second and third ground depended to a large extent on Mr Parry succeeding on the first ground.

Ground 1: meaning of “reclamation work”

The offence provisions

10. The offence against s 201(1) of the FM Act is:

“A person must not carry out dredging work or reclamation work except under the authority of a permit issued by the Minister.”

11. The section does not apply to certain types of works specified in s 201(2) of the FM Act, none of which apply in this case.

12. The concept of “reclamation work” is defined in s 198A of the FM Act as follows:

“reclamation work means any work that involves:

(a) using any material (such as sand, soil, silt, gravel, concrete, oyster shells, tyres, timber or rocks) to fill in or reclaim water land, or

(b) depositing any such material on water land for the purpose of constructing anything over water land (such as a bridge), or

(c) draining water from water land for the purpose of its reclamation.”

13. “Dredging work” is also defined in s 198A of the FM Act, although Mr Parry was not charged with carrying out dredging work. Nevertheless, as Mr Parry argued that dredging work is the converse of reclamation work, the definition should be provided:

“dredging work means:

(a) any work that involves excavating water land, or

(b) any work that involves moving material on water land or removing material from water land that is prescribed by the regulations as being dredging work to which this Division applies.”

14. Both “reclamation work” and “dredging work” refer to carrying out work on “water land”, which is defined in s 198A as follows:

“water land means land submerged by water:

(a) whether permanently or intermittently, or

(b) whether forming an artificial or natural body of water,

and includes wetlands and any other land prescribed by the regulations as water land to which this Division applies.”

15. “Wetlands”, referred to in the definition of “water land”, are defined as:

“wetlands includes marshes, mangroves, swamps, or other areas that form a shallow body of water when inundated intermittently or permanently with fresh, brackish or salt water, and where the inundation determines the type and productivity of the soils and the plant and animal communities.”

16. The offence against s 201(1) is one of two offences for dredging or reclamation without the authority of a permit issued by the Minister under the FM Act (the other being in s 200(1)). They are contained in a particular division dealing with dredging and reclamation, Division 3 of Part 7 of the FM Act. The objects of Div 3 are stated in s 198 to be:

“The objects of this Division are to conserve the biodiversity of fish and aquatic vegetation and to protect fish habitat by providing for the management of dredging work and reclamation work, consistent with the objectives of ecologically sustainable development.”

17. The concept of “habitat” is defined in s 4(1) of the FM Act to be:

“habitat means any area occupied, or periodically or occasionally occupied, by fish or marine vegetation (or both), and includes any biotic or abiotic component.”

18. The concept of “ecologically sustainable development” is defined in s 4(1) of the FM Act to have the same meaning as under s 6(2) of the Protection of the Environment Administration Act 1991. This definition identifies the principles of ecologically sustainable development to include the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity, and improved valuation, pricing and incentive mechanisms, including the polluter pays principle.

19. These principles of ecologically sustainable development are reinforced in the objects of the FM Act in s 3:

“(1) The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations.

(2) In particular, the objects of this Act include:

(a) to conserve fish stocks and key fish habitats, and

(b) to conserve threatened species, populations and ecological communities of fish and marine vegetation, and

(c) to promote ecologically sustainable development, including the conservation of biological diversity,

and, consistently with those objects:

(d) to promote viable commercial fishing and aquaculture industries, and

(e) to promote quality recreational fishing opportunities, and

(f) to appropriately share fisheries resources between the users of those resources, and

(g) to provide social and economic benefits for the wider community of New South Wales, and

(h) to recognise the spiritual, social and customary significance to Aboriginal persons of fisheries resources and to protect, and promote the continuation of, Aboriginal cultural fishing.”

Mr Parry’s construction of “reclamation work”

20. Mr Parry contended that the concept of “reclamation work” is the converse of “dredging work”. Dredging involves excavating water land or removing material from water land, these being works that diminish water land by removing it. Reclamation involves some element of accretion of water land, being works that have the effect of advancing on water land.

21. Mr Parry noted that the prosecutor relied on limb (a) of the definition of “reclamation work” for the offences charged against Mr Parry. Limb (a) involves using any material to “fill in” or “reclaim” water land. Mr Parry submitted that work falling within limb (a) cannot merely involve depositing material on water land, otherwise limb (a) would not be different to limb (b) of the definition of “reclamation work”.

