Whitehouse v Remme

[1988] NSWLEC 115

Land and Environment Court

of New South Wales

CITATION:

Whitehouse v Remme [1988] NSWLEC 115

PARTIES:

APPLICANT
John Frederick Whitehouse

RESPONDENT
Klaus Remme

FILE NUMBER(S):

40156 of 1988

CORAM:

Stein J

KEY ISSUES:

:-

LEGISLATION CITED:

National Parks and Wildlife (Management of Certain Lands) By-laws 1984
National Parks and Wildlife (Land Management) Regulation 1987
National Parks and Wildlife Act, 1974
Land and Environment Act

CASES CITED:

Adamson v. West Perth Football Club ((1979);
Minister for Natural Resources v. N.S.W. Aboriginal Land Council, Court of Appeal,(1987);
Bathurst City Council v. Saban ((1985);
Fencott v. Muller ((1982-3);
Peek v. N.S.W. Egg Corporation ((1986)

DATES OF HEARING:

22/07/1987, 06/10/1987, 7/04/1988

DATE OF JUDGMENT:

04/07/1988

LEGAL REPRESENTATIVES:

RESPONDENT
Mr Simpkins

JUDGMENT:

JUDGMENT

HIS HONOUR: By a further amended Application filed in Court on 14 March 1988 the applicant John Frederick Whitehouse, the Director of the National Parks and Wildlife Service, seeks a number of declarations and orders against the respondent, Klaus Remme, concerning the construction of a road by the respondent within the Blue Mountains National Park. The relief sought includes declarations that the respondent has committed certain trespasses, breaches of the National Parks and Wildlife (Management of Certain Lands) By-laws 1984 and the National Parks and Wildlife (Land Management) Regulation 1987; injunctions restraining the respondent from roadmaking and driving any vehicle within the Park without the consent of the Director; and orders in the nature of compensation or damages.

The particular area in question within the National Park is some 52km south east of Oberon and adjacent to a road known as Parliament Creek Road. It is part of an area proclaimed as additions to the Blue Mountains National Park in the Government Gazette No. 10 of 16 January 1987. The Proclamation of these additions to the National Park was made by the Governor pursuant to section 33(3) of the National Parks and Wildlife Act, 1974 (the NPW Act) being prescribed lands within the meaning in section 33(l) of the Act. The proclamation added about 17,350 hectares to the National Park by reference to a Plan Ms.4696-3090.

On this Map, (which became Exhibit B at the hearing), the Parliament Creek Road is shown as a public road running from the Werong State Forest in the north to Parliament Creek in the south. Both the State Forest and the Creek form boundaries to the National Park. By a notation on the map all public roads are excluded from the Park. An amended copy of the Plan was published on 22 September 1987 which also showed an unformed and unmade surveyed Public Road 20.115m wide as per Ms.339.OeR. This unformed road is to the east of Parliament Creek Road, entering the Park from the north close to that road and winding south around ridges to cross Parliament Creek to the south in the vicinity of Parliament Creek Road. Apparently this public road had been inadvertently omitted from the Plan Ex. B. It is also excluded from the Park. The amended Plan (Ex. C) also contained the following notation along Parliament Creek Road - "Strip 20m wide embracing formation excluded".

These exhibits are not topographic maps and use was made by witnesses of the Mount Armstrong topographic map (Ex. D). This map has a scale of l:25000 with contours at 10m intervals. The topographic map describes the Parliament Creek Road as a "four wheel drive" track, running from Mt. Werong State Forest to Parliament Creek and continuing south through land controlled by the Pastures Protection Board.

