Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 8)
[2008] NSWLEC 232
•18 August 2008
Land and Environment Court
of New South Wales
CITATION: Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 8) [2008] NSWLEC 232 PARTIES: Wollongong City Council (Prosecutor)
Ensile Pty Limited (Defendant)
Robert Martin (aka Bob) Hogarth (Defendant)FILE NUMBER(S): 50019 of 2007; 50021 of 2007; 50047 of 2007; 50048 of 2007 CORAM: Jagot J KEY ISSUES: Prosecution :- plea of not guilty - clearing or partial clearing of vegetation that either required development consent or was prohibited under LEP - lack of development consent not proved beyond reasonable doubt - existing or continuing use rights - whether defendants discharged onus of proving continuing use rights on the balance of probabilities - whether prosecution discharged onus of proving enlargement or expansion or intensification of use beyond reasonable doubt - defendants acquitted LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment (Amendment) Act 1985
Evidence Act 1995
Local Government Act 1919
Local Government Act 1993
Local Government (General) Regulation 2005CASES CITED: Archibald v Byron Shire Council (2003) 129 LGERA 311
Baiada v Waste Recycling and Processing Service of NSW (1999) 130 LGERA 52
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
C.B. Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270
Eaton & Sons Pty Limited v Warringah Shire Council (1972) 129 CLR 270
Hudak v Waverley Municipal Council (1989) 18 NSWLR 709
King v Lewis (1991) 74 LGRA 362
King v Lewis (1995) 88 LGERA 183
Lane Cove Municipal Council v Lujeta Pty Ltd (1986) 58 LGRA 157
Parramatta City Council v Brickworks Limited (1972) 128 CLR 1
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Shire of Perth v O'Keefe (1964) 110 CLR 529
Steedman v Baulkham Hills Shire Council [No 1] (1991) 87 LGERA 26
Taggett v The Council of the Shire of Tweed [1993] NSWCA 260
Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580
Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 4) [2008] NSWLEC 149TEXTS CITED: Wigmore on Evidence (Chadbourn Rev) DATES OF HEARING: 14/4/08 - 18/4/08, 21/4/08 - 24/4/08, 11/8/08 - 13/8/08
DATE OF JUDGMENT:
18 August 2008LEGAL REPRESENTATIVES: PROSECUTOR
Mr C W McEwen SC
Mr M C Fraser
Mr M Staunton
SOLICITORS
Kells the LawyersDEFENDANTS
Mr T F Robertson SC
Mr T G Howard
SOLICITORS
Burrell Solicitors
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
18 August 2008
50019 of 2007
50047 of 2007WOLLONGONG CITY COUNCIL
ProsecutorENSILE PTY LIMITED
Defendant50021 of 2007
50048 of 2007WOLLONGONG CITY COUNCIL
ProsecutorJUDGMENTROBERT MARTIN (AKA BOB) HOGARTH
Defendant
1 Wollongong City Council (the Council) charged Ensile Pty Limited (Ensile) and Robert Martin (aka Bob) Hogarth (together the defendants) with offences against s 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by reason of contraventions of s 76A(1)(a) or s 76B(b) of that Act.
2 The charges contain the following allegations. Ensile owns lots 1 and 2 in deposited plan 616228 at Lilyvale Road, Helensburgh (the land). This land is zoned 7(d) (Hacking River Environmental Protection Zone) under the Wollongong Local Environmental Plan 1990 (the WLEP 1990). Mr Hogarth is a director and shareholder of Ensile. Ensile engaged and instructed Mr Hogarth to carry out clearing on the land. Specifically, Mr Hogarth and Ensile, through their servants and/or agents, and using men and machinery, carried out extensive clearing of the land between 20 December 2005 and 6 April 2006. Further, clearing or partial clearing of vegetation on the land was development that either required development consent or was prohibited development under the WLEP 1990. Insofar as development consent was required, it had not been obtained.
Matters not ultimately in dispute
3 By the conclusion of the hearing it was apparent that many factual matters were agreed between the parties, acknowledged by the Council or admitted by the defendants. It is convenient to record those matters immediately.
4 Ensile owns a large holding known as Otford Valley Farm. Ensile acquired lot 3 in deposited plan 223554 in about 1979. Lot 3 is in the eastern (or Otford) part of Otford Valley Farm adjacent to the Illawarra railway line. In or about 1981 Ensile acquired more land to the west of lot 3 including lots 1 and 2 in deposited plan 616228. Lots 1 and 2 are in the western (or Helensburgh) part of Otford Valley Farm. Metropolitan Coal was the former owner of lots 1 and 2.
5 The topography of Otford Valley Farm varies. It generally slopes from west to east. There are flatter areas on the top or western side near Helensburgh (part of lots 1 and 2) and on the eastern side near the railway line (part of lot 3). There are many other steeply sloping areas. There is a large parcel in the middle of Otford Valley Farm (lot 23 in deposited plan 752033) known as Thompson’s land that Ensile does not own.
6 The defendants developed an equestrian centre/riding school on lot 3 (the eastern side) near the railway line. They have cattle yards and a farm equipment compound on lot 1 (the western side). A number of tracks run between the eastern and westerns sides of Otford Valley Farm.
7 The areas to which the charges of unlawful clearing relate are on the western or Helensburgh side of Otford Valley Farm. These areas are to the east of the cattle yards and a farm equipment compound and a large completely cleared area that has existed for many years and which is unrelated to the charges. The areas are identified in the evidence as Areas A, B, C, and D. However, by the close of the hearing, the Council did not press any charge other than in Area A. Area A is a hectare or more of land generally surrounded by tracks on the top country or ridge land (as witnesses described it) near Helensburgh. Area A starts approximately 100m to the east of Otford Road and finishes before the land slopes down to the valley floor to the east.
8 The defendants admitted the following:
(1) At all relevant times, Mr Hogarth had authority to make decisions on behalf of Ensile in relation to the land owned by Ensile.
(2) For the purpose of the charges pursuant to ss 76A and 76B of the Act, between the dates in the charges, the vegetation on the land was partially cleared.
(4) The partial clearing of vegetation on the land was not authorised by permit or authority issued under the provisions of the Rural Fires Act 1997.(3) The partial clearing of vegetation referred to in paragraph (2) above was development which required consent under the WLEP 1990, unless existing or continuing use rights under the EPA Act applied.
9 Insofar as it might not be sufficiently clear from the defendants’ admissions I may also record immediately that there was no issue about the fact that Ensile and Mr Hogarth caused the carrying out of clearing within Area A during the charge period. Mr Hogarth gave evidence to that effect, as did the person who in fact carried out the clearing under Mr Hogarth’s instructions (Mr Buckley).