22. Mr Parry submitted that work either to “fill in” or to “reclaim” water land must result in the accretion or advancement of the adjoining land into the water land. Mr Parry submitted that works of the kind he undertook, being the construction of the retaining wall inside the river bank and the pouring of a concrete boat ramp, did not result in the required accretion or advancement on water land: they neither filled in nor reclaimed the water land.

23. For completeness, Mr Parry also submitted that the works he carried out did not fall within limb (b) of the definition of “reclamation work”. Although the placing of the steel piles and timber for the retaining wall and the pouring of the concrete on the boat ramp involved depositing material on water land for the purpose of constructing structures, neither structure was constructed “over” water land. Mr Parry submitted that for a structure to be “over” water land there needs to be a gap between the structure and the water land, such as would occur with a bridge, which is the example given in limb (b). There is no gap in this sense between the water land and the structures constructed by Mr Parry of the retaining wall and the concrete ramp on the water land.

24. Mr Parry contended that the magistrate did not adopt and apply this construction of “reclamation work” and thereby erred on a question of law.

The prosecutor’s construction of “reclamation work”

25. The prosecutor submitted that it is wrong to approach the construction of “reclamation work” on the assumption that it is the converse of “dredging work”. True it is that s 201(1) of the FM Act makes carrying out both dredging work and reclamation work offences unless the work is done under the authority of a permit issued by the Minister. But each type of work is defined separately. The definitions of “reclamation work” and “dredging work” are independent of each other. There is no interrelationship, either express or implied, between the two types of work or their definitions.

26. In these circumstances, the prosecutor submitted that there is no warrant to read the actions described in limbs (a), (b) or (c) of the definition of “reclamation work” as involving the converse of the actions described in limbs (a) or (b) of the definition of “dredging work”.

27. The prosecutor noted that limb (a) of the definition of “reclamation work” involves carrying out either or both of two actions: the filling in or the reclaiming of water land.

28. Starting with the action of reclaiming water land, the prosecutor noted that the word “reclaim” is not defined in the FM Act. It is an ordinary English word and bears it ordinary meaning. The prosecutor noted that:

“The grammatical meaning provided by the Macquarie Dictionary is ‘1. To bring (wild, waste, or marsh land) into a condition for cultivation or other use’. Similarly, the Compact Oxford English Dictionary defines ‘reclaim’ as ‘1. Retrieve or recover, 2. bring (waste land or land formerly under water) under cultivation’. This is what the construction of a retaining wall along an (otherwise natural) riverbank does; it brings the river back from a “wild” condition into a condition for cultivation or other use. In other words, it turns a natural riverbank into a cultivated riverbank.”

29. The prosecutor submitted that because reclamation work in limb (a) includes not only the filling in of water land but also the reclaiming of water land, the action of reclaiming water land must extend beyond the action of filling in water land. The two terms should not be conflated. They must be given distinct meanings if “reclaim” is to have work to do. As such, it is particularly important that the parameters of the word “reclaim” should embrace, conceptually, turning a natural riverbank into an artificial riverbank.

30. The prosecutor submitted that a narrow interpretation which notionally excludes from “reclamation work” retaining walls or concrete boat ramps constructed on the land within the bank of a river would subvert the purposes and the administration of the FM Act. This would be a significant and unintended consequence. Any such interpretation should give way to one which gives the FM Act its intended effect.

31. The prosecutor disputed that “reclamation work” must result in “accretion” of or “advancement” on water land. The concept of accretion of land by water is the opposite of erosion of land by water, referring to the article by J E Moore, “Land by the Water” (1968) 41 Australian Law Journal 532 at 535-536, 538. Accretion is a “gradual, slow and imperceptible” process; it does not include artificial reclamation: at 536. Hence, the prosecutor submitted, it would be wrong to equate reclaiming water land with accretion of water land.

32. Turning to the action of filling in water land, the prosecutor submitted that the work of filling in water land with material does not require that the water land be filled to the top with the material. Limb (a) of the definition of “reclamation work” refers to using material “to fill in” water land – this refers to the process of filling in water land and does not demand the result that the water land be filled in to the top. Such a construction is consonant with the objects of Div 3 (in s 198) and the objects of the FM Act (in s 3). These objects include conserving the biodiversity of fish and aquatic vegetation and protecting fish habitat. Any filling in of water land with material would be contrary to these objects, by harming aquatic vegetation and fish habitat, regardless of whether the water land is filled to the top with the material.

