Slack-Smith v Director-General of the Department of Land and Water Conservation

[2003] NSWLEC 189

>

Land and Environment Court

of New South Wales

CITATION:	Slack-Smith and Another v Director-General of the Department of Land and Water Conservation [2003] NSWLEC 189
PARTIES:	APPLICANTS Ross Slack-Smith Genise Janet Slack-Smith RESPONDENT Director-General of the Department of Land and Water Conservation
FILE NUMBER(S):	40856 of 2002
CORAM:	Talbot J
KEY ISSUES:	Judicial Review :- failure to afford procedural fairness natural justice where appeal allowed - Wednesbury unreasonableness - test of satisfaction or jurisdictional fact - whether estoppel against requirement for development consent - severance of invalid conditions Estoppel :- cannot prevent exercise of statutory discretion - cannot waive requirement for approval - advice that consent not required cannot raise estoppel
LEGISLATION CITED:	Interpretation Act 1987 s 9 Local Government Act 1919 s 317B(5) National Parks and Wildlife Act 1974 Native Vegetation Conservation Act 1997 s 4, s 21(2), 21(2)(a), s 47, s 47 (1), s 47(1)(a), s 47(2), s 48, s 48(1), s 48(2), s 68, Noxious Weeds Act 1993 Rural Fires Act 1997 Rural Lands Protection Act 1998 Western Lands Act 1901 s 18DB Western Lands Regulation 1997 s 29, Sch 4
CASES CITED:	Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223; Brickworks Limited v The Council of the Shire of Warringah (1963) 108 CLR 568; Cann's Proprietary Limited v The Commonwealth and Another (1946) 71 CLR 210; Corporation of the City of Enfield v Development Assessment Commission and Another (2000) 199 CLR 135; Cox & Hazel Pty Ltd v Gidney [1981] 1 NSWLR 468; Ex parte Hernes Estates Pty Ltd; Greater Wollongong City Council and Another (1967) 14 LGRA 102 at 108; Julius v Oxford (Bishop) 49 LJ QB 585; 5 App Cas 235; King Gee Clothing Company Proprietary Limited and Others v The Commonwealth and Another (1945) 71 CLR 184; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1985-1986) 162 CLR 24; Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734 Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17, unreported; R v East Sussex County Council; Ex parte Reprotech (Pebsham) Ltd [2002] 4 All ER 58; The Council of the City of Parramatta v Pestell (1972) 128 CLR 305; The Melbourne Steamship Company Limited v Moorehead (1912) 15 CLR 333 Pyneboard Pty Ltd and Others v Trade Practices Commission and Bannerman (1982) 39 ALR 565; Thompson and Others v The Council of the Municipality of Randwick (1950) 81 CLR 87 at 105-6; Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106; Wyong Shire Council v Associated Minerals Consolidated Ltd and Another [1972] 1 NSWLR 114
DATES OF HEARING:	09/07/2003, 10/07/2003, 11/07/2003
DATE OF JUDGMENT:	08/22/2003
LEGAL REPRESENTATIVES:	APPLICANTS Mr M A Robinson (Barrister) with Mr M H Baird (Barrister) SOLICITORS Navado Chartered Accountants and Solicitors RESPONDENT Ms J C Kelly (Barrister) SOLICITORS Department of Infrastructure, Planning and Natural Resources (formerly Department of Land and Water Conservation)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40856 of 2002


Talbot J

22 August 2003

Ross Slack-Smith

Genise Janet Slack-Smith

Applicants
v

Director-General of the Department of Land and Water Conservation

Respondent

Judgment

Introduction

1 The applicants received a Direction to Carry out Remedial Work (“the Direction”) issued by Geoffrey Allan Wise, the Regional Director, Far West Region of the Department of Land and Water Conservation (“DLWC”) as delegate of the Director-General of DLWC dated 24 May 2002, allegedly pursuant to s 47(1) of the Native Vegetation Conservation Act 1997 (“the NVC Act”). The Direction related to the property “Muttabun” at Lightning Ridge being land included in Western Lands Lease (“WLL”) 308, WLL 384, WLL 722 and WLL 5346 (“the property”). It is alleged that clearing of native vegetation was carried out on the property between February and June 2000 in contravention of Pt 2 of the NVC Act.

2 The applicants are seeking relief in the form of a declaration that the Direction is unlawful and an order that it be set aside. Furthermore, the applicants seek an order that the Director-General be estopped from issuing any further notice against the applicants in respect of the property.

3 The points of claim particularise 24 separate reasons in support of the claim that the Direction was ultra vires. Further challenges are made on the ground of jurisdictional error or error of law, including taking into account irrelevant considerations and a denial of procedural fairness. There is also a claim of Wednesbury unreasonableness. The allegation of estoppel arises as a consequence of alleged oral and written approval from officers of the respondent to clear the subject land.

4 Section 47 of the NVC Act provides as follows:-

47 Directions for remedial work


(1) If the Director-General is satisfied:

(a) that any native vegetation, or any protected land, has been cleared in contravention of Part 2, or

(b) that the clearing of native vegetation on any land, or the clearing of protected land, has caused, or is likely to cause, on or in the vicinity of the land, any soil erosion, land degradation or siltation of any river or lake, or any adverse effect on the environment,
the Director-General may, by notice in writing, direct the landholder, or the person having the control or management of the clearing, to carry out specified work in a specified manner and within a specified time.

(2) Any one or more of the following types of work may be directed to be carried out by a notice under this section:

(a) work to repair any damage caused by the clearing,

(b) work to rehabilitate any land affected by the clearing,

(c) work to ensure that specified land, or any specified river or lake, will not be damaged or detrimentally affected, or further damaged or detrimentally affected, by the clearing.

(3) A direction under this section may be varied or revoked by a further notice.

(4) A person who does not comply with a direction under this section is guilty of an offence and is liable to a penalty not exceeding 1,000 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 100 penalty units for each day the offence continues.

(5) If a person fails to comply with a direction under this section, the Director-General may authorise any other person to enter the land and carry out the specified work.

(6) The Director-General may recover the cost of that work from the person given the direction in any court of competent jurisdiction as a debt due by that person to the Crown.

(7) Until repayment, the cost is to be a charge on the land.

5 The body of the Direction expressly refers to a contravention of Pt 2 of the NVC Act. Section 21(2) within Div 2 of Pt 2 of the NVC Act provides that a person must not clear native vegetation on any land except in accordance with a development consent that is in force or a native vegetation code of practice.

6 Pursuant to s 48 of the NVC Act a person aggrieved by the decision of the Director-General to give a direction pursuant to s 47 may appeal against the decision to this Court within 30 days of the service of the notice of the direction. On 17 June 2002 an appeal was lodged pursuant to s 48(1). On 20 December 2002 Bignold J granted a stay of action on the decision to issue the Direction pursuant to s 48(2), pending the hearing of these proceedings in the class 4 jurisdiction of the Court.

