Port Stephens Council v SS & LM Johnston Pty Ltd; Port Stephens Council v Port Stephens Veterans and Citizens Aged Care Limited
[2007] NSWLEC 30
•30 January 2007
Reported Decision: (2007) 152 LGERA 193
Land and Environment Court
of New South Wales
CITATION: Port Stephens Council v SS & LM Johnston Pty Ltd; Port Stephens Council v Port Stephens Veterans and Citizens Aged Care Limited [2007] NSWLEC 30 PARTIES: Proceedings 50019 of 2006
PROSECUTOR
Port Stephens Council
DEFENDANT
SS & LM Johnston Pty LtdProceedings 50020 of 2006
PROSECUTOR
Port Stephens Council
DEFENDANT
Port Stephens Veterans and Citizens Aged Care LimitedFILE NUMBER(S): 50019 of 2006; 50020 of 2006 CORAM: Jagot J KEY ISSUES: Prosecution :- clearing - whether development consent required - whether exempt development - onus of proof - evidential burden LEGISLATION CITED: Dividing Fences Act 1991
Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Rural Fires Act 1997
State Environmental Planning Policy No 44 – Koala Habitat
Port Stephens Local Environmental Plan 2000CASES CITED: City of Sydney Council v Royal Botanic Gardens and Domain Trust [2004] NSWLEC 285;
Director General, Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242;
Electricity Commission of New South Wales v Environment Protection Authority (1992) 28 NSWLR 494;
Environment Protection Authority v Land and Environment Court (NSW) (2004) 134 LGERA 140;
Environment Protection Authority v Leaghur Holdings Pty Ltd (1995) 87 LGERA 282;
Gibb v The Commissioner of Taxation of the Commonwealth of Australia (1966) 118 CLR 628;
Jolly v The District Council of Yorketown (1967) 119 CLR 347;
Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302;
Tickner and Others v Chapman and Others (1995) 57 FCR 451;
Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707;
Youssef v R (1990) 50 A Crim R 1
DATE OF JUDGMENT:
30 January 2007LEGAL REPRESENTATIVES: PROSECUTOR
Mr T Howard
SOLICITORS
Harris WheelerProceedings 50019 of 2006
Proceedings 50020 of 2006
DEFENDANT
Mr J Loxton
SOLICITORS
John Edmunds, Solicitor
DEFENDANT
Mr M Neil QC with Mr D Wilson
SOLICITORS
Turner Freeman
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
30 January 2007
50019 of 2006
PORT STEPHENS COUNCIL
ProsecutorSS & LM JOHNSTON PTY LTD
Defendant50020 of 2006
PORT STEPHENS COUNCIL
ProsecutorJUDGMENTPORT STEPHENS VETERANS AND CITIZENS AGED CARE LIMITED
Defendant
Jagot J:
A. The charges
1 Port Stephens Council has charged each of Port Stephens Veterans and Citizens Aged Care Ltd (Veterans) and SS and LM Johnston Pty Ltd (Johnston) with having committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 by carrying out development that may not be carried out except with development consent without that consent, contrary to s 76A(1)(a) of that Act.
2 In particular, the Council alleged that:
(1) Veterans owned land, being lot 1 in DP 1074566, formerly lot 157 in DP 27047, known as 232 Soldiers Point Road, Soldiers Point (the land).
(2) Port Stephens Local Environmental Plan 2000 (the LEP 2000) applied to the land.
(3) Under cll 10 and 16 of the LEP 2000, the carrying out of clearing on the land was development that required development consent.
(4) Veterans engaged and instructed Johnston to carry out clearing on the land.
(6) Development consent had not been obtained with respect to that clearing.(5) Johnston, in accordance with that engagement and those instructions and by and on behalf of Veterans, carried out clearing on the land by its servants or agents using an excavator between 31 May and 3 June 2004.
3 The defendants denied the charge. They submitted that:
(1) The LEP 2000 did not identify specified development that may not be carried out on land within the relevant 2(a) zone except with development consent within the meaning of s 76A(1)(a) of the Act.
(2) The definition of “clearing” in the LEP 2000 was inoperative and/or meaningless because it depended upon the Council having adopted a tree preservation order, and the Council conceded that there was no tree preservation order in force in its local government area. Further or alternatively, the tree preservation order provisions of the LEP 2000 covered the field. Absent an adopted tree preservation order, there could be no offence as charged.
(3) Accordingly, each summons was defective in that it did not identify any specified development that may not be carried out on land except with development consent within the meaning of s 76A(1)(a) of the Act.
(4) The activity or operation carried out by Johnston on behalf of Veterans was not “development” within the meaning of s 4(1) of the Act. The fact that an instrument defines a term does not make that term “development”. Alternatively, I could not be satisfied beyond reasonable doubt that the activity or operation carried out on the land was development.
(6) The activity or operation carried out by Johnston on behalf of Veterans was part of a larger activity, granted consent by the Council subsequently, that involved clearing of 5 hectares of the land, when the definition of “clearing” was limited to an area up to 2 hectares. Hence, the activity was not clearing as charged.(5) The development was exempt development, being within two categories of development identified as such by the Council’s development control plan (development for the purpose of a boundary fence and/or development for the purpose of bushfire hazard reduction). Alternatively, the Council had not established beyond reasonable doubt that the carrying out of the clearing was not exempt development within the meaning of s 76(2) of the Act.
4 Veterans also relied on the defence of honest and reasonable mistake of fact.
5 The defendants agreed to the proceedings being heard together and that evidence admitted in one be admitted in the other, except where excluded by specific order. The Council accepted that if it had not proved the charge against Veterans then it could not succeed against Johnston, irrespective of the difference in the evidence admitted against each.
B. Statutory provisions and instruments
The EPA Act
6 Div 1 of Pt 4 of the Act refers to the threefold classification of development – development that does not need consent (s 76), development that needs consent (s 76A) and development that is prohibited (s 76B). “Development” is defined in s 4(1) as follows:
(a) the use of land, anddevelopment means:
(b) the subdivision of land, and
(c) the erection of a building, and
(d) the carrying out of a work, and
(e) the demolition of a building or work, and
(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,
but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.
7 Section 76A(1) provides that:
If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
8 Development that does not need consent includes exempt development. Exempt development is defined in s 4(1) as development for which provision is made as referred to in s 76(2). Sections 76(2) and (3) provide that:
(2) Exempt development
An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development.
(3) If development is exempt development:
(a) the development may be carried out, in accordance with the instrument, on land to which the provision applies without the need for development consent, unless that land:
(i) is critical habitat, or
(ii) is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987), and
A provision made under subsection (2) has no effect at any time during which the land is land to which paragraph (a) (i) or (ii) applies.(b) Part 5 does not apply to the development.
9 The Council submitted that the activity carried out by Johnston on the land at Veterans’ direction was both the carrying out of a work (sub-para (d) of the definition of “development”) and the doing of an act, matter or thing referred to in s 26 that was controlled by an environmental planning instrument (sub-para (f) of the definition).
10 Section 4(1) contains a definition of “control” as follows:
control , in relation to development or any other act, matter or thing, means:
(b) confer or impose on a consent authority functions with respect to consenting to, permitting, regulating, restricting or prohibiting that development or that other act, matter or thing, either unconditionally or subject to conditions.(a) consent to, permit, regulate, restrict or prohibit that development or that other act, matter or thing, either unconditionally or subject to conditions, or
11 Section 4(10) provides that:
A reference in this Act to any act, matter or thing as specified in an environmental planning instrument includes a reference to any act, matter or thing that is of a class or description as specified in such an instrument.
