281 However, I cannot see that anything turns, for the purposes of the alleged offence, on how the vegetation was removed. Had this been a prohibited development (which would involve a determination as to whether it was for the purpose of agriculture or subdivision), the only questions would have been as to the fact of its removal and whether that was without consent. The alleged offence is the carrying out an activity without the requisite development consent in breach of the IDO.
282 The only potential relevance of the mechanical nature of the clearing, it seems to me, is that, to the extent that the 1999 development consent for the existing dwelling on the property required adherence to the Bushland Management Plan, and that plan contained within it a recommendation not under any circumstances to use mechanical means, then insofar as Mr Brand sought to rely on the 1999 development consent to satisfy any requirement for consent, there might be a question as to whether he could do so. However, the point was made by Mr Jacobs that this plan did not in terms prohibit mechanical clearing - it simply recommended against it. Failure to comply with the recommendation contained in that consent, while perhaps a matter for criticism, would not amount to a breach of the EPA Act.
283 Would it have mattered that Dr Monks may have believed there was an offence but not have been aware of the precise formulation of the offence or any charge which might be brought in relation to the offence?
284 I raised this question during exchanges with Counsel, namely whether, when making the disclosure(s) in question, Dr Monks must have had in mind a specific offence which might be constituted by the activities or simply that the activities amounted to a crime.
285 Mr Jacobs submitted that Dr Monks bore the onus of establishing that an iniquity has occurred and that she could not simply rely on a random allegation. It was said that Dr Monks had to have known of the relevant offence (and hence her justification for disclosure) at the time the disclosure was made.
286 In response to that, however, Mr Faulkner pointed to the fact that what Dr Monks was disclosing was her observation of the activities on the land. If those activities amounted to conduct which would support a reasonably tenable charge for a serious offence then the fact that Dr Monks might not have had in mind the particular instrument under which such an offence would lie, would not be the same as the making of a "roving" or "random" allegation of iniquity (of the kind which is insufficient to attract the public interest defence). I accept the force of Mr Faulkner's submission in this regard.
287 As I understand it, what Mr Jacobs was submitting, in effect, was that if Dr Monks formed a view that the activities were a particular offence (say the breach of a Tree Preservation Order) but technically she was wrong and this amounted in law to a different offence (say breach of the IDO), then she must nevertheless lose on her iniquity/public interest defence; in other words that she must have had in mind a basis for a particular offence the subject of her report to the Council. I do not accept that contention. It does not seem to me that this is a case akin to a "roving allegation of fraud".
288 Dr Monks reported certain activities that she believed (genuinely and not unreasonably in my view, particularly when it transpires that her belief was shared by the Council officers who investigated and obtained legal advice on the matter) amounted to an offence against a number of statutory provisions. I very much doubt that in order to rely upon the public interest defence it would have been necessary for Dr Monks, as a lay person, to have been able to identify with particularity the very sections of the legislation of which such conduct would be in breach. Mr Jacobs readily conceded that if the elements of the offence were there at the time, and Dr Monks believed they constituted an offence, then quoting the wrong legislative section would matter not (391 at 13.2). Dr Monks letter in my view fairly disclosed the elements which she believed gave rise to an offence - the clearing and underscrubbing - and that would seem to me to have sufficed in order to enable the defence to be attracted.
289 Fourthly, Mr Jacobs submitted that it is not correct to say that, because the Brands deny they have committed an offence (whether as pleaded or otherwise), Dr Monks could not have disclosed confidential information. With respect, it does not seem to me that this was the thrust of Mr Faulkner's submissions on the illegality issue. I did not understand there to be a submission that there is no confidentiality in the information unless Mr Brand admitted to the extent of the activities then being carried out (para 1.9.1). Rather, what seemed to me to be put was that, on Mr Brand's own case, what was disclosed was not "information" and that, in order to amount to "information", Mr Brand would necessarily have to accept that he had engaged in the very activity which it was alleged amounted to an offence (hence giving rise to the public interest/unclean hands defences).
