Dalimen P/L v Director General Department of Infrastructure Planning and Natural Resources

LEGISLATION CITED: Native Vegetation Conservation Act, 1979

Slack-Smith & Anor v DG of Department of Land and Water Conservation [2003] NSWLEC 189; CASES CITED: Buttsworth & Ors v DG of Department of Land and Water Conservation [2003] NSWLEC 169; Archibald v Byron Shire Council [2003] NSWCA 292

DATES OF HEARING: 29-30/9/2004, 1/10/04, 14-15/03/05

APPLICANT Mr D. Galpin, barrister SOLICITORS Legal Services Branch, DIPNR

RESPONDENT Mr t. Howard, barrister SOLICITORS Stone & Partners

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11375 of 2003 Dalimen Pty Limited v Director General Department of Infrastructure Planning and Natural Resources

JUDGMENT Background. 1 This appeal arises from the issue of a remediation direction (Direction), by the Director-General of DIPNR, requiring the applicant to carry out specified remedial work pursuant to s47(1)(a) of the Native Vegetation Conservation Act 1997 (NVCA), on a rural property at Casino.

2 The Direction applies to land described as Lots 139 and 140 in DP 755612. The property forms part of a larger rural property known as "Sneaths". It is situated approximately 18 km southeast of Casino and contains sections of native vegetation and other areas that have been cleared to allow cattle grazing and other agricultural activities.

3 The effect of the Direction is to identify a specific area of approximately 12 ha, refer attachment No. 1, that was cleared ("the Remediation Zone") and requires Dalimen, as the landowner of the property to fence this Remediation Zone, exclude stock, use spot spraying to control weeds and refrain from clearing for a period of 10 years. 4 It is agreed that a clearing event, covering the Subject Area of approximately 11.793 ha, variously designated by the witnesses as (Area 1) or (Cleared Area), took place on the property during May and June 2003 and that this was undertaken by Mr Greg Santins contracting company. The clearing involved pushing over the vegetation with bulldozers, piling into windrows and subsequently burning it.

5 Officers of the Department of Infrastructure Planning and Natural Resources (DIPNR) became aware of the clearing and inspected the windrows before burning. Following site investigations, including various measurements of the vegetation, it was confirmed that the cleared material contained native vegetation.

6 Under the provisions of the NVCA, certain exemptions for clearing of native vegetation are allowed and in this regard, a substantial part of the applicant's case is that the cleared vegetation was regrowth (i.e. less than 10 years old) and therefore exempt.

7 Various submissions were made concerning the Court's power/discretion in this matter. Initially, the applicant contended that the only options available were for the Court to either confirm the Direction or dismiss it. However, the applicant ultimately conceded that it is open to the Court to also issue a varied direction under s 47(1)(a).

8 The applicant's evidence included statements from the previous owner to the effect that various parts of the property had previously been cleared. Consequently, the threshold issue concerns the extent of that clearing of native vegetation in the subject area by the original property owner, in 1993, such that the subject clearing actually involved regrowth vegetation. There is also the question of whether the clearing has caused environmental harm.

Legislative Framework. 9 The power to direct remedial work in respect of native vegetation clearing is contained in section 47 of the NVCA. That section relevantly provides: "(I) If the Director-General is satisfied: (a) that any native vegetation, or any protected land, has been cleared in contravention of Part 2, or (b) that the clearing of native vegetation on any land, or the clearing of protected land, has caused, or is likely to cause, on or in the vicinity of the land, any soil erosion, land degradation or siltation of any river or lake, or any adverse effect on the environment, the Director-General may, by notice in writing, direct the landholder, or the person having the control or management of the clearing, to carry out specified work in a specified manner and within a specified time. "(2) Any one or more of the following types of work may be directed to be carried out by a notice under this section: (a) work to repair any damage caused by the clearing, (b) work to rehabilitate any land affected by the clearing, (c) work to ensure that specified land, or any specified river or lake, will not be damaged or detrimentally affected, or further damaged or detrimentally affected by the clearing. 10 Part 2 of the NVCA allows for development consent to be granted in some cases for the clearing of native vegetation. In these circumstances, the consent authority for the purposes of the EPA Act is the Minister. This Part also requires the Director General to keep a register of all development consents granted.

11 Also of relevance in this matter is the following Schedule 4 (Savings and transitional provisions) of the NVCA;

Part 1 .Preliminary 1 Savings and transitional regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act. (2) Any such provision may, if the regulations so provide, take effect from the date of assent to this Act or a later date. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication . Part 2 Provisions consequent on the enactment of this Act 2 Definition In this Part: SEPP 46 means State Environmental Planning Policy No 46-Protection and Management of Native Vegetation as in force immediately before its repeal by this Act. 3 Existing development consents and exemptions under SEPP 46 (1) The repeal of SEPP 46 by this Act does not affect any development consent for clearing native vegetation as required by SEPP 46 and in force immediately before that repeal, except to the extent that: (a) the development consent is taken to be development consent as required by Part 2 of this Act, and ~'" (b) the clearing is to be subject to this Act. (2) Subject to the regulations, the clearing of native vegetation for a purpose or extent described in Schedule 3 to SEPP 46 continues, after the repeal of SEPP 46 by this Act, to be clearing that is exempt from any requirement under Part 2 of this Act for development consent. (3) Subclause (2), and any regulation made for the purposes of that subclause, ceases to have effect in relation to the clearing concerned if the land to which the clearing relates becomes land to which a regional vegetation management plan applies.