In October 1987 Surveyor Filocamo from the National Parks and Wildlife Service prepared a survey sketch which included the unformed public road (Ms.339-OeR) and the Parliament Creek Road or Four Wheel drive track as shown on the Mt. Armstrong map. In doing so he photographically enlarged the topographic map to l:10000 to give greater accuracy. His survey sketch reveals that the Parliament Creek Road and the unformed public road meet Parliament Creek at different points and do not intersect within the National Park. However, the position of the Parliament Creek Road was taken by the Surveyor from the enlarged topographic map and not surveyed from the track itself. Nonetheless, the Surveyor is of the opinion that the position of the road was verified by his inspection. He concludes that the location of the road on the Mt. Armstrong topographic map had minor inaccuracies in its shape but is located wholly to the west of a watercourse which runs into Parliament Creek. In so far as the gazettal plan and its amendm

ent, and the topographic map may be inconsistent with a Parish map also tendered in evidence, I prefer to rely on the former as giving a more accurate and reliable outcome.

On 15 July 1987 Rangers went to the Park and found that a new track had been bulldozed which deviated from Parliament Creek Road and ran in a south easterly direction. Ranger Denholm noted considerable disturbance to trees, saplings, soil, rocks and shrubs. The trail cut through the bush had a width of approximately 5m with disturbance of up to 5m on each side. In some places a cutting had been made to a depth of 2m to form a road surface. The Ranger estimated that up to 5,000 mature trees had been destroyed and the habitat of certain fauna communities had been disturbed and diminished. At the end of this diversion track, around 3km from where the diversion commenced, the Ranger found a unmanned Komatsu bulldozer.

The next day (July 16) the Ranger met the respondent in the area and Mr. Remme agreed that he had been responsible for creating the diversion road. He indicated that the road had been cut to provide access to Manyana Farm on Portion 17 to the south. He was informed that the diversion track had been cut within the National Park which had been gazetted on 16 January 1987. When asked why he did not use the existing vehicle trails to Portion 17 he responded that "you can't bring a truck down there". The respondent was then directed to remove the bulldozer from the Park but was equivocal in his reply.

On 17 July 1987 Ranger Wellington saw a young man, Mr. Remme's son Dion, operating the bulldozer on the newly formed trail. Later on 17 July 1987 Bignold J. granted ex parte injunctions against the respondent restraining him from operating any earthmoving equipment or bulldozers within the Park and from damaging any rock, soil, plants, trees or ground cover of any kind within the Park.

On 18 July 1987 Rangers served the injunction on the respondent. He was at that stage operating the bulldozer on the diversion trail. It was then apparent that a new trail had been constructed since 16 July for a length of about 400m branching from the original trail in an arc and rejoining it further south. It was estimated by Rangers that another 200 mature trees had been destroyed by the operation. When served with the Injunction the respondent indicated that he was continuing to bulldoze "to get access".

On 20 July 1987 Ranger Wellington observed Dion Remme operating the bulldozer on a branch off the newly created diversion trail. It was obvious that the trail had been extended for a further 200m since the 18 July 1987.

On 22 July 1987 the matter came before the Court and the injunctions were continued by consent until 11 August 1987. The orders were again continued by consent by Bignold J. on 11 August 1987 until 8 September 1987 and on that date the injunctions were continued until further order. On 6 October 1987 the orders were again continued by the Chief Judge until further order. However, on that day the Director sought an additional order seeking to restrain the respondent from driving any vehicle within a defined area of the Park without his consent. I heard this Motion on 19 October 1987. The Application was contested by Mr. Remme, but I made the order sought for reasons I then gave. This additional order arose out of observations made by Rangers on 6 October 1987 that further road construction work had occurred within the Park. In fact the diversion trail had been extended by at least a further 300m down to the southern bank of Parliament Creek (the boundary of the Park). The same bulldozer was observed parked in

the Creek. This evidence is confirmed by Surveyor Filocamo's survey which shows that the bulldozed track meets Parliament Creek where an earthbridge had been constructed by the respondent. Indeed, during the Surveyor's field work on 14 October 1987 he observed the respondent driving a truck along the bulldozed track. At the time the Surveyor heard the sounds of a bulldozer operating and of trees crashing to the ground.

