The Imminent Risk RAMA Exemption
47Mr Rummery submitted that the remainder of the clearing was undertaken for "safety reasons" pursuant to the exception contained in s 11(1)(i) of the NVA ("the imminent risk RAMA").
48He submitted that while native vegetation ordinarily poses no risk of personal injury, "imminent risks" arise when mustering is undertaken in an environment where the presence of vegetation limits visibility and manoeuvrability, thereby increasing the likelihood of injury. This is because vegetation makes it difficult for workers to "make first contact" with livestock and to move out of the way of any distressed, and therefore potentially unpredictable, livestock.
49Having regard to his obligation to provide a safe working environment pursuant to the then Occupational Health and Safety Act 2000, Mr Rummery identified mustering as a major hazard in his business as a grazier and farmer.
50Mr Rummery deposed to the fact that the growth of vegetation on the property between 1996 and 2004 was having a "negative impact on the ability to safely undertake grazing operations due to a lack of visibility and manoeuvrability while undertaking mustering, and while undertaking other farm management activities." His strategy to address these risks was to eliminate mustering from the roughest country on the property and to clear small trees and shrubby understorey from other areas, as well as implementing a number of other safety measures (removing quad bikes, wearing personal protective equipment, training livestock to respond to dogs and motorbikes, increasing the number and quality of fences, pre-planning mustering operations and training and briefing of team members).
51Mr Rummery's evidence was that he undertook the clearing to provide mustering routes parallel with and adjacent to fence lines and tracks to allow stock to be moved between paddocks; to provide cleared areas around dams and gateways to allow livestock to be collected together safely; and to generally improve visibility and manoeuvrability in other areas by thinning or partially removing vegetation. It was his belief that the clearing undertaken by him was reasonably necessary to remove or reduce the imminent risk of serious personal injury that arose during the mustering process.
52In support, Mr Rummery relied on the opinion of Mr McMahon, who concluded that mustering was a "major hazard" on the property based on maps indicating the location of the cleared areas and on a site visit to the property on 11 June 2012. Mr McMahon stated that the clearing engaged in by Mr Rummery was an important control measure to improve visibility thereby minimising this "major hazard".
53In a report dated June 2012, Mr McMahon provided statistical evidence of the dangers of mustering, including the risk of death. He concluded, based on a report prepared by the Australian Centre for Agricultural Health and Safety in 2005 entitled Occupational Health and Safety Risk in the Beef Cattle Industry, that between 1989 to 1992 a significant number of deaths (in excess of 100) had occurred on rural properties with cattle or sheep, and that mustering accounted for a third of all deaths.
54I found Mr McMahon's evidence to be unpersuasive. First, Mr McMahon had not visited Yarragool prior to the clearing. Second, it was entirely equivocal whether all of the deaths were properly attributable to mustering activities, most simply describing the cause of death as "motorcycle" or "cattle". Third, Mr McMahon was unable to identify whether vegetation had in fact played any role in the deaths.
55I do not accept, as Mr Rummery contended, that the remaining 191ha was lawfully cleared pursuant to the imminent risk RAMA exemption contained in s 11(1)(i) of the NVA. This is because, first, as a matter of law, while mustering is undeniably an inherently dangerous activity involving, as it does, moving vehicles, unpredictable animals, and irregular terrain, it does not follow that mustering of itself involves an "imminent risk" for the purposes of s 11(1)(i), once that term is properly construed having regard to the scope, context and purpose of the provision and the NVA as a whole.
56While there appear to be no authorities directly on point, the phrase "serious and imminent risk" has been considered by the Federal Court in the context of civil aviation law. Thus in Civil Aviation Safety Authority v Alligator Airways Pty Ltd (No 3) [2012] FCA 601, Murphy J construed the term "imminent" as meaning, in relation to danger or disaster, something which is impending, or soon to happen (at [40]). In Gosford City Council v Forrester [2010] NSWLEC 49; (2010) 172 LGERA 400, a case concerning a tree preservation order, Pain J expressed a similar sentiment stating that, in relation to whether a tree "had become dangerous", the "temporal aspect of a tree becoming dangerous must be longer than in an emergency which suggests imminent likelihood or harm to persons or property" (at [34]).
57Caution must be exercised in applying these authorities to s 11(1)(i) of the NVA given their different statutory language and context. But by analogy, what is apparent is, in my opinion, that the phrase "imminent risk" involves a temporal nexus insofar as the risk must be assessed against the likelihood of the serious personal injury occurring relatively soon and not at some incohate point in time.