12 In this case, the relevant exemptions from SEPP 46 are: SCHEDULE 3-EXEMPTIONS

Clearing of native vegetation for the purpose of the following: (a) Minimal Clearing. The clearing of up to 2 ha per annum for any contiguous land holding in the same ownership . (b) … (e) Rural Structures. The clearing to a minimum extent of native vegetation if it is necessary for the construction, operation and maintenance of farm structures (such as farm dams, tracts, bores, windmills, fences, fence lines, stockyards, loading ramps, sheds and the like)… (j) Regrowth. The removal of native vegetation, whether seedlings or regrowth, of less than 10 years of age if the land has been previously cleared for cultivation, pastures or forestry plantation purposes .

The Evidence. 13 Detailed evidence on behalf of the respondent was presented by: Ms K. O'Reilly, Resource Compliance Manager (DIPNR), Mr M. Wood, Natural Resource Project Officer (Compliance), Mr G. Short, Natural Resource Project Officer, Dr. A. Smith, Consulting Ecologist, Mr. M Ball, Senior Natural Resources Officer - Forestry, Dr. K. Schelling, Satellite Imagery Consultant,

14 For the applicant, evidence was presented by: Mr C. Godfrey, Principal of Dalimen, Mr G. Santin, Clearing contractor, Mr R. Dyason, Consulting Forrester, Mr P. Munro, Former property owner representative, Mr P. Hunter, Geographic Information Systems consultant, Mr B. Fitzpatrick, Satellite imagery consultant.

15 The Court has been assisted by the detailed submissions on the evidence. Mr Galpin outlined the following procedures for dealing with the factual matters in this case. First, the Court must decide whether it is satisfied Dalimen contravened Part 2 of the NVCA. Second, the Court must decide whether it is satisfied the clearing had, or is likely to have, an adverse effect on the environment. Third, the Court must decide whether it would exercise the discretion to give a direction. Fourth, if satisfied that a direction should be given, the Court must decide what form it should take. Accordingly I have generally dealt with the evidence on this basis.

16 Insofar as it is agreed between the parties that the clearing event did occur in May/June 2003, this particularly relates to the " arrow- shaped" area, designated Area 1 (Attachment 1). However, it is the applicant's principal contention that the subject clearing was of regrowth and therefore covered by the exemptions provisions. Also, that further limited clearing is allowed under Part 2 of the provisions, so that pursuit of the Direction is unwarranted.

17 This position is substantially premised on the evidence of Mr P. Munro, whose father owned the property for over 50 years, before selling it to Dalimen. During these years of ownership, Mr Munro said he became familiar with the property in undertaking various rural activities, including land clearing for crops and cattle grazing. Accordingly, the confirmation and acceptance of Mr Munros evidence of his 1994/95 clearing action would result in the subsequent clearing event in 2003 being of regrowth and therefore exempt. 18 The evidence presented to the Court by the parties in response to the issues can be categorised into the following levels; o land-based details, o aerial photography information (API), o satellite imagery assessment.

Land-based details. 19 In his statement, Mr Munro identified areas that were previously used for cattle grazing in the vicinity Area 1. He makes reference to Annexure A, where there is a black cross- hatched area that was traditionally cleared for cattle grazing. In addition to this, there is a further red cross- hatched, which indicates the area he says he cleared in late 1994/early 1995.

20 According to Mr Munro, some of the land was used for the purpose of soya- bean crops. This necessitated the land being cleared by a bulldozer or tractor with a blade on the front. Once the timber was knocked over, it was "stick raked" into piles by the dozer or tractor, then burnt. This process allowed areas for rotation of crops and pastures for the cattle grazing. He says that after clearing, pasture grasses and "sucker regrowth" occurred. These "suckers" were generally prickly Tea Tree, wattle and occasionally swamp mahogany, which grew quickly and densely. 21 During the period from 1988 to 2000, Mr Munro says he tried to clear the land every five years, probably achieving 2 clearing events, after which it looked like the depictions in Annexure B in his statement. With respect to the designated " Area 1", he says that some time from late 1994 to early 1995, he; used the tractor and the dozer to clear those areas which had been previously cleared for cattle grazing purposes. The clearing included those areas marked with cross hatching, in red on Annexure A….,

"used a dozer and/or a tractor, with a blade on the front, to push over the prickly Tea Tree regrowth and the occasional larger tree in that area. I did not clear too many of the bigger trees in the area shown on Annexure C. I basically ran over the top of any young, thin vegetation because I was doing the job by myself and I was clearing pretty quickly. I dodged the bigger trees that took out regrowth and smaller trees including Tea Tree, wattle and eucalyptus. The Tea Tree, at that time, was about 10 ft. tall and was so thick it was not possible to ride a horse through it …

After it was cleared, and as noted above, there was no opportunity to go back and plough it and put it in to pasture. Within 18 months the Tea Tree suckers had come through two about 3 ft. high. After about three years the Tea Tree had come through to a height of about 10 feet."

22 Then in 1998, Mr Munro organised further clearing of the property by Mr Robyn Connolly. The extent of this clearing is shown on Annexure D and includes timber on the eastern side of the area running through the middle of Lot 139, areas on the north east (Area 2) of the area shown on Annexure C and additional pockets of regrowth vegetation on the land.

