Russell v Pennings - [2001] WASCA 115

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RUSSELL & ORS -v- PENNINGS [2001] WASCA 115

CORAM: PARKER J

HEARD: 4 DECEMBER 2001

DELIVERED : 12 APRIL 2001

FILE NO/S: SJA 1146 of 2000

BETWEEN: CLAUDE RUSSELL
BARRY ARTHUR OWENS
TERRENCE JAMES COURT
SHELLBAY HOLDINGS PTY LTD
Applicants
AND
PETER ADRIAN JOSEPH PENNINGS
Respondent

Catchwords:

Environmental law - Offence of wilfully taking flora - Statutory defence if taking unavoidable incident of statutory obligation - Requirement to undertake environmental review - Whether "statutory obligation" - Clearing access track to enable review - Whether unavoidable incident - Wildlife Conservation Act 1950 (WA), s 23B

Environmental law - Offence of wilfully taking flora - Licensed surveyor - Whether "authorised" survey - Extent to which Act and Regulations requires or authorises clearing of flora - Licensed Surveyors Act 1909 (WA) s 16 - Licensed Surveyors (Guidance of Surveyors) Regulations 1961 (WA) reg 52

Highways - Statutory dedication - Right of passage of public at large - Whether extends to clearing a track with earthmoving machinery

Highways - Easement of necessity - Over dedicated road - Right of passage of public at large negates necessity

Real property - Crown land - Statutory definition - Crown land subject to concession defined as "private" land - Whether dedication of road a concession - Wildlife Conservation Act 1950 (WA) s 6(1), s 23B

Legislation:

Wildlife Conservation Act 1950 (WA), s 23B, s 6(1)

Licensed Surveyors Act 1909 (WA), s 16

Licensed Surveyors (Guidance to Surveyors) Regulations 1961 (WA), reg 52

Result:

Appeals dismissed

Representation:

Counsel:

Applicants: Mr D W McLeod
Respondent: Mr B P King

Solicitors:

Applicants: McLeod & Co
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Bass Coast Shire Council v King & Ors (1996) 92 LGERA 129
Bayley v Great Western Railway Co (1884) 26 Ch D 434
Louis v Judge Ogden (1984) 153 CLR 682
Manjong v Drammeh (1990) 61 P&CR 194
McLernon v Connor (1907) 9 WALR 141
MRA Engineering Ltd v Trimster Co Ltd (1988) 56 P&CR 1
Nickells v Melbourne Corporation (1938) 59 CLR 219
Nickerson v Barraclough [1987] 1 Ch 426
North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd (1971) 2 NSWLR 150
Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223

Case(s) also cited:

Anderson v Basile [1979] WAR 53
Barry v Hasseldine [1952] 1 Ch 835
Bell v Stewart (1920) 28 CLR 419
Bolton v Bolton (1879) 1 Ch D 968
Ianella v French (1968) 119 CLR 84
Permanent Trustee Co of New South Wales Ltd v Council of the Municipality of Campbelltown (1960) 105 CLR 401
Randwick Municipal Council v Rutledge (1959) 102 CLR 54
Serff v Acton Local Board (1886) 31 Ch D 679
Smith v Burnham (1876) 1 ExD 419

PARKER J: By leave granted by Miller J on 13 September 2000 the four appellants appeal against the decision of Mr S R Malley SM given in the Court of Petty Sessions at Bunbury on 11 August 2000 whereby the learned Magistrate convicted each of the appellants of 31 charges of lawfully taking protected flora on Crown land, contrary to s 23B(1) and s 26 of the Wildlife Conservation Act 1950 ("the Act").
Each appellant was fined a global penalty for the 31 convictions of $3,000 and was ordered to pay costs of $2,150.22.
There were 31 complaints against each of the four appellants, a total of 124 complaints. Each of the 31 complaints differed only in that each alleged the taking of a different specie of flora, ie 31 different species were alleged. The complaints against each of the four appellants corresponded with the complaints against the others.
The charges arose out of what was one course of conduct. This was the clearing of a vehicle access track of some 6.5 kilometres in length from the Windy Harbour Road to a property owned by the appellant Shellbay Holdings Pty Ltd ("Shellbay") along a dedicated road reserve which was for the most part in natural bush condition. The appellants Messrs Russell, Owens and Court ("the directors") were directors of Shellbay and were personally involved in the clearing of the track.
In each case the complainant was the present respondent who is an officer of the Department of Conservation and Land Management ("CALM"). An example of the complaints is that for charge number 1614 which read:
"Between the 19th and 22nd day of February 1999 at Doggerup Road, Sandy Peak, Shellbay Holdings Pty Ltd wilfully took protected flora, namely, Acacia Divergens, on Crown land when that taking was not authorised by and carried out in accordance with the terms and conditions of a licence issued to it under s 23C of the Wildlife Conservation Act 1950; contrary to s23B(1) and s 26 of the Act."