There was disagreement between Mr. Filocamo and the respondent's surveyor, Mr. Anderson, as to the meaning of the phrase "Strip 20m wide embracing formation excluded". Mr. Anderson thought it could relate to existing and future formations while Mr. Filocamo believed it related only to existing formations. I have no hesitation in preferring the latter bearing in mind the proximation of the notation to Parliament Creek Road and a number of other similar notations on the plan. I find Mr. Filocamo's opinion infinitely more logical and acceptable.

On 18 February 1988 Ranger Denholm visited the area again and saw the bulldozer parked within the Park near the Parliament Creek Road. He observed that a further new trail had been constructed to the west of the Parliament Creek Road. This trail was about 500m long and rejoined the road further to the south. Off this new trail were large drains of considerable width and length. Again, a large number of mature trees had been destroyed by the works. In certain sections the Ranger noted erosion with water channels approximately 400mm deep. This was particularly observed for the last 1km of the trail down to the creek. The Ranger noted that an earth crossing had been created over the creek and that the trail continued in a similar manner to the south through land not part of the Park. The length of the diversion trails within the Park was estimated at 3.5km.

Mr. Remme claims that he has an interest in Portion 17, Manyana farm, which land is presently unused for farming activities. In time he hopes to start a deer farm on the property. He says that the property was purchased cheaply around 1982 because it had no access. This is not strictly true. There is access via fire trails and roads which the respondent is permitted to use but the trails are in poor condition, are unsuitable for heavy vehicles and provide only indirect and slow routes to Oberon. It would be impossible to negotiate a semi-trailer on these roads which Mr. Remme says is essential for a farm operation. What Mr. Remme required was a more direct route to Oberon along a road suitable for semi-trailers. He maintains that he has a contract with the other owners of Manyana farm to build the road to carry heavy vehicles from Mt. Werong to Portion 17. He claims that he expects to receive around $30,000 in payment from his road building services.

It is difficult to understand exactly what Mr. Remme intended because there are major inconsistencies in his evidence. However, I have no doubt that Mr. Remme wanted to create the quickest and most practical connection between Portion 17 and Mt. Werong. He says that at all times he followed the public road, meaning thereby the Parliament Creek road which is excluded from the Park. However, one thing is clear. He was aware that extensions to the Park were to be proclaimed in 1987. He relied on the advice of a neighbour that this was to occur on 16 or 18 July 1987. To this end he is frank that he was anxious to get the road cut and completed by that date. However, his information was erroneous because the Park was proclaimed in January 1987. Notwithstanding claimed earlier visits to the National Parks and Wildlife office Mr. Remme maintains he did not ask when the park would be proclaimed.

Perceiving his difficulty it appears that Mr. Remme changed his tack maintaining that his road followed the Parliament Creek Road for most of its route within the Park and therefore was excluded from the Park. But this is manifestly incorrect and is demonstrated to be so from the evidence of Surveyor Filocamo whose evidence I accept. His survey shows that the bulldozed track traverses 31-2km of the National Park and is wholly to the east of the watercourse while Parliament Creek Road is located to its west. From the time the bulldozed track deviates from the Parliament Creek Road it is at no point coincident with it, except for a small section along a ridge. The bulldozed track intersects with the unformed public road at one point to the north of Parliament Creek.

It is patent that, for the very most part, Mr. Remme neither followed Parliament Creek Road nor the 20m exclusion or the unformed public road. He cut a completely new route down to the creek from where he deviated from Parliament Creek Road by apparently following a convenient pony trail. It is beyond argument that his new road runs between the unformed public road and the Parliament Creek Road, in some places at distances of up to 300m from the latter. Although Mr. Remme is adamant that it was his belief that he was always on the public road, in my opinion the truth is closer to his evidence that he was trying to find the most direct line and to this end followed an existing pony trail. There is no doubt in my mind that the pony trail was not the Parliament Creek Road or the 20m excluded strip, which I find are essentially the same.

To be added to the above dissertation of the facts is the information volunteered by the respondent when he gave evidence. At some stage, and I assume in fairly recent times, Mr. Remme has bulldozed trees across Parliament Creek Road to block it off. This was apparently to prevent it being used by vehicles which, according to Mr. Remme, were getting bogged. So, on his own admission, Mr. Remme has actually blocked off the access to the Parliament Creek road. There is also evidence that his building of a earth bridge across Parliament Creek had impeded the creek.