23 In response to the Direction, Mr Munro that concludes "that 95% of the vegetation on the site in May 2003 would have been less than 10 years of age, the majority of the vegetation being regrowth and that regrowth being prickly Tea Tree."

24 However, this conclusion on the age of the vegetation is contested by the respondent, on the basis that while some clearing may have taken place, it did not constitute clearing of regrowth in the subject area. 25 For the respondent, the primary land-based assessments were undertaken by Mr Woods, Ms O'Reilly and Dr Smith. Initially Mr Woods, who is an authorised compliance officer (Identification and Authorisation number 2112) assessed various aerial photographs and inspected the site after the 2003 clearing event, when the timber was in windrows. From this he and Ms O'Reilly undertook certain measurements of the vegetation and noted the species and observed that the stacks "contained hundreds of thousands of tree stems, easily in the order of 500,000 stems…"He was assisted by Ms K O'Reilly.

26 They also inspected the surrounding vegetation and established seven (7) 10m x 10m sectional quadrats. In these, Mr Woods counted the number of stems per quadrat and measured the dbh (diameter at breast height) using a dbh tape. This resulted in his determination of the surrounding vegetation density to be between 39,000 to 146,000 stems per hectare. Accordingly, his conclusion with reference to the surrounding vegetation, is that excessive clearing took place in the subject area, over and above any "minimal tree clearing" allowed by way of the exemptions and the Direction should be maintained.

27 However, after review, Mr Woods provided a supplementary statement (exhibit 10), which includes corrections to his initial vegetation density determination. He states that a mathematical error (with a magnitude of 10) occurred in translating the number of 10m x 10m quadrats into 1 hectare. Consequently, " the correct density of surrounding vegetation should have been "between 3900 and 14600 stems per hectare." This results in his revised conclusion that: " There were simply too many tree stems in the windrows to attempt to recall detailed information in respect of all of them. I estimate that the stacks contained tens of thousands of tree stems, easily in the order of 50,000 stems. I based this estimate of what I saw in the windrows and on the density of the trees in the surrounding areas." 28 Notwithstanding the criticisms of Mr Wood's assessment, an alternative land-based assessment was undertaken for the respondent by Dr Smith, who has particular expertise in ecological assessments. Based on his inspections of the site, he classifies the vegetation and as "native vegetation", which he describes as "Red Gum forest" and also "Lowland Red Gum with areas of Paperbark and Lowland Grey Box", under the forest ecosystem classification used in the Regional Forest Agreement (the RFA). He expresses the opinion that the communities on the property are likely to have been in good condition before the clearing.

29 Dr Smith examined a series of aerial photographs of the property taken in years 1953, 1964, 1971, 1977, 1980, 1993, 1998 and 2000 and formed the opinion that: "… this sequence of photographs shows that native tree and shrub vegetation cover on the property was sparse (about 40% cover) in 1953 and has gradually increased since that time. Regrowth was established over the most of the site by 1971. This is consistent with a tree and shrub age on the majority of being Cleared Area of between 33 and 51 years. The only evidence of clearing on the property after 1953 was in a small area vegetation in the North East of the Cleared Area and shown in the difference between the 1993 and 1998 aerial photographs in the statement of Mr Short."

30 Considering the conjecture and significance in estimating the age of the cleared vegetation, Dr Smith applied a model he developed (Setscan), that relates tree diameter to age, based on average growth rates in Australian forests. This model was commissioned by the Department of Land and Water Conservation (DIPNR) and I understand it is currently used by field officers to identify regrowth forests less than 10 years of age.

31 Application of this model in the current case estimates that trees and tall shrubs with an average diameter of 24 cm will have an average age of about 41 years. This estimate is within the range of ages (33-51 years) determined by aerial photography. The largest trees in windrows (40-55 cm) may be older trees that were present before 1953 or individuals that grew faster than average. According to Dr Smith, the smaller trees in windrows (10-25 cm diameter) may be trees that regenerated later (around 1970) or grew more slowly than average.

32 Insofar as Dr Smith did not initially provide an estimate of the age of the understorey Melaleuca (tea tree), he subsequently says that when his growth model is applied to very dense (heavily stocked) stands of regrowth vegetation, it uses a much lower growth rate (0.29 cm/yr) to estimate age, which factors in lower growth rates caused by competition. The growth model predicts that dense tea tree at on the subject site with an average diameter in excess of 2.9 cm would be about 10 years of age or older.

33 In addition to utilising the field measurements of the cleared vegetation taken by Mr Wood's, Dr Smith measured the diameter of 10 Melaleuca sticks in one windrow and found them to range in size from 4.6 cm to 18 cm, with a maximum diameter of 7.8 cm. From this he expresses the opinion that: the age of these Melaleucas is likely to have been around 27 years of age and older. I based this estimate on application of my growth model with an allowance for the heavy stocking (high-density) on Melaleuca is on the site, which is likely to suppress growth rates by at least 50%. 34 In summary then, Dr Smith concludes that based on his field assessment of the site and surrounds, the diameter of the tea tree remnants assessed on the site and by reference to the aerial photography evidence, the vegetation that was cleared in the subject area is not representative of regrowth of less than 10 years.

35 Against this, Mr Dyason undertook a separate assessment and utilised his local knowledge as the manager of a similar type property nearby. He acknowledges not having seen the property prior to the clearing but on his inspections noted the following; the remains of trees in the cleared area after stick rating, the frequency of coppice growth from stumps and the potential for coppice regrowth of tea tree to completely dominate over any other vegetation regeneration on the site.