10 The Council (properly, given the evidence as it stood by the end of the hearing) acknowledged in its closing submissions that the following facts could be found in the defendants’ favour:
(1) The Council had not proved beyond reasonable doubt that the defendants, in carrying out the clearing, had removed any substantial trees. Accordingly, the Council’s case was not about the removal of trees Ms Lemmon (a Council officer) said had been removed as part of the clearing during the charge period. Rather, it was about the clearing of understorey vegetation (which included saplings perhaps up to 6 or 8m high). Hence, the Council did not rely on Ms Lemmon’s observations of stumps as evidence of clearing of any substantial trees (leaving aside the saplings) during the charge period. On the balance of probabilities:
(2) Area A was used over an extensive period for the purpose of grazing for livestock (be it cattle, horses, pigs or other domestic stock).
(3) The activity of clearing vegetation can be ancillary to or subsumed by the purpose of grazing for livestock if the clearing is carried out for that grazing purpose.
(4) The clearing that is the subject of the charges was for the purpose of grazing for livestock and thus was ancillary to or subsumed by that grazing purpose.
(5) Before 3 February 1986 (being the date on which s 109(2) of the EPA Act came into force) there was some clearing of vegetation from Area A for the purpose of grazing for livestock, but the whole of Area A was not cleared for that purpose.
(6) Area A is a single conglomerate area generally bounded by tracks the whole of which could continue to be used for grazing.
11 The Council submitted that these facts did not mean that the clearing during the charge period was authorised as a continuing use under s 109(1) of the EPA Act because the clearing for the purpose of grazing before 3 February 1986 in Area A was of a different intensity and extent from that carried out in the charge period. Putting it another way, the clearing in the charge period was over a larger part of Area A and involved the removal of a greater amount of vegetation than the clearing for the purpose of grazing before 3 February 1986. According to the Council a finding of the mere use of the whole of Area A for the purpose of grazing was insufficient as use for grazing did not necessarily include clearing. The defendants had not proved on the balance of probabilities that “the whole of area A was the subject of clearing prior to February 1986”. Hence, the Council submitted that ss 109(2)(b) and (c) of the EPA Act were engaged and prevented the defendants from relying on s 109(1).
12 The Council and the defendants also agreed the history of planning instruments applying to the land in Otford Valley Farm. The agreed facts lead to the following conclusions:
(1) Before 15 August 1947 the land was not subject to any planning control.
(2) From 15 August 1947 to 27 June 1951, the Town and Country Planning (General Interim Development) Ordinance (Ordinance 105) applied to the land and controlled interim development. From 27 June 1951 to 19 January 1968 the County of Cumberland Planning Scheme Ordinance applied under which the land was zoned Rural Area. Under both instruments the use of land for the purpose of agriculture (as defined in s 514A of the Local Government Act 1919) required consent. The definition of agriculture was inclusive extending to any purpose of husbandry and the keeping and breeding of livestock.
(3) From 19 January 1968 to 8 June 1979 the Illawarra Planning Scheme Ordinance applied to the land. Agriculture was permissible without development consent on the land in this period.
(5) The zoning of the land altered over time including under the WLEP 1990. Nevertheless, clearing for grazing livestock was never permissible without consent on the land under the WLEP 1990. During the charge period the whole of the land was in Zone No 7(d) (Hacking River Environmental Protection Zone). In this zone grazing livestock was permissible with consent but (for reasons explained below) as a use for the purpose of “leisure area” rather than as “agriculture”.(4) On 8 June 1979 an amendment to the Illawarra Planning Scheme Ordinance meant that agriculture on the land required development consent. Consent could not be refused but conditions could be imposed. Although the Illawarra Planning Scheme Ordinance was repealed on 2 March 1984 and other instruments applied during this period, the position remained that agriculture required consent until 28 December 1990 when the WLEP 1990 came into force.
13 The common ground between the Council and the defendants left two issues for resolution. First, on the basis that the clearing of Area A during the charge period was development for a purpose permissible only with development consent, has the Council proved the lack of consent (being one of the essential elements of the offence having regard to the terms of s 76A(1)(a) of the EPA Act) beyond reasonable doubt? Secondly, if the Council has proved all of the essential elements of the offence beyond reasonable doubt, was the clearing during the charge period nevertheless authorised by s 109(1) (continuing use rights)? This second question involves consideration of not only s 109(1) but also s 109(2).
14 The statutory provisions set the framework within which these issues must be resolved.
The EPA Act
15 Section 125 of the EPA Act deals with offences. Section 125(1) provides as follows:
(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.
16 The Council relied on s 76A (and, as a fallback, s 76B) of the EPA Act as forbidding certain things to be done. Those sections are in Div 1 of Pt 4 of the EPA Act and are in the following terms (insofar as relevant):
76A
(1) If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.76B
…
If an environmental planning instrument provides that:
(a) specified development is prohibited on land to which the provision applies, or
(b) development cannot be carried out on land with or without development consent,
a person must not carry out the development on the land.
17 Section 76C is also in Div 1 of Pt 4 of the EPA Act and is in the following terms:
76C
This Division is subject to the other provisions of this Act, unless express provision is made to the contrary.
18 Section 76C is relevant to the operation of other provisions of the EPA Act, including those relating to existing and continuing uses in Div 10 of Pt 4.
19 According to s 106:
In this Division, existing use means:
(b) the use of a building, work or land:(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and
(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and
(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.
20 Section 107 is in the following terms:
(2) Nothing in subsection (1) authorises:(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.
(a) any alteration or extension to or rebuilding of a building or work, or
(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or
(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or
(e) the continuance of the use therein mentioned where that use is abandoned.
(3) Without limiting the generality of subsection (2)(e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.
21 Section 109 provides as follows:
(2) Nothing in subsection (1) authorises:(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.
(a) any alteration or extension to or rebuilding of a building or work, or
(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or
(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or
(e) the continuance of the use therein mentioned where that use is abandoned.(4) …
(3) Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.
22 Act No 228 of 1985 (the Environmental Planning and Assessment (Amendment) Act 1985) inserted sections 107(2) and 109(2). The provisions commenced on 3 February 1986. They operate prospectively only (Lane Cove Municipal Council v Lujeta Pty Ltd (1986) 58 LGRA 157, King v Lewis (1995) 88 LGERA 183).
23 Accordingly, before 3 February 1986, the limitations in ss 107(2) and 109(2) did not apply to restrict or limit existing or continuing uses. Before 3 February 1986 existing or continuing uses could be enlarged, expanded or intensified (etc.) without necessarily altering the character of (and thus undermining) the existing or continuing use (Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580 at 585A – D, 587B – 588B, and 589F – G).