7 Section 68 of the NVC Act is a savings and transitional provision whereby Sch 4 has effect. Pursuant to cl 5(2) in Sch 4 the clearing of native vegetation in the Western Division for a purpose described in Sch 4 to the Western Lands Regulation 1997 (“the Western Lands Regulation”) is taken to be clearing that is exempt from any requirement under Pt 2 of the NVC Act for development consent.

8 Pursuant to Regulation 29 of the Western Lands Regulation a lessee under a WLL or the occupier of any other land is not required to obtain a clearing licence under s 18DB of the Western Lands Act 1901 (“the Western Lands Act”) to do any of the things specified in Sch 4. Schedule 4 of the Western Lands Regulation contains two relevant paragraphs as follows:-

Schedule 4 Exemptions from requirement to obtain clearing licence

...
(7) Clear land of trees which are less than 3 metres high where one or more of the following species predominates:
…

Eucalyptus populnea (bimble box)
Eucalyptus coolabah (coolibah)
Callistris glaucophylla (white cypress pine)
…
(8) Clear land where the predominant species are “woody weeds” which, for the purpose of this paragraph, are:
…

Eremophila mitchellii (budda, false sandalwood)
…

The Direction

9 In the body of the Direction the owners of the land are directed pursuant to s 47(1) of the NVC Act to carry out works set out in the attached Schedule of Works (“the Schedule”) in the manner specified and within the time specified. The date of expiration of the notice is stated to be 10 years from the date on which it is signed.

10 Part 1 of the Schedule comprises definitions to be applied to terms used within the Schedule. Part 2 identifies the objectives as being to facilitate natural regeneration of native groundcover, shrub and overstorey in the cleared areas and to facilitate the restoration of the habitat and connectivity values that have been removed as a result of the clearing. Eight general conditions are applied, followed by identification of the Remediation Areas and a Stock Access Route as follows:-

4.0 Identification of the Remediation Areas and a Stock Access Route
4.1 Three areas of land on “Muttabun”, identified as Remediation Areas 1,2 and 3 on Attachment 1 to this Schedule, shall be set aside for the regeneration of native vegetation and restoration of habitat and connectivity values.
4.2 One Stock Access Route shall be permitted within the Remediation Areas.
4.3 A site meeting between the Lessees and DLWC officers will take place within 14 days of service of the Notice, in order to identify the boundaries of the Remediation Areas on the ground and to identify the location of the Stock Access Route.
4.4 Following the site meeting the Resource Compliance Manager will confirm the location of the Stock Access Route to the Lessees in writing.

11 Three specific sets of conditions then follow dealing respectively with Domestic Stock Management and Fencing in the Remediation Areas, Control of Noxious Weeds and Pest Animals in the Remediation Areas and Property Maintenance within the Remediation Areas.

12 The form and contents of the Direction is a contentious issue.

13 The Remediation Areas are referred to as land identified as Remediation Areas 1, 2 and 3 on the map attached to the Schedule. However, condition 4.3 set out above provides that a site meeting between the applicants and DLWC will take place within 14 days of service of the notice in order to identify the boundaries of the Remediation Areas on the ground and to identify the location of the Stock Access Route permitted within the Remediation Areas. The Remediation Areas are identified by hatching in the map, which is a reproduction of a Landsat 7 Image dated 23 June 2000. The complaint in regard to the description of land is that the Direction does not identify the boundaries or location of the land that has been allegedly cleared in contravention of Pt 2 of the NVC Act. Furthermore, although it is alleged the description is imprecise, the applicants complain that the areas are significantly larger in size than the areas cleared.

14 Conditions in relation to Domestic Stock Management include excluding stock from the Remediation Areas for a period of 10 years, enclosure of the Remediation Areas by stock-proof fencing, the maintenance of the fence, bi-monthly inspections to check that domestic stock are not present and inspection of the fencing after fires, floods, storms and strong winds and otherwise at least every six months. The applicants claim that these conditions are entirely unreasonable and out of all proportion to the purpose of the legislation.

15 Directions are made for compliance with the requirements of the Rural Lands Protection Act 1998 (“the Rural Lands Protection Act”), the Noxious Weeds Act 1993 (“the Noxious Weeds Act”), the Rural Fires Act 1997 (“the Rural Fires Act”), the National Parks and Wildlife Act 1974 (“the NP&W Act”) and the NVC Act. Apart from uncertainty and lack of specificity the conditions requiring compliance with other legislation, according to the applicants, is not authorised by s 47(2) of the NVC Act. Furthermore, they are exposed to criminal sanction for failure to comply with other legislation which the Direction purports to overlay. Significantly, there is an attempt to interpose the Resource Compliance Manager of DLWC Far West Region for the purposes of monitoring compliance with legislation other than the NVC Act.

16 The conditions also require that the applicants control the regrowth of Budda in the Remediation Areas under written authorisation from, and to the satisfaction of, the Resource Compliance Manager in a manner to be stipulated by the Resource Compliance Manager. It is the applicants’ case that this aspect of the condition, together with others requiring consultation with, or approval of, the Resources Compliance Manager, are so uncertain they are thereby rendered invalid (see King Gee Clothing Company Proprietary Limited and Others v The Commonwealth and Another (1945) 71 CLR 184 and Cann’s Proprietary Limited v The Commonwealth and Another (1946) 71 CLR 210).

17 There are a number of matters that the applicants are forbidden to do by the Direction, including cultivate, crop, plant or harvest any seeds or plants, or spray any substance (including pesticides or poison) or undertake any work to improve pasture through the addition of groundcover species or the application of fertiliser in the Remediation Areas. The applicants regard these provisions to be beyond the authority of s 47, which is specifically orientated to require a landholder to “carry out specified works in a specified manner and within a specified time”, including in particular the matters nominated by s 47(2).

The evidence

18 The property has a total area of approximately 10,396 hectares being the four WLL’s referred to above and is held by the applicants.

19 The property has been used for the purpose of grazing cattle and sheep. In addition, opal miners mine the property at various locations.

20 On 7 July 1993 the Department of Conservation and Land Management conditionally authorised the clearing of prescribed species of woody weeds over approximately 3,280 hectares on the property. No clearing was carried out pursuant to the 1993 authorisation.

21 An application made by Ross Slack-Smith to West 2000 for a financial grant towards the cost of clearing woody weeds on the property on 4 March 1998 was subsequently withdrawn in July 1998.

22 On 14 February 1999 Mr Slack-Smith submitted an expression of interest in a woody weed control grant for perennial pasture management to West 2000. By letter 21 July 1999 Angus Atkinson, a West 2000 Woody Weeds Project Officer, advised Mr Slack-Smith that funding had become available enabling him to apply for a $10,000 grant and inviting him to complete an enclosed application form and to develop a Perennial Pasture Management Plan.