There is an area of factual dispute between the parties as to extent of the damage caused by Mr. Remme's roadworks. It ranges from the evidence of Rangers of the destruction of several thousand mature trees to Mr. Remme's evidence which concedes no more than 50 mature trees. Mr. Remme's definition of a mature tree is one with a girth of between 40-50cm and 150cm. I find it impossible to accept his definition. Bearing in mind the length of the extensive roadworks constructed by Mr. Remme through the National Park, (in Mr. Remme's own estimation 3,200m), and the extensive and graphic pictorial evidence, I completely reject his evidence on this aspect. In general terms I accept the evidence of the Park Rangers. The destruction of trees, saplings and vegetation by the work has been very extensive and indeed almost defies credulity. It is also quite apparent that a good deal of the destruction was carried out by Mr. Remme and those under his direction and control after the interlocutory injunction was served on hi

m and in wilful defiance of it. This was in July and October 1987 and apparently later in February 1988 as revealed by the affidavit of Mr. Denholm of 9 March 1988.

I reject Mr. Remme's assertion that he did not breach the injunction and only carried out works in the National Park outside the "green worm". This was a reference by the respondent to a green shaded area which was the subject of the further order made on 19 October 1987 concerning the use of vehicles within the Park. The orders made in July continued in force at all relevant times and clearly sought to restrain the respondent from carrying out any roadworks within the Park. I have no doubt that Mr. Remme knew of the injunctions but chose to interpret events otherwise and in order to suit his own purposes. His intention was clearly to connect the end of the deviation trail where he had been stopped by the injunction in July, and later in October 1987, with Parliament Creek, being the boundary of the Park. He knew that if he achieved this he could then continue the road south to Portion 17 and complete the access route for heavy vehicles for his use and that of other properties in the area.

Mr. Remme's conduct has wrought extensive devastation to the Park and left the potential for significant erosion. Not only has he constructed a road of appreciable length through the park and one capable of being used by semi trailers and heavy vehicles, he has also blocked off the Parliament Creek Public Road. A considerable portion of this work has been done in defiance of the orders of the Court. Mr. Remme's evidence is to say the least unsatisfactory and quite frequently inconsistent. On occasions his prevarication when answering questions in cross-examination was obviously deliberate and I do not believe that any difficulties he has with the English language is a factor. On occasions he displayed an arrogant, belligerent and disdainful attitude towards National Park Wildlife officers. I have no doubt that he believes he was perfectly entitled to do what he did but this belief is quite unreasonable. I also have some doubt that it is honestly held. His conduct in bulldozing the road, particularly after the

injunctions were made, can only be categorised as outrageous and high handed.

Statutory provisions

The particular statutory breaches relied on by the applicant are clauses 5(1)(j), 8(c), 8(d) and 8(n) of the National Parks and Wildlife (Management of Certain Lands) By-law, 1984. The applicant alleges that the respondent breached the above By-laws in July 1987. These By-laws applied until 1 September 1987 when they were repealed and replaced by the National Parks and Wildlife (Land Management) Regulation, 1987.

By-law 5(l)(j) provides as follows:-

"No person shall, except as otherwise provided by this By-law, within any national park.... -

(j) deviate from any existing.... road, track or trail so as to establish or assist in the establishment of any additional.... road, track or trail;"

By-law 8(c) provides that -

"No person shall, without the consent in writing of the Director.... within any national park.... -

(c) interfere with, dig up, cut up,.... any sand, gravel, clay, rock ochre, mineral, timber, gum resin, humus, or other natural substance or object whether on land or under water, or otherwise do anything which may cause or assist erosion;

By-law 8(d) provides that -

"No person shall, without the consent in writing of the Director.... within any national park.... -

(d) cut, fell, remove, damage or destroy, or have in his or her possession for removal or otherwise, the whole or part of any tree, shrub, fern, creeper, vine, palm, plant, flower, seed, root, herbage or other vegetative cover;"

By-law 8(n) provides that -

"No person shall, without the consent in writing of the Director..... within any national park.... -

(n) occupy, operate or use any earth moving equipment, tractor or any means of conveyance other than a motor car...."