WLEP 1990
24 Clause 8 of the WLEP 1990 identifies the zones applying to land as shown on the map accompanying the instrument. Those zones include Zone 7(d) (Hacking River Environmental Protection Zone).
25 Clause 9 of the WLEP 1990 is in the standard form. In particular cl 9(2) is as follows:
(2) Except as provided otherwise by this plan, the development on land within a zone:
is specified in the Table to this clause under the headings “Without development consent”, “Only with development consent”, “Only with development consent granted after advertising and satisfying clause 11” and “Prohibited”, respectively, appearing in the matter relating to the zone.(a) that may be carried out without development consent, and
(b) that may be carried out only with development consent, and
(c) that may be carried out only with development consent granted in accordance with clause 11 to a development application that has been advertised as is required for designated development, and
(d) that is prohibited,
26 The zoning table for the 7(d) zone specifies the zone objectives in cl 1 and the development permissible without development consent, only with development consent, and prohibited development as follows:
2 Without development consent
Exempt development.
Development for the purpose of:3 Only with development consent
advertisements; dwelling-houses; home employment; leisure areas; utility installations.
Development for the purpose of:
4 Only with development consent granted after advertising and satisfying clause 11
agriculture; buildings used in conjunction with agriculture; child care centres; educational establishments; mines; recreation areas; restaurants.Any development not included in item 2, 3 or 4.
5 Prohibited
27 Exempt development is irrelevant because the defendants admitted that the clearing during the charge period required consent under the WLEP 1990, unless existing or continuing use rights under the EPA Act applied.
28 Clause 10(1)(n) of the WLEP 1990 is in the following terms:
(1) Except as otherwise provided by this plan
(a) …
…
(n) the clearing or partial clearing of the vegetation, including noxious weeds, on land other than the clearing or partial clearing of vegetation carried out pursuant to a notice under section 495A(1) of the Local Government Act 1919 or section 13(1) of the Bushfires Act 1949;
…
may be carried out only with development consent.
29 “Agriculture” is defined in cl 6(1) of the WLEP 1990 as follows:
agriculture means broad acre commercial farming of crops or pasture.
30 This definition of “agriculture” is narrower than that in s 514A of the Local Government Act 1919 (incorporated in earlier environmental planning instruments). The definition under the earlier instruments was:
“ agriculture ” and “ cultivation ” include horticulture and the use of land for any purpose of husbandry, including the keeping or breeding of livestock, poultry, or bees, and the growing of fruit, vegetables, and the like, and “agricultural” and “cultivate” have a corresponding meaning.
31 The following terms defined in cl 6(1) of the WLEP 1990 are also relevant:
intensive agriculture means a building or place used for:
leisure area means a building or place used for the purpose of a picnic ground, walking trail, camping ground, information centre, children’s playground and parks, gardens or grazing, but does not include a recreation area or recreation facility.(a) cultivating fruit, vegetable, mushroom, nut or flower crops, or
(b) keeping or breeding livestock, bees or poultry, or
(c) cultivating plants in a wholesale plant nursery, or
(d) breeding, boarding, training, keeping or caring for animals, or
(e) aquaculture,
for commercial purposes.
32 The Council and the defendants agreed that the reference to grazing in the definition of leisure area should not be confined by reference to the preceding activities. Given that the table to the 7(d) zone nominates specified development as permissible only with consent and leaves innominate development prohibited, the relevant question is whether the clearing was for a nominated permissible purpose. The clearing was for the purpose of facilitating grazing and thus was for the purpose of a leisure area irrespective of the reference in the separate definition of intensive agriculture to keeping or breeding livestock. I adopt this approach to the proper construction of the WLEP 1990, as agreed between the Council and the defendants. This approach is consistent with the function of definitions as an aid to construction of other substantive provisions. It is also consistent with the ordinary meaning of the WLEP 1990 and, in particular, the table to the 7(d) zone.
33 Accordingly, on the agreed position of the Council and the defendants, the charges in proceedings 50047 and 50048 of 2007 cannot be maintained. The charges allege the carrying out of development (namely, clearing) prohibited by s 76B(b) of the EPA Act. The clearing carried out during the charge period was for the purpose of grazing, being development permissible only with development consent under s 76A(1)(a). Sections 76A(1)(a) and 76B(b) are mutually exclusive. The defendants thus must be acquitted of the charges in proceedings 50047 and 50048 of 2007.
Has the Council proved lack of consent?
34 Because the relevant provision is s 76A(1)(a) of the EPA Act the elements of the offence include the negative proposition that consent has not been granted authorising the carrying out of the development on Area A during the charge period (namely, clearing understorey vegetation for the purpose of grazing). The Council must prove this negative proposition beyond reasonable doubt.
35 Before dealing with the evidence relating to this issue some background information assists in providing the context. First, and as recorded above, there are two periods during which clearing for the purpose of grazing required consent. This activity would have fallen within the definition of agriculture under the earlier ordinances and thus would have required consent from 15 August 1947 to 19 January 1968 and from 8 June 1979 onwards. Secondly, the defendants called evidence from people who had witnessed and/or carried out activities on the land for various periods from 1946 onwards (particularly, Mr Collins, Mr Leslie Blackwell, Mr Alan Blackwell, Mr Lloyd, Mr Everingham, and Mr Hogarth). Many of these people identified the use of the land in Otford Valley Farm for grazing from 1946 onwards including grazing in Area A.
36 Four people gave evidence about the lack of consent for the clearing for the purpose of grazing during the charge period (Mr Carfield, Ms McIlrath, Ms Hale, and Mr Cottom).
37 Mr Carfield gave evidence that the documents he searched for evidence of consents were those held by the Council’s solicitors. These documents had been located within the Council by someone other than Mr Carfield and given to the solicitors for the purpose of these proceedings. In other words, Mr Carfield’s search was limited to documents extracted by someone else from the Council’s records. Mr Carfield thus could not say that the documents he searched involved all or any particular part of the Council’s records. His evidence, for these reasons, cannot establish the required negative proposition of a lack of consent for the impugned activities. It can only establish a lack of consent in the records he happened to examine.
38 Ms McIlrath’s evidence is different because she searched the Council’s records rather than an extract from those records created by someone else. Ms McIlrath provided two affidavits. Despite the apparent complexity of the Council’s records systems, the critical facts are straightforward. In paragraph 11 of her first affidavit Ms McIlrath said that she believed that a system of DA cards contained a record of every development consent the Council issued since 1960 or 1961 (until 1988 when an electronic records system was implemented). In paragraph 2 of her second affidavit Ms McIlrath said that, since 1950, all records of consents issued by the Council are held either electronically or “in the card system”.