290 Fifthly, Mr Jacobs' submissions made the point that vegetation must be "alive" when removed, arguing that removal of a dead log could not be a removal of vegetation. In that regard, in terms of preservation of native habitat, as I understand it from Mr Clarke's evidence the latter might well be an issue (in that the removal of dead logs/vegetation might still require consent). In any event, there does not seem any real dispute that part of what was cleared from the land was comprised in part of live weeds and native vegetation (see, for example, Mr Spence's evidence of the vegetation he had observed and the evidence of Dr Monks as to the "sappy" branches of trees which were on the land).
291 Sixthly, there was raised a question as to the "purpose" of the clearing activities. At this point there seemed to be some internal contradiction in the submissions put for Mr Brand. In his closing written submissions, Mr Jacobs accepted that it was a fundamental part of the actus reus of the alleged offence that the removal of vegetation be for the "purposes" of agriculture or subdivision. In his oral submissions, if I understood them correctly, it was submitted that Mr Brand's purpose was irrelevant as the offence was one involving no mens rea. Mr Jacobs submitted that, insofar as the defence pleaded that removal of trees and rainforest vegetation for the purpose of agriculture (or presumably subdivision) that would formerly have been demurrable as the purpose was "quite irrelevant".
292 It seems clear that, in order to constitute the offence alleged, the "development" said to have been carried out without consent (here, said to be the removal of weeds and vegetation) must be "for the purposes of", relevantly, either agriculture or subdivision. Mr Brand's intention to do that act might not be in issue but the purpose of the act is a necessary ingredient of the offence. In any event, Mr Faulkner accepted that the obligation was for the defence to show the state of mind of the plaintiffs, insofar as it must be shown that the "development" was for the purpose of a subdivision so that it is not necessary for me to determine whether an objective purpose would suffice.
293 For Dr Monks, it is said the inference should be drawn that the purpose of the clearing was for subdivision, having regard to the retainer of Dr Monks, the admission by Mr Brand that he was clearing the land to get it ready to put "on the market", and various matters contained in the affidavit evidence of Mr Hayes, Mr Spence and Mr Scorgie. (There seems also to be a tacit admission, by reference to the pleading, insofar as the damages sought are for loss of a chance to subdivide and sell, since had there been no such intention there could logically have been no damage as claimed.) Hence, perhaps, the alacrity with which Mr Faulkner adopted the oral submission by Mr Jacobs that clearing was absolutely necessary if the property were to be subdivided.
294 A comparison between Exhibit 8 (the July 2004 plan) and Map 7 annexed to Mr Clarke's affidavit (the changed bushland boundaries in May 2004) reveals the extent of the clearing. It is difficult to resist the conclusion that, in the circumstances, this clearing was for the purpose of the planned subdivision (the preparation for which was proceeding at the very same time).
295 Further as to the "purpose" of the subdivision, the submission in due course put for the Brands seemed to be that unless, by the weed removal, there was a division of the land into two or more parcels (or the weed removal was necessary to facilitate this), then there was no relevant "purpose". It seems implicitly to be conceded that the weed removal was or may have been for the purposes of sale of the land (para 6.3 submissions in reply) but it is said that is not the same as being for the purposes of subdivision, even though it seems clear that the contemplated sale was of the site with the benefit of an approved subdivision application.
296 Mr Brand was adamant in his denial that the land clearing activities were in an attempt to increase the number of lots in the subdivision or with a view to putting the land on the market for subdivision (T 108.44). He said that he did not recall saying he was getting it ready to put on the market and that he was "merely trying to clear this property up at that time because it was - it had truckloads of rubbish all over it" - T 109. Mrs Brand, however, accepted in cross-examination, that what was occurring was that the land was being prepared for the purposes of subdivision and sale.