33. The prosecutor submitted that filling in or reclaiming water land includes displacing water in the water land by using or depositing material on the water land. The definition of “water land” includes the water and is not limited to only the land beneath or beside the water of the water land. This is evident from the reference in the definition of “water land” to the land being submerged by water, the fact that such submerging by water can be permanent or intermittent and form either an artificial or natural body of water, and the inclusion in “water land” of wetlands, which in turn are defined by reference to physiographic features inundated by water intermittently or permanently. It is also evident from limb (c) of the definition of “reclamation work” that refers to draining water from water land.

34. The prosecutor submitted that the actions of Mr Parry in constructing the retaining wall and the concrete boat ramp fell within limb (a) of the definition of “reclamation work”.

35. The prosecutor submitted that the construction of the retaining wall both filled in and reclaimed water land. The construction involved sinking vertically steel posts and laying horizontally timber sleepers inside (on the riverside) of the eroded riverbank and backfilling any gap between the retaining wall and the riverbank with soil removed from the holes drilled for the posts of the retaining wall or from the trench for the boat ramp. The result was to fill in the three dimensional space of the water land formed by, in width, the riverbank on the landward side and the retaining wall on the riverside, in length, the length of the retaining wall (34.35m) and, in height, the height of the retaining wall above the riverbed (between 0.6 to 1.1m). That three dimensional space, which was previously water land, was filled in or reclaimed to become solid land, an encroachment of the adjoining land into the water land. The riverbank was turned from being a natural riverbank to being an artificial or cultivated riverbank.

36. The prosecutor submitted that the pouring of a concrete slab over the previous soil-based boat ramp both filled in and reclaimed water land at the location of the boat ramp. The concrete slab was measured to be 7.7m long and 3.5m wide but with unascertainable depth, and was estimated to comprise 5.6m3 of concrete.

37. The prosecutor submitted that the soil bed of the water land was filled in by the deposition of this volume of concrete. The three dimensional space of the concrete boat ramp covers the soil bed and bank of the river and displaces the water of the water land at the location of the boat ramp.

38. The prosecutor submitted that the construction of the concrete boat ramp also reclaimed the water land on which the concrete boat ramp was constructed. It turned water land which was in a (more) natural state into a cultivated state to assist in launching boats from Mr Parry’s property. The deposition of concrete over the soil of the bed and bank of the river impeded achievement of the objects of Div 3 (in s 198) and of the FM Act (in s 3), including to conserve the biodiversity of fish and aquatic vegetation and to protect fish habitat. Concrete is a different substratum to the soil of the bed and bank of the river and removed or harmed the habitat of fish and aquatic vegetation.

29. The prosecutor also submitted that the construction of the retaining wall and concrete boat ramp fell within limb (b) of the definition of “reclamation work”. There was a deposition of materials on the water land for the purpose of constructing the retaining wall and the concrete boat ramp. Those structures can be considered to be “over” water land. The riverbed and riverbank are part of the water land, as is the water in the river of the water land. The materials were placed on the riverbed and riverbank and in this way the materials were “over” these parts of the water land. The materials were also placed over, and displaced, the water of the water land in the three dimensional space occupied by the structures.

30. For these reasons, the prosecutor submitted that the magistrate did not err in his construction and application of the definition of “reclamation work” to the works carried out by Mr Parry of constructing the retaining wall and the concrete boat ramp.

The proper construction of “reclamation work”

41. I find that Mr Parry has not established that the magistrate erred on a question of law in his construction and application of the concept of “reclamation work” under the FM Act. The concept of “reclamation work” is not to be construed in the manner submitted by Mr Parry.

42. First, “reclamation work” bears its defined meaning in s 198A of the FM Act. There is no warrant to construe that defined meaning by reference to the definition of “dredging work”. “Dredging work” bears its own defined meaning in s 198A of the FM Act. Neither definition refers to the other definition. It is therefore wrong to construe “reclamation work” as being the converse of “dredging work”. To do so involves misdirection, wrongly focusing on “dredging work” in order to ascertain what work is the opposite of dredging work so as to be “reclamation work”.