Background facts

Shellbay became the registered proprietor in 1995 of Nelson Location 7965 which is a large undeveloped rural lot of some 353 hectares in the Shire of Manjimup. The block is surrounded by the D'Entrecasteaux National Park, although its western boundary for practical purposes fronts to the coastline of the Southern Ocean in the vicinity of Windy Harbour.
Location 7965 had no road access in 1995. There was a CALM access track through the National Park but at times this became impassable because of flooding and its use was subject to prior approval from CALM on each occasion. That usage has since been terminated by CALM. Doggerup Road was dedicated as a road. A road reserve had been established along its length. Doggerup Road would have connected Windy Harbour Road to Location 7965 but no roadway had ever been constructed along its 6.5 kilometre length. Before 1972 some 2.5 kilometres of its length from Windy Harbour Road had been cleared but had since been subject to regrowth. At the time of the conduct the subject of the complaints the Doggerup Road reserve was, for most of its length, natural bush which varied in type and included karri and jarrah forests and wetlands. It was undistinguishable from the natural growth of the surrounding D'Entrecasteaux National Park through which it ran.
Pursuant to s 55(2) of the Land Administration Act 1997 the Shire of Manjimup had the care, control and management of Doggerup Road. The appellants apparently approached the Shire in 1995 with a view to the construction of a roadway along the Doggerup Road reserve. This proposal was modified in early 1996 by Shellbay to provide only for a four wheel drive access track along the length of the Doggerup Road reserve. This modified proposal was approved by the Shire in April 1996 but the approval was subject to environmental assessment by the Department of Environmental Protection. Pursuant to the provisions of the Environmental Protection Act 1986 ("the EP Act") the relevant assessment was a matter for the Environmental Protection Authority ("the EPA"). The Shire referred the proposal of which Shellbay was, for the purposes of the EP Act, the "proponent" to the EPA. The EPA decided, pursuant to s 40(1)(b) of the EP Act, that the proposal should be "assessed". For this purpose, pursuant to s 40(2)(b) of the EP Act, Shellbay was required by the EPA to undertake an environmental review and to report thereon to the EPA. This environmental review was to be a public environmental review ("PER"). The requirement to undertake the review seems to have been notified to Shellbay by letter dated 16 May 1997. The PER was undertaken by Shellbay and a report was submitted to the EPA in January 1998. As that report revealed, the proposal was for the construction of a 6.5 kilometre track, although referred to as a road, along the Doggerup Road reserve. The track was to be constructed of sand, limestone and gravel and was to involve clearing to a width of 12 metres along the length of the track. The carriageway was to be a width of 7 metres within that clearing.
The PER involved a process of notification to relevant authorities and public advertising. It appears that there was a significant level of opposition to the proposal, particularly among authorities and interest groups. The PER had been undertaken by Shellbay with professional assistance but it is also apparent from the evidence that it was generally regarded as lacking in an appropriate degree of detail as to the flora, as well as fauna and Aboriginal heritage sites, that could be affected by the construction of the access track. In this respect, it should be made clear that the report dealt with each of these and other environmental issues but there seems to have been reason for the view that it failed to do so in satisfactory depth and detail. As will become apparent, a reason for this is said by the appellants to be the inability to gain vehicular access along the length of the Doggerup Road reserve to enable more detailed surveys to be undertaken. It is further the case of the appellants that in many parts of the proposed track access by foot was not feasible because of the density of the vegetation.
By February 1999 the EPA had not completed its assessment of the proposal. By then the appellants were aware of the level of opposition in official and private quarters to the proposed access track and were also aware of the concerns as to the adequacy of the surveys that had been conducted for the purposes of the PER and the report. On 11 February 1999 the appellants attended a meeting of the EPA at which officials and representatives of other interested statutory authorities were also present. At this meeting the proposal of Shellbay was one of many matters on the agenda. The appellants were given an opportunity to present what they described as a protest at the lack of cooperation with, or obstruction to, their efforts to secure approval for the proposal. A principal concern raised was what was described by the appellants as a "catch 22" situation in that, without vehicular access, the intensity in parts of the natural bush was said to make it practically impossible for a more extensive survey of flora, fauna and Aboriginal heritage sites to be undertaken, yet, to secure vehicular access the clearing of a pathway for a vehicle was said to be necessary, and that required that there first be an environmental review which satisfied the EPA.
There was dispute in the evidence before the learned Magistrate as to what occurred at the meeting on 11 February 1999 to which I will turn later in these reasons. After the appellants left the meeting the EPA discussed the proposal and resolved on a future course of action. Before any formal or informal advice of the resolution of the EPA was given to the appellants, however, between 19 - 22 February 1999 an access track for four wheel drive vehicles was cleared by Shellbay, the other appellants directly assisting, along the full 6.5 kilometre length of the Doggerup Road reserve from Windy Harbour Road to Location 7965. At the hearing of the complaints there was evidence for the appellants that this was done to enable access by vehicle so that more detailed environmental surveys could be undertaken. It was the evidence, however, that the track was cleared in this way by the use of two heavy earthmoving machines which cleared a track generally at least 5 metres wide and in some parts greater. It was also the evidence for the appellants at trial that the bulldozers had operated with "blade up", ie about 30 cms above the ground. There was, however, other evidence, which was supported by video and photographic evidence, that in some parts at least the vegetation had been "cleared down to mineral earth" with vegetation pushed to the side of the track and that some vegetation had been axed where it had not been felled by the bulldozers.
It was in these circumstances that the appellants were charged and each was convicted on each of the 31 complaints. The complaints each alleged the taking of flora it being the case against the appellants that the clearing of the access track involved the "taking" of the 31 different types of flora identified in the complaints. In this connection it is to be noted that, for the purposes of the Act, "to take" is defined by s 6(1) as follows:
"'To take' in relation to any flora includes to gather, pluck, cut, pull up, destroy, dig up, remove or injure the flora or to cause or permit the same to be done any means."
It was the case against the appellants that, by use of bulldozers and axe, the flora in particular had been destroyed, dug up, removed and injured.

Grounds of appeal

The grounds of appeal are:
"(1)That the learned Magistrate erred in holding that Doggerup Road was 'Crown land' within the meaning of the Wildlife Conservation Act 1950 ('the Act') whereas his Worship should have held:
(a)that Doggerup Road was 'private land', within the meaning of the Act;
(b)in the alternative, that it was not proved beyond reasonable doubt that Doggerup Road was not 'private land'.
Particulars as to the basis of Doggerup Road constituting 'Private Land'
Doggerup Road was subject to a 'concession', within the meaning of that term in the definition of 'private land' under the Act alternatively it was not proved beyond reasonable doubt that Doggerup Road was not subject to a concession, that concession being:
(i)the right of the public to use Doggerup Road by virtue of its dedication pursuant to s 294A of the Local Government (Miscellaneous Provisions Act) 1960; alternatively
(ii)an easement of necessity for a right of way, held by the defendant Shellbay Holdings Pty Ltd.
(2)That the learned Magistrate erred in holding that the taking of protected flora by the defendants was 'wilful' within the meaning of s 23B(1) of the Act;
(3)That the learned Magistrate erred in holding that the taking did not occur as an unavoidable incident or consequence in the performance of a right or the discharge of an obligation conferred upon the defendants by statute, namely:
(a)the right of public access along the road in question by virtue of the dedication of that road;
(b)alternatively the obligation to carry out environmental survey work as part of the Environmental Protection Act 1986 environmental assessment process."

Ground 1

It is an element of the offence constituted by s 23B(1) of the Act that the taking of protected flora be on Crown land. Section 6(1) includes the following definitions:
"'Crown land' means all land other than private land;
'Private land' means any land that has been or may hereafter be alienated from the Crown for any estate of freehold, or is or may hereafter be the subject of any conditional purchase agreement, or of any lease or concession with or without a right of acquiring the fee simple thereof other than for pastoral or timber purposes."
It is the case for the appellants that the Doggerup Road reserve was, or had not been proved not to be, private land rather than Crown land as being the subject of a "concession" being either the right of the public to use Doggerup Road or an easement of necessity of Shellbay for a right of way over Doggerup Road.
It was the evidence that, subject to some widening of the road reserve in 1993, Doggerup Road has been dedicated as a road since 1913. It seems that would have occurred originally pursuant to the Roads Act 1911-1912, cf s 163, 166 and 137, although over the intervening years until now there has been a succession of statutes in place of that Act. Currently the Land Administration Act 1997 relevantly provides:
"Property in roads, etc
55.(1) Subject to this section and to section 57, the absolute property in land comprising a road is by this subsection -
(a)revested in the Crown; and
(b)in the case of land under the operation of the TLA or the Registration of Deeds Act 1856, removed from that operation and so revested.
(2)Subject to the Main Roads Act 1930, the local government within the district of which a road is situated has the care, control and management of the road.
(3)The operation of subsection (1) -
(a)suspends, until the relevant road is closed under section 58, any rights to mine for minerals within the meaning of the Mining Act 1978 excepted from the acquisition of the land reserved, declared or dedicated as that road; but
(b)does not affect the functions of a local government in respect of a road of which it has the care, control and management.
(4)If land comprising a private road is revested in the Crown under this section, the holder of the freehold in that land is not entitled to compensation because of that revesting.
Dedication of roads
56.(1) If in the district of a local government -
(a)land is reserved or acquired for use by the public, or is used by the public, as a road under the care, control and management of the local government;
(b)…
(c)…
and that land is described in a plan of survey, sketch plan or document, the local government may request the Minister to dedicate that land as a road."
Subsections (2) and (3) of s 56 provide for the request to be considered by the Minister which may be granted or refused. Section 56(5) then provides:
"(5)To be dedicated under subsection (3)(a), land must immediately before the time of dedication be -
(a)unallocated Crown land; and
(b)designated in the relevant plan of survey, sketch plan or document as having the purpose of a road."
Section 58 deals with the closure of roads. By s 58(1) a local government authority that wishes a road in its district to be permanently closed may request the Minister to close the road. By subsections (2) and (3) there is a procedure for the proposed closure to be advertised and objections to be considered. The Minister is empowered by s 58(4)(a) by order to grant the request and where that occurs by s 58(5)(a) the road is closed on and from the day on which the order is registered and by s 58(5)(c) any rights which had been suspended under s 55(3)(a) cease to be suspended. Section 58(6)(a) provides:
"(6)When a road is closed under this section, the land comprising the former road -
(a)becomes unallocated Crown land; …"
Pursuant to this legislative scheme and particularly s 55(1)(a) the absolute property in the Doggerup Road reserve was vested in the Crown at the time of the offences the subject of the appeal, although the Shire of Manjimup had its "care, control and management" pursuant to s 55(2).
Neither party to the appeal has identified any statutory provision, operative at the time of the offences, which sets out the effect of dedication of land as a road. In particular no provision has been identified which expressly vests in the public generally, or any particular member or members of the public, any statutory right of use of a dedicated road. Nor have the parties identified any earlier statutory provision which expressly vested a statutory right of use of a dedicated road in the public generally or in any particular member or members of the public.
Nevertheless, for the purposes of this appeal, I propose to proceed on the assumption that by virtue of the statutory dedication of the land comprising the Doggerup Road reserve as a road, either the common law right of all members of the public to pass and repass on a highway was enlivened in respect of the Doggerup Road reserve, or an equivalent statutory right was by implication created, in either case during the period of the dedication; in this respect see the decision of the Victorian Court of Appeal in Bass Coast Shire Council v King & Ors (1996) 92 LGERA 129. I should make it clear that I have not examined this issue in detail. That may prove necessary in some other case. The assumption identified favours the appellants and reflects the essence of their submissions. It is a convenient basis on which to proceed for the purposes of this appeal.
I would note that some statutory recognition that this was the position may perhaps be afforded by the former provisions of the Local Government Act 1960 which are now replaced by the provisions of the Land Administration Act1997 set out earlier in these reasons. By s 286(1) of the Local Government Act 1960 the absolute property in land which was reserved, declared or otherwise dedicated under any Act as a road, street or highway was "revested" in the Crown. The provisions of Part VII recognised both a private street and a street dedicated to public use, cf s 287(1)(a)(iii), and land reserved for use by the public as a street, cf s 288(1)(a)(i), and land declared to be a public street, cf s 288(5). Significantly, s 294(1)(a) provided that, when a street dedicated under an Act to use by the public as a street is closed, the "absolute property in the land comprising the street … is … revested in the Crown, freed from rights of passage by the public …". There is also the reference in s 56(1)(a) of the Land Administration Act 1997 to land reserved or acquired for use by the public as a road.

