Director General Department of Land and Water Conservation v Bailey

CATCHWORDS : Case stated - statutory construction - questions of law or fact - Criminal Appeal Act 1912 s 5BA; LEGISLATION CITED : Environmental Planning and Assessment Act 1979 s 77A, Native Vegetation Conservation Act 1997 s 12, State Environmental Planning Policy 46 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Director General Department of Land and Water Conservation v Jackson [2003] NSWLEC 81; (2003) 125 LGERA 304; CASES CITED : Director General of Land and Water Conservation v Greentree [2003] NSWCCA 31; Director General Department of Land and Water Conservation v Pye [1998] NSWLEC 292; Hope v Bathurst City Council (1980) 144 CLR 1; R v Adams (1935) 53 CLR 563; Woolmington v DPP [1935] AC 482; PARTIES : Director General Department of Land and Water Conservation - Prosecutor Bruce Bailey - Defendant FILE NUMBER(S) : CCA 60289/03 COUNSEL : Ms J Kelly - Prosecutor Mr B Preston, SC with D Miller - Defendant SOLICITORS : Crown Solicitors - Prosecutor PriceWaterhouseCoopers Legal - Defendant

LOWER COURT Land and Environment Court of New South Wales JURISDICTION : LOWER COURT 50073/03; 50074/03 FILE NUMBER(S) : LOWER COURT Talbot J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60289 of 2003

Mason P Hidden J Shaw J

5 December 2003 Director General Department of Land and Water Conservation (Prosecutor)

Bruce Bailey (Defendant) Judgment 1 Mason P: I agree with Shaw J. 2 Hidden J: I agree with Shaw J. 3 Shaw J: On 31 July 2003 Talbot J of the Land and Environment Court of New South Wales stated two questions of law pursuant to s 5BA of the Criminal Appeal Act 1912 for the determination of this Court. The first question, requested by the Director General of the Department of Land and Water Conservation, was: Did I err in finding that the defendant is entitled to be acquitted by reason of the exemption in cl (e) of Sch 3 to [State Environmental Planning Policy] 46, applied pursuant to the transitional provisions in Sch 4 to the [Native Vegetation Conservation] Act [1997] by dint of s 68? 4 The second question, requested by the defendant, was: Did I err in finding that s 12(f) of the NVC Act applies? Background 5 Pursuant to s 17(1) of the Native Vegetation Conservation Act 1997 ("the NVC Act"), the Director General charged the defendant with two counts of clearing native vegetation without development consent for such clearing in contravention of s 21(2) of the NVC Act. The clearing was alleged to have occurred between about 17 February 2000 and 21 July 2000 and 10 January 2002 and 1 July 2002 in respect of areas of 64 hectares and 20.4 hectares respectively. 6 The clearing related to land comprising part of Lot 23 in Deposited Plan 705422 at Willow Glen in the Moree Plains known as 'Hazeldene'. 7 The defendant conceded that such clearing had occurred but raised defences of lawful excuse or justification under exemptions in the NVC Act from the general prohibition against clearing native vegetation without development consent in s 21(2) of the NVC Act.

The first question 8 The first of the two exemptions relied upon was Sch 3 cl (e) of State Environmental Planning Policy 46 ("SEPP 46") (which, by operation of cl 3(2) of Sch 4 of the NVC Act, involved clearing that was exempt from the requirements of Pt 2 of the NVC Act, including s 21). This exemption related to clearing for the purpose of constructing, operating or maintaining 'rural structures'. Clause (e) to Sch 3 of SEPP 46 states: Clearing of native vegetation for the purpose of the following: …

(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, tracks, bores, windmills, fences, fence lines, stockyards, loading ramps, sheds and the like). 9 Talbot J found that the land was cleared for the purpose of constructing, at some future date, a reservoir (to use a neutral term) of water with a capacity of approximately 3000 mega litres. His Honour said (Director General Department of Land and Water Conservation v Bailey [2003] NSWLEC 160 at [49[: In the Court's opinion, the day-to-day activities on any farm depend upon the character, nature, location and purpose of the individual property. There is no warrant to read down the expression ' rural structure ' or ' farm structure ' in the context of Sch 3 to SEPP 46. Furthermore, the type of water storage proposed by Mr Bailey is not inconsistent with the general understanding of a dam as an artificial pond or reservoir for the storage of water (The Australian Oxford Dictionary). I hold therefore that the Court is satisfied on the balance of probabilities that the proposed water storage is relevantly a rural structure for the purposes of Sch 3 to SEPP 46, and that the clearing of native vegetation which took place as alleged in both summons was for that purpose, namely clearing to a minimum extent necessary for the construction of the water storage. 10 His Honour acquitted the defendant of both charges upon that basis. The first question on the stated case is whether this finding (that the clearing was for the purpose stated by his Honour) was erroneous.