43. Secondly, the definition of “reclamation work” does not incorporate any notion of “accretion” or “advancement” into water land. Those terms are not used in the definition of “reclamation work” and there is no warrant to imply them. It is therefore wrong to construe “reclamation work” as requiring accretion or advancement of land into water land.

44. Thirdly, the definition of “reclamation work” uses broad language, emphasising the intended width of coverage of the concept of “reclamation work”. Three types of actions, each different from the other, are specified in limbs (a), (b) and (c) of the definition of “reclamation work”. This emphasises the breadth of coverage of “reclamation work”.

45. Limbs (a) and (b) of the definition of “reclamation work” refer to “any material” and reference, by way of examples, a diverse range of materials, a number of which might not ordinarily be thought of as being used to fill in or reclaim water land. This in turn points to a legislative intention to expand, not restrict, the scope of the actions of filling in or reclaiming water land.

46. Limb (a) of the definition of “reclamation work” refers to two actions, being filling in as well as reclaiming water land, which further reveals a legislative intention to expand the actions in relation to water land that can be “reclamation work”. It would be wrong to conflate the meaning of the two actions of filling in and reclaiming water land to involve only reclamation in the sense submitted by Mr Parry. Rather, the action of filling in water land must bear a different meaning to the action of reclaiming water land; filling in involves something less than reclaiming.

47. The ordinary meaning of “to reclaim” is to bring land in a natural, wild or waste state, or land formerly under water, into a condition for cultivation or other use (see Macquarie Dictionary and Compact Oxford English Dictionary definitions). In the context of using material in or on water land, the action of reclaiming water land involves placing material in or on water land so to bring land formerly under water, whether permanently or intermittently, into a condition for cultivation or other use. The material placed on the water land to bring it into a condition for cultivation or other use could come from the water land itself, such as by dredging part of the bed of water land and depositing the dredged material elsewhere on the water land, but could also be imported materials used to fill the water land. Whatever the source of the material that is used, the end to be achieved by reclamation is to bring an area of land formerly under water into a condition for cultivation or other use.

48. Filling in of water land refers to using material in or on water land, of a nature, in a volume or to an extent that is less than what is involved in reclaiming water land. For example, it can involve depositing less fill on water land than would be required to bring an area of land into a condition for cultivation or other use: the area might only be partially filled and not raised above the water level so as to be able to be cultivated or otherwise used. This accords with the ordinary meaning of “to fill” which includes “to put, as contents, into a receptacle” (Macquarie Dictionary). To put any materials as contents into water land, including the water of water land, fills in water land.

49. Limb (b) of the definition of “reclamation work” refers to the “depositing” (an action with wide scope) any material on water land for the purpose of constructing “anything” (a result of wide scope) over water land. This again points to a legislative intention to expand, not restrict, the scope of “reclamation work”.

50. Fourthly, the definition of “reclamation work” focuses on the process of carrying out certain work and does not demand a result. “Reclamation work” is work that involves the actions referred to in limbs (a), (b) and (c), namely “using” any material, “depositing” any such material and “draining” water respectively. True it is that these actions are described to be for some end – using materials to fill in or reclaim water land, depositing material for the purpose of constructing anything over water land or draining water from water land for the purpose of its reclamation – but it is the carrying out of these actions for this end that constitutes the carrying out of reclamation work, not the achievement of the end.

51. For example, the initial draining of water from water land in preparation for the later reclamation of the water land will constitute reclamation work, without the necessity to await the actual reclamation of the water land. Similarly, the action of filling in water land refers to a process and does not demand a result. A person can be seen to fill in water land by using any material to fill in water land, without the necessity to wait until the water land is filled in to the highest level to which water may rise on the water land.

52. Fifthly, the actions of “filling in” and “reclaiming” water land should be construed in the context of the statutory provisions in which the concept of “reclamation work” is used in Div 3 of Part 7 of the FM Act and having regard to the objects of Div 3 (in s 198) and of the FM Act (in s 3). Division 3 of Pt 7 of the FM Act (such as ss 199, 200 and 201) has as its object the conservation of the biodiversity of fish and aquatic vegetation and the protection of fish habitat by providing for the management of dredging and reclamation work, consistent with the objectives of ecologically sustainable development (s 198). The objects of the FM Act include conserving fish stocks and key fish habitats and promoting ecologically sustainable development, including the conservation of biological diversity (s 3(2)(a) and (c)).