36 His opinion is that the vegetation cleared was of a similar density and smaller sized than some of the tea tree surrounding the subject area, because the remains of the trees on the subject area appears smaller than most of the standing trees surrounding the site.

37 In comparing the cleared vegetation to the surrounding area he refers to the concept of apical dominance "i.e. that no one particular tree forms a dominant apex - all of the tea tree form the canopy and consistent height which was not very bushy and without having any height growth". He says that the loss of apical dominance in natural forest is caused by: (a) firstly, the normal growth habit of Melaleucas which are not normally tall trees, (b) secondly by loss of vigour due to competition between overcrowded trees for light, water and nutrients and (c) thirdly by increasing age.

38 But in his initial statement, he accepts the original overestimation of 500,000 stems by Mr Woods, to calculate a tree density of 45454 stems per ha, or more than 4 trees per square metre. Accordingly he says that this indicates a markedly different tree population with different size characteristics to the subject area.

39 Based on his forestry experience, Mr Dyason says that in a forest context the minimum basal area retained after logging should be 16 m sq./hectare, assuming a strand structure that reflects data used in the Setcan Report. This confirms his conclusion that the subject area was grossly overstocked by comparison with the Setcan residual basal areas, and had a basal area well in excess one which might encourage any tree growth. In the ultimate, he says it is unarguable that the forest is immature and disagrees with Dr Smith.

40 Other evidence in support of cleared vegetation being regrowth came from Mr Santin. Based on his initial field observations, he was of the opinion that this "sucker" regrowth was less than 10 years of age because: (a) There was a lot of tea tree on this land. In some spots in was about three or four metres high and was very dense. (b) In one particular area the tea tree was about two metres high, which he concluded may have been cleared as recently as three or four years ago, as it is formed a boundary he was able to drive along. (c) He considered the tea tree had regrowth over the area and that the stems thickness of 90% of the tea tree was 50 mm at breast height and three or four metres high. This appeared significantly different compared to the bigger timber beyond the subject area. (d) The tea tree was very bushy and formed a very dense forests of stems with the canopy. 41 Apart from this, Mr Santin noted that there were some other type of trees on the land, which included ironbark and grey box and some red gum on that he did not consider to be particularly big trees.

42 Mr Godfrey also provided a detailed statement but I consider it of limited value in estimating the age of the vegetation. Even though he inspected the property prior to purchase and made enquiries of the vendor Mr R. Munro, he apparently made no detailed measurements of the vegetation in the subject area and in any case has no expertise in this area of the estimating the age of vegetation. 43 In summary then, I have considered the various evidence regarding observations and estimates of the age of the cleared vegetation and I am satisfied that the respective experts Dr Smith and Mr Dyason have expertise, which can be relied upon to provide guidance in this matter, in preference to the recollections of the lay witnesses, of the tree and shrub diameters/heights of vegetation within dense bushland. 44 In support of this position, I note Mr Santin's statement that ; "I agree with Michael Wood when he states there was easily in the order of 500,000 stems in the windrows. I would estimate this would be the minimum number of stems in the windrows. This would be an estimate at the lower end…. The characteristics of this vegetation leads me to believe that it was less than 10 years old. As Mr Woods subsequently acknowledged his mathematical error of magnitude 10, i.e. resulting in the number of stems being closer to 50,000, it appears that Mr Santins acceptance of the original figure to confirm his conclusion, puts serious doubts on his ability to assess vegetation density or age. 45 Accordingly, I find the evidence of Dr Smith more reliable because of the general consistency between his field measurements of the cleared vegetation diameters and correlation with the Setcan model, to establish that the age of this cleared vegetation was more likely to be older than 10 years. Furthermore, this accords with his interpretation of the associated aerial photographs, that the subject area did not show evidence of clearing in 1993/94 as claimed. 46 Insofar as Mr Dyason referred to the application of the Setcan model, apparently its use is of "limited license" and Mr Dyaon is not an accredited user. Therefore, his criticisms of this model are of a speculative nature and given reduced weight. Instead, I accept Dr Smith's evidence that application this model, in the current circumstances, represents "current best practice", and accordingly provides the most scientific indicator of vegetation age. 47 I further discount the reliability of Mr Dyasons evidence because of his initial acceptance (without qualification) of the incorrect tree density calculations, from which he drew his initial conclusions. I also accept Dr Smith's criticism of Mr Dayson's " apical dominance" approach that "the presence or absence of apical dominance is not a recognised or accurate method of determining tree or shrub age. There is no available model, which shows a correlation between age and apical dominance. Individual plants may lose apical dominance when young if they are suppressed (overshadowed), or retain apical dominance when older if emergent." 48 In summary, my conclusion on the question of "ageing" the vegetation is that Dr Smith's approach is preferred because it is based on current scientific methods and is correlated to the actual vegetation on the site. Finally, I note Mr Dyason's concession from the joint expert conference that: he does not have a developed model or procedure for ageing vegetation and in the absence of historical information from land holders he would need to seek expert advice on methods of vegetation ageing… 49 The other significant aspect of the land-based investigation concerns any effects of the clearing on the environment. These investigations are contained within the evidence of Dr Smith and Mr Dyason.