12 Section 26(1) provides that:
(1) Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following:
(a) protecting, improving or utilising, to the best advantage, the environment,
(b) controlling (whether by the imposing of development standards or otherwise) development,
(c) reserving land for use for the purposes of open space, a public place or public reserve within the meaning of the Local Government Act 1993, a national park or other land reserved or dedicated under the National Parks and Wildlife Act 1974, a public cemetery, a public hospital, a public railway, a public school or any other purpose that is prescribed as a public purpose for the purposes of this section,
(d) providing, maintaining and retaining, and regulating any matter relating to, affordable housing,
(e) protecting or preserving trees or vegetation,
(e1) protecting and conserving native animals and plants, including threatened species, populations and ecological communities, and their habitats,
(f) controlling any act, matter or thing for or with respect to which provision may be made under paragraph (a) or (e),
(g) controlling advertising,
(h) such other matters as are authorised or required to be included in the environmental planning instrument by this or any other Act.
13 Under s 11 of the Interpretation Act 1987, words and expressions occurring in an environmental planning instrument have the same meaning as they have in the Act, or in the relevant provisions of the Act, under which the instrument was made.
The LEP 2000
14 There was no issue about the fact that the LEP 2000 zoned the land 2(a) (Residential “A” Zone) at all relevant times.
15 Under cl 7, the Council is the consent authority for the purposes of the LEP. Clause 10(1) provides that each zone is described in development control tables indicating permissible development (with or without consent) and prohibited development.
16 Clause 16 provides that residential zones apply as shown on the map. Clause 16 includes a development control table as follows:
(1) Description of the zone
…(2) Objectives of the zone
…(3) Development allowed without development consent
Exempt development
(4) Development allowed only with development consent
Any development not included in Item (3) or (5)
Development for the purpose of:(5) Development which is prohibited
· abattoirs,
· …
- …
· warehouses.
17 The dictionary to the LEP 2000 includes the following definitions:
clearing means any manner of destruction or removal of a tree, shrub or plant (otherwise than as exempted by the Council’s adopted tree preservation order) up to an area of 2 hectares and includes the severing or lopping of branches, limbs, stems or trunks of a tree, shrub or plant.bushfire hazard reduction means the removal, burning or destruction of any inflammable matter or other material necessary for the prevention of the outbreak, spread or extension of a bushfire or other fire.
18 Clause 50 deals with tree preservation in the following terms:
(1) The Council may, by resolution, make, revoke or amend a tree preservation order.
(2) A tree preservation order, and any revocation or amendment of such an order, does not have effect until it has been published in a newspaper circulating in the Port Stephens local government area.
(3) A tree preservation order must specify the types or sizes of trees, or identify the locations of the trees, that are covered by the order.
(4) While a tree preservation order is in force, a person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree covered by the order without development consent.
(5) Subclause (4) does not apply where it can be demonstrated to the satisfaction of the consent authority that the tree is dying or dead or has become dangerous.
(6) A tree preservation order does not apply to or in respect of:
- (a) trees within a State forest, or land reserved from sale as a timber or forest reserve under the Forestry Act 1916, or
(b) action required or authorised to be done by or under the Electricity Supply Act 1995, the Electricity Safety Act 1945, the Roads Act 1993 or the Surveyors Act 1929, or
(c) plants declared to be noxious weeds under the Noxious Weeds Act 1993.
19 The Council conceded that there was no tree preservation order within the meaning of cl 50(7), that no tree preservation order had been made in accordance with cl 50(1) of the LEP and that there was no adopted tree preservation order for the purposes of the definition of “clearing”.
20 Clause 49 concerns exempt development. It provides that:
(1) Development of minimal environmental impact listed as exempt development in Development Control Plan PS8—Guidelines for Exempt and Complying Development as adopted by the Council on 24 February 2003 is exempt development, despite any other provisions of this plan except for clause 51A (Acid sulfate soils).
(2) …
(3) Development is exempt or complying development only if it complies with the development standards and other requirements applied to the development by Development Control Plan PS8—Guidelines for Exempt and Complying Development as adopted by the Council on 24 February 2003.
(4) .…
The DCP
21 There was no issue about the fact that Development Control Plan PS8 Guidelines for Exempt and Complying Development (the DCP) applied to all land within Port Stephens and to any development that was exempt development (cl 3). The DCP objectives include identifying exempt development and where it could be carried out (cl 4). Clause 5 provides that the LEP takes precedence over any inconsistent provision in the DCP. Clause 6.1 is entitled “What is exempt development?”. The clause provides that:
6.0 Exempt Development
Exempt development is that development, which allows the construction of a structure or a use to occur, provided it meets specific requirements, without any approval or consent form [sic] Council.
If the development falls outside these specific requirements then the development is not exempt development and a Development Application must be submitted instead.
· is not carried out on a property identified in Port Stephens Local Environmental Plan 2000, or any other environmental planning instrument, as being located in a heritage conservation area unless specified otherwise by the words “Heritage Conservation Area Requirements” in Column 2 of Schedule 1 of this plan. The development is exempt only if it satisfied all the exemption requirements listed for that development including the additional Heritage Conservation Area exemptions listed against it in column 2 of Schedule 1 of this plan, andFor the purposes of this plan, exempt development is development of the kind listed in column 1, which meets all the corresponding exemption requirements in Column 2 of Schedule 1 of this Development Control Plan. In addition to the above, development is exempt only if it:
· does not cause interference with the amenity of the neighbourhood because of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil or otherwise, and
· is carried out a minimum of 1.0 metres from any sewer main, stormwater main or water main, and
· complies with the deemed-to-satisfy provisions of the Building Code of Australia, and
· does not require the removal, ringbarking, cutting down, topping, lopping, injuring or wilful destruction of any tree or trees specified in the Council’s Tree Preservation Order, and
· does not obstruct drainage of the site on which it is carried out, and
· does not restrict vehicular or pedestrian access to or from the site, and
· does not contravene any condition of a development consent applying to the land, and
· is a Council proposal, consistent with an adopted Plan of Management, pursuant to the Local Government Act 1993 and does not require a construction certificate, and
· is consistent with any plan of management approved under State Environmental Planning Policy No 44 – Koala Habitat.
22 Schedule 1 of the DCP, insofar as relevant, is in the following terms:
SCHEDULE 1 – EXEMPT DEVELOPMENT REQUIREMENTS
COLUMN 1 COLUMN 2 Development for the purpose of, or consisting of, any of the following Exemption Requirements Bushfire hazard reduction · Work carried out in accordance with a bush fire risk management plan under the Rural Fires Act 1997. Fences (other than fences required by the Swimming Pools Act 1992)
Boundary fences· All fences are constructed so that they do not prevent the natural flow of stormwater drainage or run off.
· Maximum height of 1.8 metres if behind the building line and constructed of timber, metal or lightweight materials
Note:
· Maximum height of 1 metre if between the building and street or any other public place and constructed of timber, metal or light weight materials.
· Maximum height of 600mm if constructed of masonry or brick.
You are advised to talk to your neighbour at any early stage and consult the Dividing Fences Act 1991.