After 1 September 1987 the Director alleges that the respondent has breached certain of the new Regulations, namely regulations 7(l)(d)(i) and (iii), ll(l)(e) and (f). Regulation 7(l)(d)(i) is in similar terms to By-law 5(l)(j) as is Regulation 7(l)(d)(iii) with By-law 8(n). Regulation 11(1)(e) and (f) are in very similar terms to By-laws 8(c) and (d) respectively. Offences against the By-laws and Regulations are punishable by a penalty not exceeding $500 and a daily penalty of $20 for any continuing breach (section 156 National Parks and Wildlife Act). With certain exceptions not here relevant, proceedings for offences against the Act, regulations and by-laws are taken summarily before a Local Court. Upon conviction the Court may order payment of compensation to the Minister or Director where either has incurred any charges, costs or expense or where the offence results in or causes loss or damage to a national park.

"Technical" defences

Before coming to the question of the pendant jurisdiction of the Court to entertain the trespass claim, it is necessary to deal with a number of 'technical' defences (to use the expression of Counsel for the respondent, Mr. Simpkins). The first such defence, raised only in his final address, is that the applicant, John Frederick Whitehouse, has not been shown to be the Director of the National Parks and Wildlife Service. There is ample authority that where a person acts in a public position it is presumed that he is regularly and properly appointed and competent to act. The burden of proving invalidity lies on the person so alleging. The maxim "omnia praesumuntur rite esse acta" applies, see Minister for Natural Resources v. N.S.W. Aboriginal Land Council, Court of Appeal, Unreported 29 May 1987.

The second technical defence claims that the addition to the Blue Mountains National Park has not been proved. However, I am satisfied that the tender into evidence, without objection, of the relevant gazettal and the Plan referred to therein and its amendment, are sufficient proof of the additions to the Park and further, that they comprise "prescribed lands" within section 33 of the NPW Act.

Thirdly, it is submitted that it has not been shown that the Director is the person given care, control and management of the additions to the Park. However, section 31 of the NPW Act provides that "the Director shall have the care, control and management of national parks" and section 33(4)(c) provides that upon publication of a proclamation of a national park the care, control and management of the lands shall vest in the Director.

Fourthly, as a defence to the trespass claim, it is said that there is no evidence to suggest that the Director's control of the park has matured into actual possession. However, the evidence is that Rangers acting under the authority of the NPW Act exerted control over the relevant area of the park at least from 15 July 1987 and have done so consistently since that time.

Fifthly, it is said that there is no evidence of the imposition of any restriction upon the respondent's entry into the park by the applicant or that the respondent's entry upon the lands has been made conditional upon his compliance with the by-laws or regulations. However, while there is no evidence of the by-laws being promulgated to the respondent or the general public by signs or the like, it is clear that from at least 15 July 1987 the applicant's officers acquainted the respondent with the relevant restrictions on his entry upon and conduct within the park.

I find that the respondent has committed breaches of planning and environmental laws in that I am satisfied by the evidence that the applicant has established that the respondent has breached each of the By-laws and Regulations specified in the further amended application.

However, in the event that a breach of planning and environmental law be established, there are also a number of discretionary arguments raised on behalf of the respondent. These will be considered later in the Judgment.

Pendant jurisdiction

Turning to the jurisdiction of the Court to entertain the relief sought in the further amended application, it is clear that the Court has jurisdiction under section 20(2)(a) and (c) of the Land and Environment Court Act (the Court Act) with respect to the alleged breaches of the By-laws and Regulations since the NPW Act is specifically declared to be a planning or environmental law by virtue of section 20(3)(a) of the Court Act, as is any statutory instrument made thereunder (section 20(3)(b)). This much is conceded by Counsel for the respondent. Mr. Simpkins also concedes that the Court has implied incidental power to deal with matters not expressly within its statutory jurisdiction by reason of section 22 of the Court Act, but submits that the trespass claim is separate and severable.