23 Following an interview with John Bickmore, the local area Catchment Manager, at the office of the DLWC in Walgett, Mr Slack-Smith completed a Perennial Pasture Management Plan (“the management plan”) and submitted it to West 2000. The management plan referred to 1,400 acres of target species with the actual area of woody weeds to be cleared nominated as 700 acres. The target species were identified as Budda, Coolibah and Belah. The land proposed to be cleared was within WLL 5346 and part of WLL 384.

24 Subsequently, at the request of Mr Atkinson, Mr Slack-Smith provided a map indicating the area he intended to be cleared, comprising an area of 480 acres in WLL 384 (“River Paddock”) and 920 acres in WLL 5346 (“Sandridge Yard”). Although Mr Slack-Smith referred to 1,400 acres, his evidence is that the area outlined on the map was larger than that. A rabbit-ripping program was referred to in the plan.

25 On 24 August 1999 Mr Slack-Smith attended a West 2000 Information Day when he had a conversation with Mr Atkinson and another West 2000 officer, Robbie Martin. He arranged a meeting with the two officers for the next morning at the property. Mr Slack-Smith claims that he also spoke to Peter Gordon Smith, the Rangeland Management Officer for the Walgett Region of the DLWC at the Information Day when he says the following exchange took place:-

I said: “How do you get a permit to pull this sought [sic] of country?’

He said: “If you are going to pull woody weeds, then you don’t need a permit”.

I said: “Does the Department of Land and Water Conservation come out and make that assessment?”

He said: “No.”

26 Mr Smith does not recall having the above conversation with Mr Slack-Smith on 24 August 1999 as alleged. Nevertheless, he does not believe that he said Mr Slack-Smith did not need a permit to “pull” woody weeds. However, he agrees that it is possible that he could have said, in the context, that Mr Slack-Smith would not need a permit to “clear” woody weeds. Mr Smith explains that he understood the expression “pull” to be a reference to using a chain dragged between bulldozers to remove vegetation. It has been his opinion for a long time that chaining is not a satisfactory way to clear woody weeds because it is non-selective and causes, in his view, great damage to vegetation which is not a target.

27 On 25 August 1999 Mr Atkinson and Mr Martin inspected Sandridge Yard and River Paddock with Mr Slack-Smith. Mr Slack-Smith claims that when asked whether the areas inspected comprised woody weeds Mr Atkinson replied with words to the following effect:-

“Yes, all of the areas we have been looking at are woody weeds and there is no problem with you removing all that vegetation because it falls within the exemptions in the Western Lands Regulations.”

28 Mr Slack-Smith forwarded an amended Perennial Pasture Management Plan (“the amended plan”) to West 2000 on 14 September 1999. A reference to the method of “raking” was deleted from the schedule of costs and replaced with the description “chaining”. However, the reference to “raking” was maintained in the body of the amended plan as the primary technique to be used. The inconsistency appears to be explained by the fact that only part of the original management plan was returned to Mr Slack-Smith in order to allow him to change the reference from raking to chaining.

29 By letter dated 11 October 1999 Mr Atkinson advised Mr and Mrs Slack-Smith that the application form had been assessed and was “considered suitable”. However, the application would not be approved until a reply to a written inquiry directed to their accountant requesting a copy of income tax returns for the year 1998/1999 had been received. Mr Atkinson produced a copy of a letter addressed to Mr Slack-Smith informing him of the requirement to derive over 50 per cent of the gross income from pastoral and/or broad acre agriculture within the Western Division to be eligible for the woody weed grant. On 28 October 1999 Mr Slack-Smith withdrew the application for funding as he says he could not meet the criteria for over 50 per cent of income in the previous financial year to be derived from on-farm activities. Income from opal mining royalties negated the qualification.

30 Mr Slack-Smith has told the Court that had it not been for the statements by Mr Smith, Mr Atkinson and Mr Martin and the contents of the letter received from West 2000 dated 11 October 1999 he would not have proceeded to clear the vegetation the subject of the Direction in Sandridge Yard and River Paddock. He says that the clearing was undertaken in the manner set out in the revised funding application during May 2000. The clearing was undertaken after the contractor completed other commitments at a suitable time of the year when the soil was moist and the weather was cooler than at other times.

31 Mr Atkinson has given evidence. He has explained the West 2000 Plus Program and his position as Co-ordinator for the distribution of financial incentives for landholders to undertake on-ground woody weed control works. Mr Atkinson deposes to making the following statement during his presentation at the Information Day on 24 August 1999:-

"It is my understanding that under the Native Vegetation Conservation Act landholders can clear land if it is predominantly woody weeds and landholders can clear certain trees under 3 metres like pine but you would need to speak to Peter Smith from DLWC about that.”

32 Mr Atkinson agrees that a conversation with him in the terms deposed to by Mr Slack-Smith took place on that day. Rather than the sweeping statement attributed to him by Mr Slack-Smith during the inspection of the property on 25 August 1999, Mr Atkinson gives the following account of the conversation:-

Mr. Slack-Smith said:
“Can I clear trees like those?”
I said in reply:
"It is my understanding that under the Native Vegetation Conservation Act landholders can clear land if it is predominantly woody weeds and they can clear certain trees under 3 metres like pine but you would need to speak to Peter Smith from DLWC about that.”
…
Then Mr. Slack-Smith said:
“What’s predominant?”
I said:
“There is no clear definition of predominant and it’s up to you to determine what that is and that if you are confident that an area is predominantly woody weeds, you don’t need to get an approval from the Department of Land and Water Conservation.”

33 Mr Atkinson says that he repeatedly told Mr Slack-Smith that it was up to him to decide if he needed approval and that if he had any questions regarding the need for permission to clear he needed to speak to the appropriate DLWC officer, Mr Smith. It is Mr Atkinson’s evidence that there were areas containing Budda, Pine and Coolibah trees at various densities and sizes. The vegetation in some of the areas was, in his opinion, predominantly Budda and, therefore, able to be cleared without DLWC authorisation. Furthermore, an area did contain a number of Pine and Coolibah trees that were under three metres and he believes it probably fitted under the exemption from the NVC Act. However, he says there were other significant areas that were obviously not predominantly Budda and there were also a number of Pine and Coolibah trees that were not under three metres. During the inspection of the property there was also a discussion about clearing trees in order to gain access to rip rabbit warrens. Having read the application by Mr Slack-Smith and taken particular notice of the fact that it indicated that only Pine and Coolibah trees under three metres and Budda would be targeted, he was confident that if Mr Slack-Smith performed the work as described in his application it would be unlikely to be in breach of the NVC Act.