53. A proper construction of the concept of “reclamation work”, and its component words and phrases, needs to promote, not hinder, the achievement of these objects. Construing the concept of “reclamation work” and the actions of filling in and reclaiming water land narrowly, so as to restrict the types of works that can fall within this concept and these actions, would hinder the achievement of the objects. A narrow construction, such as urged by Mr Parry, would exclude some actions in or on water land that might harm the biodiversity of fish or aquatic vegetation or fish habitat of the water land. A broad construction, such as urged by the prosecutor, would include actions in or on water land that might harm the biodiversity of fish and aquatic vegetation or fish habitat of the water land. A purposive construction favours a broad, rather than a narrow, construction.

54. Sixthly, the actions referred to in limbs (a) and (b) of the definition of “reclamation work” need to be construed by reference to the concept of “water land”. That concept is broadly defined in s 198A. Importantly, water land includes the water of the water land, as the definitions of “reclamation work”, “water land” and “wetlands” make plain. The water is, of course, the habitat of fish and aquatic vegetation. The definition of “habitat” means any area occupied by fish and includes any biotic or abiotic component. The water is an abiotic component of the environment of water land and is occupied by fish. Actions that displace or drain water from water land harm that habitat. This supports construing the actions referred to in limbs (a) and (b) of the definition of “reclamation work” broadly, not narrowly.

55. Applying this construction of the concept of “reclamation work” to the works carried out by Mr Parry, I find beyond reasonable doubt that construction of both the retaining wall and the concrete boat ramp involved reclamation work.

56. Construction of the retaining wall involved using materials (including steel posts, timber sleepers and soil) to fill in and reclaim water land. The materials were placed on the riverbed inside the eroded riverbank, both the riverbed and riverbank being within water land. The materials filled in part of the water land, being the three dimensional space occupied by the retaining wall structure. This was not a de minimis structure. It was 34.35m in length, between 0.6-1.1m in height and of variable width, including the width of the timber sleepers (around 100mm) and the backfilled soil between the timber sleepers and the eroded riverbank. The retaining wall and backfill covered the natural riverbed and riverbank and displaced water, altering the habitat of the fish and aquatic vegetation in that area. This action, with this consequence, fell within the concept of filling in water land.

57. The action of constructing the retaining wall, with its consequence, also involved reclaiming water land. The area occupied by the retaining wall and backfill abutted the riverbank and resulted in the adjoining land encroaching into the water land of the Murray River. The retaining wall and backfill were constructed to the level of the water of the water land and graded into the adjoining land of the riverbank. Mr Parry said at the trial that the height of the river extends nearly to the top of the wall and waves from boats go straight over it. The filling in of water land, in this location and to this height, so as to cause the adjoining land to encroach into the water land, involved reclaiming the water land. The area of land formerly under water but now occupied by the retaining wall and backfill were brought into a condition that enabled another use than as water land.

58. Although it is not necessary, in order to reclaim water land, for there to be an advancement into water land, for the reasons I have given earlier, as a matter of fact the actions of constructing the retaining wall and backfilling between the retaining wall and riverbank in this case did result in an advancement of the adjoining land into the water land.

59. Construction of the concrete boat ramp involved filling in water land, but not reclaiming water land. Concrete was poured over the soil bed of the existing boat ramp. The resultant structure was not de minimis. It was 7.7m in length and 3.5m in width and comprised 5.6m3 of concrete. The concrete slab covered the soil of the riverbed and riverbank and displaced water, altering the habitat of fish and aquatic vegetation in that area. This action, together with its consequence, fell within the concept of filling in water land. It matters not that the concrete slab did not raise the land to above the level of the water of the water land or bring the land into a condition for cultivation or other use. To have done that would have involved reclaiming the water land. But filling in water land involves something less than reclaiming water land, for the reasons given earlier.

60. For these reasons, the magistrate did not err in his construction of the concept of “reclamation work” or his application of that concept to find that the construction of both the retaining wall and the concrete slab involved reclamation work.