Bearing in mind that section 22 of the Land and Environment Court Act is in identical terms to section 22 of the Federal Court Act (as indeed is section 23), the reasoning in Adamson v. West Perth Football Club ((1979) 27 ALR 475) is relevant. This case concerned breaches of the Trade Practices Act and the common law doctrine of restraint of trade. It was held that the latter was not completely severable from the statutory breach and therefore subject to the implied incidental power of the Federal Court or its pendant jurisdiction. Northrop J. set out the test at p.499:-

"In my opinion the implied incidental jurisdiction arises whenever there is before the Federal Court a matter vested in it by laws made by the Parliament being in respect of matters arising under laws made by the Parliament and the claim made is supported by grounds which do not arise under laws made by the Parliament but which are not completely severable having no relation whatever to, the claim made in respect of matters arising under laws made by the Parliament. In those circumstances, the Federal Court has jurisdiction to hear and determine the claim in so far as it is based on those other grounds. The claim made must be in respect of matters arising under laws made by the Parliament and must be bona fide and substantial, but the validity or strength of the claim in respect of the matters arising under laws made by the Parliament is quite immaterial so long as they are genuinely raised."

The question of convenience was adverted to by the majority of the High Court in Fencott v. Muller ((1982-3) 152 CLR 570 at 608 and their Honours remarks are, I believe, apposite to the case before me:-

"A judicial power which is not exercised to determine the whole of a controversy is, generally speaking, not appropriately and conveniently exercised. Not appropriately, because the controversy is not quelled, not conveniently, because the parties - the principal beneficiaries of the exercise of judicial power - must litigate anew to have the outstanding questions and issues determined."

On a consideration of the instant case I cannot accept that the trespass is separate and severable from the statutory breaches. In terms of the evidence and factual inquiry it is very difficult, if not impossible, to sever them at all. In my opinion, in the admittedly rather unusual circumstances before the Court, I have jurisdiction to deal with the claim of trespass under section 22 of the Court Act as incidental to the breach of the environmental or planning law under section 20(2). See also the remarks of Young J. in Bathurst City Council v. Saban ((1985) 2 NSWLR 704 at 709G).

Damages

I find that the respondent has committed numerous trespasses of lands in the Blue Mountains National Park between July 1987 and February 1988 inclusive. Therefore, the next question to consider is whether this Court has jurisdiction to award damages for either the breach of the By-laws or Regulation (the statutory breaches) or the commission of the common law trespasses.

On the question of jurisdiction to award damages either for breach of the statutory provisions (the By-law and Regulation) or common law trespass the applicant calls in aid section 68 of the Supreme Court Act, as well as section 66 thereof (see section 20(2) Court Act). In considering the question of damages for statutory breach the Judgment of the High Court in Wentworth v. Woollahra Municipal Council ((1981-82) 149 CLR 672) is material. In relation to section 68 the Court said:-

"Moreover, the very terms of the section suggest that it is exclusively preoccupied with private rights. The opening words of par. (a) and the whole of par. (b) deal with private rights. And, as Richmond J. noted in Birkenhead ((1968) N.Z.L.R. at pp.392-393) the expression the "party injured" suggests that the statute contemplated the ordinary jurisdiction of the court in case of actual or threatened interference with private rights.

It is, to say the least of it, curious that s. 68 should become the source of a power to award damages for breach of a statutory provision - in this case cl. 43 - when the assumption underlying the argument is that the clause does not create a civil action for damages. And it is no less curious that in such a case s. 68 should become the source of power to award damages, not to every member of the public who suffers damage, but only to those who suffer special damage, when the cause of the damage is a breach of a public duty. We think that the history and the terms of s. 68 show that it was not intended to authorize the award of damages for breach of a statutory prohibition which manifests no intention to create a private cause of action for damages."