C. The evidence
In both proceedings
Mr Burgess
23 Mr Burgess lives opposite the land (near its southern boundary fronting Diemars Road). He saw a large loader deliver an earthmoving excavator to the land on Monday, 31 May 2004. He saw the excavator move to the northern boundary of the land where it adjoined the market garden site. He could not see much because tree canopy blocked his view. The excavator repeatedly backed into his line of sight and then moved again into the bushland where he could not see it, working its way west from Soldiers Point Road. Throughout the day he could hear machinery working and the sound of trees crashing down. He heard nothing on the Tuesday or Wednesday. On the Thursday, he heard work taking place again – the revving of an engine. He saw dust flying up from the land. He took some photographs of the excavator. The loader collected the excavator on Friday, 4 June 2004. On the Friday, Mr Burgess went for a walk with his wife. They walked down Soldiers Point Road and saw a cleared area where the excavator had been working. Mr Burgess went home and got his camera. He took some photographs. Those photographs show a cleared strip of land between heavily vegetated areas, with trees trunks, tree branches and other vegetation lying in piles within or to the sides of the cleared strip. Mr Burgess saw that the cleared area was a strip along the northern boundary of the land, starting at about the house on the market garden site near the Soldiers Point Road frontage.
24 Mr Burgess knew that the land was opposite his house, but not its full extent – certainly not the northern and western extent of the land. He did not know exactly where the work was done in relation to the northern boundary of the land, but estimated its location from the houses, including the house on the market garden site - which was near that boundary. The western boundary adjoined the Council reserve and Mr Burgess did not know where one started and the other ended. He had walked around the bush on the Council reserve and the land many times. Before the events of 31 May to 4 June 2004 the cleared area was the same bushland as that around it. After June 2004, Mr Burgess observed a colour bond fence erected along the northern boundary of the land. He also observed the clearing of a much greater area of the land and the construction of aged care villas near the southern boundary. This larger cleared area included the cleared strip along the northern boundary created in May – June 2004. He had not noticed any lantana on the northern boundary of the land, but thought there might have been some bamboo on the adjoining market garden site. I accept Mr Burgess’s evidence.
Mr McElroy
25 Mr McElroy is a vegetation management officer employed by the Council and an arborist. He was familiar with the land due to his involvement with a development application that the Council had refused before May 2004. He was also familiar with the adjoining market garden site. On 1 June 2004 he observed a Samsung tracked excavator on the land. He saw that the northern boundary of the land had been cleared of trees and shrubs over an area about 12 metres wide. He saw marks on the soil in the cleared areas consistent with the tracks on a tracked vehicle. Parts of trees were to one side of the cleared area. The clearing had taken place both on the flatter part of the land and the steeper part to the west. He saw a mixture of vegetation in the windrows. The vegetation pushed to one side of the cleared area was predominantly native eucalypt. He took some photographs, including of tree trunks lying on the ground with attached root balls and new growth on them. When he returned to the Council, he searched its records and determined that Veterans owned the land and that the Council had not issued any development consent that permitted any tree or plant on the land to be removed or destroyed. Later, he received copies of photographs taken by Mr Burgess, including in digital form. An enlarged copy of one of those photographs shows an excavator with the name “…& LM Johnston Pty Ltd” visible on the side. He also marked the approximate location of the clearing he observed on a survey plan – on the northern boundary of the land. He showed that plan to Mr Tallee, an employee of Johnston who operated the excavator, and marked the general area in which trees were removed on that plan at Mr Tallee’s direction.
26 After his inspection on 1 June 2004, Mr McElroy observed that a colour bond fence had been erected along the northern boundary of the land, running along the line of the gap in the vegetation. He agreed that, to erect a fence, some clearing of vegetation might possibly be necessary. Also, that a larger area of clearing of the land had later taken place under a development consent granted by the Council. That consent authorised aged care villas to be constructed within a few metres of the colour bond fence on the northern boundary. He acknowledged that the removal of trees in that area would have been authorised by the Council to enable those villas to be constructed. The consent also included measures to reduce bushfire hazard. Mr McElroy had provided information as part of the assessment of that development application. He said that, wherever there was bushland, there was a bushfire hazard. He did not know the exact location of the boundary between the land and the market garden site and had not searched for boundary pegs. He agreed that removal of lantana from bushland was appropriate, and that removal of bamboo made no ecological difference. I accept Mr McElroy’s evidence.
Documents
27 Three invoices from Johnston (for the dates 31 May 2004, 1 June 2004 and 2 June 2004) refer to excavator hire and floatage at 232 Soldiers Point Road – “Harbour Side Village”. Johnston acknowledged that it received payment on account of those invoices from Veterans.
28 The Council tendered two tree preservation orders, one published in the NSW Government Gazette on 18 October 1996 and the other published on 24 December 1998. Both orders were made before the coming into force of the LEP 2000 (which repealed the instrument under which the tree preservation orders had been made). On the basis of the reasoning of Lloyd J in City of Sydney Council v Royal Botanic Gardens and Domain Trust [2004] NSWLEC 285, the Council conceded that these tree preservation orders ceased to have effect on the coming into force of the LEP 2000. As noted, the Council also conceded that there was no tree preservation order in force within the meaning of cl 50(7) of the LEP 2000.
29 On 4 August 2005, the Council granted development consent to development described as “urban housing (98 units and recreation facility)” on lot 1 DP 1074566 (that is, an area including the land). The carrying out of development under that consent involved the larger area of clearing referred to above.
Proceedings against Veterans only
Correspondence
30 Mr McElroy forwarded a letter to Veterans on 1 June 2004 about the removal of the trees. Veterans responded by letter under the signature of its chairman, Mr King, on 4 June 2004. In that letter Veterans stated that:
In accordance with the Dividing Fences Act 1991 an area was cleared to erect a colourbond fence between our property and the adjoining property. It was also agreed with the adjoining owner to clear exotic weeds growing on their property adjacent to our boundary at the same time.
31 The Council’s solicitor forwarded a further letter to Veterans on 3 February 2005 seeking clarification of the reason for clearing the land and Veterans’ understanding of the Dividing Fences Act 1991. Veterans’ solicitors responded on 7 March 2005 to the effect that Veterans had agreed with the adjoining owner to clear noxious weeds (bamboo and lantana) from the adjoining property. The owner of the adjoining property was concerned that the weeds acted as a windbreak protecting his crops (the adjoining property being the market garden site). They thus agreed to construct the fence to act as a windbreak. Veterans thought that they could construct the fence without approval under the Dividing Fences Act 1991, but now realised that approval was required under the Council’s tree preservation order.
32 Mr King is chairman of the board of Veterans. Before becoming the chairman, he was a director of Veterans for 25 years. Veterans is a not for profit organisation, a registered charity and public benevolent institution. It provides care and accommodation for veterans, war widows and other seniors. It has two residential villages for that purpose, with another partly completed. The land is now occupied by the Harbourside Haven Village, which has about 150 self-care villas, one 40-bed hostel, one 50-bed hostel and one 70-bed nursing home. Mr King is 79 years old and a veteran, having served in the Second AIF (1945 to 1947). He is presently a member of the New South Wales Land Board (Newcastle) and the State Planning Forum – Veterans Aged Care Services and a patron of the Nelson Bay Junior Australian Rules Football Club. He received an Order of Australia medal in 2002.
33 Veterans purchased the land at tender from Landcom in 1997, for the purpose of constructing aged care accommodation and facilities. Within months of purchase, Veterans informed the Council of its intention to use the land for that purpose. Veterans first lodged a development application to construct aged care accommodation and facilities on the land in March 2000. Some months later, in October 2000, Veterans received a letter and notice from the Rural Fire Service under s 66 of the Rural Fires Act 1997 for “2 Diemars Road, Salamander Bay”, being lot 32 DP 533796. The notice required firebreaks to be established on the land by slashing 6 metres along the property boundary and removal of inflammable material. The notice stated that it did not permit the removal of trees covered by the Council’s tree preservation order. The notice annexed the 1998 version of the tree preservation order.