34 During the property visit he suggested to Mr Slack-Smith that the method of chaining would be far more cost effective than raking. He further explained that:-

“Landholders in other areas had done a good job using chaining and knocking down most of the woody weeds and have left most of the non-target tree species. I consider raking as only necessary if you wish to cultivate the area but as this is for grazing it would only be an extra cost. The advantage of chaining is that it leaves the residue on the ground and acts as a protection from stock when it rains and will add to the fuel load when you burn.”

35 Mr Atkinson agrees that he and Mr Martin made it clear they believed Mr Slack-Smith could operate under the then current NVC Act exemption. However, they say they also continued to make it clear that Mr Slack-Smith should speak to Mr Smith if he wanted advice in regard to clearing.

36 After visiting the property and familiarising himself with the area the subject of the application supported by the management plan, Mr Smith completed a report on 23 September 1999 whereby he noted that the project complied with all relevant legislation and was, therefore, able to proceed. He says, however, that on 23 September 1999 he was not aware that Mr Slack-Smith had revised the application to provide for the method of chaining. Mr Smith has no recollection of any conversations with Mr Slack-Smith.

37 It became clear during cross-examination that Mr Atkinson’s recollection of what was said in conversations with Mr Slack-Smith is based upon a reconstruction several years later when he was asked to prepare evidence for presentation in these proceedings. No contemporaneous notes were taken. His evidence of the words used by him is based upon an assessment of what he believes he would have said. On the other hand, Mr Slack-Smith was forthright, concise and clear about the events and conversations the subject of his evidence. Accordingly, where there is any discrepancy between the evidence of Mr Slack-Smith and the other witness, the evidence of Mr Slack-Smith is to be preferred.

38 Geoffrey Cunningham is a Natural Resource Consultant engaged by the applicants in respect of the merits appeal against the issue of the Direction. Part of his evidence in support of the appeal has been read in these proceedings. He summarises apparent changes to the vegetation on the lands the subject of the Direction during the past 32 years following the preparation of a Soil Conservation Service Western Lands Lease Management Plan in respect of the land in 1970. Based upon a stereoscopic examination of aerial photographs he has determined “some likely boundaries between the native vegetation communities present” on the property. These boundaries were further checked during eight days of field inspections. In the course of the field inspections he plotted the boundaries of the cleared lands and remnant areas of native vegetation. Seven quadrats were used to quantify the standing vegetation at a series of sites in the surrounding and island remnants of native vegetation associated with the cleared land. An additional quadrat within a cleared and burned White Cypress Pine community was measured. All trees and shrubs in all quadrats were individually tagged and their height measured up to approximately four metres. No attempt was made to record groundcover plants because of their general scarcity resulting from drought, burning and grazing.

39 Transects were used only on the cleared lands for recording all species that occurred either as a standing or fallen plant attached to the ground surface or a detached plant. This method of survey allowed a count of trees and shrubs growing or lying within or lying across the individual belt and so provided a good measure of the relative proportions that each species comprised of the cleared vegetation. In an attempt to adopt a definition of the words “predominate” and “predominant” Mr Cunningham referred to the Macquarie Dictionary, the Shorter Oxford English Dictionary and botanical definitions in Austin [1981]. The understanding that he adopts is that a plant or other object is predominant if it is the most abundant species or object within a group of species or objects. In his opinion, the species that is present in the greatest number and to the most noticeable extent is the predominant species. He contrasts the presence of transient or temporary groundcover species with the permanence of shrub species.

40 The evidence of Mr Cunningham is that in many of the communities on the property, Budda is the most common species and is thus predominant. Furthermore, he says, that in the almost mono-specific White Cypress Pine communities, within the land the subject of the Direction, White Cypress Pine is predominant even though there may be some Bimble Box or Silver-leaf Ironbark trees that are individually larger and more conspicuous since they protrude above the general canopy level.

41 He concludes that, based upon stereoscopic aerial photograph interpretation of prints covering the lands subject to the Direction combined with the field quadrat and transect data, there are four main communities present on the land. These are as follows:-

§ Bimble Box / Budda Community

§ Bimble Box / Budda / White Cypress Pine Community

§ White Cypress Pine / Silver-leaf Ironbark Community

§ Gidgee and Gidgee / Budda Community

42 The first two communities, according to Mr Cunningham, occupy the greatest proportion of the area that has been cleared. In these communities, he says, Budda is the predominant species.

43 The last abovementioned communities are located on the edge of the cleared lands and have only been cleared to a minor degree. In these communities, he says, Budda is also the predominant species.

44 The remaining community, in Mr Cunningham’s view, occupies about 20 per cent of the total area cleared. White Cypress Pine of various size classes, according to him, is predominant within this community. However, the percentage contributed to the population by the trees less than or greater than three metres in height varies considerably. From the extensive measurements made by Mr Cunningham, White Cypress Pine trees less than three metres in height appear to him to predominate over larger trees of this species within the White Cypress Pine/Silver-leaf Ironbark community. Moreover, Mr Cunningham says that the predominance is narrow. However, the area occupied by this community has, according to Mr Cunningham, the greatest evidence of rabbit infestation.

45 Terrence Mazzer is employed by DWLC as the Regional Ecologist in the Far West Region. He has prepared a report for the purpose of these proceedings. Whereas Mr Cunningham maps only the vegetation on the area subject to the Direction, Mr Mazzer, using aerial photograph interpretation, re- mapped a larger area to include all of the land cleared by the applicants. Approximately 1,700 hectares were mapped into 57 polygons which were aggregated into nine vegetation types. The polygons and vegetation types were refined by the information collected by DWLC officers, Margaret Pritchard, Ross Sawtell, Renee Shepherd and Jocelyn Potts during July 2000 and field checking by Renee Shepherd and himself on 15-17 January 2002.

46 However, in a joint report prepared pursuant to the Expert Witness Practice Direction, Mr Mazzer and Mr Cunningham agree that their mapping is broadly compatible if the additional areas mapped by Mr Mazzer are taken into account.

47 Mr Mazzer is satisfied that White Cypress Pine did predominate across the majority of one area comprising 150 hectares. In his opinion, therefore, exemption (7) in Sch 4 to the Western Lands Regulation, in terms of the species which predominates, applies to this land. However, the majority of White Cypress Pine and other tree species he observed in the uncleared areas and trees measured by others in the cleared areas was, according to him, substantially taller than three metres high. In the remaining area cleared, which he estimates at approximately 585 hectares or 80 per cent of the total area, although species referred to in exemption (8) are present they are not, in his opinion, predominant. He contends that the most noticeable and influential species present in this area are those in the tree canopy.

48 In Mr Mazzer’s opinion tree species are predominant due to their much greater height and breadth and consequential influence on the site. He disagrees with Mr Cunningham’s logic of simply employing a count of plants and believes Mr Cunningham has erred in amalgamating the tree and shrub layers present in the areas cleared. Recognising that several different definitions of predominant could be used, Mr Mazzer concludes that in his opinion the superior definition is the use of the “Dominant or Characteristic Species in the Tallest Stratum” (Walker and Hopkins (1998)). His analysis of the larger area referred to above leads him to conclude that “woody weeds” were not predominant using five of the eight possible definitions identified by him. He reiterates that Mr Cunningham’s use of most abundant species of tree or shrub is not adequate because, in his view, it does not take into account the distinct layers of vegetation on the site and it does not address the question of most noticeable extent or influence.