The appellants attached significance to s 294(1)(a) in their submissions as providing an express recognition of rights of passage by the public, at least where a street was statutorily dedicated "to use by the public as a street". That accords with the assumption which I have indicated. The appellants saw further significance in the absence from s 58(5) and (6) of the Land Administration Act 1997 of any equivalent statutory provision to s 294(1)(a) in its abrogation of "rights of passage by the public". This latter submission seemed to me to fail to recognise the full effect which should be given to the provision of s 58(5)(a) that the road "is closed" and that pursuant to s 58(6)(a) the land comprising the former road becomes "unallocated Crown land" which is defined by s 3(1). These provisions would appear sufficient to bring to an end any rights of passage by the public which previously may have existed. This question, however, appears to have no direct application to the present land as there has been no closure of Doggerup Road.

Concession - not Crown land

On the assumption identified earlier, it is submitted that by virtue of the right of the public at large to pass and repass on the Doggerup Road reserve, there was a divesting from the Crown of the absolute property in the land. It was submitted that the right of passage enjoyed by the public as a consequence of the dedication of Doggerup Road is a "concession" within the meaning of the definition of private land in s 6(1) of the Act. The consequence of this, it is submitted, is that at the relevant time, by virtue of the concession, Doggerup Road was private land and not Crown land for the purposes of the Act. As it is an element of the offences charged that the flora be taken from Crown land, it follows, the appellants submit, that the convictions cannot stand.
There are a number of difficulties in the way of accepting this submission. Doggerup Road was and has remained a dedicated road since 1913. By virtue of that dedication, on the assumption identified earlier, a right of all members of the public to pass and repass along Doggerup Road has existed since 1913 and still exists. Nevertheless, most recently in 1997, by the operation of s 55(1)(a) of the Land Administration Act, absolute property in the land comprising Doggerup Road is expressly revested in the Crown. The conclusion to be drawn from this is that the right of all members of the public to pass and repass along a dedicated road is not a proprietal right or form of tenure such as detracts from the "absolute property" of the Crown in the land comprising the dedicated road. That does not deny to the public the existence of a right of passage. It does indicate that the nature of the right of passage is merely one of use.
In support of the submission that the existence of a right in the public at large of passage over Doggerup Road was a concession in the sense used in the definition of private land in the Act, the appellants turned to The Macquarie Dictionary which, inter alia, offers the meaning of concession to be "something conceded by a government or a controlling authority, as a grant of land, a privilege, or a franchise". The New Shorter Oxford Dictionary suggests the following "A grant of land or other property made by a government or ruling power; A piece of land or territory so allotted; A grant or lease of a small area or a portion of premises for some specified purpose; A right or privilege granted by a government or ruling power". In more specific legal contexts a concession is noted in Jowitt's Dictionary of English Law 2nd ed as "a grant by a central or local public authority to a private person or private persons for the utilisation or working of lands, and industry, a railway, waterworks, etc". Thus it is only in the most loose sense, and without regard to context, that it is possible to describe the creation by statute of a right in all members of the public to pass and repass on a road as a concession, ie something conceded or granted by a government as a privilege. Despite this possibility, it is difficult indeed to see that a right of mere passage over land, enjoyed equally by every member of the public, would be described as a concession as a matter of ordinary usage. Rather, in reference to land, concession would more appropriately describe a form of tenure which confers rights of ownership, occupation or exploitation.
The particular context in which the word is used in s 6(1) of the Act is to distinguish private land from Crown land. This would tend against any loose and general denotation being intended. Further, in s 6(1) of the Act the definition of private land contemplates:
•land alienated from the Crown for any estate of freehold,
•land the subject of any conditional purchase agreement,
•land the subject of any lease or concession, with or without a right of acquiring the fee simple thereof.
That particular context also tends to indicate that 'concession' contemplates an interest in the land itself. Such an understanding of a concession in respect of land would accord with more usual legal usage. A mere right of passage over a road, and one granted to all members of the public at large rather than to an identified party, would be quite out of keeping with that notion.
This is further confirmed by the relevant operative provisions of the Act. By s 23A, s 23B and s 23C the property and protected flora on Crown land vests in the Crown, and the wilful taking of protected flora on Crown land is prohibited under penalty unless licensed. A royalty is payable in respect of flora taken under licence. By contrast, however, s 23D provides that protected flora on private land shall not be taken except by the owner or occupier of the private land or pursuant to the authority of the owner or occupier. The effect of s 23D is to suggest that the statute contemplates that there will be an owner or occupier of private land which offers significant confirmation that a concession would, like a freehold, a conditional purchase agreement or a lease, involve the creation of an interest or tenure in respect of the land itself and one for the benefit of a person or entity so as to constitute the person or entity an owner or occupier.
I am not persuaded, therefore, that for the purpose of the definition of private land in s 6(1) of the Act the notion of a concession extends to include any mere right enjoyed by the public at large to pass and repass on a dedicated road.
The only actual evidence before the learned Magistrate is that the land comprising Doggerup Road reserve has never been alienated from the Crown, has never been the subject of a conditional purchase agreement, and has never been the subject of a lease or concession. This evidence was uncontradicted by other evidence, and unchallenged save for the submission to the Magistrate as to the effect of the dedication of Doggerup Road and save for a further issue to which I will now turn, that is, the proposition that there was an easement of necessity.