The second question 11 The second exemption relied upon by the defendant to excuse the clearing done at Hazeldene was s 12(f) of the NVC Act. Section 12 of the NVC Act provides a list of circumstances in which clearing of native vegetation is exempt from the prohibition in s 21 of the NVC Act. 12 Section 12 of the NVC Act provides: This Act does not apply to the following types of clearing:

(a) any clearing authorised under the State Emergency and Rescue Management Act 1989 in relation to an emergency within the meaning of that Act, (a1) any clearing authorised under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act, (b) any clearing carried out in accordance with a bush fire management plan under the Rural Fires Act 1997 , (c) any clearing authorised under the Noxious Weeds Act 1993 , (d) any clearing carried out in accordance with a property management plan approved by the Director-General of National Parks and Wildlife for the purposes of the Threatened Species Conservation Act 1995 , (e) any clearing authorised under a licence issued under Division 1 of Part 6 of the Threatened Species Conservation Act 1995 , (f) any clearing that is, or that is part of, designated development within the meaning of the [Environmental Planning and Assessment] Act [1979], (g) any clearing authorised to be carried out under Division 3 or 4 of Part 7 of the Fisheries Management Act 1994 , (h) any clearing authorised under a licence issued under Division 6 of Part 7A of the Fisheries Management Act 1994 , (i) any clearing carried out in accordance with a licence issued under section 131 of the National Parks and Wildlife Act 1974 , (j) any clearing authorised under the Mining Act 1992 , (k) any clearing authorised under the Petroleum (Onshore) Act 1991 , (l) any clearing that consists of plantation operations within the meaning of the Plantations and Reafforestation Act 1999 on an authorised plantation in accordance with any conditions of the authorisation and with the Plantations and Reafforestation Code under that Act, (m) any clearing that involves the removal or lopping of any tree or other vegetation in accordance with section 88 of the Roads Act 1993 , (n) any clearing carried out in accordance with a consent under Division 3 of Part 9 of the Roads Act 1993 , (o) any clearing carried out in accordance with a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 , (p) any clearing carried out in accordance with a licence, permit, authority or approval under the Water Act 1912 . 13 The defendant relied upon s 12(f) of the NVC Act, which (unlike all other subsections of that section) does not require that the activity be 'authorised' or otherwise permitted. Curiously, if development is 'designated development' under the Environmental Planning and Assessment Act 1979 ("the EPA Act") then it would (by simple operation of s 12(f) of the NVC Act) be exempt development from the operation of s 21 of the NVC Act. 14 This may be thought incongruous because whilst nearly all development capable of characterisation as 'designated development' under the EPA Act would require that a complicated environmental impact assessment regime be engaged, this is not always the case and indeed it was not so in this case. This is because an artificial water body holding an maximum aggregate surface area of water of more than 20 hectares or a maximum total water volume of more than 800 mega litres falls within the description of a water body in Sch 3 to the Environmental Planning and Assessment Regulation 1994 and therefore is designated development pursuant to ss 4 and 77A of the EPA Act. 15 Section 77A of the EPA Act states: Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations. 16 Prima facie, reading s 12(f) of the NVC Act together with s 77A of the EPA Act and the definition in Sch 3 of the Regulation, produces the result that the reservoir would be designated development, and therefore exempt from the requirement to obtain development consent to clear native vegetation, without having undergone or complied with any environmental assessment regime at all. 17 Bignold J, in Director General Department of Land and Water Conservation v Jackson [2003] NSWLEC 81; (2003) 125 LGERA 304, has previously resolved this apparent ambiguity by reading into s 12(f) of the NVC Act that the designated development must be 'authorised' (or as it was put by the Director General in this Court, 'lawful'). 18 Talbot J held that this approach was consistent with the purpose of the NVC Act and followed the approach by Bignold J in Jackson. His Honour said at [62] - [63]: The category of designated development, as defined by the EP&A Act and the EP&A Regulation, is the subject of specific provision in the EP&A Act that has particular regard to its potential for causing environmental harm. It may be reasonable to assume that the legislature when considering what should be excluded from the operation of the NVC Act decided that the safeguards provided in that statutory regime would adequately cover the field in respect of the clearing of native vegetation. If the relevant planning instrument allowed designated development to be carried out without development consent then it may reasonably have been expected that the consequences had been properly considered. As the clearing by Mr Bailey was not carried out pursuant to a development consent that is in force or a native conservation code of practice as required by s 21(s) of the NVC Act, it is not clearing carried out in accordance with Pt 2 of the Act. Accordingly, s 16 of the NVC Act does not apply and accordingly, Pt 5 of the EP&A Act operates.

