Director-General Department Of Land And Water Conservation v Jackson And Ors - [2003] NSWLEC 81 - NSWLEC 2003 case summary — Zoe

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Director-General Department Of Land And Water Conservation v Jackson And Ors

[2003] NSWLEC 81

Land and Environment Court (NSW)|2003-03-31|Before: Bignold J, Mrs J, Mr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2003-03-31

Before

Bignold J, Mrs J, Mr J

Source

Original judgment source is linked above.

Judgment (164 paragraphs)

[1]

CITATION : Director-General Department Of Land And Water Conservation v Jackson And Ors [2003] NSWLEC 81 PROSECUTOR: Director-General Department Of Land And Water Conservation PARTIES : DEFENDANTS: Jackson And Ors FILE NUMBER(S) : 50014; 50015; 50016; 50017; 50018; 50019 of 2002 CORAM: Bignold J KEY ISSUES: Environmental Offences :- clearing native vegetation-Preliminary questions of law whether clearing excluded from operation of Act-whether clearing within statutory exemption conferred by SEPP No 46. LEGISLATION CITED: Native Vegetation Conservation Act 1997, s 12(f) Interpretation Act 1987, s 33 Accident Touring and Advisory Committee v Combined Motor Industries Pty Ltd (1987) VR 529; Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292; Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; Jones v Wrotham Park Settled Estates (1980) AC 74; CASES CITED: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421; Penrith City Council v Waste Management Authority (1990) 71 LGRA 376; Saif Ali v Sydney Mitchell and Co (A Finn) (1980) AC 198; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 53; Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 DATES OF HEARING: 14/03/2003 DATE OF JUDGMENT: 03/31/2003

[2]

PROSECUTOR: Mrs J Kelly, Barrister SOLICITORS State Crown Solicitor LEGAL REPRESENTATIVES: DEFENDANTS: Mr J Ayling SC SOLICITORS Kemp Strang

[43]

Sections 9 and 10 are in the following terms: - 9. Land excluded from operation of Act This Act does not apply to the following land: (a) land that is within a zone designated "residential" (but not "rural-residential"), "village", "township", "industrial" or "business" under an environmental planning instrument, (b) land to which State Environmental Planning Policy No 14---Coastal Wetlands applies, (c) land to which State Environmental Planning Policy No 26---Littoral Rainforests applies, (d) land that is a State forest, national forest, flora reserve or timber reserve under the Forestry Act 1916, (e) land that is acquired under section 15 of the Forestry Act 1916 for the purposes of a State forest (not being any such land that is acquired for the purpose of a timber plantation within the meaning of the Timber Plantations (Harvest Guarantee) Act 1995), (f) land that is dedicated or reserved under the National Parks and Wildlife Act 1974, (g) land that is acquired under section 145 of the National Parks and Wildlife Act 1974 for the purpose of obtaining land for dedication or reservation under that Act or for the purpose of preserving, protecting and preventing damage to relics or Aboriginal places, (h) land that is subject to a conservation agreement entered into under Division 7 of Part 4 of the National Parks and Wildlife Act 1974, (i) land that is subject to an interim protection order made under Part 6A of the National Parks and Wildlife Act 1974, (j) land to which an interim heritage order or listing on the State Heritage Register under the Heritage Act 1977 applies, (k) land that is critical habitat, (l) Lord Howe Island. 10. Certain other land excluded from operation of Act: Schedules 1 and 2 (1) This Act does not apply to any land within a local government area specified in Schedule 1. However, this Act does apply to land within any such local government area to the extent to which the land comprises State protected land. (2) This Act does not apply to any land within a local government area specified in Schedule 2.

[47]

Finally, s 12 excludes the operation of the Act by reference to specified "types of clearing" by providing as follows: 12. Clearing excluded from operation of Act 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 EPA Act, (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.

[50]

However, in both cases, the principal form of control that is commonly employed is the requirement that development consent granted by the Minister in accordance with Part 4 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) be obtained to the clearing of native vegetation or the clearing of protected land without which consent the clearing is prohibited. That function of the Minister under Part 4 of the EP&A Act is achieved by the combined operation of ss 14 and 15 of the NVC Act which provide as follows: 14. Consent authority for clearing For the purposes of the EPA Act, the Minister is the consent authority for any development application made under that Act for any clearing that requires development consent because of this Part. 15. Granting of development consent (1) If development consent is, because of this Part, required to clear native vegetation or any protected land, that development consent may be obtained by the Minister making a determination, in accordance with Part 4 of the EPA Act, to grant development consent. (2) For the avoidance of doubt, Part 4 of the EPA Act applies to and in respect of that development consent in the same way as it applies to and in respect of development consent that may be required by an environmental planning instrument. (3) The Director-General must keep a register, in the form approved by the Minister, of the following: (a) development consents granted by the Minister under Part 4 of the EPA Act for any clearing that requires development consent because of this Part, (b) decisions on appeal pursuant to Part 4 of the EPA Act from any determination made by the Minister under that Part in relation to any such clearing. (4) The register is to be available for public inspection, without charge and during ordinary business hours, at the head office of the Department of Land and Water Conservation and at the relevant regional office of that Department. Any person is entitled to make copies of any entry in the register.