297 Having regard to the urgency inherent in Mr Brand's apparent unwillingness to accede to his consultants' request in early 2004 that he stop clearing in order to allow the reports to be finalised (whether or not he was then looking to put the property then on the market), notwithstanding the advice by Dr Monks that this was going to delay and potentially add to the cost of the preparation of the subdivision application, it defies belief that the rubbish and weeds, which it seems had been left on the property for some time, were suddenly being removed in May 2004 simply for agricultural purposes or by way of some form of belated or overdue maintenance of the farm.
298 Mr Jacobs placed some weight on the fact that Mr Clarke, in the witness box, said that he could not understand and had never understood why Mr Brand would be clearing the vegetation on the site or how "taking trees down" would assist the subdivision. In the context of his answer (from T263) Mr Clarke seemed to be referring to what would assist the prospect of obtaining approval for the subdivision. Mr Clarke seems to have been of the view, given his general comments about the bush regeneration, that the value of the land as subdivided or the prospect of approval would be enhanced by compliance with bush management policies. In that context his statement that he could not see how removal of the vegetation would assist those prospects is readily explicable. In any event, I fail to see how Mr Clarke's opinion as to whether this activity was for the purpose of subdivision assists me in determining the issue.
299 I find it difficult to accept Mr Brand's evidence that the proposed subdivision simply did not enter his mind (T111.50) when he was carrying out the extensive clearing activities at the same time as his surveyor was drawing up plans for subdivision and his town planning consultants were mapping the area for the purpose of lodging in due course a development application for subdivision of the (on this hypothesis fortuitously cleared) land.
300 Mr Jacobs himself seemed to accept that some measure of clearance of the land would be necessary for subdivision. He posed the rhetorical question "How are they going to divide this into blocks without clearing it?" (T396.15). If so, then whatever the subjective purpose of so doing, surely the objective purpose of the activity in question must be seen to be that of preparing the land for subdivision and sale.
301 The real point of contention seems to have been whether the immediate purpose of the clearing was for subdivision or whether the fact that the land had been cleared may have been of benefit to a subsequent subdivision is at all relevant. While it was conceded (at T396.20) that what Mr Brand was doing was clearing the site and that he intended if he obtained development consent to subdivide it "one day", nevertheless it was said that this was not development for the purpose of subdivision because this was not a subdivision. The evidence as to when Mr Brand intended to market the land was not clear. His pleaded claim was for loss of the opportunity to subdivide and sell in 2004-2006, ie for sale with the benefit (or so he presumably assumed) of an approval for subdivision. If so, then I find it hard to see how the clearing activities could not be said to be for the purpose of subdivision.
302 Had the removal of vegetation/weeds constituted "development" within the meaning of clause 5(2) of IDO 122, I would have been satisfied that it was carried out in this case for the purposes of the proposed subdivision of the land.
303 Seventhly, a more difficult question raised by Mr Jacobs was whether the defendant had established a prima face case that any weeding/vegetation removal (assuming it was a "development" which required consent) was carried out without consent.
304 Mr Brand relied on various consents, the first of which was a consent to use the land for agricultural purposes said to have been obtained in about 1980 after he acquired the land. Mr Chestnut gave evidence that he had searched the Council's records but had been unable to find a record of consent to underscrubbing (T196). He confirmed that it was not the Council's policy to give oral consents (T195).
305 It was submitted that Mr Brand had rights of existing use for the purposes of agriculture and that there was no evidence that these had been altered. It was further submitted by Mr Jacobs that use for agriculture "obviously embraced" the elimination of weeds by mechanical means. In any event it was submitted that it was for the defendant to prove that the existing use for agriculture precluded weed removal, underscrubbing or slashing of weeds by mechanical means.
306 Mr Jacobs submitted that the defence bore the onus of showing that what was done was outside the parameters of the consent (or existing use rights) which Mr Brand says he had for the use of the land for agriculture. There was no apparent dispute by Mr Scorgie T 241 that mechanical clearing would be acceptable on historically cleared paddocks. However, what Mr Scorgie did not suggest was that clearing otherwise than on historically cleared paddocks was permissible T 244.32/33). It was noted that sections 106 and 107 of the EPA Act preserved historical use rights.