39 Ms McIlrath was cross-examined. The effect of her evidence was as follows:
(1) Ms McIlrath started work with the Council in 1992.
(2) Ms McIlrath was not responsible for placing any information on the DA cards.
(3) Ms McIlrath was not responsible for maintaining the system of DA cards when they were an active register of consents (that is, before 1988 and the introduction of the electronic records system).
(4) Ms McIlrath did not know whether every development consent was placed on the DA cards and normally if doing a search (perhaps generally but I infer before 1960) she would “have to go back to the council minutes”.
(5) Ms McIlrath was not aware of any register of consents being kept by the Council before 1960.
(6) The statement Ms McIlrath made in paragraph 11 of her first affidavit did not mean that the DA cards only started in 1960 or 1961. In fact the DA cards went back to 1950 and she had searched all of the DA cards. Paragraph 11 was included because the Council’s solicitors asked her when she believed the Council’s DA card system became a continuous record and she believed it had become continuous since 1960 or 1961 (linked to the coming into force of the Illawarra Planning Scheme Ordinance). She agreed that she could perhaps not give any opinion as to whether a record that was not continuous (such as, by inference, the DA cards system before 1960 or 1961) could be reliable.
(8) Ms McIlrath searched the whole DA cards system and the whole electronic records system. She also searched the Council’s minute books from January 1945 to December 1951 with Ms Hale and Mr Cottom. They found no consents relating to the land as a result of these searches (other than, I infer, those identified by Mr Carfield that are of no consequence for the charges).(7) The Council’s electronic records system did not include all consents issued before 1960. When people requested a certificate under s 149 of the EPA Act a search of the old records would be carried out and information about consents found in those searches was placed on the electronic records system.
40 This evidence needs to be considered against the background of certain statutory requirements. When the Local Government Act 1919 was in force the Town Planning Ordinance (Ordinance 32) required councils to maintain a register of every permit, authority and certificate a council granted under Pt XIIA of that Act (cl 4A). The County of Cumberland Planning Scheme Ordinance (which applied to the land between 27 June 1951 and 19 January 1968) made councils the responsible authority for land in the rural zone (cl 6) and required the responsible authority to maintain a register of (amongst other things) consents (cl 56). Section 47 of the Local Government Act 1919 required business of councils to be transacted at meetings and s 625 required the minutes of meetings to be maintained.
41 The evidence does not satisfy me beyond reasonable doubt that consent was not granted relating to the land (specifically Area A) authorising its use for grazing and the carrying out of clearing of vegetation as an ancillary activity on an intermittent basis including during the charge period. Paragraph 11 of Ms McIlrath’s first affidavit and her oral evidence that the electronic records system did not include all consents granted before 1960 undermines the reliability of paragraph 2 of her second affidavit. According to paragraph 11 the Council did not have any continuous register of consents before 1960. This indicates that the DA cards system, before 1960, was not continuous. If not continuous it was incapable of constituting any form of register in discharge of the statutory duty to maintain a register. Further, Ms McIlrath was unaware of any such register existing before 1960 or 1961. The DA cards system before 1960 (or, I infer, 1961), therefore, cannot found any inference that the matters recorded in the system, and only those matters, occurred before those dates (see Baiada v Waste Recycling and Processing Service of NSW (1999) 130 LGERA 52 at [57] citing Wigmore on Evidence (Chadbourn Rev) at §1633(6) and noting s 69(4) of the Evidence Act 1995). Searching the DA cards system before 1961, therefore, cannot prove the negative proposition that no relevant consent was granted before 1961.
42 In other words, on Ms McIlrath’s evidence, in order to prove the required negative proposition, a search had to be carried out of the Council’s primary records up to 1961. The primary records are the minutes (whether held in minute books or not). I do not accept the Council’s submission, based on paragraphs 2 and 7 of Ms McIlrath’s second affidavit, that the Council only retained minute books for the period before 1950 and the DA cards system thereafter. Ms McIlrath’s evidence taken as a whole does not support that inference (for example, Ms McIlrath searched the minute books for 1951, as paragraph 9 of her second affidavit discloses). The provisions of the Local Government Act 1919 also have to be taken into account. Councils could only transact business at meetings and had to keep minutes of those meetings (whether in the form of bound books or otherwise). Councils still have that obligation under the Local Government Act 1993 (s 375 of the Act and cl 272 of the Local Government (General) Regulation 2005).
43 The Council, I infer, created and retained minutes of all business conducted at its meetings before and after 1950. Whether the minutes were bound into minute books or not after 1950 is beside the point because minutes must exist (but I infer in any event that the Council did create minute books after 1950 given the statutory provisions under which it operated and Ms McIlrath’s evidence). Ms McIlrath’s evidence should be understood as saying that after 1950 the Council also created a secondary record (based on the minutes) of development consents, permits, and approvals known as the DA cards system. This system of secondary records, however, did not become continuous (or a register containing all such consents, permits, and approvals) until after 1960 or 1961. This, in my view, is the reason that the following exchange occurred with Ms McIlrath during cross-examination:
Q. Before 1960 was there a register maintained by the council for development consents?
A. Normally if I’m doing a search I have to go back to the council minutes.
44 Taken with the whole of her evidence I infer that, when asked to find consents before 1960, Ms McIlrath usually went back to the original Council minutes because she believed that the DA cards system was continuous after 1960 (or 1961) and not continuous before that date.
45 Ms McIlrath, Ms Hale and Mr Cottom only searched the minutes up to December 1951. It follows that there is a critical gap in the searches carried out for the period between 1951 and 1961. During that period, there was no register (or continuous record) capable of proving the required negative proposition of a lack of consent. The minutes are the only continuous record up to 1961 but they were not searched between 1951 and 1961. Agriculture required development consent throughout this period.
46 The fact that the defendants have not produced, and Mr Hogarth was unaware of, any such consent is beside the point. The defendants are not peculiarly well placed to know about or have a copy of any consent granted between 1951 and 1961. To the contrary, the Council holds all the relevant records (in this case, the minute books or minutes). Ms McIlrath, moreover, would normally search these minutes when looking for consents before 1960 or 1961 but did not do so in the present case.
47 These are criminal proceedings. Lack of consent is an element of the offence that the Council has to prove beyond reasonable doubt. The evidence leaves open a reasonable doubt as to whether or not the clearing during the charge period might have been authorised by a consent granted between 1951 and 1961. Mere unlikelihood of the grant of any such consent is insufficient. The Council is subject to the criminal onus (s 141(1) of the Evidence Act). The Council has not discharged this onus with respect to the element of lack of consent. The defendants must get the benefit of this reasonable doubt.