It follows in my view that the Director cannot obtain damages for a breach of the statutory provisions.

However, does the same reasoning apply to the Director proceeding for damages for trespass, not for his own benefit but for that of the general public in order to enforce a trespass causing damage to a National Park? If the Director was suing for trespass in the Supreme Court it is not suggested that that Court would not have jurisdiction. It follows, in my opinion, that when this Court is exercising its pendant jurisdiction it has the same jurisdiction as the Supreme Court, including the power to award damages. However, I acknowledge that the situation is unusual and unlikely to recur with any frequency.

Mr. Simpkins makes an alternative submission that the Court has no power to award damages. He relies on the inclusion of section 20(2)(d) by the 1985 amendments to the Court Act. This sub-section provides:-

"Whether or not as provided by section 68 of the Supreme Court Act 1970 - to award damages for a break (sic) of the agreement referred to in sub-section 3(c)."

He submits that the inclusion of the specific limited power to award damages for a breach of an agreement under section 28G of the Strata Titles Act, 1973 mitigates against the Court having any other jurisdiction to award damages. However, I do not see how the existence of sub-section (2)(d) assists the respondent's argument. It is a very different creature from common law damages and the agreement in question is specifically deemed to be a planning and environmental law under section 20(3)(c).

As I stated earlier Mr. Simpkins also raises a number of discretionary factors which he submits should lead the Court to decline to grant any relief by way of declaration, injunction or damages. He submits that since criminal sanctions have not been exhausted by the applicant, injunctive relief should not be granted. In this respect it will be remembered that breaches of the By-laws and Regulations may be prosecuted before a Local Court. So far as I am aware no prosecutions have been launched against the respondent. If informations have been laid they certainly have not reached any finality. Nevertheless, if a conviction is recorded provision is made for compensation to be ordered under section 177 NPW Act.

In Peek v. N.S.W. Egg Corporation ((1986) 6 NSWLR 1) the Court of Appeal discussed the principles where injunctive relief may be appropriate although criminal sanctions have not been exhausted. Kirby P. listed some of the kinds of circumstances in which injunctive relief may be granted notwithstanding that criminal remedies remain unexhausted. The first is that the criminal penalty is ineffective to deter the unlawful conduct and it may be concluded that the processes of the criminal law will not deter a continuing breach. The second is that the defendant has evinced a clear and unequivocal intention to continue to flout the law. The third is that unless the breach is stopped there is a real risk that others will be encouraged to breach the law.

After referring to a number of relevant authorities Glass J.A. said:-

"In my opinion these decisions do no more than recognise that circumstances can exist which justify the exercise of a discretion to grant equitable relief to restrain the commission of future offences notwithstanding that criminal sanctions have not been exhausted. They fail to establish any principles which determine when that discretion may or may not be exercised. Nor in my opinion would it be possible to extract from the myriad of fact permutations a classification which would permit circumstances to be defined a priori as special or not special for the purposes of justifying or not justifying a discretionary grant of equitable relief. The trial judge must have regard to all the circumstances which relevantly militate for and against the granting of relief and then make a discretionary judgment. The ultimate findings for which the Corporation contended were open upon the evidence and the discretionary judgment of his Honour that the circumstances were relevantly special is invulnerable to overthrow as no

particular vitiating factor can be identified and the result is by no means plainly unjust."

In my opinion the circumstances here are plainly special and exceptional. The facts inevitably lead to the conclusion that notwithstanding the non exhaustion by the applicant of criminal sanctions under the By-laws and Regulations, the granting of injunctive relief is appropriate. In coming to this conclusion I have been mindful of the necessity for a cautious approach to granting such relief. Given the facts I would have considerable doubt that prosecutions for breaches of the By-laws and Regulations will effectively deter the unlawful conduct of the respondent. Bearing in mind the further construction work performed by the respondent from time to time since he was first spoken to in July 1987 by the National Parks and Wildlife officers, it is unlikely that the available processes of the criminal law will deter the respondent. Notwithstanding the possibility of compensation being ordered consequent upon a conviction, a maximum penalty of only $500 may be imposed by a Magistrate together with a continuing dai

ly penalty of $20 (section 156). By his persistent and flagrant conduct the respondent has made his intentions plain. If these serious breaches and gross trespasses are to go unimpeded by injunctive orders of the Court others will be encouraged to commit breaches of the NPW Act and its subordinate legislation. In my opinion, the criminal sanctions are totally inadequate to the conduct of the respondent and there is a reasonable apprehension of further breaches if orders are not made.