307 Council of the Shire of Eurobodalla v Caldak Pty Limited and Towrang Park Pty Limited (1990) NSWLEC 14 was relied upon for the presumption that, if consent was granted for agricultural purposes, that consent would apply to the whole of the property and extend to all activities that were part and parcel of agricultural use. In that case the allegation was that certain development (road works) were carried out without consent. There, development consent had been given for subdivision. The conditions of development consent made it clear that the subdivision would require construction of road works. Bignold J found as a fact and held as a matter of construction that Council had granted development consent for the carrying out of the subdivision including the roadworks and construed that development consent as being for subdivision of land including creation of new roads. It was not construed as grant of development consent subject to grant of a further development consent re roads.
308 In reliance on that authority, it was said that for Dr Monks to rely upon some qualification or restriction in the agricultural use consent to make weeding unlawful, she must prove that there was such a restriction and that she did not do so.
309 It seems to me that, rather, the question is whether an approval for agricultural use would encompass activity of this kind in areas not required for agriculture use (such as the area extending into the gully). There was some evidence of the Council's understanding of the position from Mr Chestnut and Mr Scorgie.
310 As I understand it, Mr Jacobs submits that what was removed was vegetation "around the edges" of one of the paddocks and, perhaps, going into the gully; not removal of vegetation in and on the paddocks. Mr Jacobs relied on Eurobodalla for the proposition that a separate consent is not necessary for works encompassed within a development consent. However, it is by no means clear to me that such removal would be an obvious incident of the use of the land for agriculture (since the area so cleared would seem to be on the edge of any pasture). There was no evidence that a consent to carry on agriculture on the property would carry with it by necessary implication a consent to the removal of weeds/native vegetation (particularly not those directly affecting the paddocks to be used for agriculture, as it seems the areas near the gully would not be).
311 It seemed to be suggested that because of existing rights of agricultural use and whatever may have been contained in the missing development consent for farming purposes, Mr Brand had permission to do whatever he liked on the land as long as it could be suggested that this was for agricultural use or was an activity that a farmer would undertake in the context of operating a farm. I have reservations about this.
312 Surely, if the clearing/underscrubbing activity was not directly related to agricultural use, then the absence of any actual consent for such an activity (ie the weed/vegetation removal or clearing/underscrubbing) would, prima facie, mean that the activity was without consent.
313 That seemed to be Mr Scorgie's understanding. He gave evidence that a farming approval could operate without extending to the removal of native vegetation (T245.25). He said that his understanding of the Bushland Management Plan (compliance with which was required under the existing dwelling consent) was that it allowed Mr Brand to continue existing agricultural use in the historically cleared paddocks but that the areas that had contained native vegetation were to be allowed to re-establish themselves (T241). His recollection of the area cleared in November 2003 was that it was not an area of native vegetation along the paddock boundaries (T247). (That also seems to be the explanation for what Mr Jacobs suggested was an inconsistency in the position adopted by Mr Clarke and Dr Monks in that they did not seem at first to take issue with at least some degree of mechanical clearing or slashing of weeds.)
314 In the absence of a written document recording development consent for agriculture, I cannot be certain what was or was not expressly permitted by any such approval.
315 There are, however, two matters which lead me to doubt that the removal in question was permitted by any agricultural use consent.
316 First, I consider it relevant that Mr Brand himself seems to have considered it necessary to obtain such consent when he approached Mr Rose in around 1985 seeking consent to clear the undergrowth and later, when Dr Monks and Mr Clarke raised this issue with Mr Brand, he did not suggest that he had approval to remove the vegetation as an incident of his approval for agricultural use (or that he did not require such approval because of that earlier consent). I approach with caution Mr Brand's assertions as to the fact of approval, given the alacrity with which he seems to have overstated the scope of the later bush hazard reduction certificate. In other words, I cannot place weight on Mr Brand's assertions as to the content or ambit of the historical approval for agricultural use given his tendency to overstate the import of later approvals which were in evidence.