Easement of Necessity

It is the further contention of the appellant that when Location 7965 was created by Crown subdivision the only access contemplated was by Doggerup Road. The original Crown grant of Location 7965 appears to be in 1948. Both by the words of grant and the colouring on the plan on the grant, the grantee secured Location 7965 in fee simple. The plan on the grant noted surrounding features including the ocean and a small section of a road one chain in width where it terminated at the boundary of Location 7965. It is accepted, it appears, that this is the Doggerup Road reserve. That road is not expressly included in the grant but the words of grant include all "Hereditaments and Appurtenances" belonging or appertaining to Location 7965.
In these circumstances it is submitted that an easement of necessity was created, at the time of and as an incident of the original Crown grant in 1948, by which the owner of Location 7965 had a right of way, in the form of an easement as grantee of Location 7965, over Doggerup Road. It is further submitted that this easement still attached to Location 7965 at the time of its acquisition in fee simple in 1995 by Shellbay. This easement, it is submitted, is a "concession" within the meaning of the definition of private land in s 6(1) of the Act, so that the Doggerup Road reserve is private land and not Crown land for the purposes of the Act with the further consequence that the appellants have been wrongly convicted of these offences.
A number of difficulties also stand in the way of acceptance of this line of submission. It may be accepted that an easement of necessity will arise where, on the sale by an owner of part of the owner's land, either the vendor or purchaser is left without any means of access to his or her property; see Bradbrook & Neave, Easements and Restrictive Covenants in Australia (2nd ed) at 77 ff, cf par 4.9. It is now accepted that the foundation for an easement of necessity is the actual or presumed intention of the parties; North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd (1971) 2 NSWLR 150; Nickerson v Barraclough [1987] 1 Ch 426. Before an easement of necessity is implied the view prevails that the right claimed must be essential, not merely a matter of convenience; Bayley v Great Western Railway Co (1884) 26 Ch D 434, 453, Manjong v Drammeh (1990) 61 P&CR 194. In MRA Engineering Ltd v Trimster Co Ltd (1988) 56 P&CR 1 it was held by the Court of Appeal that an easement of necessity will only be implied where the property could not be used at all, and not merely where an easement was necessary for the reasonable enjoyment of the property. That decision was in a context where there was access by a footpath but not for vehicles. It was held that lack of access by vehicle was not sufficient to give rise to an easement of necessity even though it might be difficult and inconvenient if access was limited to access by a footpath.
In the present case it is enough to observe that Doggerup Road was a dedicated road which ran to the boundary of Location 7965 to negative the contention that an easement is to be implied as a matter of necessity. There was no necessity because a dedicated road ran to the boundary of the land. No doubt it may have been contemplated at the time of the Crown grant of Location 7965 that access would have been by way of Doggerup Road. Such access, however, would be enjoyed by virtue of the right of the grantee in common with all other persons to pass and repass on Doggerup Road. The existence of that right, on the evidence in this case, conclusively negates an easement of necessity. Of course, at the time of the original Crown grant Doggerup Road may not have been passable for traffic as it was not a made road. That does not assist the appellants, however, because the fact that Doggerup Road may have been impassable at the time of the Crown grant in 1948 would tell against the implication as a matter of necessity of a right of access along Doggerup Road rather than along some accessible route over the Crown land that then surrounded Location 7965. In this respect I would note that the dedication of the surrounding Crown land as a national park did not occur until more recent years. There is also the decision in McLernon v Connor (1907) 9 WALR 141 where an easement of necessity was claimed across the vendor's land on the basis that a road shown on a plan was impassable because it was fenced off and because trees or fallen trees prevented access. As was said by Burnside J at 147-148:
"But a way of necessity does not mean a passage, it merely means a right to get to there, and if a person can get to his land without passing over the land of his vendor no way of necessity exists or can arise … That being so, I do not think the question of a way of necessity arises here. The plan from which the land was bought shews a road, so there is a way, and there is no legal obstruction in the way of his using it. Once the physical obstructions were removed there would be a beautiful road such as he thought he had in the first instance."
There were also submissions for the respondent that the easement of necessity contended for could not have arisen at the time of the original Crown grant because of statutory provisions, because it was not shown there was no alternative access (either in 1948 or 1995) and because an easement of this nature was not a concession within the meaning of the definition of private land in s 6(1) of the Act. It is unnecessary, however, to pursue these issues as, for the reasons given, the factual and legal bases necessary for the implication of an easement of necessity in favour of Shellbay to the use of Doggerup Road has been negated.
For these reasons I am unable to accept the submission that, either by virtue of any right in all members of the public to pass and repass on Doggerup Road or by virtue of an easement of necessity, Doggerup Road is private land as defined in s 6(1) of the Act and not Crown land. In my view, the learned Magistrate was correct to hold that the land comprising Doggerup Road was Crown land.
Ground 1 also seeks to advance the view that it was not proved beyond reasonable doubt that Doggerup Road was not "private land". The prosecution established that Doggerup Road was vested in the Crown pursuant to s 55(1) of the Land Administration Act, was a dedicated road, and led evidence that it had not been alienated and was not the subject of a conditional purchase agreement or a lease or a concession. There was no contrary evidence. For the reasons given, the submissions that Doggerup Road was nevertheless private land rather than Crown land have not been made good. It was open to the learned Magistrate, therefore, to be satisfied beyond reasonable, as he was, that Doggerup Road was Crown land.