34 Veterans received a further notice under s 66 in December 2001 from the Council. The property details were the same. The notice required Veterans to slash a 6 metre wide break along the north, east and western boundary perimeter and rack up and remove any excess material. The Council amended the notice on 18 December 2001 due to a concern about unreasonable interference with the habitat of endangered species. The amended notice required a 6 metre break along the eastern boundary perimeter (the boundary bordered by properties fronting Soldiers Point Road).
35 On 2 May 2001, Veterans received an email from Mr Hepplewhite, the Council’s fire officer. The email related to a meeting on the previous day about Veterans’ proposed development. The attachment to the email referred to bushfire hazard reduction requirements to be imposed on the proposed development. It also contained the statement, “That Harbourside Haven Village arrange with the adjoining landowner to have a small area of vegetation to the north of the development, that impacts upon units 91 – 96 removed. If this occurs and a 30 metre break is achieved and maintained I have no bushfire concerns regarding the northern side of the current development proposal”. The attached plan depicted units 91 to 96 on the northern boundary adjoining the market garden site, towards the western end.
36 The bushfire hazard reduction notices concerned Mr King. He was aware of the Government publication Planning for Bushfire Protection, which he understood to say that it was the responsibility of the landowner and not adjoining landowners to provide protection against bushfires.
37 The Council refused Veterans’ development application. After an appeal to the Court (which was dismissed), Veterans began to prepare a new development application almost immediately, but that application was not lodged with the Council until 18 November 2004. In February 2004, Veterans received a bushfire threat assessment it had commissioned from consultants, Harper Somers O’Sullivan. That report identified the most significant fire hazard as the open forest to the west and northwest of the land. It recommended a 75 metre asset protection zone to the north-west. An asset protection zone of that width would have undermined the economic viability of the proposed development.
38 Veterans wrote to the owner of the market garden site in December 2003 and February 2004. The first letter said that Veterans’ requirement was to “minimise the bushfire risk in order to proceed with the proposed retirement village” and that an environmental consultant had identified a parcel of vegetation on the market garden site consisting primarily of bamboo and lantana which increased the risk to the land. Veterans sought permission to have its contractors remove that parcel of vegetation. The letter said that Council permission was not required as bamboo and lantana were noxious weeds and that three large trees were in the same area and would not be removed. The letter noted that there was a degree of urgency associated with carrying out the works. The second letter said that a proposal to erect a colour bond fence on the 312 metre boundary between the two properties and the removal of the lantana and bamboo identified as a bushfire hazard had been agreed. The adjoining owner returned a signed copy of the letter as requested by Veterans in about April 2004.
39 Mr King also briefly inspected the thicket of bamboo and lantana, which was mostly on the market garden site. He thought the thicket was a fire hazard. It started close to the shed on the adjoining site. There was lantana and bamboo covering the old fence, hiding it from view. On Veterans’ side of the boundary, there was also thick bush including large trees, but none where the bamboo stand was. After Mr Talle carried out the clearing, different contractors erected most of the colour bond fence almost immediately. Mr King saw large trees lying on the ground. The clearing included an area on Veterans’ land.
41 Mr King was aware that the National Parks and Wildlife Service had concerns about the northern part of the land with respect to the first development application. The Service’s position with respect to that application was annexed to the Council’s notice of refusal of that application. The cleared area for the development mainly occupied the flat part of the land, except for the swale in the northwestern area that was located on a steeper part. The aerial photographs may show an area of clearing further to the west of the swale indicated by Mr King, but he did not know if that area was cleared or not in 2004. He considered that there was an element of urgency in the initial works (that is, the clearing the subject of the charge) because the Council would not approve the development application while the bushfire hazard remained. Mr King saw the bushfire issue as one part of the whole $92 million project. When asked why Veterans had cleared along the northern boundary he said:40 After the Council granted development consent to the second development application on 4 August 2005, Veterans hired contractors to clear the land progressively. The total area cleared was about 5 hectares moving from south to north and finishing in about March 2006. After that, the internal roads were constructed. One civil contractor did all these works. The extent of these works is apparent from aerial photographs. One is dated January 2001 and shows thick vegetation across the land. The other is dated 2006 and shows a large area of clearing extending to the southern and northern boundaries and some considerable distance west from Soldiers Point Road, as well as villas on the southern boundary and an internal road system. Mr King said that the development incorporated significant bushfire hazard reduction measures. These included a fence and hazard reduction on the western boundary between the land and the Council’s reserve and the existing colour bond fence on the northern boundary. Some of the approved villas are close to the northern boundary.
The board made a decision that the bushfire hazard had to be removed. In part of that decision was the construction of a fence. In the construction of a fence was the site preparation so the fence could be constructed.
42 This exchange followed:
Q. So may we take it from the answer that was read back to you from the transcript, Mr King, that the purpose of clearing that area along the boundary was for bushfire hazard reduction, according to your evidence?
A. No.Q. Well, how do you explain, then, the answer that you gave when I asked you what was the urgency about clearing that area and constructing the boundary fence?
A. You asked me what was the urgency, and I told you the urgency. If you want to ask me the purpose, I will answer that question. But you asked me the urgency - two different questions.Q. All right. Well, when you say that something was urgent, there was a reason for doing something urgently, insofar as there was an urgent need to carry out the clearing, that was because of the bushfire hazard; is that correct?
A. Urgent need to carry out the clearing - the need to carry out the site preparation was for the erection of the fence. The reason for the erection of the fence was bushfire protection, because it was part of the removal of a bushfire hazard. I can't really make it any clearer than that. I can't give you the answer you want.Q. Well, sir, when you're referring to the removal of a bushfire hazard, you're talking about the removal of vegetation, aren't you?
A. The lantana and the bamboo, yes.Q. Sir, when you answered my question a moment ago and said - I asked you the urgency rather than the purpose, what do you say the purpose was?Q. Well, it wasn't just the area around the thicket of lantana and bamboo which was cleared, was it?
A. It was part of the agreement we reached with the adjoining owner in order to clear it.
A. Bushfire protection.
43 When asked whether he had seen a bushfire hazard management reduction plan, Mr King said that he was aware of the directions from the Council to do something about the bushfire hazard, which started back in about 2000. He observed that the notices under the Rural Fires Act 1997 were confusing, as Veterans owned multiple parcels. Lot 32 fronted Diemars Road. The boundary between lot 32 and lot 157 ran through the middle of the land. Mr King said that slashing the northern boundary of lot 32 made no sense, as it would involve slashing through the middle of the land. Accordingly, he understood the notices referred to the northern boundary of the land as a holding. The Council also insisted that the whole eastern boundary be slashed. I accept Mr King’s evidence.Mr Talle
44 Johnston employs Mr Talle as an operator of heavy machinery. He has been so employed for four years. He cleared a fence line on the land, which involved clearing lantana, bamboo and some trees with an excavator. The people who instructed him had shirts on saying “Harbourside”. These people told Mr Talle on the first day that they wanted to put a fence up and give enough access to allow the fence to be constructed and to get a fire truck through. Mr Talle did not know where the boundary was, and they roughly pointed it out to him. They found an old fence covered in lantana and bamboo for the first part starting about one block in from Soldiers Point Road near the sheds on the market garden site. Mr Talle cleared following the fence for the most part and after it ended cleared along the same line by eye. He was shown a boundary peg right at the back of the land – but he could not see that peg until he got to it. He did work on both sides of the old fence, removing the fence, the bamboo and lantana. He estimated the required width to get a fire truck through and cleared to that width. The Harbourside people came, gave him instructions and then left. They came again later.
45 The strip Mr Talle cleared was flat for about three quarters of the way along and then had a little bit of a slope for the last quarter. He cleared to the back boundary peg, which he understood to be the western end of the land. The bamboo and lantana existed in bits and pieces from the eastern boundary and ceased a little way up the slope. In some spots the lantana was five to six metres high and eight to ten metres thick and the bamboo was higher – he could not see over it – but it was not as thick. I accept Mr Talle’s evidence.