The respondent further submits that paragraph 5A of the further amended Application is too broad because it will have the effect of preventing the respondent from using Parliament Creek Road. I fail to appreciate this submission since Parliament Creek Road is excluded from the National Park and therefore not within the particular order sought.

Lastly, Mr. Simpkins submits that the alternative remedy provided by section 173 NPW Act by reference to section 255 of the Crown Lands Consolidation Act, 19l3 as amended should be utilised by the applicant to remove Mr. Remme or his chattels as a trespasser, rather than injunctive relief. Section 255 provides a means whereby trespassers may be removed from Crown lands. However, a reading of the provision makes it obvious that it is an inappropriate remedy in the current circumstances. Not only does it fail to provide a realistic alternative remedy to injunction, it is also an inconvenient and cumbersome procedure to follow. I reject the respondent's submission. (See also a discussion of section 255 by Bignold J. in Flynn v. Whitehouse, Land and Environment Court, Unreported 19 November 1987).

On a consideration of all aspects material to the discretion I conclude that the Court ought not decline to make the declarations and injunctive orders sought.

Accordingly it follows that I make the following declarations and orders:-

l. A declaration that the respondent's construction of trails and associated earthworks in the area adjacent to the Parliament Creek Road approximately fifty two (52 kilometres) southeast of Oberon in the State of New South Wales and as more particularly described by pink shading in the copy of the Map annexed to the further amended application with the exclusion of those areas described as "four wheel drive" track and "Gazetted Public Road circa 1900" (hereinafter referred to as the "said area") is a trespass to the lands within the Blue Mountains National Park.

2. A declaration that the respondent's construction of trails and associated earthworks within the said area prior to 1 September 1987 is contrary to the provisions of clauses 5(1)(j), 8(c), 8(d) and 8(n) of the National Parks and Wildlife (Management of Certain Lands) By-Law 1984.

3. A declaration that the respondent's construction of trails and associated earthworks within the said area after 1 September 1987 is contrary to the provisions of clauses 7(d)(i), 7(d)(iii), 11(1)(e), 11(1)(f) of the National Parks and Wildlife (Land Management) Regulation 1987.

4. A declaration that the presence of the respondent's chattels, being one (l) Komatsu 155A Bulldozer is a trespass to the lands in the Blue Mountains National Park.

5. An order that the respondent by himself, his servants and agents be restrained from:

(i) establishing or assisting in the establishment of any road, trail or track;

(ii) moving, damaging or otherwise interfering with any rocks, soil, plants, trees or other ground cover of any kind;

(iii) operating or using any bulldozer or earthmoving equipment;

within the Blue Mountains National Park without the written consent first had and obtained from the applicant.

6. An order that the respondent remove forthwith his said chattels from the Blue Mountains National Park.

7. An order that the respondent his servants and agents be restrained from driving any vehicle within the said area without the written consent first had and obtained from the applicant.

As to orders sought Nos. 6 and 7 in the further amended application, seeking payment of the costs of restoration and damage, I have already held that this Court has pendant jurisdiction to deal with the incidental claim. However, because of the state of the evidence with respect to the claim, and the intimation from the respondent that he may wish to contest the applicant's evidence on the issue, it is appropriate that I adjourn consideration of the assessment of compensation or damages to a future date. The application is therefore stood out of the list to be relisted before the Registrar on the giving of 7 days notice in writing. The exhibits will be retained.

Associate