Ground 2

The submission for the appellants in respect of this ground is that the learned Magistrate erred in holding that the taking of protected flora was "wilful". The essence of the appellants contention is that, as Doggerup Road is a dedicated road, knowing damage to flora in the exercise of the right of members of the public to pass and repass is not a wilful taking in the sense of s 23B(1) of the Act.
Earlier in these reasons I set out the definition of "to take" in s 6(1) of the Act. Of the extended meaning provided by that definition the notions to "destroy, dig up, remove or injure" are the most relevant.
In Louis v Judge Ogden (1984) 153 CLR 682 at 688 the High Court considered s 54A(1)(a) of the County Court Act 1958 (Vic) which constituted it to be an offence to wilfully insult a judge. In the decision of the Court at 688 it was said:
" … the word 'wilfully' means 'intentionally', or 'deliberately', in the sense that what is said or done is intended as an insult, threat etc. Its presence does more than negative the notion of 'inadvertently' or 'unconsciously' (Bell v Stewart (1920) 28 CLR 419 at 427). The mere voluntary utterance of words is not enough. 'Wilfully' imports the notion of purpose."
Applying this approach to s 23B(1) of the Act the offence relevantly is constituted by intentionally or deliberately destroying, digging up, removing or injuring the protected flora. The words of s 23B(1), and the definition of to take, appear to be clear in meaning and not affected by uncertainty so that the discussion in Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223 cf 238-9, on which the appellant sought to rely, is not applicable.
In his reasons for decision the learned Magistrate dealt with this issue as follows:
"In my view, in the present legislation, a commonsense interpretation and frankly a dictionary interpretation is that 'wilful' implies a deliberate or intentional action.
It is distinguished as deliberately pulling out a plant as to accidentally treading on a plant. It is a simple term in WA law and should remain so. In light of the aforementioned view I find it was indeed the defendants who have -- if it was indeed the defendants who have taken the plants I can have no doubt it was wilful. There is clear evidence before the Court of a common purpose to clear the access with the use of heavy machinery. The intent was clear; to lay down visitation (sic vegetation) along the proposed route. It was an intentional and deliberate action and consequently any actions on their part in my view were indeed wilful."
I would respectfully agree with the learned Magistrate. There can be no doubt on the evidence that the appellants went about the task of clearing a track through the vegetation so that there could be vehicular access along the cleared track. The reason for the use of the heavy earth moving equipment and an axe was to clear a way for vehicles through the vegetation. The learned Magistrate in his reasons adequately and correctly reflected the notion of wilful taking. The learned Magistrate as a matter of fact was satisfied that the defendants, and others, cleared the track along the length of Doggerup Road "effectively taking all fauna (sic) flora" in the path of the two bulldozers. He further found that the effect of the use of the bulldozers "was to clear or to lay down all vegetation in front of the machines or in the event of it not being removed it was axed by Mr Towie". Mr Towie was engaged by the appellants in connection with the clearing of the track. It was his Worship's finding that in a section of karri and jarrah forest and thereafter in the swamp land the effect of this activity was to effectively flatten the flora. And his Worship found that "in the course of the clearing much of the vegetation was removed to the side of the track". His Worship went on to find that the three appellants Messrs Court, Owens and Russell "were each present and participated". Mr Owens driving a bulldozer, and Messrs Russell and Court assisting in transportation, placing stakes and directing activities. He also found it was the appellant Shellbay which caused the track to be cleared.
The evidence clearly supported these findings. Indeed, the accepted purpose was to clear a track from Windy Harbour Road to Location 7965 along the Doggerup Road reserve. It is to be noted that this was not a case of the appellants merely passing along Doggerup Road in a vehicle, or even in a bulldozer, in the course of which passage flora was damaged. This was a situation in which the appellants used bulldozers to clear a track through bush so that other vehicles might thereafter pass along Doggerup Road. The actions of the bulldozers, for which the appellants were responsible, cannot sensibly be described as in the exercise of the right of the appellants, along with all others, to pass and repass along Doggerup Road. They were there to clear a track. The oral and video evidence clearly discloses the uprooting, clearing of, removal and injury to the flora in the paths of the bulldozers as well as the felling of flora with an axe.
The finding of the learned Magistrate that the conduct involved wilful taking is well supported by the evidence, indeed it is virtually inevitable, and no error of law as to the notion of wilful taking is demonstrated.

Ground 3

Section 23B(2) of the Act provides an express defence to the offence constituted by s 23B(1) of wilfully taking protected flora on Crown land. Section 23B(2) is the following terms:
"(2)In any proceedings for an offence against subsection (1) it is a defence for the person charged to prove that the taking occurred as an unavoidable incident or consequence in the performance of any right, power or authority conferred upon, or in the discharge of any duty or obligation imposed upon, the person by or under any Act or agreement to which the State is a party and which is ratified or approved by an Act or not withstanding the fact that the performance of that right, power or authority, or the discharge of the duty or obligation, was exercised in a reasonable manner."

Of s 23B(2) the following is to be noted:
•The defendant carries the onus, on the balance of probabilities, of proving that the conduct of the defendant comes within the defence provided by the subsection.
•The defendant must show that the taking of flora occurred as an incident or consequence in the performance of a right, power or authority conferred, or a duty or obligation imposed, on the defendant.
•That right, power, authority, duty or obligation must arise by or under an Act, or by or under an agreement ratified or approved by an Act, the State being a party to that agreement.
•The taking must be shown to have been unavoidable as an incident in or consequence of the performance of the statutory duty etc.
So much is clear. Not clear, however, is the intention or effect of the concluding words of subsection (2) after the words "approved by an Act". It is the submission of the respondent that their effect is to require that the defendant also establish that the right, power, authority, duty or obligation was exercised or performed in a reasonable manner. Passages in the parliamentary debates at the time of the amendment which introduced the provision provides some confirmation that this was the intention; for example, in Hansard for Tuesday 11 September 1979 the Hon I G Metcalfe QC, who as Attorney General had the carriage of the Bill in the Upper House said with regard to the intended effect of the provision, at p 2513:
"But it is a defence for the defendant to prove that whatever he did as a statutory duty he did in a reasonable manner."
And at p 2517:
"It is a defence for a person to be able to say 'I am carrying out a statutory duty, and it is unfortunate that I must disturb some protected flora; however, I am carrying out my duty in a reasonable manner …'. 'He has a defence provided he did what he did in a reasonable manner, pursuant to a statutory obligation'."
Unfortunately, the words chosen in the subsection presently appear to me to be less than clear in their effect. While the interpretation contended for by the respondent may well prove to be that which should be given to the words in question, for the present I prefer to leave unresolved this issue of the interpretation of the concluding words of s 23B(2). I do so on the basis that this appeal can be dealt with without finally resolving that question. In effect, I will proceed for present purposes by ignoring the concluding words of s 23B(2). This, of course, favours the appellants because, on any view reasonably open of the effect of those words, they establish some additional condition which the appellants must satisfy. I will proceed for the present on the basis of considering only whether the taking of the flora has been shown to have been an unavoidable incident or consequence in the performance of a statutory right, power or authority in the discharge of a statutory duty or obligation imposed on the appellants or any of them. I note that in the circumstances of this case there is no agreement ratified or approved by an Act in the relevant sense, so that aspect of s 23B(2) may also be put aside.

Dedicated Road

The appellants first contend that what was done was in the exercise of the statutory right arising from the dedication of Doggerup Road as a road. I have already said enough earlier in these reasons to indicate that there are two obvious problems with this submission. Even if it be accepted that a right to pass and repass includes a right of passage in a bulldozer, the evidence and the finding is that the bulldozers were not merely passing or repassing. They were clearing a track. That is a fundamentally different activity. Secondly, the nature of the evidence and findings of fact of the learned Magistrate negate, rather than support, the factual view that all the taking that occurred was an unavoidable incident or consequence of the bulldozers passing or repassing along Doggerup Road.
Further, the appellants' contention involves the notion that because Doggerup Road was dedicated as a road, the right of passage which that dedication entailed extended so far as to entitle the appellants to pass along the length of Doggerup Road in bulldozers even though it was not possible in fact for that to occur without substantial destruction of the natural trees and vegetation. This appears to involve a significant and unjustified extension of the character and extent of the public right of user of a dedicated road (or highway as the common law would describe the right). As Dixon J said in Nickells v Melbourne Corporation (1938) 59 CLR 219 at 225:
"It is not an unlimited right or a right which is independent of the nature of the place constituted a highway. It is a right of passage, and the mode of its enjoyment must accord with the fitness of the place. There are highways and highways, and the public right extends only to a reasonable use according to the character and purpose of the particular way. Wheeled traffic cannot be taken over footways. No one can insist on driving a vehicle of exceptional weight over a way manifestly incapable of supporting it. A narrow lane cannot be used as a right for the purpose of vehicles which are so wide or so clumsy that they unreasonably obstruct the way or unreasonably endanger the adjoining buildings or erections. In other words, it is a right to but a reasonable enjoyable of the highway such as it is."
This affords no support for the view advanced by the appellants. I am not persuaded in the circumstances of this case that the appellants were entitled, by virtue of the right of passage existing over Doggerup Road in every member of the public, to drive bulldozers along the length of Doggerup Road or on any uncleared part of it so as to clear a track suitable for other vehicles to pass.
It is to be noted also that the statutory dedication of a road does not necessarily involve the opening up, clearing and use of the road for vehicular traffic; Bass Coast Shire Council v King (supra) at 150-1. This provides further reinforcement of the views of Dixon J in Nickells v Melbourne Corporation that the right extends only to reasonable use according to the character of the particular place so that, even though dedicated as a road, a road may remain physically impassable to vehicular traffic unless and until the responsible authority acts to make it passable by altering its physical character.