Other documents and evidence
46 The Council relied in part on the 4 August 2005 development consent, various modifications of that consent and associated documents as admissions by Veterans about the quality and ecological value of the vegetation on the land. Veterans submitted that the Council should not be able to rely on that material for that purpose. Veterans also submitted that, in any event, the Council through the grant of development consent had accepted the material. Hence, the material contained admissions by the Council about the absence of any environmental impact of the overall development involving the clearing of about 5 hectares of land. I deal with these matters in section D below.
47 Mr Ruwald, who was appointed as member of Veterans’ board shortly after the events the subject of the charges, gave limited evidence that I do not consider material to my findings.
48 Various searches disclose that Veterans carries on business under the business name “Harbourside Haven Villages”.
In the Johnston proceedings only
49 Mr McElroy wrote to Johnston and its principals in June 2004 observing that the Council was concerned that a breach of its tree preservation order might have occurred with respect to the land.
50 Mr McElroy interviewed Mr McKay, a director of Johnston, on 6 July 2004. The interview was not recorded. The questions were standard template questions. Mr McElroy read each question to Mr McKay. Ms Graham was also present recording the answers on a laptop. To the best of Mr McElroy’s knowledge Ms Graham typed the answers verbatim. Mr McKay then initialled each page of the interview. In the interview he said that trees were removed from the land to allow access for fencing and that three Harbourside Haven ground staff members directed Mr Talle in the operation. They proposed to erect a colour bond fence. There was a huge amount of lantana.
51 Mr McElroy interviewed Mr Talle on 28 July 2004. Mr McElroy recorded Mr Talle’s answers in blue ink. Mr Talle then read the answers and added some amendments in pencil. Mr Talle signed the interview and survey plan marked during the interview. In the interview Mr Talle said that the trees were removed for fence construction. He was directed to clear 13 metres from the fence line, to remove all vegetation for vehicle access. He was asked, “To the best of your knowledge is the trees that was cleared [sic] indigenous (ie native to New South Wales”). The answer reads, “Yes. 7 trees were more than 3m from boundary. To the best of my knowledge”. Mr McElroy showed to Mr Talle the survey plan he had marked. He asked Mr Talle the approximate location of trees removed and marked up the plan as directed by Mr Talle. That plan (initialled by Mr Talle) is marked with some circles along the northern boundary towards the western half of the land. Johnston admitted that Mr Talle was employed on the land on the dates specified in the three invoices.
52 Given the terms of each summons charging Veterans and Johnston and of s 76A(1)(a) of the EPA Act, the Council must prove beyond reasonable doubt that:D. Findings
General
(1) The activity carried out by Johnston at Veteran’s direction was “clearing” as defined in the LEP 2000.
(3) No development consent had been obtained with respect to that specified development.(2) The LEP 2000 provided that such clearing was specified development that may not be carried out except with development consent.
53 The defendants’ evidence and submissions concerned elements (1) and (2).
Specified development
54 The defendants submitted that “clearing” was not “specified” development for land in the 2(a) zone. To “specify” is to “state in explicit terms” ( Jolly v Yorketown District Council (1967) 119 CLR 347 at 351) and not “vague generalities” ( Tickner v Chapman (1995) 57 FCR 451 at 457D). The 2(a) zone does not refer to clearing at all, in contrast to other zones such as the 1(c) zones, and zones 6(a), 6(c), 7(a), 7(c), 7(f1) and 7(f3). The reference to “any development not included in Item 3 or 5” in the 2(a) zoning table does not make “clearing” specified development within the meaning of s 76A(1) of the EPA Act.
55 I do not accept this submission. The LEP 2000 must be construed as a whole. The zoning tables cannot be examined in isolation from the other provisions of the plan, particularly cll 9 and 10. It is apparent that the provisions of the LEP 2000 reflect the conventional three-fold classification of development contained in Div 1 of Pt 4 of the Act (see, for example, Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [2] and [23] – [24]). The fact that the development that may be carried out only with development consent in the 2(a) zone is the residual class, in contrast to certain other zones within the LEP, does not mean that the 2(a) zone fails to provide that specified development may not be carried out except with development consent. The zoning table for the 2(a) zone answers the descriptions in ss 76 to 76B of the Act. The class of development with which s 76A(1) is concerned (development that requires consent) is specified by the negative formulation – any development not included in items 3 or 5 of the table. That identification of the class is in explicit terms and is not left to vague generalities.
56 Accordingly, the LEP 2000 provides that specified development may not be carried out on land within the 2(a) zone except with development consent. The specified development is any development not included in items 3 or 5 of the table. Whether “clearing” is such development is a separate issue.
The definition of “clearing”
57 The defendants submitted that the law did not know an offence of “clearing” as defined in the LEP 2000 because that definition is inoperative and/or meaningless, absent an adopted tree preservation order. The definition intended to create a class (tree, shrub or plant) closed by a tree preservation order either in force by the deeming provision of cl 50(7) or made in accordance with cl 50(1). The fact that the Council conceded that there was no such tree preservation order meant that the class had not been closed and the definition could not operate as intended. This was supported by the absurdity of activities such as mowing the grass or pruning a rose bush requiring consent, which would be the position absent an adopted tree preservation order exempting those activities. The notion that the law did not concern itself with trivialities was not an answer – for example, absent the class being closed, a person with a large garden in the 2(a) zone would not be able to dig up the garden and redesign it, absent development consent, which was itself absurd.
58 The defendants’ submissions involve two elements. The first concerns the capacity of the definition to operate at all absent an adopted tree preservation order. The second concerns the meaning of the definition, if operative.
59 I do not think that the definition of “clearing” may be construed as if the LEP 2000 were a testamentary disposition. Notions about the need for the class to be closed are inapt. As the Council submitted, the absence of an adopted tree preservation order does not make the definition of “clearing” inoperative. Neither the ordinary meaning of the definition or the overall context of the instrument supports the construction advanced by the defendants. The absence of an adopted tree preservation order means only that there are no exemptions from the definition.
60 The argument about absurdity also does not render the definition inoperative or meaningless. In Electricity Commission of New South Wales v Environment Protection Authority (1992) 28 NSWLR 494 the Court of Criminal Appeal was confronted by a similar submission. Gleeson CJ identified that the definition (in that case, “pollute waters”) was to be applied in a common sense fashion and that the maxim de minimis non curat lex would have a role to play (at 498- 499). I think both observations apply in this case. In a different context, Mahoney JA considered that the definitions of “building” in local government and environmental statutes had “traditionally caused difficulty and, …embarrassment to those whose rights depend on them or who must administer them”. The consequence was not that the definition was meaningless and inoperative. Mahoney JA said that the better approach was to “determine what things or actions come within such terms by reference to the purposes which the provisions were enacted to achieve”, whilst recognising that “problems may yet arise in the application of this approach to the decision of a particular case” ( Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 at 305 – 308).
61 The tree preservation order provisions do not operate to the exclusion of other provisions of the LEP 2000. Neither the absence of an adopted tree preservation order nor the potentially extensive reach of the definition of “clearing” renders the definition inoperative or meaningless. The definition is capable of operation within the instrument. As a mere definition, however, its operation depends on the substantive provisions of the instrument ( Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635) in the context of the facts of the particular case.
Defective summons
62 It follows from my conclusions above that I do not accept the defendants’ submissions about failure of each summons to identify “specified development” within the meaning of s 76A(1) of the EPA Act. Each summons identifies “clearing” as the relevant specified development.