317 Secondly, whatever the agricultural use approval may have permitted (or at least not expressly excluded), the subsequent consent in 1999 in relation to the dwelling required compliance with a Bushland Management Plan which in its terms appeared to recommend strongly against mechanical clearing. Mr Brand accepted that he had been aware of the development consent and that it had conditions of consent since 1999 but said that he had never had to have regard to those conditions (T 83).
318 A copy of that development consent was in evidence. Clause 19 provided that "the approved Bushland Management Plan and any ongoing maintenance and management works identified therein, must be adhered to at all times" and that, under the heading "use of machinery", there was a recommendation that machinery not be used. Mr Jacobs stresses that this was not, in its terms a prohibition on mechanical clearance. Nevertheless, when one notes that the terms of the consent required adherence at all times to a plan that stated "The use of machinery is not recommended under any circumstances" (my emphasis) it seems to me there is a reasonable argument that the development consent required that such a recommendation be observed. Mr Brand conceded that he had completely ignored this recommendation (T 86.36). He accepted that he had not taken any steps to ensure adherence to the relevant parts of the plan (T84.36). In particular, he had not allowed the regeneration of grass paddocks to native bushland and had removed dead trees from the property (T 85).
319 Mr Chestnut considered that the existence of a development consent for agricultural use would have to be read together with other consents (T200/201). Thus, a consent for farming would not of itself permit native vegetation clearance. (Insofar as reliance was sought to be placed on an approval from Mr Rose for underscrubbing) Mr Chestnut said that Mr Rose was not in a position to give a formal development consent (T203).
320 Mr Scorgie's position was that Mr Brand would have needed to have a consent both for farming (which it seems accepted that he did) and for removal of native vegetation.
321 Had the activity in question required consent, while the terms of the agricultural use consent were not in evidence, I would have considered that Dr Monks had established a prima face case of lack of consent for the clearing activities which were occurring not in the historically cleared paddocks.
322 Finally, Mr Jacobs raised issues as to the extent of the disclosure and whether it was necessary in the public interest (given the level of public awareness of the activities in question). Had there been a prima facie case that there was a reasonably tenable charge for breach of the EPA Act, then to disclosure to the Council of that perceived offence would, in my view, have been justified in circumstances where there were clearly reasonable grounds for Dr Monks to believe that if she said nothing to alert the Council to the perceived offence (and if no action were taken by the Council) it would be likely to continue. In A v Hayden it was recognised that the public interest does not in every case require the disclosure of the fact that a criminal offence has been committed, but here the perceived offence could not have been dismissed as trivial, in light of the potential penalty attaching thereto; and (if the clearing was illegal) there must have been a clear public interest in alerting the relevant authority with power to stop that offence.
323 On the public interest aspect, it is said that if the matter was already in the public domain then the defence of justification for disclosure of an iniquity does not lie. With respect, however, the fact that other locals might know about what was occurring would not in my view detract from Dr Monks' disclosure to the Council being in the public interest.
324 Dr Monks' letter to the Council clearly identified the activity being that of clearing or removal of vegetation. She excepts from that any clearing under what she had (apparently incorrectly) been told by Mr Brand was a local bushfire approval to clear from each side of his fences. Dr Monks had been advised by an ecological consultant, Mr Clarke, as to the restrictions he thought were applicable to the area, she had also been advised by Mr Payne that he had concerns as to there being a contravention. She had attempted to draw these to Mr Brand's attention and to secure his cooperation to stop clearing. Against that background, her initial letter of complaint of 20 May 2004 requesting that the Council take action to stop further clearing, seems to me to be a disclosure made in the public interest.
325 What is a more difficult question on this point is whether, in balancing the competing public interests, there was a public interest in Dr Monks disclosing the same conduct (in breach of any confidentiality obligation) when Dr Monks seems to have been aware that others had already reported the matter to Council. On balance, I would have answered this in the affirmative in that Dr Monks would seem to have been unclear as to what precisely had been communicated by others to the Council.