48 Accordingly, the defendants must be acquitted of the charges in proceedings 50019 and 50021 of 2007 for this reason alone. But there are at least two other reasons that necessarily lead to the acquittal of the defendants from the charges in proceedings 50019 and 50021 of 2007 (and, if it be relevant, would necessarily lead also to their acquittal of the charges in proceedings 50047 and 50048 of 2007).
Was the clearing in breach of s 76A(1)(a)?
49 Section 76A of the EPA Act, by operation of s 76C, is subject to the existing and continuing use provisions in ss 107 and 109. Accordingly, the defendants could not have contravened s 76A(1)(a) if the clearing during the charge period was authorised under ss 107(1) or 109(1). The defendants consistently asserted that the clearing was authorised under either of these provisions. At the request of the Council and the defendants I thus ruled on the issue of the onus of proof with respect to ss 107(1) and 109(1) of the EPA Act early in the hearing (Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 4) [2008] NSWLEC 149). Contrary to the defendants’ submissions I held that “the lack of existing or continuing use rights is not an element of the offence that must be proved beyond reasonable doubt by the prosecutor… it is a matter for the defendants to bring themselves within the exception of existing or continuing use rights on the balance of probabilities and they bear the onus of so doing” (at [26]).
50 By closing submissions the focus had shifted to s 109(2) of the EPA Act and the question, specifically, whether the clearing during the charge period was outside the scope of s 109(1) because it involved an increase in the area of the use for the grazing purpose and/or an enlargement or expansion or intensification of the use.
51 The defendants correctly pointed out in their closing submissions that my earlier ruling was limited to the question of the party subject to the onus under ss 107(1) and 109(1). The defendants submitted that they had discharged the onus of bringing themselves within s 109(1). However, the defendants said the Council’s case wrongly assumed that the defendants also bore the onus of establishing that the clearing did not involve any increase in the area of or enlargement, expansion or intensification of the grazing use. This assumption was contrary to authority (Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 at 414, King v Lewis (1991) 74 LGRA 362 at 367, overturned in King v Lewis (1995) 88 LGERA 183 but not on the issue of onus (see at 191 – 192), and Hudak v Waverley Municipal Council (1989) 18 NSWLR 709 at 717B – D). The onus of establishing defeasance of continuing use rights by reason of s 109(2) lay on the Council to the criminal standard and not on the defendants to the civil standard. The Council had not assayed that task. The evidence could not permit any finding of an increase in the area of or enlargement, expansion or intensification of the continuing use of the land (and specifically not Area A) for the purpose of grazing beyond reasonable doubt.
52 The defendants submitted also that the Council’s case incorrectly elided the purpose of the use (grazing) with the detailed activities, transactions or processes which have taken place for that purpose. Clearing was one of those detailed activities (including, before 3 February 1986, clearing by mechanical means). But the purpose of the use was grazing not clearing. Section 109(2) proscribed any increase in the area of or enlargement, expansion or intensification of the use (that is, grazing). It did not proscribe changes to the method or amount of clearing provided the clearing was not such as to be different in kind from that before 3 February 1986 and thus transformative of the use. Accordingly, the defendants submitted that they must be acquitted. Alternatively, the defendants said the evidence established on the balance of probabilities that there was no increase in the area of or enlargement, expansion or intensification of the continuing use of the land (and specifically not Area A) for the purpose of grazing. Accordingly, and again, the defendants must be acquitted.
53 I accept the defendants’ submissions for the reasons given below.
54 As noted, the Council ultimately acknowledged that the evidence proved on the balance of probabilities that Area A was used over an extensive period for the purpose of grazing for livestock (be it cattle, horses, pigs or other domestic stock). Further, that before 3 February 1986 (being the date on which s 109(2) of the EPA Act came into force) there was some clearing of vegetation from Area A (but not the whole of Area A) for the purpose of grazing for livestock. Finally, that the clearing during the charge period was for the purpose of grazing for livestock and thus was ancillary to or subsumed by that grazing purpose.
55 These acknowledgements were proper and had to be made given the state of the evidence by the conclusion of the hearing. The acknowledgements mean that it is sufficient for me to record the following findings of fact about which I am satisfied at least to the standard of the balance of probabilities.
56 Lot 3 was the site of the old Riverdale Dairy. The Blackwells rented that property from 1946 and one or more of them occupied it until Ensile’s purchase in 1979. The Blackwells had cattle and pigs. By an arrangement with, or the tacit approval of, the manager of the Metropolitan Colliery (the owner of lots 1 and 2) the Blackwells ran their cattle and pigs over the land for the purpose of grazing. The cattle particularly liked the top country including Area A. They would go there to shelter from the sun and wind under the trees and would pick grass, and eat plants, shrubs and in effect any plant material they could get. Dr Lloyd, another nearby landowner, ran her cattle on the land, again by an arrangement with, or the tacit approval of, the manager of the Metropolitan Colliery. Other people also ran their cattle on the land from time to time. The cattle might have used the whole of the land but there is no doubt at all that they used the whole of Area A for grazing. On the evidence, they appeared to prefer that area for grazing, resting and sleeping because it provided some shelter by reason of the tall canopy trees. Aerial photographs show a pattern of clearing and reduction of the understorey vegetation in Area A throughout this period although the causes might have been fire, grazing or mechanical clearing.
57 It is probably unnecessary to say so given the Council’s proper concessions on the evidence but I do not accept Ms Lemmon’s evidence that cattle would not eat or get much nutritional value from the vegetation in the cleared areas before the clearing during the charge period. The evidence of numerous witnesses indicated that cattle will pick at any vegetation they can get at (even toxic vegetation in small quantities according to Mr Elks) and, for various reasons, preferred the top country in general and Area A in particular for grazing activities.
58 Ensile purchased lot 3 in 1979 and lots 1 and 2 by 1981. Ensile wanted to use the land for grazing stock, amongst other purposes. Dr Lloyd also wanted to buy lots 1 and 2 for her cattle but Ensile was the successful purchaser. Almost immediately Ensile moved cows (12) and horses (18) onto the land. Ensile also allowed the Blackwells to keep their cattle and pigs on the land for a few years after Ensile’s purchase. None of the land was fenced. The stock owned by Ensile and the Blackwells (and perhaps other people as well) grazed over the land including Area A. Ensile’s first job was to fence the land. Lot 3 was fenced by 1981 and lots 1 and 2 by 1983. Mr Buckley did the fencing. It was a large job (the land is over 1000 hectares) and the purpose of the fencing was both to keep out trespassers and ensure stock could graze over the land (and not just in the pastures created in lot 3) without escaping.