Can clearing be development?
63 The defendants submitted that the mere definition of a term in the LEP 2000 does not make an act, matter or thing “development” and that the activity carried out by Johnston was not “a work” within the meaning of that definition.
64 I accept that the mere definition of a term in an instrument does not make an act, matter or thing “development”. The LEP 2000 contains many defined terms that are not development (for example, community land, flood prone land, gross floor area, heritage item and the like). The LEP 2000 does not merely define “clearing”, however. Construed as a whole, the LEP 2000 discloses a clear intention to control the act of clearing. It does so by the conventional method.
65 The provisions of the LEP “control” the act of clearing land zoned 2(a) in various ways. For example, the particular act of clearing might be exempt development within item (3) depending on the facts associated with the clearing. Exemption is a form of control as defined. Another act of clearing might be development for a prohibited purpose in item (5). Or an act of clearing might be development not included in items (3) or (5) and thus permissible only with consent. In all cases, the LEP 2000 controls the act and thereby engages sub-para (f) of the definition of “development”. Thus, the issue is not any absence of control in the LEP 2000, but the manner of control in the particular case – which depends on the facts.
66 Given these conclusions and the form of the 2(a) zoning table, it follows that I do not need to determine whether the particular acts carried out also engaged sub–para (d) of the definition of “development” (the carrying out of a work).
The clearing
67 I am satisfied beyond reasonable doubt that Johnston, on behalf of Veterans, destroyed and removed trees, shrubs and plants on and from an area of about 12 metres wide and 300 or so metres long. I accept that this clearing occurred partly on the market garden site, but am satisfied beyond reasonable doubt that the majority of this clearing occurred on the land. In particular, Mr Burgess identified the location of the cleared strip relative to the house on the market garden site in a manner indicating that the majority of the clearing occurred on the land. Mr McElroy had been involved in the assessment of the first development application and was familiar with the land and the market garden site. He identified the cleared strip as on the land. Mr Tallee identified the approximate location of trees cleared on the land, not the market garden site. Moreover, Mr Tallee cleared for a fence to be erected, a fence was erected shortly after the clearing and a survey shows that fence on the northern boundary between the land and the market garden site. However, I accept that I do not know the precise number of trees removed from the land. I am also not satisfied that the clearing extended to the western boundary as the Council submitted. I think there is a reasonable possibility that the clearing ceased some distance short of that boundary. I am satisfied that the vegetation cleared from the land included native vegetation and substantial areas of lantana and bamboo. The activity was controlled by the LEP 2000 and, accordingly, was development.
68 The Council submitted that the clearing was development that required development consent. I have accepted above that the clearing was development. The Council’s submissions about the requirement for development consent involved the following steps:The Council’s submissions about the requirement for consent
(2) The only issue concerned item (3) of the 2(a) zone (exempt development). The clearing was not within item (3) of the zone as:(1) The operation of the zoning table involved issues of law, required to be determined absent considerations of onus of proof.
(a) The defendants were subject to an evidential burden with respect to the clearing being within item (3) of the zoning table (exempt development), which burden they had not discharged.
(b) Development must be of minimal environmental impact to be exempt development. The clearing was not of minimal environmental impact.
(c) The clearing was not a class of activity identified as potentially being exempt development in the DCP because the DCP limited exempt development to “structures” and “uses” and the clearing was neither.
(d) The clearing was not bushfire hazard reduction as referred to in the DCP. Mr King’s evidence was inconsistent with that conclusion. Veterans perceived a bushfire risk on the market garden site (the lantana and bamboo thicket). The deal it reached with the adjoining owner required a fence to be erected as a windbreak. The land was cleared and the fence erected. Moreover, at the time of the clearing there was no asset to protect from bushfire hazard, as the aged care facility had not been approved or constructed.
(e) Moreover, there was no evidence that raised a reasonable possibility that the clearing was done in accordance with a bush fire risk management plan under the Rural Fires Act 1997 as required by the exemption requirements in column 2 of Schedule 1 to the DCP. Hence, the defendants had not discharged their evidential burden with respect to the clearing being exempt as bushfire hazard reduction.
(f) The clearing far exceeded that necessary or reasonable for the erection of a boundary fence. The extent and nature of the clearing made it development separate from the listed development “boundary fence” in the DCP. It could not be found to be ancillary to the boundary fence.
(g) The clearing was not consistent with a plan of management approved under State Environmental Planning Policy No 44 – Koala Habitat. Accordingly, it could not be exempt development given the terms of cl 6.1 of the DCP.
(3) As there was no suggestion that the clearing was for any purpose in item (5) of the 2(a) zone, it followed that the clearing was within item (4) (development that requires consent).
69 I am satisfied beyond reasonable doubt that the clearing was not for a purpose listed in item (5) of the 2(a) zone. Accordingly, I accept that the primary issue to be resolved relates to the operation of the exempt development provisions of the EPA Act, the LEP 2000 and the DCP in the particular circumstances of this case.
The onus of proof
70 The Council’s submissions on the onus of proof risk masking the fact that the Council was required to prove beyond reasonable doubt each of the elements of the offence. The structure of the zoning table for the 2(a) zone made the development permissible only with consent the residual class, defined by the negative (that is, development not included in items (3) or (5) of the 2(a) zone). Accordingly, part of the Council’s obligation was to prove beyond reasonable doubt that the development was not included in items (3) or (5) of the zoning table for the 2(a) zone, as this was the only means by which the development could fall within item (4) of the zoning table. The Council thus bore the burden of proving all facts founding the ultimate conclusion about the status of the development (relevantly, as development not being exempt development). In this context, I see little, if any, scope for the defendants being subject to any evidential burden ( Youssef v R (1990) 50 A Crim R 1 at 3, Environment Protection Authority v Leaghur Holdings Pty Ltd (1995) 87 LGERA 282 and Director General Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242 at [31]). Nevertheless, I address this submission further in my findings below.
Minimal environmental impact – the construction issues
71 The phrase development “…of minimal environmental impact” appears in both s 76(2) of the EPA Act and cl 49 of the LEP. The Council submitted that the Act and LEP 2000 required exempt development to be of minimal environmental impact. The clearing was not of minimal environmental impact and thus could not be exempt development within item (3) of the 2(a) zone. The defendants submitted that s 76(2) is an empowering provision. The Council was able to decide what development it thought was of minimal environmental impact and to include that within an environmental planning instrument. Once it had done so, the words “minimal environmental impact” in s 76(2) had no further work to do. Were it otherwise, the purpose of exempt development would be undermined as there would always be the need for an additional inquiry about environmental impact – an inquiry that the identification of exempt development was intended to avoid. The same conclusion applied to cl 49 of the LEP 2000.
72 Exempt development is development for which provision is made as referred to in s 76(2) (s 4(1)). Section 76(2) enables an environmental planning instrument to provide that development of a specified class or description that is of minimal environmental impact is exempt development. Accordingly, the development for which provision is made as referred to in s 76(2) is the result of an exercise of power under that section (that is, the provision in the instrument). If there has been an exercise of power and the validity of that exercise of power is not challenged, there will be exempt development for the purposes of the Act. The reference to “minimal environmental impact” in s 76(2) thus operates at the time that the power is exercised and limits the scope of the power available. The words have no work to do after the exercise of the power. The Council’s concern about potential environmental impacts is readily answered. Membership of the specified class or description of development is left to the environmental planning instrument. It is a matter for the instrument (or those who prepare and make it) to decide the terms of the class or description. Development outside that specified class or description is not exempt development.