19 Talbot J adverted to the possibility that Jackson might be overturned in this Court (though proceedings were brought to this Court, they were subsequently withdrawn). His Honour said (at [70]): …if the CCA determines that Bignold J was in error then this Court could find beyond reasonable doubt that the [NVC] Act does not apply to the clearing carried out by the defendant, as it was part of the preparation of the land in connection with the construction of designated development. 20 The defendant takes issue with this finding of Talbot J as well as the interpretation of s 12(f) of the NVC Act by Bignold J in Jackson to some extent adopted by Talbot J in these proceedings. The issue before this Court on the stated case is whether Talbot J erred in finding that the exemption in s 12(f) of the NVC Act applied in the sense as to whether that provision requires that the designated development be 'lawful'.

Errors of fact or law? 21 A stated case raises a question of law for the determination of an appellate court. In Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 the High Court of Australia said (at 394): The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated. 22 In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287-288 the Full Court of the Federal Court (Neaves, French and Cooper JJ) said: The proper interpretation, construction and application of a statute to a given case raises issues which may be or involve questions of fact or law or mixed fact and law. Nevertheless there are five general propositions which emerge from the cases: 1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law: Jedko Game Co Pty Ltd v Collector of Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1973] AC 854. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact: Jedko Game Co Pty Ltd v Collector of Customs (NSW) (supra); New South Wales Associated Blue-Metal Ouarries Ltd v Commissioner of Taxation (Cth) (1956) 94 CLR 509 at 512; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; Neal v Department of Transport (1980) 3 ALD 97 at 107-108. 3. The meaning of a technical legal term is a question of law: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Lombardo v Commissioner of Taxation (Cth) (1979) 40 FLR 208 at 215. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law: Life Insurance Co of Australia v Phillips (supra) at 79. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) at 379 (Sheppard and Burchett JJ). The fifth proposition as stated by the High Court in Hope v Bathurst City Council (supra) was elaborated by reference to the remarks of Fullagar J in Hayes v Commissioner of Taxation (Cth) (1956) 96 CLR 47 at 51: Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law. This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words. Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact: Hope v Bathurst City Council at 8.

23 On the two stated questions the Court is asked to construe the terms 'rural structures' and/or 'designated development'. Clearly, the latter term is a technical or legal term, and the construction of that term would accordingly be a question of law. In my opinion, the former compound expression does not carry any technical or legal meaning and so the only question of law that can arise for this Court to determine is whether the facts as found by Talbot J fall within the ambit of the meanings conveyed by that phrase.

Construction 24 Both of the questions on the stated case raise issues of statutory construction. Neither counsel for the Director General or the defendant made submissions with reference to a suggestion made by the learned President, during argument before this Court, that penal statutes should generally be read narrowly and with ambiguity construed against the prosecution. Nevertheless, the principle should be noted. The position was stated by the High Court in R v Adams (1935) 53 CLR 563 at 567-8 as follows: No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category. See also, Pearce and Geddes, Statutory Interpretation in Australia (4th Ed, Butterworths, 1996 at 226 - 227). See also Murphy v Farmer (1988) 165 CLR 19 at 28-29. 25 In my opinion, there would be no contradiction between an Adams construction and s 33 of the Interpretation Act 1987 (NSW) because to prefer the construction promoting the object and purpose of a statute is to apply it according to its terms, noting that: If conduct of a particular kind stands outside the language of a penal section, the fact that a court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits. Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182 at 186 per Jordan CJ (with whom Halse Rogers and Street JJ agreed). 26 It is to be acknowledged that the NVC Act is not a penal statute. The Act has the following objectives: 3. The objects of this Act are:

(a) to provide for the conservation and management of native vegetation on a regional basis, and

(b) to encourage and promote native vegetation management in the social, economic and environmental interests of the State, and

(c) to protect native vegetation of high conservation value, and

(d) to improve the condition of existing native vegetation, and

(e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation, and

(f) to prevent the inappropriate clearing of vegetation, and

(g) to promote the significance of native vegetation,

in accordance with the principles of ecologically sustainable development. 27 Generally, the objectives of the NVC Act recognise the beneficial purpose of the Act, namely, the imposition of a regime of conservation of native vegetation. However, where the criminal law is used to enforce such a regime, considerations of the kind mentioned by the High Court in Adams are, in my view, unavoidable.

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'.

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