49 Arising out of the joint conference between Mr Cunningham and Mr Mazzer pursuant to the Expert Witness Practice Direction, the relevant points of disagreement are as follows:-

(1) In respect of the area where White Cypress Pine dominates they disagree on the likely proportion of trees less than or greater than three metres high;

(2) In the larger area comprising 530 hectares, according to Mr Cunningham, and 585 hectares, according to Mr Mazzer, they disagree as follows:-

(a) on the “predominance” of Budda; and

(b) on how “predominance” should be measured.

50 There is no disagreement that the two areas should be regarded respectively as eligible for determination of an exemption pursuant to (7) and (8) in Sch 4 to the Western Land Regulation.

51 The remaining evidence relied upon by the parties is documentary.

The documents considered by the decision maker

52 It is not without some difficulty that the Court has finally managed to collate the evidence in such a way that it is possible to review the documentation that the parties agreed was before the decision maker at the relevant time. The documents are found sporadically in three separate exhibits which contain other documents relating to peripheral matters but not specifically to the consideration made on behalf of the Director-General. The parties finally agreed that a list of documents tendered with exhibit “L” comprised an index of the documents before the decision maker. However, these were never collated into one bundle. Ultimately, the Court was forced to undertake this task in order to properly understand the evidence. Effectively, exhibit “L” has been re-made by interpolating documents from other sources in different exhibits. This has proved most time consuming but until it was done the Court was not in a position to properly consider the argument. It is totally unsatisfactory for a Court to be expected to collate the evidence into a manageable form in circumstances where the parties were always in the best position to undertake this task.

53 Photographs of cleared portions of the property taken in July 2000 are included in the file that was referred to the decision maker.

54 Mr Smith was interviewed by a Vegetation Compliance Officer, Margaret Pritchard, and a record of that interview is included with the papers. Mr Smith explained his role in respect of the consideration of the application made by Mr Slack-Smith for a grant to control woody weeds under the West 2000 program. The purpose of his visit to the property was to report to Mr Atkinson on the management plan. He did not define any areas that he believed could be cleared under the Western Lands Regulation exemption. Mr Smith made no attempt to resile from the report he made on 23 September 1999 notwithstanding that he was given the opportunity to do so by the interviewer.

55 Mr Wise prepared a very brief chronology of events on 21 November 2000. A memorandum prepared by him on that date discloses that he was aware of a number of evidentiary difficulties, including the following:-

§ the leaseholder says he was given advice from DLWC and WEST 2000 officers that indicated he might be entitled to clear the vegetation under various exemptions. Based on the advise given to him he may therefore maintain he held an honest belief that he was entitled to clear;

§ the evidence so far points towards this being a very complex breach for the following reasons: There are different vegetation communities present; five were sampled during the fieldwork. The vegetation cleared was almost totally native and fell within the Northern Floodplains Vegetation Mapping units, poplar box/silver-leafed ironbark, poplar box/pine/other and coolabah/other with small areas of gidgee and some stands of mulga; Multiple exemptions may be relied on or may be raised (including, woody weed, certain species under 3 metres high, rabbit-ripping, fence line clearing, and air strip construction); The area involved is large.

§ the inability to obtain a completed and signed ROI from the lease holder, the lack of any admissions made by him and the contradictions between his assertions and those of Mr Atkinson as noted in his ROI mean the DLWC is lacking information/evidence which would be crucial in any consideration to commence proceedings;

§ the role and advice given by WEST 2000 and other DLWC officers remains to be clarified

§ there are inconsistencies within the interview of the WEST 2000 Officer, and

§ problems with the wording and definitions of specific works within the exemptions, for example the woody weed exemption states: “To clear land”, which is all inclusive, and the definition of “predominate” is both unclear and unmeasurable and would be subject to the extensive argument on scientific principles in a criminal court.

56 Ms Pritchard also prepared a memorandum to the Legal/Policy Officer on 6 November 2001. She also included a brief chronology in this memorandum and then listed the significant issues (not in any particular order or priority) relating to the alleged breach as follows:-

§ the involvement and advice from WEST 2000;

· the involvement of some of the DLWC Walgett staff;

· the use/misuse of exceptions;

· the confusion of multiple exemptions (at least five) being raised or at least possibly applicable;

· the imprecise wording of the exemptions/s is of concern;

· the altered meaning of some of the WLA exemptions in the process of their inclusion in the NVCA.

· the community perception of DLWC’s dealings with compliance. It is important to maintain equity for majority of landowners by demonstrably taking appropriate compliance action following breaches. For example, the Lightning Ridge Miners’ Association is aware of the clearing and local miners have legitimate access to the property.

· an apparent perception, in the opal industry and perhaps by Mr Slack-Smith, that agricultural land provisions (Schedule 2 under the Mining Act 1992) could be misused by Mr Slack-Smith to prevent or manage legitimate access to opal. In reality it is unlikely that the Director-General of Agriculture would be able to declare the land as agricultural given the environmental and legislative constraints to production from the site.

· a perception on the part of the DLWC Officers involved in the site inspections that the clearing by Mr Slack-Smith could have been, at least in part, an act of deceit by him to deliberately annoy the miners. Leaving the vegetation on the ground limited the miners access to the lease. Recent burning by Mr Slack-Smith may diminish this perception.

· the property is listed for sale with Elders Real Estate, Dubbo.

57 The applicants rely upon the matters referred to above in the last four bullet points, as an indication that the decision maker took irrelevant matters into account. Under the heading of “Exemptions” Ms Pritchard makes the following observation in her memorandum:-

In terms of Part 2 of the NVCA it is not possible to ascertain categorically whether or not this part of the Act has been contravened. This is in part due to the wording and definitions of the exemptions and the lack of admissions or explanation on the part of the lessees.

58 She then goes on to discuss her own observations following inspections of the property on 9 June 2000, 11 and 12 July 2000 and 11 August 2000 and to make comments based upon data from field work in respect of each exemption raised by Mr Slack-Smith. These exemptions include exemption (1), exemption (4) and exemption (13) under the Western Lands Regulation, in addition to exemption (7) and exemption (8) already referred to. Generally, the additional exemptions apply to clearing for the purposes of a fence-line, an air-strip and rabbit ripping.

59 In an attempt to deal with perceived problems with the definition of “predominant” or “predominate”, Ms Pritchard adopts the following:-

…a percentage of all the species present (including tree, shrub and groundcover species). An interpretation of “predominant” or “predominate” indicates greater than 50%, however I will use 25% to use a generous interpretation for these exemptions. To scientifically justify any percentage figure additional fieldwork and analysis is required.