58This construction is consistent with the definition contained in the Macquarie Dictionary (online edition), of "imminent" as "likely to occur at any moment; impending" or "projecting or leaning forward; overhanging". "Imminent" is likewise defined in the Oxford English Dictionary (online edition) as "about to happen" or "overhanging". "Risk" is defined in both as, "a situation involving exposure to danger" or "exposure to the chance of injury or loss". An "imminent risk" is therefore a situation involving exposure to a danger that is impending, in that it may eventuate at any moment.
59When construed in the broader context of the NVA, the phrase "imminent risk" in s 11(1)(i) is plainly directed towards the risk posed by native vegetation and not the activity per se. That is to say, clearing is permitted where native vegetation creates an immediate danger, and not some indeterminate danger at large derived from mustering. Accordingly, where a hanging branch may, at any moment, fall and injure a person, clearing would be permitted under the RAMA.
60Such a construction also conforms with the objects contained in s 3 of the NVA because it envisages the clearing of only select trees or shrubs (or select areas of vegetation, for example, fire breaks) without consent, justifiable on the basis that there is a likely probability that an identifiable risk will soon eventuate, or at the very least, will eventuate within the time necessary to complete routine approval processes. Were it otherwise, clearing to remove or reduce the risks of mustering would facilitate the clearing of native vegetation on a broad scale, thereby defeating the objects of the statutory scheme (see specifically s 3(b) of the NVA).
61Second, as a matter of fact, none of the native vegetation cleared in this case posed an "imminent" risk as that term is properly understood. Rather, at its highest, the risks posed by vegetation in the mustering undertaken by Mr Rummery are better classified as 'potential' or 'latent' risks.
62Mr Martin Tennant, the prosecutor's Occupational Health and Safety expert, expressed the view that the risks associated with mustering on Yarragool were "inherent" and that the vegetation posed a "potential", rather than "imminent" risk of personal injury. This opinion was consistent with Mr Rummery's concession that no amount of clearing could totally remove the risks associated with mustering because those risks existed independent of the extent of vegetation.
63Mr Rummery argued that because the exception contained in s 11(1)(i), permits clearing only to the extent "reasonably considered necessary", and because he cleared vegetation only to this extent, namely, 30m for mustering routes and 5ha around dams and gateways, he could therefore avail himself of the exception.
64Clearing to 30m and 5ha was based on Mr Rummery's subjective assessment of the skill of his mustering team and a comparison between his "need to be able to move stock safely" and the maximum permitted distances for similar activities allowed in the Western Division of New South Wales "where the topography is flatter and the density of trees is lower" (cl 20(1)(b) of the Regulations).
65But the express provision of permissible clearing distances for mustering routes as part of the imminent risk RAMA within the Regulations for Divisions other than the Namoi Catchment Management Area strongly suggests that clearing for mustering routes is - quite deliberately -impermissible absent approval in that Catchment Management Area. And in any event, clearing allowances for "stock movement" in the Western Division contained in cl 20(1)(b) of the Regulations are referable to the rural infrastructure RAMA, and not the imminent risk RAMA.
66In addition, the notion that permissible clearing is based on a grazier's subjective opinion of his or her mustering skills and the skills of his or her team must be rejected. It does not place any real limit on the extent of clearing that may be undertaken by landholders engaged in inherently dangerous farming activities and is contrary to the express words of s 11(1)(i) which imposes an objective assessment of vegetation that can be lawfully removed, an assessment that is consistent with that contained in s 22(2)(a) of the NVA.
67Mr Rummery further submitted that the imminent risk RAMA had to apply to mustering on Yarragool because there was no other RAMA available to cover such activities under the NVA.
68But this submission misconceives the objects of the NVA. The NVA was enacted primarily to ensure the conservation of native vegetation and not as a vehicle to facilitate agricultural activity. In any event, it was always open to Mr Rummery to obtain a PVP or development consent to clear native vegetation on his property. This he did not do.
69Finally, even if the vegetation on his property constituted an imminent risk during mustering, I am nevertheless not convinced as a matter of fact that the risk was one of, as required under the statute, "serious personal injury".
70Mr Rummery provided evidence that he and his son had sustained injuries requiring hospitalisation while mustering on only three occasions, one of which occurred when Mr Rummery was 14 years old. There was no evidence that vegetation played any role in these injuries. Indeed, the injury sustained by Mr Rummery's son occurred in a relatively cleared area of the property.