59 By 1983 Ensile started slashing the land using a tractor and slasher in various areas to keep the understorey vegetation down. A substantial part of the purpose in so doing was to provide regrowth vegetation suitable for stock to graze. Area A was regularly slashed before 3 February 1986 with a slasher attached to a tractor for the purpose of creating suitable grazing land. This is established by a combination of evidence.
(1) Ensile submitted applications to the Council seeking rating as rural land in 1983, 1984 and 1985. In each of those years the uses of the land are identified as including grazing (with the number of cows and horses increasing to 30 and 85 respectively) with the improvements carried out over the past two years identified as including clearing.
(2) Mr Everingham started working on Otford Valley Farm when he was 15 (in 1983). After about six months he used the tractor and slasher in the top country (including in Area A). Mr Everingham was one of about six or seven farm hands managed by Mr Williams (now deceased) who was the farm manager. Mr Everingham also saw other farm hands and Mr Williams using the tractor and slasher in the top country including not just the cleared area but the area to the east (which includes Area A). They would slash whatever they could get at around the trees. Where the trees were too close together they could not slash. But the top country was mainly flat and open scrub between trees that you could ride and see through. They slashed the area at least every 12 months but it could have been more regularly depending on how busy they were.
(3) Mr Hogarth said that Mr Williams was his farm manager but Mr Hogarth knew slashing was one of the regular jobs. They had to slash the clearer parts of the land to keep them suitable for grazing. Mr Hogarth knew Area A and surrounding areas well. The area was always relatively open. It had scrub and understorey between the trees that was regularly slashed from relatively early in Ensile’s ownership.
(5) Mr Elks is a botanist and ecologist with particular expertise in vegetation analysis and mapping based on aerial photographic interpretation. He obtained stereo pairs of numerous aerial photographs from 1948 to 2006 (where pairs were available). In the November 1986 aerial photographs he observed parallel wheel tracks and cleared vehicle tracks through much of the western part of Area A. The vegetation in these areas was noticeably sparser than in the 1979 and 1966 photographs. He described the aerial photographs from 1948 onwards as showing a pattern of disturbance involving the removal or reduction of understorey vegetation with little if any change to the overstorey. The pattern was a patchwork or mosaic. The cause was fire, grazing and/or mechanical clearing. However, he considered the 1986 aerial photographs showed clearing of understorey vegetation “clearly associated with machinery” given the criss-crossing vehicle tracks evident.(4) Mr Lloyd recalled Area A well. He used to take trail riders from his mother’s property down at Otford to Helensburgh and then through the national park. In so doing he traversed the trails through the land including the trails around Area A. He did so innumerable times between 1975 and the mid 1980s when Mr Hogarth prevented further access. After Ensile bought lots 1 and 2 and before Mr Hogarth prevented further access in the mid 1980s Mr Lloyd recalled seeing a tractor with a slasher operating (I infer, more than once) in the top country, including in Area A. He recalled this because he had to stop the trail riders (and there could be up to 40 riders) when they met the tractor and slasher. He also described this as always more open country than the sloping land, with intermittent trees and surrounding scrub and undergrowth.
60 I do not need to resolve whether the grazing use related to the whole of Otford Valley Farm or some smaller area such as the top country (including Area A). Questions about the use of the whole of Otford Valley Farm were traversed (but not thoroughly explored) in the evidence. Findings about the whole of the land are thus inappropriate and call to mind the caution of Stephen J in Eaton & Sons Pty Limited v Warringah Shire Council (1972) 129 CLR 270 at 291. The evidence about Otford Valley Farm generally, however, is relevant because it sets the context for the use of Area A.
61 The evidence must be understood in light of the fact that Area A is a readily definable unit of land generally surrounded by tracks and with no apparent internal divisions. Area A itself may be “rightly regarded as a unit” (Steedman v Baulkham Hills Shire Council [No 1] (1991) 87 LGERA 26 at 27 citing Parramatta City Council v Brickworks Limited (1972) 128 CLR 1 and Eaton).
62 The evidence establishes that this unit of land was lawfully and physically used for the purpose of grazing before the coming into force of any environmental planning instrument. As Mr Hogarth said roaming stock clear and reduce understorey vegetation. The aerial photographs show a history of suppression of understorey vegetation from 1948 onwards. When this is taken with the active grazing use made of the land from at least 1946, particularly the top country and Area A (by the stock belonging to the Blackwells, Dr Lloyd and others and with the knowledge and consent of the owner, Metropolitan Coal), an inference may and should be drawn that the clearing of understorey vegetation apparent from 1948 served the grazing purpose, even if it also served a fire protection purpose.
63 Similarly, the evidence summarised above indicates that between 1983 and 1986 different parts of Area A were slashed at different times depending how busy the workers were at the time. The slashing took place regularly and occurred wherever farm hands could get to under and around the trees.
64 In this context the accepted approach to the characterisation of an existing or continuing use is important. The classic statement of that approach is as follows (Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310):
Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land.
65 In these circumstances the inference that should be drawn is that clearing in the form of removal and reduction of understorey vegetation throughout Area A was one of the activities, transactions or processes carried on before 3 February 1986 for the purpose of the use of that land for grazing. The whole of Area A was actually physically and lawfully used for the purpose of grazing and one component of that purpose, from time to time before 3 February 1986, included clearing of understorey vegetation by mechanical (amongst other) means. Hence the evidence leads to these conclusions:
(2) The clearing of understorey vegetation from Area A during the charge period did not involve any “increase in the area of the use made of a building, work or land from the area actually physically and lawfully used” within the meaning of s 109(2)(b) of the EPA Act.(1) In accordance with s 109(1) of the EPA Act nothing in the WLEP 1990 operated so as to require consent to be obtained under the Act for the continuance of the grazing use or so as to prevent the continuance of that use except with consent being obtained.
66 The Council also relied on s 109(2)(c) of the EPA Act. This provision proscribes any enlargement, expansion or intensification of the use. The authorities relied on by the defendants support their submission that the Council, as the party asserting the enlargement, expansion or intensification, bore the onus of proving its assertion (to the criminal standard given s 141(1) of the Evidence Act). In other words, the defendants having proved both the continuing use of Area A for grazing and the clearing of understorey vegetation for the grazing use (by various means before and by mechanical means between 1983 and 1986), the onus was on the Council to prove beyond reasonable doubt that the clearing during the charge period involved an enlargement, expansion or intensification of the grazing use. Failing such proof s 109(1) of the EPA Act operates and, in effect, trumps s 76A(1)(a) because of s 76C.
67 The evidence does not satisfy me beyond reasonable doubt that the clearing during the charge period (which the Council accepts was for the purpose of the grazing use) involved any enlargement, expansion or intensification of the use. My reasons are as follows.