Ground 2: proving work was “reclamation work”

61. The second ground of challenge to the convictions was that the prosecutor had not proven beyond reasonable doubt that the works carried out by Mr Parry in constructing the retaining wall and the concrete boat ramp involved reclamation work. Mr Parry contended that, although the prosecutor had proven that Mr Parry had done the work of constructing the retaining wall and the concrete boat ramp, the prosecutor had not proven that those works amounted to “reclamation work” within the meaning of the concept in s 198A of the FM Act.

62. To a large extent, this second ground depended on Mr Parry succeeding on his argument on the first ground that “reclamation work” is the converse of “dredging work” and must involve accretion or advancement into water land. Mr Parry contended that the prosecutor had not established that the works carried out by Mr Parry involve such accretion or advancement into water land. My rejection of Mr Parry’s construction of the concept of “reclamation work” has the consequence that it was not necessary for the prosecutor to prove that the works carried out by Mr Parry were the converse of dredging work or that they involved accretion or advancement into water land. The prosecutor simply had to prove that the works fell within the definition of “reclamation work”. The prosecutor discharged that onus to the requisite criminal standard.

63. Mr Parry criticised the prosecutor’s case for relying almost entirely on admissions by Mr Parry and for not relying on adequate investigation of the works by the departmental officers. Mr Parry criticised the investigation undertaken by the departmental officers as being “limited”. Mr Parry was critical that the officers did not “conduct a study or survey the relevant lands [to] determine the boundary between the appellant’s property or otherwise measure the degree of encroachment into the river”. Mr Parry submitted that:

“The failure to quantify in any way the degree of encroachment said to have been caused by either the retaining wall or boat ramp is fatal to the prosecution’s attempt to prove the first element of the offence – that the works the appellant carried out in July 2015 were reclamation works, in that the work filled in or reclaimed water land.”

64. The prosecutor rebutted Mr Parry’s contention that the evidence before the magistrate was insufficient to prove beyond reasonable doubt that the works carried out by Mr Parry involved reclamation work. The prosecutor referred to the evidence of departmental officers that described, measured and photographed the works carried out by Mr Parry. This evidence was corroborated by Mr Parry’s evidence describing the works he had undertaken. Collectively, this evidence established beyond reasonable doubt that the works fell within the definition of “reclamation work”. There was no need for survey evidence to measure and prove the degree of encroachment. It was sufficient to prove that the works involved work within the definition of “reclamation work”.

65. I reject this second ground of challenge to the convictions. The evidence adduced by the prosecutor was sufficient to establish, beyond reasonable doubt, that the works carried out by Mr Parry involved “reclamation work” as defined in s 198A. The prosecutor could have adduced additional evidence, including a survey of the works, such as was suggested by Mr Parry, but it was not necessary to do so in order to discharge the onus on the prosecutor. The evidence that the prosecutor did adduce and that was otherwise before the Court below was sufficient to discharge the onus to prove beyond reasonable doubt that the works carried out by Mr Parry involved reclamation work. The departmental officers’ descriptions, measurements and photographs of the retaining wall and the concrete boat ramp clearly established that the works involved reclamation work on water land. Mr Parry’s evidence about the works supplemented the departmental officers’ evidence in establishing that the works involved “reclamation work”.

Ground 3: relying on admissions of the defendant

66. The third ground of challenge to the convictions was that the prosecutor’s case and the magistrate’s judgment relied significantly on admissions made by Mr Parry in the transcription of the electronic record of interview conducted by departmental officers on 15 July 2015. Mr Parry in the interview admitted that he was aware that he would need a permit to do the work he did. Mr Parry explained that he did not apply for a permit because he did not think he would be able to obtain one and carry out the work in the period of the drawdown of the weir pool which had exposed the riverbed and riverbank and enabled the works to be undertaken.

67. Mr Parry submitted that his answers in the interview that he did not have a permit and that he understood that he was required to have a permit were not relevant to the facts in issue or his guilt because Mr Parry had admitted the absence of a permit under the FM Act as part of the statement of agreed facts tendered by consent in the Court below.

68. Mr Parry submitted that the magistrate appeared to have concluded that Mr Parry’s admissions meant that not only did Mr Parry not have a permit (which was not contested) but that a permit was required for the works carried out by Mr Parry because the works involved reclamation work. Mr Parry submitted that the latter conclusion is a conclusion of a matter of law, or at least of mixed fact and law, in that whether a permit was required turns on the construction of the meaning of reclamation work, which is a question of law.