50 According to Dr Smith, the Red Gum community is considered to be "inadequately conserved" over all of their range in N S W and the Lowland Red Gum forest is classified as " rare" in the north east RFA and is listed as a priority community for conservation on private land. Consequently he says that it is inappropriate to approve any broad acre clearing of remnant Red Gum or Lowland Red Gum forest because of its rarity, vulnerability, poor representation in nature reserves and extensive loss since European settlement.

51 Insofar as no comprehensive fauna surveys have been made on the subject property, Dr Smith opines that: vegetation in the cleared area is likely to have supported individuals of more than 12 species of threatened fauna and is likely to have been particularly important of the following threatened species: Koala, Grey Crowned Babbler, Squirrel Glider, Grey-headed Flying Fox, Swift parrot, Large footed mouse-eared bat, Little bent-wing bat. 27. The dominant tree species in the Cleared Area, Red Gum, is known to be a preferred food tree species of the Koala. During my inspection of the site I found scats (faecal pellets) of the Koala around the base of one retained red gum and one Grey Gum on the boundary of the cleared area. I concluded from this evidence that population of the koala was using the site before it was cleared. The Koala is listed as a threatened species under the Threatened Species Conservation Act 1995 (TSCA) because its preferred habitat occurs predominantly on private land where it is threatened by cumulative clearing for agricultural development. 28. The dense Melaleuca understorey shrub habitat on the Cleared Area provides ideal foraging habitat for the Grey Crowned Babbler. The Grey Crowned Babbler foraging for insects in the leaf litter and under the bark of trees and shrubs. It is reluctant to cross areas of cleared land and is threatened by clearing and fragmentation of its habitat for agriculture. A population of Grey Crowned Babblers was observed on the edge of the Cleared Area by Mr Wood during his investigation of the site. I concluded from this observation that population of Grey Crowned Babblers whatever occupied vegetation on the site before it was cleared. 29. Vegetation in the cleared area is likely to have been of particular significance for nectar feeding birds, mammals and bats because it was dominated by tree species that flower in winter including a species of Red Gum ( Eucalyptus tereticornis) and Ironbark (Eucalyptus siderophloia). Winter flowering eucalypts are a key food resource for a group of threatened wildlife, including the Squirrel Glider, Grey- headed Flying Fox and Swift Parrot that rely on winter flowering trees for survival. In my opinion it is likely that populations of the Squirrel Glider would have used habitat in the cleared area on a regular basis, and populations of the Grey Headed Flying Fox and Swift Parrot would have used the habitat on a seasonal basis or during migration. 30. Vegetation in the cleared area is also likely to have been of importance as habitat for range of threatened and protected insectivorous bats due to which proximity to wetlands and water bodies. Insectivorous bats are particularly abundant in native forest and woodland vegetation adjacent to water holes such as the one present on the northern boundary of the Cleared Area because of their need to drink at regular intervals. 52 Dr Smith concludes that the clearing off 11.8 ha of native vegetation has called environmental harm by: * removing an area of Lowland Red Gum, a rare community which is of a type not adequately represented in the conservation reserve systems, and which has a high priority for protection on privately owned land; * removing an area of a Lowland Grey Box, a vulnerable community which is of a type not adequately represented in the conservation reserve systems, and which has a high priority for protection on privately owned land; * removing an area of a Paperbark, a vulnerable community which is of a type not adequately represented in the conservation reserve systems, and which has a high priority for protection on privately owned land; * removing an area vegetation which provides habitat for the koala, a species which is threatened by gradual (cumulative) clearing of remnant vegetation on alluvial flats; * removing an area vegetation which provides habitat for the Grey Crowned Babbler which is known to be threatened by clearing and fragmentation; * removing an area vegetation which has importance as a winter foraging habitat for a nectar feeding birds, mammals and bats including migratory and nomadic species and threatened species; * removing an area of habitat adjacent to wetlands which provide shelter and perching sites for wetland birds, a buffer against wetland degradation operation, siltation and weed invasion, and roosting and feeding habitat for threatened and protected insectivorous bats; * removing an area of native vegetation which was in good condition, is likely to have had high diversity of native fauna, and which is important for conservation in a regional and state context; * increasing the risk of dieback in isolated scattered Red Gum trees retained in the Cleared Area and elsewhere on the property.

53 Against this, Mr Dyason provided alternative evidence on the environmental impacts and value the vegetation based on his expertise. In this regard I particularly note Mr Galpins submissions that Mr Dyason approached these issues as a rural scientist with expertise in forestry, rather than as an ecologist. Accordingly the submission is that Mr Dyason was more concerned with whether the cleared vegetation was harvestable for forestry purposes than whether it had ecological value.

54 From my understanding of the evidence, it is apparent that Mr Dyason was not particularly focused on the conservation value of the cleared vegetation as is evidenced in his statement that; Ecologically sustainable development would aim for productive forest of some maturity combined with some form of silvo- pastoral production system.

55 In summary then, I am satisfied that Dr Smith has particular qualifications and expertise in flora and fauna assessment, which results in his opinions on being preferred over Mr Dyason, who admitted to no particular expertise in these specialised areas. In my assessment, there was no compelling challenge or examination of Dr Smith, which would lead to his conclusions being set aside. 56 Therefore I conclude that the clearing event has caused environmental harm along the lines detailed by Dr Smith. This comprises removal of habitat for diverse fauna, including threatened fauna. It also has an adverse effect because the cleared vegetation communities had high conservation value and as a result, further Red gum trees are experiencing dieback. Aerial Photography. 57 The next level of evidence concerns the aerial photography assessment. This was undertaken by Mr G. Short and Mr P. Hunter and resulted in a joint conference and report (exhibit 13).