68 The Council relied on the evidence of various witnesses (Mr Buckley, Mr Hogarth, Mr Everingham, Mr Collins, Mr Leslie Blackwell, Mr Alan Blackwell, Mr Lloyd, and Mr Elks) to the effect that whatever previous clearing had occurred in Area A the area always had some light understorey cover between the trees even if that cover could be described as sparse or fairly clear or open. However, after the clearing in Area A during the charge period using a machine called a tritterer (which, unlike a slasher, mulches the cleared vegetation and the ground cover and spreads the mulched vegetation over the cleared areas) there was no understorey vegetation visible in Area A between the trees. All of the understorey vegetation had been cleared and had mulch placed over it.
69 Further, Mr Everingham (the current manager of Otford Valley Farm) said that after the clearing during the charge period they seeded Area A with Kikuyu to establish more grass for cattle. When asked whether this was done to increase the carrying capacity of Area A he said it was “mainly to sustain what we’ve got there”. When asked later whether the purpose was surely to improve the carrying capacity of the area Mr Everingham said “yes”. He explained that the cattle liked Area A and the more grass they could pick the less they had to be hand fed.
70 Mr Hogarth also agreed that the clearing during the charge period was to increase the stock carrying capacity of Area A. In re-examination, Mr Hogarth was asked what he meant by “carrying capacity”. Mr Hogarth said “Well to retain the carrying capacity of the stock that we had there”. He explained “…at times there was less stock there. Stock tend to walk down the type of bushes that grow when you haven’t got stock running or walking on the ground. So it was a case of maintaining what areas were there”. The following clarification was also provided in re-examination:
Q. The prosecutor asked you questions about clearing it and increasing its carrying capacity, did you understand those questions were directed to 2006 clearing or previous clearing?
A. I think previous clearing.Q. After the clearing in 2006 how did it compare with that area of land in 1983?
Q. How did the carrying capacity in 2006 compare with 1983?…
A. Well it was about the same.
71 The defendants relied on this evidence and other evidence establishing that the stock maintained on Otford Valley Farm had in fact peaked in or about 1986 and then declined markedly thereafter. I accept that this fact is apparent from the ratings records and Mr Everingham’s evidence. It is also consistent with Mr Hogarth’s reference to stock numbers having decreased and understorey vegetation increasing without stock to keep it down.
72 The defendants said that once it is accepted that the use is grazing and the clearing during the charge period was for the purpose of the grazing use it is apparent that a focus on Area A in isolation is likely to distort any answer to the question posed by s 109(2) of the EPA Act. They relied on the fact that Area A is a very small part of Otford Valley Farm (perhaps 1 hectare compared to 1000 hectares) and the evidence showing the grazing use of the whole farm. Although I consider it appropriate to refrain from any finding that the whole of Otford Valley Farm has continuing use rights for the purpose of grazing I accept the force of the defendants’ submissions. The evidence at least establishes that far more land than Area A alone was used for that purpose. Area A is generally surrounded by tracks but is not fenced. The stock showed a preference not only for Area A but also for the whole of the top country around Area A. In these circumstances I agree that the evidence that the tritterer used in the charge period could slice through larger saplings and probably cleared the understorey vegetation in Area A closer to ground level than the slasher used between 1983 and 1986 does not itself establish any enlargement or expansion or intensification of the grazing use.
73 The defendants also relied on Mr Elks’ evidence. Mr Elks, in addition to his formal botanical and ecological qualifications, also runs a farm with cattle. Mr Elks said the clearing using the tritterer during the charge period resulted in the ground having a different appearance because the tritterer mulched both the cleared matter and the dead wood, branches and stumps on the ground. It also laid the mulch down across the cleared areas (giving the stark red appearance around the trees in the January 2006 aerial photograph). A slasher chopped up mostly live vegetation (not dead wood, fallen branches and stumps) and did not leave mulch on the surface. Mr Elks, from an ecological perspective, did not see any difference in nature or scope between the two clearing methods. The removal of dead wood, fallen branches, and stumps was immaterial. The relevant issue, the suppression of understorey, was basically the same whatever the machinery used.
74 Mr Elks said that slashers are normally set at a fixed height being rarely more than 100mm above ground level. He observed that using a slasher “at most you’re looking at leaving 100 or 150 millimetres of material on top of the ground. And from what I’ve seen of slashers that would be unusual, they’re usually set as close as they can be set on the presumption that the more you knock it back now the longer it will take to grow back again later”.
75 A number of other facts have to be weighed with Mr Elks’ evidence. The January 2006 aerial shows the land immediately after the clearing during the charge period. The same inference cannot be drawn about the temporal relationship between any other earlier aerial photograph and clearing episode. Mr Everingham said the vegetation in this area grows quite quickly. When asked whether Area A had ever looked like it did in the January 2006 photograph he agreed that it did not and this exchange followed:
Q. I’m showing you these photos and I’m putting to you that until the tritterer work was done at no stage since you’ve had anything to do with this property did that area A look as clear as that before, after or during you were slashing with it or otherwise dealing with it?
A. Some of those areas there did actually look like that after we’ve slashed. The tritterer has taken out all the stumps that were there that were creating problems with the slashing.Q. Yes, and all of the vegetation which your slasher couldn’t deal with?
A. Not necessarily, no.Q. You couldn’t deal with a 4 inch diameter trunk of a sapling with your slasher, could you?
A. Not that large, no.Q. No. But you know the tritterer could deal with that, don’t you?
A. Yes.Q. So anything under 4 inches or over 4 inches in general terms, in terms of diameter of the trunk, the slasher couldn’t deal with if it had any height about it?
A. There wasn’t a huge amount of those sort of trees there, that’s what I’m saying.Q. So, what, the tritterer really wasn’t necessary, the job was able to be done with the slasher?
A. The tritterer was there to remove the stumps and that so we could slash it easier.Q. So that was really the purpose in your mind of the tritterer going on?
A. And there was dead trees there and there was some, you know, big branches laying on the ground, things like that.Q. What, whenever you didn’t slash it?Q. You see I want to suggest to you that until the tritterer did its work at all times area A had scrub in it of between 1, 3, 4 metres in height interspersed throughout area A?
A. Not all the time.
A. Whenever we didn’t slash it, it had scrub there, yes.
76 A common sense view of the evidence indicates that the slashing carried out in Area A before 1986 (which was undoubtedly for the purpose of grazing) would have involved cutting the understorey vegetation as low to the ground as possible. This evidence also supports the conclusion that the grazing use was not enlarged, expanded or intensified in Area A by the clearing during the charge period.