60 Recognising that Pine and Bimble Box are the only listed species found in the area of 150 hectares identified by Mr Cunningham and Mr Mazzer, she comments that “A major problem with this exemption is that it allows clearing of large areas without consent or environmental assessment, which is inconsistent with the aims of the NVCA. The definition of “predominate” is unclear and unmeasurable”. She nevertheless refers to field data that she says indicates a significant percentage (54 per cent and 90 per cent respectively at the two sample sites she relies upon) of the trees cleared in this area were taller than three metres. She refers to 36 transect samples at 12 different sites and that species counts were recorded in half (18) of the transects. She concludes that only four transects have Buddah as predominant (i.e. greater than 25 per cent of the total species) and that only one site has an average greater than 25 per cent. She then concludes that only one site has sufficient Buddah to categorise that species as “predominant” and states that “This result confirms the “gut” feeling of the DLWC officers obtained during the fieldwork that Site 11 was the only area where woody weeds were “predominant” and hence where a woody weed exemption could apply”.

61 With minor irrelevant changes to wording in one case she reiterates the evidentiary difficulties referred to in her memorandum dated 21 November 2000.

62 A number of options are explored, including the issue of a s 47 notice which is identified with, inter alia, the following comments:-

Subsequent compliance monitoring of an order or notice would be required. Any non-compliance can lead to a black and white prosecution assuming the initial notice is valid. The notice requires an action, which has been done or not done. A simple local hearing before a Magistrate can create local community awareness without high legal costs or penalties.

63 Speaking on behalf of the Region, Miss Pritchard recommends the issue of a s 47 notice after legal advice. A draft s 47 notice was attached.

64 The file contains a document intituled “Recommendation Report”. Authorship is not attributed. However, the document appears to be in the form of legal advice. The matters referred to by Mr Wise and Ms Pritchard in the abovementioned memoranda are restated and appear to be relied upon, together with a “Statement of Environmental Harm for the Clearing of Native Vegetation on “Muttabun”, Lightning Ridge” (“the SEH”) prepared on 4 February 2002 by Mr Mazzer. The test for “predominate” and “predominant” used by Ms Pritchard in her memorandum dated 6 November 2001 in respect of the areas of 150 hectares and 540 hectares previously identified as containing White Cypress Pine and Buddah respectively are adopted. It is recognised that portions of the clearing may fall under the fence-line (6 hectares), airstrip (5 hectares) and woody weeds (10 hectares) exemptions but otherwise asserts the areas remaining were cleared in breach of the NVC Act. Alleged adverse ecological impacts identified by Mr Mazzer in the SEH are set out in the report, together with a remediation strategy to address the subject clearing for inclusion in a draft notice and schedule of works attached. The evidentiary difficulties referred to by Miss Pritchard are noted.

65 The following conclusion is stated:-

The nature of the clearing and the evidentiary difficulties described above mean that prosecution under the Native Vegetation Conservation Act, 1997 (NVCA) would be [a] very tenuous option. Hence, the recommendation of the preferred option [is] to issue a notice under section 47 of the NVCA.

66 The final recommendation is expressed as follows:-

The Far West Region Compliance Unit is satisfied that a breach of Section 21 of the NVCA has occurred, and as a result, environmental harm has been caused. It is recommended that a notice (in the form of Tag 7 ) is issued to Ross Slack-Smith and Genise Janet Slack-Smith, as the registered lessees of the land, to undertake works to remediate the environmental harm and to prevent further damage as outlined in the schedule of work.

67 In a record of interview conducted by Miss Pritchard with Mr Atkinson on 15 August 2000, which is attached to the Recommendation Report, Mr Atkinson provides the answers shown to the following questions:-

Q47: Mr Slack-Smith has told the DLWC that you advised that the clearing be undertaken by “chaining” not “raking”. Is this correct? Do you have written communication regarding this change of clearing method? Can you provide a copy of the advice?

A: My advice to Mr Slack-Smith was that chaining can be a far more cost effective treatment and recommended that he consider changing his application. Which he did. On 14 September 1999 I received the revised application with the changed technique from raking to chaining.

Q48: Mr Slack-Smith claims that “chaining” is non-selective as a clearing method. Do you agree? What was your reasoning in deciding to advise that chaining was the most appropriate method of clearing in this instance?

A: No. I have may [sic] examples throughout the WD where chaining has been used selectively clear land of woody weeds. The effect of chaining is basically determined by the operator’s instructions from the landholder. I could go on and on but I just don’t agree with Mr Slack-Smith at all.

68 Mr Atkinson then explained his reasons for recommending chaining. The questions and answers continued as follows:-

Q49: I shall now read to you the woody weed exemption as incorporated in the NVCA:

“clearing land where the predominate species are ‘woody weeds’, which, for the purpose of this paragraph, are Turpentine (Eremophila sturtii), Budda or False Sandalwood (E. mitchellii), Broadleaf Hopbush (Dodonaea viscose subsp. Augustissima), Punty Bush (Senna artemisiodes subsp. Filifolia), Silver Cassia (S. artemisiodes nothosubsp. Artemisioides)”

Did you explain this exemption to Mr Slack-Smith? Do you believe that you made it clear to Mr Slack-Smith that applying for a grant to control woody weeds under a West 2000 grant does not obviate Mr Slack-Smith from his responsibilities under the NVCA to ensure that clearing falls within the definition of the exemption. [The onus of proof that the clearing is within the bounds of the exemption is on the legal lessee of the land.]

A: Yes I definitely would have mentioned this exemption to Mr Slack-Smith.

I believe I made Mr Slack-Smith well aware of the need to perform the project in line with all current legislation. This is listed as one of four eligibility criteria when applying for a WEST 2000 Woody Weed Grant. It is listed in the “expression of interest”.


Q50: What is your definition of “predominate” in the above exemption?

A: My personal definition for predominate is if a person of sound mind views an area and believes one particular species dominates the scene that species I believe is predominate.

Q51: In the field, how do you determine predominance?

A: By using common sense. An area that is predominantly mature woody weeds is relatively easy to determine, however there are many examples of where it is not easy to determine predominance.

69 The remaining material before the decision maker were evolutionary documents from Mr Wise and Miss Pritchard not significantly different in context to their respective memoranda of 21 November 2000 and 6 November 2001 described above, together with some correspondence of limited relevance to the issues now presented to the Court for determination.

Consideration

70 Relying on the test of invalidity summarised by Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 at 230 that “if a decision on a competent matter is so unreasonable that no reasonable authority could ever come to it, then the courts can interfere” does not require the Court to determine the soundness of the decision maker’s opinion; it is sufficient if the opinion expressed is one reasonably open to that person (The Council of the City of Parramatta v Pestell (1972) 128 CLR 305). There is a distinction between where there is a jurisdictional fact that must be proved to the Court’s satisfaction and where what is in issue is not a jurisdictional fact but the decision maker’s opinion as to the existence of that fact (Corporation of the City of Enfield v Development Assessment Commission and Another (2000) 199 CLR 135).