58 They agree that the available aerial photos can be adequately interpreted for the required purposes in this case, although this is qualified to the extent that the determination is of relative heights of vegetation, rather than actual heights and they cannot readily distinguish between species.

59 Notwithstanding this, these witnesses agree that some clearing occurred in the general area indicated, and whilst the positional accuracy is approximate only, it did not form part of the Subject Land in dispute. Insofar as the aerial photographs show individual trees with a crown emergent from a consistent understorey with a canopy and it is difficult to distinguish differences between the under storey canopy in the 1993 aerial photograph and the 1998 photograph, nevertheless they agree that the photos show no evidence of disturbance to the understorey, such as windrows or uneven understorey regrowth, to indicate previous clearing activities.

60 In regard to the 1953-2000 photographs, they agree that the timeframe between photographs does not make it possible to be certain that the vegetation cover between the photos is the same. However they generally agree that these photos show no evidence of vegetation disturbance.

61 In the comparison of the 1993 - 1998 photographs, both witnesses agree that some clearing had occurred on areas adjacent to be subject area. With regard to the likely regrowth of the under storey between the aerial photo dates, both witnesses agree that a height difference of one metre would be detectable, in and around the subject land. However they further agree that the 1998 letter does not show any difference in vegetation height from the earlier photo.

62 From this, it is apparent to me, that these aerial photography witnesses agree that the photographs do not confirm Mr Munros evidence of his recollection of clearing, within the subject area. Furthermore, this tends to confirm Dr Smiths land-based findings, together with his interpretation of the aerial photos. In my opinion, this aerial photography assessment is a clear indicator of unauthorised clearing, in the subject area. Satellite Imagery. 63 The third level of evidence comprises the satellite imagery assessment undertaken by Dr Schelling and Mr Fitzpatrick, resulting in their joint conference and report (exhibit 24), which is focused on "subject area" that is subject to the remediation order. But the joint statement contains frequent qualifications and refinements of their responses on complex technical matters, which doesn't readily assist the Court. Consequently my impression is that this level of evidence can only be used as an indicator or guideline of clearing activity and not on a determinative basis.

64 Initially they acknowledge some differences in approaches and opinions based on their experience, but agree they can interpret any dramatic changes in wooded vegetation. However their ability to detect other more subtle changes, such as "light clearing" seems less reliable, depending on several factors including quality of the images, weather conditions and analytical techniques.

65 The cross examination on the 1993 data is relevant because they agree that the "darker blobs" identify larger trees/shadows. Then on the assumption that the existing under storey is removed, both witnesses agree this would represent a dramatic change and this could be detected from the various coloured images. Resolution of this particular matter assists in corroborating the other evidence concerning the extent of any clearing in 1994/95.

66 In response to a series of questions, they agree that "it can be ruled out, that continuous clearing of all vegetation, similar to the event that occurred between 10 May 2003 and 5 Jul 2003, happened in the subject 10.38 ha within the area of investigation in late 1994 early 1995." Insofar as they agree that "some" clearing took place in the subject area in the period of late 1994 to early 1995, Dr Schelling maintains it was only in the north eastern part of subject area, whilst Mr Fitzpatrick is less specific.

67 In summary then, I am persuaded to accept the evidence of Dr Schelling because it appears that his approach is more detailed, and site-specific based on his field inspection of the site and correlation with actual vegetation and soil conditions. Whereas Mr Fitzpatrick evidence appears more as a review of Dr Schellings work and did not involve any site inspection to assess actual site conditions and correlation.

68 In my assessment, this is critical in determining the veracity of Mr Munros recollections of his 1994/95 clearing actions. Whilst Mr Fitzpatrick considers light clearing could have of occurred over a larger part of the Subject Area, I do not consider this is consistent with Mr Munros evidence that he used a blade on a bulldozer/tractor, pushed over the vegetation, raked it into piles and burnt it.

69 Accordingly, I am satisfied from Dr Schellings evidence that such clearing would have been identifiable on the satellite imagery, because it would have exposed some bare earth sections that would have been discernible, when correlated with the colouring of the actual site soil. As Dr Schelling has undertaken this site correlation and confidently maintains his conclusions that the satellite images do not confirm any general clearing of vegetation in 1994/95, except for a small area in the north eastern section adjacent to the Subject Area, I rely on this conclusion. This results in a further indicator that no significant clearing event occurred in 1994/95 in the subject area. 70 Therefore, I consider that there is a degree of consistency between the evidence on the land-based investigations, the aerial photography assessments and satellite imaging that provides a number of clear indicators that any significant clearing event in 1994/95, did not occur in the subject area. Furthermore, I accept Dr Smith's conclusions that environmental harm has occurred and therefore it is reasonable to make an appropriate Remediation Direction.

Remediation Assessment. 71 In determining what, if any, remediation direction should be made, the main contest between the parties concerns the extent of the application of the minimal clearing exemptions and allowances for rural structures, as provided in Schedule 1.

72 The respondent concedes that the minimal clearing exemptions apply. Accordingly Mr Wood initially excluded 2 ha of vegetated land from the cleared area (approx. 12 ha). Alternatively, he has identified a different exclusion area that does not take into account the area identified by Dr Schelling as potentially containing regrowth.