73 The defendants’ construction of the EPA Act thus accords with the ordinary meaning of the provisions construed in context and the purpose of those provisions (evident from the statutory scheme overall and the second reading speech - Hansard, NSW Legislative Assembly, 15 October 1997 pp 822 – 832). The purpose of the provisions is to empower councils to decide what development should be exempt from any requirement for development consent and assessment under Pt 5. The power is available for development that is of minimal environmental impact. The assessment of environmental impact is to be carried out by the council at the time it exercises the power to identify the specified class or description of development. Requiring members of the public who wish to carry out development within the specified class or description to themselves assess the environmental impacts of their development and (presumably) make an objectively correct determination that, in the particular case, the development will in fact be of minimal environmental impact, would defeat the purpose of the statutory scheme. It would make necessary in each and every case the very environmental assessment that the exempt development provisions of the EPA Act were intended to avoid.
74 The Council provided for a class or description of development to be exempt development in cl 49 of the LEP 2000. Clause 49(1) itself commences with the words “Development of minimal environmental impact listed as exempt development in [the DCP] is exempt development…”. None of the parties challenged the validity of the Council identifying exempt development by reference to a development control plan. The question is then whether the words “…of minimal environmental impact“ in cl 49(1) are part of the specified class or description of development or whether they merely identify the s 76(2) power exercised by the Council in making the DCP listing exempt development. I do not think my conclusions about s 76(2) of the EPA Act answer this question, as the LEP 2000 must be construed on its own terms. Nor do I find this question easy to answer. Although the considerations identified above with respect to the EPA Act would support the latter construction, the words “…of minimal environmental impact” in cl 49(1) would be surplus to the operation of cl 49 if that construction were adopted. Given that s 76(2) leaves identification of exempt development to the environmental planning instrument, it is necessary to give the words of that instrument their ordinary meaning and effect. On this basis, cl 49(1) and (3) identify exempt development as development of minimal environmental impact listed in the DCP that complies with the development standards and other requirements applied to the development by the DCP. Any such development is development within item (3) of the zoning table and thus cannot be within item (4) and cannot engage s 76A(1) of the EPA Act (because such development may be carried out without development consent under s 76(3) of the EPA Act).
Potential classes of exempt development in the DCP
75 The Council submitted that cl 6.1 of the DCP limits the potential classes of exempt development to “structures” or “uses” and excludes both “works” and “other acts, matters or things controlled by an environmental planning instrument”. I do not accept this submission. The provisions of the DCP identifying exempt development must be read as a whole. The terms of the schedules identifying exempt development are inconsistent with the Council’s submission. The two commencing paragraphs of cl 6.1 relied on by the Council cannot be read in isolation and should be understood to be a description of the general operation of the exempt development provisions. They do not confine the scope of the words that follow – in particular, the words of the third paragraph of cl 6.1 - “For the purposes of this plan, exempt development is development of the kind listed in column 1, which meets all the corresponding exemption requirements in Column 2 of Schedule 1 of this Development Control Plan”.
76 I consider that the category of exempt development “bushfire hazard reduction” in Sch 1 to the DCP has the same meaning as the definition of that term in the LEP 2000, which is consistent with the ordinary meaning of that phrase. Contrary to the Council’s submissions, I am satisfied that the development was development of the kind “bushfire hazard reduction”. Specifically, the development involved the removal and destruction of inflammable matter necessary for the prevention of the outbreak, spread or extension of a bushfire. In particular:Bushfire hazard reduction
(1) In both proceedings, Mr McElroy agreed that vegetation was a bushfire hazard and that the fence that was erected followed the line of the clearing.
(2) In the Veterans’ proceedings, Mr King identified that the Rural Fire Service had served a notice under the Rural Fires Act requiring the boundaries of the land to be slashed to reduce bushfire hazard, in circumstances where the northern boundary can only be understood as the boundary with the market garden site (despite the incorrect lot reference). The Council had served a similar notice, albeit subsequently amended to be limited to the eastern boundary.
(3) In the Veterans’ proceedings, Mr King identified that the clearing and fence both performed a bushfire hazard reduction function.
(4) In the Veterans’ proceedings, Mr Tallee said that he had been instructed to clear to sufficient width to enable a fire truck to obtain access.
(5) In the Veterans’ proceedings, Mr Hepplewhite of the Council had identified that the land was subject to bushfire risk and recommended removal of the thicket on the market garden site to reduce bushfire hazard.
(7) In the Johnston proceedings, Mr Talle said in his interview that he was directed to clear to allow vehicular access.(6) In the Veterans’ proceedings, Veterans had obtained a consultant’s report identifying the land as subject to bushfire hazard from the open forest on the west and northwest.
77 I do not think it to the point that the aged care facility had not been granted consent at the time of the clearing. Even absent the aged care facility, the obvious inference, and one that I draw, is that the clearing was development of the kind identified in column 1 of Sch 1 to the DCP – being bushfire hazard reduction.78 The exemption requirements in Column 2 of Sch 1 to the DCP were also in issue. If (contrary to my view) the Council was correct about any evidential burden on the defendants, then I can see no reason why that burden would extend to the exemption requirements in Column 2 of Sch 1 to the DCP. Given the evidence supporting the finding that the development was of the kind bushfire hazard reduction, I also consider that any evidential burden would have been discharged – with the consequence that the Council was required to negative the application of the exemption provision beyond reasonable doubt. I am not satisfied that the Council did so. In any event, there was evidence in the Veterans’ proceedings that raised a reasonable possibility that the clearing was carried out in accordance with a bushfire risk management plan under the Rural Fires Act 1997. The Rural Fire Service and the Council had served notices requiring slashing of the land to reduce bushfire hazard pursuant to that Act. On any common sense view, the notice from the Rural Fire Service and the initial notice from the Council (before it was amended) required slashing of the northern boundary. When asked about such a plan, Mr King said that he was aware of the Council’s directions to do something about the bushfire hazard. The statement of environmental effects approved by the Council as part of is grant of development consent said that the asset protection zones on the land satisfied the requirements of the Council’s “bushfire map”. Accordingly, I am satisfied that there was a reasonable possibility that the clearing (being development of the kind, bushfire hazard reduction) was “work carried out in accordance with a bush fire risk management plan under the Rural Fires Act 1997” and thus met the relevant exemption requirements of the DCP. The Council did not prove to the contrary beyond reasonable doubt.
The exclusion provisions of the DCP
79 Clause 6.1 of the DCP also nominates exclusion criteria from the exempt development provisions. The Council conceded that one of those criteria that would otherwise have been relevant (the development does not require the removal, ringbarking, cutting down, topping, lopping, injuring or wilful destruction of any tree or trees specified in the Council’s Tree Preservation Order) was inapplicable as there was no such tree preservation order and that the other criteria (bar one) were irrelevant. The Council thus relied on one only of the exclusion criteria – namely, that the development must be consistent with any plan of management approved under State Environmental Planning Policy No 44 – Koala Habitat. The Council submitted that the clearing was not consistent with such a plan and thus could not be exempt development. The Council said that I could draw this inference from the documents lodged by Veterans in support of its development application granted consent by the Council. Those documents (tendered in the Veterans’ proceedings only) identified the existence of a plan of management and the aims of its performance criteria including to “maximise retention and minimise degradation of native vegetation within Supplementary Koala Habitat and Habitat Linking Areas”. Plans within the document identified koala habitat in accordance with SEPP 44 in the western third of the land.