71 There is no dispute that in the area where White Cypress Pine proliferated there were trees which were greater than three metres high and that these trees were removed. It is not unreasonable, therefore, in a Wednesbury sense, for the decision maker to have formed the opinion that at least the trees in that area that were greater than three metres high were not covered by the exemption in Sch 4 to the Western Lands Regulation. That is not to say, of course, that trees of less than that height could not be cleared.

72 The position is not quite so clear in respect of the Buddah community. On this aspect of the case it is necessary for the Court to decide whether the assessment made by Mr Mazzer, upon which the delegate relied, was so unreasonable that it gives rise to the invalidity of the decision to issue a notice. Mr Cunningham may well be right in respect of his approach to the test of whether the predominant species are “woody weeds”. But that is not the question the Court is required to answer. In making his determination the decision maker had before him the opinion of Mr Mazzer, together with the field work data upon which his opinion relied.

73 In the circumstances, the Court holds that it was open for Mr Wise to form an opinion that native vegetation had been cleared on the subject land. Although Mr Slack-Smith may have formed the view that he, at least, had obtained an “in principle” approval to clear the land or that he held the belief as a consequence of representations made to him by Mr Atkinson and Mr Smith that he was entitled to regard the clearing as exempt from the provisions of the NVC Act, nevertheless the issue is not free from doubt.

74 It is not disputed no development consent contemplated by s 21(2)(a) of the NVC Act was in force at the relevant date. Section 47 requires only that the Director-General be satisfied that any native vegetation has been cleared in contravention of Pt 2, which contains s 21. The Director-General’s delegate became satisfied that the requirements of s 47(1)(a) had been established on the basis of equivocal advice from those persons reporting to him. Nevertheless, the degree of equivocation expressed was not such that it must inevitably lead to the conclusion that the decision to issue a notice was so unreasonable that it should never have been made in the Wednesbury sense.

75 That is only the first step. It does not resolve the question of whether the form of the notice was susceptible to challenge on the grounds that its terms are unreasonable, uncertain, based upon an irrelevant consideration or in excess of jurisdiction. To this point the Court has determined only that it was not unreasonable in the Wednesbury sense for a decision to be made to issue a notice. Whether or not the decision was right is a matter that may ultimately have to be determined in the appeal proceedings commenced in the class 1 jurisdiction of the Court when it will be open for the Court to determine as a matter of fact whether or not a certain species predominates or was predominant. That is not a matter that falls for final determination in these proceedings. It could be otherwise if there was no evidence to support the decision made on behalf of the Director-General, but that is not the case.

76 It is fundamental to the Court’s decision that s 47 authorises the issue of a notice in circumstances where the Director-General is “satisfied”. Accordingly, I repeat in case it has not already been made clear that the question to be answered when the Court is asked to review the decision is whether or not the decision made by the Director-General was unreasonable in the sense that no reasonable decision maker could have made it. The question of whether the Director-General was correct to decide that native vegetation had been cleared in contravention of Pt 2 of the NVC Act only falls to be decided where the person aggrieved by the decision to make an order or to give a direction appeals against the decision to this Court pursuant to s 48 of the NVC Act.

77 The claimed oral and written approvals from DLWC officers could not, in the context of s 47, be regarded as a development consent for the purposes of s 21(2)(a). The decision of any officer of the department for any other purpose cannot, unless it can be construed as a response to a development application, be regarded as a development consent. Nor can any so-called approval or advice that consent is not required waive a requirement for development consent or give rise to an estoppel. A development consent is defined in s 4 of the NVC Act and means “development consent under Part 4 of the EP&A Act”. In Brickworks Limited v The Council of the Shire of Warringah (1963) 108 CLR 568 Windeyer J held that whether a development consent had been granted was a question of fact. The council in that case said that it had consented. His Honour said that if, notwithstanding this, it could somehow be said that it did not in fact consent, then an estoppel seemed to arise. That is not the present case. His Honour went on to say at p 557 that there is no doubt about the principle that estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion. The requirement to obtain consent cannot be waived (R v East Sussex County Council; Ex parte Reprotech (Pebsham) Ltd [2002] 4 All ER 58; Ex parte Hernes Estates Pty Ltd; Greater Wollongong City Council and Another (1967) 14 LGRA 102 at 108 and Wyong Shire Council v Associated Minerals Consolidated Ltd and Another [1972] 1 NSWLR 114 at 142).

78 Judging from the arguments generated from both sides of the bar table it is apparent that the use of the words dominant and predominant respectively appears to create more problems than it solves. The argument ranges from whether the words are used in the plain ordinary English meaning according to dictionaries or whether a technical meaning gleaned from scientific publications is intended. It is apparent that the experts cannot agree on what is the appropriate test to determine what is dominant or predominant. I agree with Mrs Kelly, who appears on behalf of the respondent, that clearly there is no single “scientific” or “technical” meaning used in relation to vegetation classification. It is not appropriate for the Court to find whether lawful clearing has also been carried out but it is clear that opinions can differ and that the decision made by the delegate of the Director-General was not so unreasonable in the circumstances that it should be found to be unlawful.

79 Another ground for holding that a decision is “manifestly unreasonable” is that the decision maker has failed to give adequate weight to a relevant factor of great importance or has given excessive weight to a relevant factor of no great importance (Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1985-1986) 162 CLR 24). Here again, of course, the Court needs to be careful in judicial review proceedings not to substitute its own decision based upon a perceived preference for a converse result. It is difficult from the material in evidence to make any determination in regard to the weight given to the matters raised in the report documents. Three of the matters set out at [56] of these reasons are summarised in the Recommendation Report under the heading “Community Opinion” as follows:-

There have been no reports of news reports, newspaper articles or radio programs regarding the clearing of vegetation on “Muttabun”. However, there is certainly community awareness regarding the clearing. This is mainly due to the fact that opal prospectors regularly traverse the area of the clearing. It is therefore important that appropriate action be implemented. This action will, most likely be circulated through the mining, lessees and general community.

80 Although arguably it may fit within objects (a), (b), (f) and (g) in s 3 of the NVC Act, it is difficult to see the direct relevance of the above consideration. Nevertheless, there is no evidence of what weight Mr Wise actually placed on this material at the moment of decision, even though it was clearly before him at the time. There is no report of his consideration. For the same reason the Court is not able to find that the decision was made for an improper purpose (Thompson and Others v The Council of the Municipality of Randwick (1950) 81 CLR 87 at 105-6), namely to accommodate an asserted, and allegedly incorrect, community perception that compliance action must be seen to be taken by the respondent.