73 Against this, the applicant, contends through Mr Dyason's evidence that the minimal clearing exemption should be applied on the basis that the 2 has is measured over 2 has of tree crowns or a tree stems, rather than 2 has of land. Acceptance of this approach would obviously allow a broader area to be cleared, considering the spread of the remaining trees in the cleared area.

74 In my assessment, I follow the approach submitted by Mr Galpin that the minimal clearing exemption uses the term clearing in relation to "2 has", it does not say "clearing of native vegetation". He submits that this is an important distinction because all of the other SEPP 46 exemptions refer to clearing, in some form, of native vegetation, but the minimum clearing exemption specifically refers to 2 ha.

75 Mr Galpin submits that the applicant's "cookie cutter" approach is misconceived for the following reasons: * it focuses upon the vegetation to be cleared, rather than the 2 has of land to be cleared, which is inconsistent with the proper construction of the exemption, * it is not correct to say that there were unvegetated areas prior to the clearing event, because the evidence is that prior to the clearing event the canopy cover was greater than 95%,

• the extent that the applicant claims to rely upon the Regrowth exemption and then the Minimal Clearing for the mature vegetation that remained is unacceptable because it is clear that no attempt was made by the applicant to determine the area covered by those trees prior to its purported reliance on the Minimal Clearing exemptions. Assuming that some trees were legitimately cleared from being Subject Area under the Regrowth exemption, it is impossible to determine precisely how many trees or older than 10 years (there were at least 154) and what area was covered by the canopies. The proposition that there should be some arbitrary application of the Minimal Clearing exemption to permit the picking off of an unidentified number of mature trees of unidentified canopy size serves to highlight the inconvenience and incorrectness of the applicant approach to the Minimal Clearing exemption. 76 For these reasons then, I am satisfied that the proper application of the Minimal Clearing exemption allows 2 has of land to be cleared, within the Subject Area, rather than the less precise measurement of scattered tree canopies and/or stems.

77 With regard to the other clearing allowance component for rural structures, I note that there are no existing rural structures in the Subject Area. However the respondent concedes that if the applicant cleared for the purpose of constructing a farm structure and, possibly operating or maintaining the structure, then some allowance should be made in that regard when determining whether there has been a contravention of Part 2 of the NVCA.

78 This concession is on the basis that Mr Godfrey's instructions to Mr Santin were, " to allow fence lines to be established and laneways to allow the cattle to access adjoining paddocks". As there is no other evidence or documents indicating other rural structure components, this allowance is confined to fence lines. In making this allowance, Mr Wood's calculates a 10 metre wide buffer generally around the cleared area, which allows for fence construction, i.e. a 5m cleared area either side of the fence to enable maintenance and provide a firebreak.

79 However Mr Dyason argues that this allowance should be widened to 23 m, comprising a 10 m buffer on either side of a 3 m wide access track. This is on the basis of his experience as a local firefighter and interpretation of the provisions of the Richmond Regional Vegetation Management Plan (RRVMP). Furthermore he says that the 3 m track should be allowed as "it is as impractical as it is unreasonable to compel a farmer to drive over a ploughed firebreak".

80 For my resolution of these competing positions, I accept the submissions of Mr Galpin and that reliance on the RRVMP should be given little weight because it is only in draft form and does not in any case, state that at 20 m width is required for firebreaks of this kind. Furthermore reference to the Richmond Valley Bushfire Management Committees Bush Fire Risk Management Plan ("the Bush Fire Plan"), which applies to the subject land provides that: * clearing is exempt under section 12 (b) of the NVCA for "construction of new firebreak's (up to 6 metres wide) along property boundaries".

81 Insofar as this Bush Fire Plan is dealing with section 12 (b), rather than the Rural Structures exemption, nevertheless its adoption of a 6 m wide firebreak in the area, confirms in my opinion that the council's 10 m wide allowance is reasonable in the circumstances. Furthermore, I note that the Rural Structures exemption intention is for clearing to the minimum extent necessary, and as the subject notional firebreak is internal and not a perimeter firebreak along property boundaries, then maximising the firebreak to 23 m, is unreasonable in this case.

82 The effect then of allowing a 10 m wide buffer around improvement of the Subject Area, after deletion of 2 ha for the Minimal Clearing exemption, amounts to a total area of 1.808 ha.

83 In summary then, I am satisfied that the basic components calculated by Mr Woods in this case are reasonable and more consistent with the objectives of the NVCA to minimise native vegetation clearing, rather than the more generous areas claimed by Mr Dyason. Reference to the subject area plan (i.e. the coloured s 47 Direction plan - Attachment A) shows the distinctive "arrow shape" of the cleared land, which has a total area of 11.793 ha. 84 However, Dr Schelling has subsequently agreed that an area in the north east corner (Area B), with an area of 1.45 ha was likely cleared in 1994. As this area appears to be within the "arrow shape" area, the clearing event in 2003 would then be of regrowth in this particular area and allowable.