69. Mr Parry referred to Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [68]-[71] where Gummow J endorsed the view that a party cannot be asked to admit a conclusion depending on a legal standard. Consequently, Mr Parry submitted, such an admission was of no value to the magistrate in assessing whether the work undertaken by Mr Parry was reclamation work and thereby required a permit.

70. The prosecutor contested that the only basis on which the magistrate found that the works carried out by Mr Parry involved reclamation work was the admission made by Mr Parry about knowing that a permit was required to carry out reclamation work. The prosecutor reiterated that the evidence before the magistrate describing, measuring and photographing the works carried out by Mr Parry established beyond reasonable doubt that the works involved reclamation work as defined.

71. I reject the third ground of challenge to the convictions. The magistrate’s findings that the works carried out by Mr Parry involved reclamation work were not dependent on the admission of Mr Parry that he knew a permit was required to carry out the work he did, but rather were founded on the evidence concerning the works themselves. The magistrate did refer in his judgment to Mr Parry’s admission but that was introductory to his discussion of the evidence of Mr Parry and the departmental officers concerning the works carried out by Mr Parry.

72. The magistrate correctly noted that it was only necessary for the prosecutor to prove that Mr Parry did the acts which constitute the offence, not that he intended to breach the particular provision of the FM Act (s 201(1)). The magistrate identified five questions to be decided: first, did Mr Parry carry out the work alleged; secondly, what work did he do; thirdly, where did he do the work; fourthly, is the work on water land; and finally, is that work reclamation work. The magistrate answered these questions by reference to the evidence before the Court, including the agreed statement of facts, photographs of the works, emails and other documents, evidence of the departmental officers, and the transcript of the electronic record of interview with Mr Parry. The magistrate’s findings answering these questions did not depend on Mr Parry’s admission that he knew that a permit was required to do the work that he did. Rather, the magistrate referred to, and made findings based on, the evidence describing, measuring and photographing the works and their location in the river.

66. Mr Parry’s third ground therefore fails factually. The magistrate’s findings that the works carried out by Mr Parry involved reclamation work were not “significantly” based on Mr Parry’s admission that he knew that he needed a permit to do the work.

Conclusion and orders

74. Mr Parry has not established any ground on which the convictions imposed on him for the two offences against s 201(1) of the FM Act should be set aside. The appeal should be dismissed.

75. The prosecutor sought an order that Mr Parry pay the prosecutor’s costs of the appeal under s 49(4) of the CAR Act. That section permits the Court to make such order as to costs to be paid by either party as it thinks just. The prosecutor submitted that it is just that it should be compensated for its costs in successfully defending the appeal. The prosecutor sought an order pursuant to s 72(b) of the CAR Act specifying the time of 28 days from the date of the Court’s order by which Mr Parry should pay the costs ordered by the Court.

76. Mr Parry did not agree to the costs order sought by the prosecutor, but did not make any submissions in opposition to such an order.

77. I consider that it is just in the circumstances for Mr Parry to be ordered to pay the prosecutor’s costs of the appeal. The prosecutor should be compensated for its costs in successfully defending the appeal brought by Mr Parry. There is no disentitling conduct of the prosecutor, including at the trial in the Court below or at the hearing of the appeal in this Court.

78. Section 72(b) of the CAR Act requires the Court to state a time within which the costs, which are ordered to be paid, must be paid. In this case, the amount of the prosecutor’s costs have yet to be agreed or assessed. This needs to be done before Mr Parry can pay the costs. The solution is to fix a period of time, such as the 28 days requested by the prosecutor, after the amount of costs has been agreed or assessed. This was the order made in Mouawad v The Hills Shire Council (No 2) [2013] NSWLEC 172 and Hongzhi Sun v Grant Barnes, Department of Industry (No 2) [2018] NSWLEC 203.

79. The Court:

1. Grants leave to appeal against the convictions imposed on the appellant, Michael Andrew Parry, by the Local Court on 4 July 2018 for two offences against s 201(1) of the Fisheries Management Act 1994.

2. Dismisses the appeal.

3. Orders the appellant to pay the costs of the appeal of the respondent, as agreed or assessed, with such costs to be paid within 28 days after an agreement as to the amount of costs has been made or the issue of a certificate of assessment of any such costs, whichever is earlier.

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Decision last updated: 19 June 2019