81 The applicants seek to confine the category of directions that may be made in a notice issued pursuant to s 47 to the matters listed in s 47(2).

82 The use of the word “may” in legislation usually implies a choice in the sense that, given its ordinary meaning, it confers an enabling and discretionary power. The word conveys potential and is never, in itself, significant of any obligation (Julius v Oxford (Bishop) 49 LJ QB 585; 5 App Cas 235 per Lord Selbourne). Moreover, it is defined in s 9 of the Interpretation Act 1987 as being an indicator that the “power may be exercised or not, at discretion”. Subsection (2) confers a discretion to direct any of the types of work described in (a), (b) and (c) but also, in my opinion, has the effect of defining, by way of limitation, the categories of specified work contemplated by subsection (1). The discretion to issue a notice in writing is unfettered provided the Director-General is satisfied that any native vegetation has been cleared in contravention of Pt 2 but as a matter of construction the discretion to direct particular types of work is confined to the types permitted by subsection (2)(a), (b) and (c).

83 Pursuant to s 47(4) a person who does not comply with a s 47 direction is guilty of an offence and liable to a fine and, in the case of the continuing offence, to a further penalty for each day the offence continues. Furthermore, if a person fails to comply with a direction the Director-General may authorise any other person to enter the land and carry out specified work and recover the cost which, while remaining unpaid, is a charge on the land. It is in the context of a criminal sanction and the default remedies that lie with the Director-General that the certainty and reasonableness of the direction must be considered.

84 The provisions in the Direction for the control of noxious weeds and pest animals and property maintenance create a hierarchy whereby the applicants are exposed to the sanctions imposed by s 47 for failure to comply with the Direction over and above any sanctions which apply under the Rural Land Protection Act, the Noxious Weeds Act, the Rural Fires Act, the NVC Act in its other respects and the NP&W Act. In the Court’s view, none of these requirements are justifiable and are unreasonable in the Wednesbury sense. It is the Court’s view that Pt 6 and Pt 7 of the Direction (except 7.3) are demonstrably unreasonable and therefore void but nevertheless severable (The Melbourne Steamship Company Limited v Moorehead (1912) 15 CLR 333 and Pyneboard Pty Ltd and Others v Trade Practices Commission and Bannerman (1982) 39 ALR 565). The remaining parts of the Direction will not operate in some other way to produce a different result in the absence of the severed conditions.

85 Only the parts of the Direction that require work to be done in positive terms can survive the challenge to validity.

86 The provisions contained in Pt 5 of the Direction for Domestic Stock Management and Fencing in the Remediation Areas are sufficiently clear and certain to be maintained. The Court is satisfied that they constitute directions to carry out work and that the work relates to rehabilitation of the land cleared. It is not unreasonable, in the Court’s opinion, to expand the target of the Direction to cover land immediately adjoining the cleared area if, for example, the objective is to maintain the survival of and connectivity with the remnant vegetation adjoining the cleared areas.

87 I have included condition 7.2 to be severed from the Direction. It provides that the lessee shall not undertake any other clearing in the Remediation Areas except in accordance with the NVC Act and after consultation with the Resource Compliance Manager. This provision is not a provision that involves the carrying out of specified work in a specified manner and within a specified time and accordingly does not fall within the ambit of authority of s 47. Moreover, it adds the further layer of consultation with the Director-General’s Resource Compliance Officer which in itself creates a control beyond the statutory provisions of the NVC Act. The consequence of deleting condition 7.2 is that condition 3.3 is not allowed to remain for the same reasons.

88 I nevertheless allow condition 7.3 to remain on the basis that the requirement of the Resource Compliance Manager to control the regrowth of Buddah does involve specified work in a specified manner although the express time, methods and manner and extent of the clearing is left for future determination. This does not fall foul of the principles enunciated by the Court of Appeal in Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734 as explained in Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17, unreported, particularly by the Chief Justice in the latter case. Other conditions, such as condition 7.4, which provide the lessee shall not cultivate, crop, plant or harvest any seeds or plants or spray any substances or undertake any work to improve pasture are prohibitions rather than a direction to carry out specified work and therefore are outside the ambit of s 47.

89 Whether or not the applicants are entitled to raise the failure of the Director-General to afford procedural fairness in the interests of natural justice is clarified by the judgment of Hope JA in Cox & Hazel Pty Ltd v Gidney [1981] 1 NSWLR 468 at 472 where His Honour gave consideration to the effect of the decision of the High Court in Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106. Jacobs J pointed out In Twist at p 119 that “Whether or not an order made without an opportunity to be heard will be wholly invalid depends on the legislative provision read in the light of the nature of the subject matter and the provisions for review”. His Honour regarded the wide provision for an appeal as indicating a contrary legislative intention where the appeal is to a judicial body in the fullest sense of that term. The circumstances in Twist are almost completely identical to the present. In that case, pursuant to s 317B(5) of the Local Government Act 1919 an owner who had received an order to demolish a building pursuant to s 317B was entitled to appeal to the District Court against the making of the order. Jacobs J did not think that “it would at all accord with the legislative intention that an owner should be able to ignore rights of appeal of the kind given…and instead rely on an absolute invalidity in the order which a council had made”. Accordingly, in his view, it was not the legislative intention that an order, subject to appeal, should be able to be treated for all purposes as void and to no effect upon the grounds that the principle of natural justice had not been observed. Although Hope JA in Cox & Hazel did not think that the judgments in Twist were intended to deal with cases where the alleged invalidity arises otherwise than by reason of the application of the rules of natural justice, they nevertheless apply to the ground raised by the applicants in this case, namely the claim that they were not afforded procedural fairness before the order was made.

90 Other complaints about conditions which the applicants have contended are harsh, unreasonable or oppressive do not provide an independent ground for invalidity. Those complaints are directed to the issues of merit that are not to be decided in these class 4 proceedings.

91 The Court is not prepared to set aside or declare the whole Direction to be void but it is prepared to declare that condition 3.3, the whole of Pt 6 and conditions 7.1, 7.2, 7.4, 7.5 and 7.6 are invalid. They are, in the Court’s opinion, capable of being severed.

92 The Court makes the following declaration:-

(1) That conditions 3.3, 6.1, 6.2, 7.1, 7.2, 7.4, 7.5 and 7.6 of Direction to Carry out Remedial Work pursuant to s 47(1)(a) of the Native Vegetation Conservation Act 1993 issued by the Director-General of the Department of Land and Water Conservation addressed to Ross Slack-Slack and Genise Janet Slack-Smith on 24 May 2002 (“the Direction”) are void.

93 The Court orders that:-

(2) Conditions 3.3, 6.1, 6.2, 7.1, 7.2, 7.4, 7.5 and 7.6 be severed and deleted from the Direction.

(3) Costs reserved.

(4) The exhibits may be returned.