80 Veterans submitted that the Council granted consent to Veterans’ development and, in so doing, specifically approved the flora and fauna assessment lodged in support of the application. The approved plans, consistent with Mr King’s evidence, showed the full extent of the clearing of the land (identified as 5 hectares in the flora and fauna assessment), which included the strip cleared by Johnston. The approved plans also showed the fence erected on the northern boundary for its full extent. Veterans submitted that, in approving the flora and fauna assessment, the Council necessarily accepted (amongst other things) that the whole of the clearing, including the May – June 2004 clearing (which was minor in the overall scheme of things), was consistent with the koala plan of management.
81 One difficulty with this part of the Council’s case was that the effect of its submissions appeared to be that it could rely on the documents incorporated by reference in the development consent to prove inconsistency between the clearing and the plan of management, but that Veterans could not rely on those documents because the consent was granted after the clearing. Although I accept that the status of the development as exempt development or not must be determined by reference to the facts at the time the development was carried out, documents brought into existence after the carrying out of development (such as the development consent and incorporated documents) may contain evidence about those facts.
82 The Council’s submission, when analysed, assumed that the removal of any native vegetation was necessarily inconsistent with the performance criteria of maximising retention and minimising degradation of native vegetation within supplementary koala habitat and habitat linking areas and thus inconsistent with the plan of management. I consider this to be an over-simplification on a number of levels. Inconsistency with a single performance criterion does not necessarily result in development falling outside the requirement of consistency with the plan of management. Having regard to the whole of the evidence, I am not satisfied beyond reasonable doubt that the development was other than consistent with the plan of management. There is also a reasonable possibility that the Council itself, through its grant of development consent, acknowledged that the clearing of 5 hectares of the land, including the land the subject of the charges in this matter, was consistent with the plan of management.
83 The documents lodged with the development application were not in evidence in the Johnston proceedings. However, I do not think that is material given the Council’s onus of proof and that it conceded (properly in my view) that if it had not proved the charge against Veterans it could not succeed against Johnston (because Johnston was Veterans’ agent, acting within the scope of Veterans’ instructions).
84 I also think it appropriate to observe that the Council did not give the defendants any notice that it intended to claim that the development was other than consistent with the koala plan of management. I upheld the defendants’ objection to the tender of that plan. I consider that the Council’s subsequent reliance on secondary references to certain parts of that plan was inappropriate because it gave rise to a real risk of significant injustice to the defendants. In the circumstances, the defendants’ submission that it was not open to the Council to seek to use the development consent documents in the manner it did carries weight.
Minimal environmental impact – remaining issues
85 Consistent with my conclusions above, I consider that the Council bore the burden of proving beyond reasonable doubt that the clearing was not of minimal environmental impact.
87 The concept of “minimal environmental impact” requires a contextual assessment. An important aspect of the context here is that the whole of the land was zoned 2(a) and adjoined a far larger area (the Council reserve) zoned 6(a). The zone description and objectives for the 2(a) zone are as follows:86 Part of the difficulty with the Council’s case about this issue was that the affidavits on which it relied did not directly address the issue of environmental impact. The Council’s submissions (perhaps of necessity) appeared to assume that the clearing of any native vegetation was necessarily not development of minimal environmental impact. While it relied on the exclusion of development involving tree removal to support this submission, I do not think that it was able to do so given its concession that that exclusion criterion was inoperative by reason of the absence of any effective tree preservation order – a correct concession as tree removal per se is not excluded from exempt development, only removal (etc) of trees as specified in “the Council’s Tree Preservation Order”.
(1) Description of the zone
The Residential “A” Zone is characterised by one and two storey dwelling-houses and dual occupancy housing. Townhouses, flats and units up to two storeys may occur throughout the zone. Dwellings may also be erected on small lots in specially designed subdivisions. Small-scale commercial activities compatible with a residential neighbourhood and a variety of community uses may also be present in this zone.
(2) Objectives of the zone
The objectives of the Residential “A” Zone are:(a) to encourage a range of residential development providing for a variety of housing types and designs, densities and associated land uses, with adequate levels of privacy, solar access, open space, visual amenity and services, and
(b) to ensure that infill development has regard to the character of the area in which it is proposed and does not have an unacceptable effect on adjoining land by way of shading, invasion of privacy, noise and the like, and
(c) to provide for non-residential uses that are compatible with the area and service local residents, and
(d) to facilitate an ecologically sustainable approach to residential development by minimising fossil fuel use, protecting environmental assets and providing for a more efficient use of existing infrastructure and services, and
(e) to ensure that the design of residential areas takes into account environmental constraints including soil erosion, flooding and bushfire risk.
88 The 2(a) zone description and objectives indicate land specifically set aside for urban residential development, which can reasonably be expected to involve clearing of not insubstantial parts of the land so zoned. This may be contrasted with the zone description and objectives for the 6(a) zone, which indicate land to be largely preserved from urban development. Moreover, although the clearing involved an area of about 300 by 12 metres (the majority of which I have found occurred on the land) and the removal of native vegetation (including some trees), it also removed substantial thickets of lantana and bamboo on the land and provided a firebreak between the land and the market garden site.89 The Council relied on the position of the National Parks and Wildlife Service with respect to the first development application and the documents incorporated within the development consent to support its submissions. However, the Service said that its position was reached without sufficient information to understand if any proposed conditions of consent would ameliorate the impacts and its position related to the entire retirement village development (the 5 hectares of clearing). The references in the development consent documents about the nature and quality of the vegetation groups and habitats on the land relied on by the Council were also inappropriately selective. The documents contain other material reasonably capable of supporting a contrary conclusion. For example, the statement of environmental effects identified an absence of adverse environmental impacts from the overall proposed development (involving 5 hectares of clearing). The flora and fauna assessment identified the vegetation group within which the majority of the clearing occurred as “widespread” in the local government area and adequately conserved locally, the more rare vegetation group being in the far western part of the land (to which I am not satisfied beyond reasonable doubt that any material area of clearing extended). The assessment concluded that the entire retirement village development would be “unlikely to have a detrimental impact on local populations of threatened species”.
90 Having regard to the matters set out above, I am not satisfied beyond reasonable doubt that the clearing was not development of minimal environmental impact. It follows that the Council has not proved beyond reasonable doubt that the development was not exempt development within item (3) of the 2(a) zone, being development of minimal environmental impact and listed as exempt development in the DCP of the kind bushfire hazard reduction and which complied with the development standards and other requirements applied to the development by the DCP. It thus follows that I am not satisfied beyond reasonable doubt that the clearing was development within item (4) of the 2(a) zone (development that required consent).
91 Another aspect of this issue warrants comment. In common with the position with respect to the koala plan of management, the Council’s evidence did not adequately disclose that the question of minimal environmental impact was an issue. The Council’s submissions thus gave rise to a real risk of significant injustice to the defendants. In these circumstances, the defendants’ submission that it was not open to the Council to seek to use the determinations of the development applications (that is, the refusal of the first application and the consent to the second application) in the manner it did carries weight.
Other matters
92 Given these conclusions, I do not need to address the issues with respect to the clearing being ancillary to the boundary fence that was erected almost immediately thereafter (boundary fences being another kind of exempt development), the fact that the definition of clearing involved destruction or removal of trees, shrubs or plants up to an area of 2 hectares when the overall clearing carried out was some 5 hectares or the defence of honest and reasonable mistake.
E. Conclusion
93 For the reasons given above, I am not satisfied beyond reasonable doubt that the defendants committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 by carrying out development that may not be carried out except with development consent without that consent, contrary to s 76A(1)(a) of that Act.
94 The Council requested that I not make orders acquitting the defendants until it has had an opportunity to consider my reasons. Consistent with Environment Protection Authority v Land and Environment Court of New South Wales (2004) 134 LGERA 140 I accede to that request, but propose to list the proceedings for mention in 7 days’ time so that the Council may inform me of its position.
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