Other considerations
28 Some further considerations should be noted with respect to the nature of these proceedings. First, an offence under s 21 of the NVC Act is one of strict liability (see Director General Department of Land and Water Conservation v Greentree [2003] NSWCCA 31) though the prosecutor necessarily bears the burden of proving the elements of the offence beyond reasonable doubt: Woolmington v DPP [1935] AC 482.
29 The elements of an offence under s 21 of the NVC Act are (1) clearing of native vegetation (2) without development consent or in accordance with a native vegetation code of practice.
30 The exception pursuant to s 12(f) of the NVC Act is, in my opinion, a qualification on the first element because s 12 states that 'th[e] Act' does not apply to clearing of a kind described in the subsections. Accordingly, it would be for the prosecutor to establish that the Act did apply by satisfying the trial judge that the clearing was not 'clearing that is, or that is part of, designated development within the meaning of the EPA Act'. However, as I have noted earlier in these reasons, whether some activity is, or is not, designated development, is a question of law. Issues of fact would, accordingly, have little impact on the judicial assessment of whether a defendant was capable of being convicted pursuant to s 17 of the NVC Act whenever issues under s 12(f) are raised.
31 Similarly, clearing described in SEPP 46 (which, for the defendant, is relevant due to the savings and transitional provisions, particularly cl 3(2) of Sch 4 of the NVC Act) is clearing to which s 21 does not apply. These provisions are, in my opinion, therefore a further qualification upon the essential element of 'clearing' that would need to be proved for the purposes of establishing a conviction for an offence pursuant to s 17 of the NVC Act. Accordingly, once the defendant established that the qualification applied, the onus would be on the prosecution to satisfy the trial judge beyond reasonable doubt that such clearing was not 'clearing to a minimum extent…if it is necessary for the construction, operation and maintenance of farm structures' (cf Director General Department of Land and Water Conservation v Pye [1998] NSWLEC 292). As I have noted earlier, this would raise mixed issues of fact and law. The ultimate determination was, therefore, an application of a legal standard to facts as found, namely, whether what occurred at Hazledene was clearing for the purpose of constructing, operating or maintaining farm structures.
32 The parties relied, both in the Land and Environment Court below and in this Court upon agreed facts and so observations on onus are of only peripheral import. However, I think it is important to note that where two opposing parties agree on a factual matrix, but disagree on the legal standard that applies (whether the water storage was a 'farm dam'; whether it was designated development 'within the meaning of the EPA Act') the submission of that question to a trial judge is usually determinative of the matter. This Court could only intervene in such a dispute if the trial judge was wrong in the sense described in Hope.
33 In Hope v Bathurst City Council, Mason J held that a trial judge had erred in the construction of the statutory phrase 'carrying on of a grazing business' in two respects. First, the trial judge had required the 'carrying on' to be 'significant' when that degree was not required by the statutory standard. Secondly, the trial judge had not construed the phrase to mean something ongoing or repetitive despite the statutory standard requiring that the activity be 'carri[ed] on' to the extent of it being a 'going concern' (see Mason J at 8). Mason J said (at 9):
Putting aside the question whether the activities have a 'grazing' character, the critical issue for decision is whether the material before the Court reasonably admits of different conclusions on the question whether the appellant's activities constitute a 'business'. On the facts as found, I conclude that the appellant's activities amounted to a business and that no other conclusion was reasonably open.
34 The question is therefore whether the ultimate determinations of Talbot J on the rural structures issue were not findings reasonably open for his Honour to make.
Submissions considered
35 The Director General submits that Talbot J committed such an error in finding that the water storage was capable of coming within the ambit of the term 'farm dam' for the purposes of characterising the storage as a 'rural structure' as that term appears in SEPP 46. Mrs Kelly, for the Director General, submits that the term 'dam' connotes a structure designed to impede and/or obstruct flowing water in contradistinction to a water storage that requires water to be pumped into the structure for the purposes of retention.
36 If that submission were to be upheld it would, in my opinion, constitute a Hope error that would require this Court to intervene. However, the meanings carried by the word 'dam' are not limited in the manner submitted by the Director General. Neither the ordinary meaning of the term, or more importantly, the context of the statutory scheme indicates that it should carry such a limited meaning. In its ordinary connotation, the word dam includes a structure which confines water. Farm dams are, in my view, structures for the purpose of storing water for use in the day-to-day activities on a farm. This need for 'day-to-day' farming operations to be exempt from the provisions of the NVC Act was recognised by the relevant Minister, Mr Yeadon, MP, in his second reading speech of the NVC Act on 19 November 1997 (See Hansard at 2076). Further, this was the finding of Talbot J and I can see no reason to disturb it. I am not satisfied that his Honour should have come to any different result in this respect.
37 The Director General also submits that the size of the structure was too large for it to come within the ambit of the term 'rural structure'. I think that, in accordance with Hope, this Court could only uphold such a submission if it were satisfied that the size of the structure did not permit a finding that the water storage was a rural structure. On the agreed facts it is difficult to see that such a finding was not open to Talbot J. In my opinion, the determination would only be beyond his Honour's competence if there were some factual basis for the suggestion that the water storage was unreasonably large, or beyond the day-to-day needs of Hazeldene, so that it was not capable of reference as a 'farm dam' and, accordingly, a 'rural structure'. Having regard to his Honour's conclusions to the contrary against the submission, I am not satisfied that this Court should intervene and I would propose that the first question on the stated case be answered 'No'.
38 On the second question in the stated case, the defendant submits that Talbot J erred in following Bignold J in Jackson to find that 'designated development' within the meaning of the EPA Act means that such development should have some superadded requirement of consent or lawfulness imputed to it.
39 The Director General submits that the construction of a water storage reservoir on a floodplain without the consent of the Water Administration Ministerial Corporation would be a breach of Pt 8 of the Water Act 1912. Since consent in accordance with Pt 8 of the Water Act is recognised as exempting clearing in accordance with the construction of such a water storage by s 12(p) of the NVC Act, the Director General submits that the activities of the defendant straddle the prohibitions of the two Acts in an impermissible sense. That is, if clearing for the purposes of s 12(f) of the NVC Act exempts a need for consent recognised by s 12(p) of the NVC Act the defendant escapes prosecution under the NVC Act and, since construction of the dam has not yet started, escapes prosecution under the Water Act.
40 The Director General submits that the purpose of the NVC Act, and indeed the general structure of the scheme of environmental regulation promoted through NSW, does not permit such a construction of the NVC Act.
41 A reading of the NVC Act according to its ordinary and natural meaning seems to produce what some may regard as aberrant results. However, in my opinion this is the result of the drafting of the legislation rather than a matter for this Court, or the Land and Environment Court to correct through the provisions of s 33 of the Interpretation Act. To search for the purpose of an Act of Parliament is not a warrant for courts to re-write such legislation, especially in the field of criminal law and even more hesitation should apply when such re-writing exposes a defendant to a greater possibility of conviction and penalty.
42 Talbot J did not err in being prepared, if necessary, to follow Bignold J's decision in Jackson as a matter of comity. However, that decision was, in my view, erroneous. Section 12(f) of the NVC Act should have been applied according to its ordinary meaning, reading the ambiguity raised against the prosecutor in accordance with the principle and policy underlying such methods of construction explained by the High Court in Adams. I would propose that the answer to the second question on the stated case be answered 'Yes, in the way that s 12(f) was construed'.