Licensed Surveyors Act

Secondly, the appellants seek to rely on the Licensed Surveyors Act 1909 and the Licensed Surveyors (Guidance of Surveyors) Regulations 1961 particularly reg 52. It is the submission that the Act and regulations conferred the right, power or authority to carry out a survey and to clear vegetation in that connection. This it is submitted attracts the defence of s 23B(2) to the work of Mr Towie, a licensed surveyor holding a practising certificate under the Licensed Surveyors Act, who, having been retained by Shellbay, worked in conjunction with the bulldozers to ensure that the track cleared by the bulldozers was within the Doggerup Road reserve.
As a licensed surveyor holding a practising certificate, Mr Towie was entitled by s 16 of the Licensed Surveyors Act "to practice his profession" and "to make authorised surveys". By s 17 he might enter upon any land to make an "authorised survey". "Authorised survey" is defined by s 31 of the Licensed Surveyors Act. In essence, it is a survey of land authorised or required:
"(a)under an Act dealing with the alienation, leasing or occupation or Crown lands, or under the Transfer of Land Act 1893, or any other Act affecting titles to land; or
(b)by the proprietor, lessee or mortgagee under any Act affecting titles to land,
including -
(c)a survey of land which re-establishes the boundaries previously established by a survey of land so authorised or required …."
The submissions failed to identify how the setting out of a line within a road reserve on Crown land to guide the clearing of a track along, but within, the length of that reserve, at the instigation of persons whose only interest is that in common with all others to pass and repass along the road, comes within any limb of the defined meaning of an authorised survey. In particular, it is not apparent that any Act authorised or required this survey, let alone an Act of the type specified in (a) or (b) or (c) of the definition. Further, it is clear from the evidence that the survey was not to re-establish boundaries previously surveyed but to mark essentially a centre line down the road reserve to guide the bulldozers.
Section 16(1) of the Licensed Surveyors Act entitles a surveyor to practice his profession if he is duly licensed. The point of this is to preclude a surveyor practising without a licence. The entitlement to practice does not confer a statutory right to conduct any survey a surveyor chooses to undertake or is retained to undertake. The entitlement of the statute is to practice a profession. The distinction is made more evident by the second limb of s 16(1) which entitles a licensed surveyor who holds a practicing certificate to make "authorised surveys". There is no equivalent provision for surveys which are not authorised surveys within the meaning of the Act. Thus there is no statutory right, power or authority or duty or obligation to conduct a survey which is other than an authorised survey for the purposes of the Act.
The appellants point to reg 52, as in force at the time the track was cleared. It has since been amended. At the relevant time it provided:
"Line clearing
(52)All boundary lines shall be cleared to a width of not less than 0.5 metres by the removal of all scrub, and trees (if on the line) of a less diameter than 0.5 metres, shall be cut down …"
This provision may well be accepted as imposing a statutory obligation to clear flora to a width of 0.5 metres of a boundary line being surveyed by a licensed surveyor in the course of a survey to which the regulation applies. The evidence in the present case, however, makes it clear that a boundary line was not being surveyed. The evidence makes it clear that having established the commencement point of the Doggerup Road reserve at the Windy Harbour Road end, Mr Towie then laid out a centre line within the road reserve to guide the bulldozers as they cleared the track. The evidence also makes it clear that the five metre or so wide track that was cleared was entirely within the road reserve and at no point entered the surrounding national park. Further, there is a manifest difference between a 0.5 metre clearing, as contemplated by the regulation, and the 5.0 metre or more clearing which was made through the bush.
A further difficulty is the necessary proposition which is involved in this submission that the clearing was for the purposes of Mr Towie's survey. That was not the factual situation. The clearing was to establish a track passable by four wheel drive vehicles from Windy Harbour Road to Location 7965. Mr Towie's surveying was to ensure that the cleared track ran within the road reserve. The clearing of the track by the bulldozers was not to enable, or for the purposes of, Mr Towie's survey.
Thus, reg 52 in its then form had no application either to the survey work undertaken by Mr Towie in connection with the clearing of this access track or the clearing of the access track.
Finally, the appellants' submissions seems to involve the notion that even if they had no statutory right or authority to clear the track, by engaging a surveyor to ensure the track was cleared within the road reserve, some statutory right or authority was thereby conferred on the clearing of the track. I am unable to accept any such proposition.
For these reasons the Licensed Surveyors Act and the regulations relied on are of no assistance to the appellants in the present case. They give rise to no right, power, authority, duty or obligation within the meaning of s 23B(2) of the Act in the circumstances established in this case. That is the view reached by the learned Magistrate. The appeals cannot succeed on this basis.