77 The Council’s approach involved comparing the amount and intensity of clearing before 1986 and during the charge period using the January 2006 aerial photograph and the earlier presence of at least some understorey vegetation even if only sparse and light throughout Area A. Even if the issue under s 109(2) is approached at this level of specificity (contrary to my view of the correct approach to the continuing use for grazing) the evidence founders. The evidence of Mr Everingham and Mr Elks has to be taken into account when considering the stark difference in appearance between the red mulch on the January 2006 aerial photograph and the earlier aerial photographs. When this is done it is apparent that this difference in appearance can have little significance. Mr Everingham gave the best evidence of what the understorey vegetation looked like immediately after slashing (because he was the only person, apart from Mr Buckley, who had actually slashed Area A).
78 Further, appearance from aerial photographs (particularly given Mr Elks’ evidence about their capacity to mislead depending on time of year, sun angle, resolution and the like, which I accept) does not satisfactorily prove any enlargement, expansion or intensification of clearing in this case. As noted, there is no aerial photograph immediately after the slashing between 1983 and 1986 to compare to the aerial photograph from January 2006 immediately after the slashing during the charge period. There was also no activity of laying mulch over cleared areas before 1986 but, as the defendants rightly submitted, they are not charged with unlawful placement of mulch or seeding of Area A. I also prefer Mr Elks’ evidence about aerial photographs to that of Ms Lemmon. Ms Lemmon’s evidence based on aerial photographs was confounded by her attempts to form opinions without using stereo pairs. Ms Lemmon’s belief in the reliability of her opinions without appreciation of the difficulties identified by Mr Elks undermined rather than enhanced her opinions. Her opinions are thus not a safe foundation for conclusions about the nature, degree or intensity of the clearing during the charge period compared to any earlier clearing event.
79 The decision of the Court of Appeal in Taggett v The Council of the Shire of Tweed [1993] NSWCA 260, referred to by the Council, tends to support the defendants on the facts of the present case. In Taggett Tweed Shire Council sought to restrain clearing, draining and filling of wetlands subject to State Environmental Planning Policy No 14 – Coastal Wetlands. The trial judge found an existing use for the purpose of grazing cattle (which the Court of Appeal said was correct). After referring to the principles in Royal Agricultural Society and relating to ancillary activities (citing C.B. Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270) the Court of Appeal said: (i) ancillary works such as draining and clearing for agricultural purposes are subsumed in the agricultural purpose they are intended to serve, (ii) the Taggetts were entitled to maintain the existing drains in an efficient condition by removing silt, vegetation and debris, (iii) the Taggetts were not entitled to widen or deepen the drains after ss 107(2) and 109(2) commenced (because drains are a work and caught by ss 107(2)(a) and 109(2)(a)), (iv) the Taggetts could not increase the area of the grazing use beyond the land actually physically and lawfully used for that purpose, and (v) the Taggetts also could not carry out work to the drains that increase the area of the grazing use or its intensity, including its carrying capacity.
80 The decision in Archibald v Byron Shire Council (2003) 129 LGERA 311 is also relevant. Meagher JA (at [16]) rejected the proposition that using new machinery to do the same job (crushing rock) more economically amounted to an intensification of an existing use. Sheller JA (with whom Beazley JA agreed) also did not accept that use of different and more efficient machinery after 1986 involved any intensification when output from the quarry had declined (at [65]). At [71] Sheller JA observed that:
It may well be that if in this quarry different machinery had been brought in to increase output and had achieved that effect there would, within the meaning of the section, be an intensification of the use. Here there was no increased output and no suggestion that the new machinery was brought in to achieve this. All that changed was the efficiency of the method of production. The use remained the same.
81 Applying these considerations to the facts of the present case it is apparent that the Council has not proved beyond reasonable doubt that:
(1) The clearing during the charge period extended the area actually physically and lawfully used for grazing before 3 February 1986 (and, if it be relevant, before 8 June 1979 when the Illawarra Planning Scheme Ordinance required consent for agriculture).
(2) The clearing during the charge period was intended to increase the stock carrying capacity of either Area A in isolation or Area A as part of a larger area used for grazing over and above its carrying capacity before 3 February 1986.
(4) The clearing during the charge period involved any functional, category or quantitative difference of a material nature in respect of understorey vegetation removed from Area A compared to the understorey vegetation that must have been removed in the slashing activities that occurred between 1983 and 1986.(3) The clearing during the charge period in fact achieved an increase in the stock carrying capacity of either Area A in isolation or Area A as part of a larger area used for grazing over and above its carrying capacity before 3 February 1986.
82 With respect to the fourth point, the differences appear to be that the tritterer could slice through larger saplings in the understorey vegetation than the slasher and probably cleared closer to the ground than the slasher (but the slasher would have taken the understorey down to no more than 100 to 150mm in height). The tritterer also laid down mulch of about 500mm depth over the cleared area. I do not consider that the capacity to slice through somewhat larger saplings in the understorey vegetation or the probable difference in height of understorey left after clearing operations with a slasher can be treated as material without impermissibly descending into a “meticulous examination of the details of processes or activities” ( Shire of Perth v O’Keefe (1964) 110 CLR 529 at 535 cited in Archibald at [70]). I also do not consider that the placement of mulch can found any inference against the defendants when they are charged with clearing not mulch placement. The mulch, in my view, is a distraction because it created the red colouring in the January 2006 aerial photograph and thus the vastly different appearance of Area A in that photograph compared to earlier photographs.
83 It follows that the charges in proceedings 50019 and 50021 of 2007 must be dismissed.
Conclusions
84 For the reasons given above the Council has not proved beyond reasonable doubt that the clearing of understorey vegetation in Area A during the charge period was carried out without development consent. The defendants have proved on the balance of probabilities that the clearing of understorey vegetation in Area A is an activity, process or transaction constituting part of the continuing use of that land for the purpose of grazing authorised by s 109(1) of the EPA Act. The Council has not proved beyond reasonable doubt that the clearing of understorey vegetation in Area A during the charge period involved any activity proscribed by s 109(2) of the EPA Act (and, indeed, if anything, the evidence proves to the contrary on the balance of probabilities). The Council otherwise acknowledged that it did not press the charges insofar as they related to any land outside Area A and that it had not proved beyond reasonable doubt any clearing of individual trees other than the saplings that formed part of the understorey vegetation.
85 For these reasons the summons in each of proceedings 50019 and 50021 of 2007 must be dismissed and the defendants acquitted of the charges. The summons in each of proceedings 50047 and 50048 of 2007 must also be dismissed and the defendants acquitted of those charges as the activity of clearing during the charge period was for a purpose permissible with development consent rather than a prohibited purpose.
86 The orders are thus as follows in each of proceedings 50019, 50021, 50047 and 50048 of 2007:
(2) The exhibits may be returned.(1) The summons is dismissed.
2
9
6