85 The other allowable exemptions are 2 ha for Minimum Clearing and 1.808 ha for Rural Structures. 86 On this basis, the remediation area is calculated as follows: o TOTAL AREA CLEARED 11.793 ha o Regrowth exemption (Area B) (1.45) o Minimum Clearing exemption (2.0) o Rural Structures exemption (1.808) ________ (5.26) o RESULTANT REDEMEDIATION AREA 6.53 ha

Conclusions. 87 Having considered the evidence, submissions and undertaken a view, I have concluded that some unauthorised clearing of native vegetation in the subject area did occur in June 2003. Furthermore this clearing has, or is likely to cause an adverse impact on the environment, based on the unchallenged evidence of Dr Smith, which I rely on. Therefore I consider it reasonable to make orders for an appropriate remediation direction.

88 I have carefully considered the applicant's response to the original Direction, which is fundamentally based on Mr P. Munros evidence that he cleared the subject area with a bulldozer / tractor in 1994/95, resulting in the regrowth less than 10 years old, which is now the subject of this appeal.

89 However, there are no actual records from Mr Munro to confirm his actions at that time, or in what specific area. Instead it relies on his recollections of the location within a relatively large rural property that has substantial native vegetation cover and few fenced paddocks to provide bearings. In this regard, I particularly note Dr Smith's comments that it is very difficult to accurately establish locations within this type of bushland. If these recollections are accurate, I consider it reasonable that there would be some compelling supporting evidence to confirm this, considering the extent of the evidence presented to the Court on: i) the land-based investigations, ii) aerial photography information (API) assessment, iii) satellite imagery.

90 Insofar as there have been some challenges and lack of agreement on this technical evidence, I nevertheless consider it provides relevant indicators of the seperate clearing events, to assess the environmental impacts.

91 With regard to the first level of evidence concerning the land-based details, I prefer the evidence of Dr Smith because he has undertaken detailed site investigations and measured to diameters of some of the cleared vegetation that was stockpiled. By application of these vegetation diameters into his Setcan model, he confidently predicts the vegetation is significantly older than 10 years and therefore is not regrowth. He supports this position by reference to the respective aerial photographs, which do not indicate any significant clearing of the subject area in the critical 1994/95 period, as claimed by Mr Munro. 92 Furthermore, Dr Smith has reasonably correlated the age of the vegetation in the adjacent smaller, cleared area in the north east, by site measurement and verification with the 1998 aerial photos, which provides reasonable confidence in his approach. 93 Insofar as Mr Dyason adopts an alternative approach based on the apical dominance of the vegetation, I accept Dr Smiths challenge to this approach because it is not a recognised scientific method and does not represent current best practice for assessment of vegetation age. Furthermore I discount his critical evidence on the application of the Setcan model because he is apparently not accredited to use it.

94 But I also consider that the reliability of Mr Dyason's evidence is weakened by his initial adoption of Mr Wood's erroneous conclusion on the tree density. This led him to the convenient conclusion, without any qualifications, that the vegetation in the subject area represented an age cohort different from the majority of the surrounding vegetation. However the assumptions for this conclusion are clearly wrong based on Mr Wood's clarification. From the evidence presented, it also appears that Mr Dyason's approach is significantly influenced by discussions with the landholders and their recollections, some of which I consider unreliable.

95 I also consider that limited weight should be given to the recollections of the other lay witnesses Mr Santin and Mr Godfrey. Taking into account that their opinions were based on some field inspections, within a relatively heavily vegetated bushland area before the clearing event, I do not consider their observations and experience such as to displace Dr Smiths approach and conclusions. 96 Accordingly I am satisfied to rely on the evidence of Dr Smith, taking into account his particular qualifications and expertise in ecological investigations, to the extent that it provides a clear indicator that a significant clearing event did not occur in 1994/95, in the subject area and therefore the 2003 clearing event constitutes unauthorised clearing, which likely causes environmental harm. 97 The second level of evidence concerns the aerial photography information. Whilst there are some reservations about the conclusions able to be drawn from assessments of the aerial photographs, nevertheless there was joint agreement by Mr Short and Mr Hunter, that these photos do not confirm any clearing event in 1994/95, in the subject area. As these experts agree that they can distinguish differences in height of vegetation, it seems to me that they would have been able to identify some of 94/95 clearing, considering its distinct "arrow shape" boundaries. Because of their inability to detect this, I take this as another clear indicator that significant vegetation clearing did not occur in 1994/95 of the entire subject area, as stated. 98 The third level of evidence concerns the satellite imagery assessments. For the reasons stated earlier, I rely on the evidence of Dr Schelling, that this assessment does not indicate any significant vegetation clearing, in the subject area, around the 1994/95 period.

99 Apart from this, I also conclude that this unauthorised clearing of land has, or is likely to have an adverse impact on the environment. In this regard I rely entirely on the evidence of Dr Smith, who has specialised qualifications and extensive experience in ecological investigations. For the detailed reasons mentioned previously, I accept his findings that adverse impact is a most likely to affect the flora and fauna in the area. Even though Mr Dyason offered his opinion on some of these potential impacts, I am satisfied he does not have the expertise or qualifications to challenge the conclusions of Dr Smith. 100 For these reasons then, I am satisfied that the Court should make a remediation direction, which covers an area of 6.53 ha and incorporates the specific conditions suggested by Dr Smith. COURT ORDERS 1. The appeal is dismissed. 2. A remediation direction in the form shown in Annexure 'A' is made, pursuant to s 47 of the Native Vegetation Conservation Act 1997. 3. The exhibits may be returned except for Exhibits 1, 9, 11, 13, 14, 24 and H.

R Hussey Commissioner of the Court ljr

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