Environmental Protection Act

Finally, the appellants contend under ground 3 that they should have been acquitted pursuant to s 23B(2) of the Act as s 40(2) of the EP Act imposed on Shellbay a duty or obligation to undertake an environmental review and to report thereon to the EPA, it being the case in the appellants' submission that the clearing of the flora, the subject of these complaints, was an unavoidable incident in the performance of that duty or obligation. In respect of this aspect of ground 3 the parties submitted further written submissions after the hearing.
As has been indicated earlier in these reasons, in 1996 the modified proposal of Shellbay for the construction of a four wheel drive access track from Windy Harbour Road to Location 7965 along the Doggerup Road reserve was referred to the EPA as required by s 38(1) of the EP Act.
Having formed the view that implementation of the proposal to construct the access track along Doggerup Road would be likely to have a significant effect on the environment, the EPA undertook an assessment of the proposal pursuant to s 40(1)(b) of the EP Act. For the purposes of assessing such a proposal, by s 40(2), the EPA may inter alia require the proponent to undertake an environmental review, and by s 40(3) the EPA "shall determine the form, content, timing and procedure of any environmental review required to be undertaken under subsection (2)(b)". As has been noted earlier, in this case the EPA determined there should be a public environmental review and guidelines were prepared for its conduct. This process inter alia involves public advertising, the preparation of an environmental review document by the proponent Shellbay, the advertising of that environmental review document, the receipt and consideration of submissions on the environmental review document, and eventually recommendations by the EPA to the Minister as to the environmental factors relevant to the proposal and the conditions and procedures if any to which any implementation of the proposal should be subject; see s 44(1). A report to the Minister by the EPA is in turn required to be published and provided to specified ministers and authorities, see s 44(3). There is an appeals process with respect to proposed conditions and procedures, and whether the proposal should be permitted, subject to which the Minister may, under s 45(7), permit the implementation of a proposal subject, however, to conditions and procedures stipulated by the Minister. As has been indicated it is the statutory scheme that the EPA has no authority itself to approve a proposal.
It is the submission of the appellants that under s 40(2)(b) the EPA was empowered to "require" the proponent Shellbay to undertake "an environmental review and to report thereon" to the EPA. It is the submission that to do this Shellbay required vehicular access along the length of the proposed access track to undertake surveys so that it had to clear the centre line of the proposed road, and this is what in effect it did on 19 ‑ 21 February 1999. Hence, it is contended, for the purposes of s 23B(2) of the Act Shellbay had a "duty or obligation" imposed upon it by the EPA under the EP Act which required the clearing of the centre line of the Doggerup Road Reserve and hence the taking of flora which occurred when that centre line was cleared was an "unavoidable incident" in the discharge of the statutory duty or obligation. That being so, it is submitted that s 23B(2) afforded Shellbay, and the other appellants who were acting for it, a defence to these charges.
As the proposal was referred to the EPA, which decided the proposal should be assessed, it appears to me that the effect of s 40(1)(b)(ii) was to impose on the EPA a statutory obligation or duty to assess the proposal. That in turn gave rise to a power in the authority to require the proponent Shellbay to undertake an environmental review and to report thereon. In appropriate circumstances the undertaking of an environmental review and reporting thereon to the EPA is capable of being an "obligation imposed upon" the proponent of a proposal, within the meaning of s 23B(2) of the Act.
In the present case, while the appeal papers do not include all the original documents, it appears that Shellbay was required to undertake the environmental review and to report thereon in May 1997. The evidence further establishes that by January 1998 Shellbay submitted the required report on its environmental review to the EPA. That report dated January 1998 is in evidence. It is an extensive and detailed document prepared with expert assistance. It was entitled a "Public Environmental Review" in respect of the "construction of a track along a gazetted road survey near the south coast of WA". Under a heading of proposed environmental management, Shellbay reported:
"Shellbay have reviewed the vegetation along the proposed route of the new road. This was done partly on foot, partly from the air, and also by inspection of aerial photo interpretation type maps and colour aerial photographs of the area and the vegetation (land form maps prepared by Churchwood)."
The report continued with a detailed review of the vegetation types found to occur on the road survey, detailing species of flora identified in each vegetation type and assessing the projected impact on these from the proposed road. Highlighted are conclusions such as:
"It is concluded that no Declared Rare Flora are likely to occur along the route of this road survey, but a search will be undertaken in any case."
"The proponent concludes that there will be no significant deleterious impact of the road on wetlands or water courses."
A section of the report was devoted to protection of social values such as the visual amenity of the area and identified commitments to minimise visual impact and the report dealt separately with issues such as fauna and Aboriginal heritage sites. There was also a section of the report devoted to Proposed Road Engineering which included the following:
"If approval is given for construction of the road, the following commitments are made with respect to the survey, demarcation, specifications and construction of the road.
3.1Survey and demarcation
Shellbay will employ a professional surveyor to locate the gazetted road survey. Temporary survey pegs will be erected where necessary to mark corners and widths. To enable the centre line to be surveyed through the thick scrub, the proponents will go on foot with the surveyor and demarcate the survey by slashing using hand-axes and fern-hooks. No plants will be uprooted or soil dug out or exposed during this process.
Following slashing, the proposed centre line will be pegged.
The final road alignment within the road survey will be decided upon following clearances on dieback, DRF and Aboriginal sites. The final alignment may comprise gentle sweeps and curves within the survey, so as to minimise side-cutting.
…
The proponents have had over 30 years experience with road making in this south coastal and karri forest area. This experience indicates that following initial construction, the cleared areas adjacent to the carriageway quickly regenerate with tea-tree and other heathland species."
As contemplated by the Act, the report detailed the public consultation and advertising process which was to be followed and invited public submissions to the EPA.
The preparation of this January 1988 report and the environmental review which was its subject was in response to the May 1997 requirement of the EPA under s 40(2)(b) of the EP Act. The case for the appellants, in part, is that despite this review and report they had not been able to comply with the requirement made by the EPA in May 1997 because - "In order for the proponent to undertake and properly complete an environmental review and to report thereon … it was necessary for survey information to be provided (see EPA resolution of 11/2/99 at AB290C)." This appears to misconceive the position. Shellbay did undertake an environmental review, a public environmental review as had been required by the EPA, and it did report thereon to the EPA. The appellants do not point to, and the evidence does not appear to disclose any respect in which the environmental review undertaken by Shellbay failed to comply with the "form, content, timing and procedure" as determined for it by the EPA pursuant to s 40(3) EP Act. There is no other statutory prescription or requirement as to the nature or content of an environmental review. Shellbay's environmental review was undertaken with expert assistance and the report was a professionally prepared document. Thus it does not appear to be the position that Shellbay had not met its statutory obligation under s 40(2)(b) of the EP Act. It had done so in January 1998. Its problem was of a different character. The substance of its environmental review and report was not sufficient to satisfy the EPA that it could, on the basis of the report, complete its assessment so as to report favourably on the proposal to the Minister. Thereafter, Shellbay sought to provide further information to satisfy the EPA. Subject to a question as to events on 11 February 1999, the evidence does not indicate that Shellbay was ever "required" to do so under s 40(2)(b). Rather, Shellbay, for its purposes, needed to do so if it was to get approval from the Minister for its proposed access track.