[58]

That Schedule which was given effect by cl 11 of SEPP 46 ("This Policy does not require development consent for any clearing of native vegetation described in Schedule 3") provided as follows: SCHEDULE 3 - EXEMPTIONS Clearing of native vegetation for the purpose of the following: (a) Minimal Clearing. The clearing of up to 2hectares per annum for any contiguous land holding in the same ownership. (b) Minimal Tree Cutting. The cutting of no more than 7 trees per hectare in any period of one year for on-farm uses, including fence posts and firewood. (c) Stock Fodder. The lopping of native vegetation for stock fodder in any period of declared drought if the vegetation's continued health is not affected. (d) Mistletoe Control. The lopping of native vegetation for mistletoe control to the minimum extent necessary for the vegetation's continued health. (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). (f) Burning. The clearing of native vegetation if it is authorised under the Bush Fires Act 1949. (g) Public Utilities and Emergency Work. The clearing, to a minimum extent, of native vegetation for the maintenance of public utilities (associated with the provision of power lines, transmission of electricity, water, gas, electronic communications or the like), or which may reasonably be thought likely to be at risk of causing personal injury or damage to property. (h) Planted Native Vegetation. The clearing of native vegetation planted for forestry, agriculture, agroforestry, woodlots, gardens and horticultural purposes. (i) Private Native Forestry. The clearing of native vegetation in a native forest in the course of its being selectively logged on a sustainable basis or managed for forestry purposes (timber production). (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. (k) Noxious Weeds. The clearing of native vegetation proclaimed as a noxious weed. (l) Vermin Control. The clearing of native vegetation to the minimum extent necessary for vermin control.

[60]

The Statement of Agreed Facts (Exhibit 1) affirms the following facts:
At all relevant times, Budvalt Pty Limited owned the property known as Miralwyn (the land) near Carinda in the central west of New South Wales. The land is located south of the Barwon River and immediately east of the Macquarie and Barwon Rivers' confluence.. 2. No regional vegetation management plan within the meaning of the NVC Act applies to the land. 3. No native vegetation code of practice within the meaning of the NVC Act applies to the land. 4. Budvalt Pty Limited constructed the Marra Water Storage or Westend Cell 3 ("the Water Storage") on the land between about mid-March 1999 and about early October 1999. 5. Budvalt Pty Limited filled the Water Storage with water some time between early October 1999 and April 2000. 6. These proceedings concern allegedly unlawful clearing of native vegetation contrary to the NVC Act, s 21(2)(a), being an offence pursuant to s 17(1) of the Act during the construction and the consequential inundation with water of the Water Storage. 7. At all material times, the land was in part used for growing irrigated cotton. 8. At all material times, the land was the subject of licences granted pursuant to the Water Act 1912, Part 2, section 12 which authorised the extraction of water from the Barwon River or associated watercourses and irrigation of a maximum of approximately 6,000 hectares of land using a maximum of 113,832 megalitres of water per annum. Those licences are 80SL040294, 80SL051650 and 80SL095365 (the licences). The Environmental Planning and Assessment Act 1979 13. The land is zoned Non-Urban A also referred to as 1(a), under the Walgett IDO 1968 (the IDO). 14. The IDO adopts the model provisions published in the Government Gazette No. 88 of July 17, 1970 (as amended). ) 15. Agriculture is permitted pursuant to the IDO in the Non-Urban A zone without development consent of council. 16. Growing irrigated cotton is agriculture within the meaning of the IDO. 17The water storage meets the criteria set out in the second definition under the artificial waterbodies definition in Schedule 3 of the Environmental Planning and Assessment Regulation 1994 (Schedule 3) having a maximum aggregate surface area of water of more than 20 hectares and a maximum total water volume of more than 800 megalitres. 18. The Water Storage is on a floodplain within the meaning of Part 3 of Schedule 3. 19Tail-water is neither sludge nor effluent within the meaning of those terms in Schedule 3. The Water Act 1912 20. The Water Storage is constructed on a designated floodplain pursuant to s 165 of the Water Act 1912 and requires approval under Part 8 of that Act. The parties disagree whether such an approval has been given. E. DETERMINATION OF QUESTIONS OF LAW

[121]

Thus, the true nature of the exclusion wrought by s 12(f) is revealed and it is this, that where the clearing of native vegetation is, or is part of, "designated development" within the meaning of the EP&A Act, the controls operating under that Act in respect of the designated development involving clearing of native vegetation are deemed to be a sufficient control regime by themselves, without the need for the relevant controls operating under the NVC Act in respect of that clearing activity to also apply. Why should this be the case? The only reasonable and rational answer is that the Legislature must be taken to have concluded that of all the types of development involving the clearing of native vegetation, that might be conceivably controlled by the EP&A Act, "designated development" is a species of that development for which the controls operating under the EP&A Act are sufficient in themselves to justify the non-application of the controls operating by virtue of the NVC Act, Pt 2. Why should this be the case? Again the only reasonable and rational answer is that the special and particular requirements of the EP&A Act applicable to the carrying out of "designated development" (eg the necessity for a development application to carry out designated development to be accompanied by an environmental impact statement: vide s 78A(8)(a) and the consequent opportunities for public participation in the processing of such a development application: vide ss 79 and 98) were considered by the Legislature to yield the result of a proper and adequate environmental assessment of the impact of the proposed development including its impact on native vegetation. The decision of the Court of Appeal in Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 includes a detailed discussion of the concept of "designated development" and of the statutory purpose of an environmental impact statement which is required to support development applications for the carrying out of designated development.

Director-General Department Of Land And Water Conservation v Jackson And Ors

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Judgment (164 paragraphs)

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