It does not appear to be the case therefore that Shellbay, and the other appellants, can point to the requirement of the EPA in May 1997 as imposing on Shellbay in February 1999 an obligation to undertake an environmental review, whether or not involving surveys, and to report thereon.
As the evidence indicates, and the submission noted above reflects it, the absence of more detailed surveys inter alia of flora, fauna and Aboriginal heritage sites, was among the matters which caused the EPA to be unpersuaded to support Shellbay's proposal. That is not to suggest that, with that information, the EPA would have supported the proposal. Indeed, as will appear, the evidence would suggest the contrary. Nevertheless, in their submissions, the appellants point to the resolution of the EPA on 11 February 1999 as requiring further survey information to be provided.
While it may have been the view of one or more officers of the Department of Environmental Protection that the environmental review and the report was deficient as to the extent of its detailed environmental survey information, and that may have been made known to Shellbay, the only resolution of the EPA which is pointed to by the appellants as requiring something further, and as specifically requiring survey information, is the resolution of 11 February 1999.
Much is disputed about what transpired at the meeting on 11 February 1999. It does seem to be generally accepted that its purpose was to allow Shellbay by its directors, all of whom attended, to make a protest about what they regarded as prolonged opposition especially from CALM and the Department of Environmental Protection to the proposed access track. It appears that in the course of the meeting the directors expressed their view that the vegetation was too dense to enable more detailed surveys of flora, fauna and Aboriginal heritage sites to be successfully undertaken on foot. It was submitted to the EPA that unless the appellants were allowed to clear to provide access by vehicle it would not be possible to carry out more detailed surveys. The evidence also indicates that there was discussion of the possibility of providing an entirely alternative access route to Location 7965 instead of Doggerup Road, and also of alternative access means through the national park to enable further surveys to be undertaken on the Doggerup Road reserve. Those present at the meeting during the protest submissions of the directors included representatives of CALM, the National Parks and Nature Conservation Authority, the Department of Environmental Protection and of course the members of the EPA. The appellants already knew of the opposition from various authorities and in particular the concern that the access track would be through dieback affected forest. It was the case for the prosecution that at this meeting it was clear to the directors that the "writing was on the wall" that the proposal for an access track would not be supported and, after the meeting, that led Shellbay by its directors in effect to "self-help" by clearing the access track to Location 7965.
There was, however, evidence for the appellants that the Chairman of the meeting had asked those present whether anyone could stop the appellants from using an earthmoving machine to gain access along Doggerup Road to carry out further environmental surveys. It was the effect of this evidence that no one present suggested they could stop this being done and that the Chairman then said to the effect "Well, it appears that’s what you will have to do". This evidence was the subject of very direct denial from prosecution witnesses, it being the prosecution evidence that no such thing occurred and nothing was said to indicate or which might have encouraged the view that the appellants might clear a track using earthmoving machinery for the purpose of providing a means of vehicle access, whether for conducting further environmental surveys or otherwise. Even so, that evidence for the appellants is not to the effect that there had been a resolution or decision while they were present that Shellbay was required to make further surveys. Its effect is that to overcome the catch 22 of which they had complained the Chairman, in the end had said "Well … that’s what you will have to do", ie to clear a track. At best that would appear to be permission to clear a track so that Shellbay could undertake better surveys with a view to trying to satisfy the EPA - rather than a formal direction or requirement that Shellbay should undertake further surveys or provide further survey information.
The assessment of this conflicting evidence was obviously a matter for the learned Magistrate who had the distinct advantage of having heard and seen the various witnesses who dealt with this issue. It is to be noted, however, that in addition to the Magistrate's assessment of personal credibility it was also of potential significance to his evaluation of the evidence that the EPA had no statutory power to grant approval to clear a track for any purpose so the appellants' case involved the EPA acting in disregard of its statutory role and powers in a matter of considerable environmental significance. Further, the EPA members at the meeting had been briefed in writing as to the objections to the proposal and the protest put to the meeting by the appellants was not new as the situation had existed and was known for some time. These matters separately, or in combination, may well have been thought by his Worship to tell strongly against the proposition that the members of the EPA would be prepared, on the spot, to authorise or agree to the clearing of a track by machinery as suggested in the evidence of the appellants.
In his extempore reasons for decision, after reviewing the relevant evidence, the learned Magistrate said:
"Nothing had changed. In my view, in any event, given this history and the recommendations in the briefing paper, it is not probable to suggest that authorisation was given, after four years of frustration, for the bulldozers in blade-up position - for the defendants to go in and clear as they did.
At the end of the day the EPA may well have required certain information before recommending the proposal but it places no obligation of (sic or) duty on any party …" (emphasis added)
In my view, this constitutes two distinct findings of fact against the appellants' case (a) that they were acting in pursuance of a statutory duty or obligation imposed on Shellbay to provide further environmental survey information and (b) that they were authorised at the meeting on 11 February 1999 to clear the track as they did. In this respect it is to be remembered that the appellants carried the onus of establishing any defence under s 23B(2) of the Act before the Magistrate and his Worship's reference to "not probable" is an obvious reference to the balance of probabilities, which is the standard of proof which the appellants were required to satisfy.
It is to be further noted that the evidence for the appellants, even if accepted, which it was not, does not suggest there was any formal decision or resolution of the EPA while they were present. The evidence discloses that after the appellants had left there was discussion of the issue by the EPA and a formal resolution was made before the EPA moved on to other business. The terms of the resolution are recorded in the minutes of the EPA which are in evidence. The resolution was first communicated to the appellants by letter of the Chairman of the EPA sent on 24 February 1999. In fact, this was after the appellants had cleared the access track. The clearing of the access track (and the 'taking' of the flora which this involved) on 19 - 21 February 1999 was not, therefore, even on the evidence for the appellants, in the performance of an obligation or duty imposed on Shellbay under the EP Act by virtue of a requirement of the EPA made on 11 February 1999. On 19 - 21 February 1999, Shellbay had no knowledge of any requirement or resolution made by the EPA on 11 February 1999.
It is also relevant to consider the terms of the resolution of the EPA as communicated to Shellbay and its directors. In the letter dated 24 February 1999 the Chairman said:
"The Environmental Protection Authority (EPA) considered the above proposal at its meeting on 11 February 1999 and wishes to provide the following advice:
(a)The information available to the EPA at this time indicates that the EPA's environmental objectives can not be met and the EPA is likely to recommend that the proposal should not be implemented.
(b)In view of this, the proponent should approach the Department of Conservation and Land Management (CALM) to investigate an alternative alignment, preferably through the current review of the Shannon Park and D'Entrecasteaux National Park Management Plan. CALM has indicated that this would be an appropriate approach as the plan is currently under review.
(c)Should the proponent decide to pursue the approach outlined in (b) above it follows that no access for surveys in the proposed alignment would be needed, and you may seriously consider withdrawing the proposal.
(d)If the proponent decides not to withdraw the proposal, and if any surveys of the gazetted road alignment are undertaken they should be carried out in accordance with the EPA, National Parks and Nature Conservation Authority and CALM requirements.
(e)The required survey information should be provided to the EPA so that it can assess all of the relevant factors. However, I must caution you that the current EPA view that it is most unlikely that the proposal will be found to be environmentally acceptable."
The appellants rely on subpar (e) and the reference to required survey information. It is doubtful, indeed, that this could be considered to be a formal requirement to undertake a further environmental review within the meaning of s 40(2)(b) of the Environmental Protection Act or a recognition that such a requirement existed on 11 February 1999. It appears instead to be a reference to additional survey information which the EPA would require if they were to be persuaded as to the environmental acceptability of the proposal. That is the view the Magistrate took of it in the last passage from his reasons quoted above and that view was well open on the evidence. Nevertheless, even if it were to be interpreted to be a requirement on Shellbay to undertake a further environmental review involving further environmental surveys so as to give rise to a statutory obligation to do so, (which is not the finding of the learned Magistrate) it would be impossible to ignore subpar (d) which required that if any surveys were undertaken they should be carried out in accordance with the requirements of the statutory authorities identified. What was done by the appellants on 19 - 21 February 1999 entirely failed to comply with this, so that even on this hypothetical basis, the taking of the flora on 19 - 21 February 1999 could not be said to have been an unavoidable incident in the performance of the supposed statutory obligation.
In addition, there appears to be much force in the submissions for the respondent that the evidence led at the hearing falls well short of demonstrating to the required standard that the clearing of a track some five metres or more in width, the full length of the Doggerup Road Reserve from Windy Harbour Road to Lot 7965 was an unavoidable incident of any statutory obligation which might be contended for to provide further environmental survey information especially, as detailed earlier in those reasons, when the clearing of that track involved in parts the removal of all growth to clear earth, the pushing to the side of cleared growth, and the axe-felling of growth left standing behind the bulldozers.
In his reasons the learned Magistrate further held:
"… and most certainly any taking was not an unavoidable incident or consequence as it (sic) is referred to in the defence submissions."
This is a finding that the clearing of the 5 metre or more wide access track was in fact not an unavoidable incident or consequence with the meaning of s 23B(2) of the Act. That is sufficient on its own to provide a further basis on which the operation of s 23B(2) is negated. This view also was well open to his Worship.
When this last finding is taken together with the learned Magistrate's finding that there was no statutory duty or obligation to undertake further surveys, it was clearly his Worship's view that Shellbay, and those assisting it, had failed to make good the defence afforded by s 23B(2). For the reasons given it has not been shown that it was not open to the learned Magistrate to reach these findings, either in fact or law.

General

Some other matters were canvassed in oral and written submissions by the appellants but as these did not relate to the grounds of appeal they will not be considered.
One cannot help but appreciate the sense of frustration which the appellants, who were the directors of Shellbay, must have felt as the years went by without apparent progress in their attempts to gain vehicular access to Location 7965. It is not possible to know the truth of the matter merely from what is revealed in the papers before me on this appeal but on the circumstances that are revealed it is not surprising that the directors should form the view that they had become the victims of some obstruction to their efforts to gain access to their land. Nevertheless, on the findings of the learned Magistrate, which are well supported by the evidence, it would appear the directors and Shellbay decided on a course of self‑help to overcome what they saw to be a catch 22 problem. By this means they secured four wheel drive vehicular access to Location 7965. What may prove to be the environmental consequences of their actions will be for others to determine in the course of time.
Despite the considerable legal skill and ingenuity displayed in the case on appeal for the appellants, for the reasons that have been set out the appeals must fail. They will be dismissed.