Director-General of the Department of Land and Water Conservation v Bailey

1 July 2003 Director-General of the Department of Land and Water Conservation Prosecutor v Bruce Clyde Bailey Defendant Judgment

1 These two proceedings relate to the alleged clearing of native vegetation on land near Moree without a development consent being in force in contravention of s 21(2)(a) of the Native Vegetation Conservation Act 1997 ("the NVC Act").

2 Matter No. 50074 of 2002 relates to clearing which took place between about 17 February 2000 and 21 July 2000 over an area of 64 hectares. Matter No. 50073 of 2002 relates to clearing during the period between 10 January 2002 and 1 July 2002 in respect of an area of 20.4 hectares.

3 The defendant concedes that no development consent was applied for in respect of the clearing work carried out and there is no defence of honest and reasonable mistake.

4 Nevertheless, a plea of not guilty has been entered.

5 Mr Preston SC, who appears for the defendant, has indicated that essentially there are two matters upon which the defendant relies to plead he is innocent of the offences. Firstly, the clearing falls within the exemption contained in s 12(f) of the NVC Act as a consequence of being clearing that is part of designated development within the meaning of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). Secondly, the defendant claims that the clearing of native vegetation was for the purpose of a rural structure, namely a farm dam, being an exemption listed in Sch 3 to State Environmental Planning Policy No. 46 - Protection and Management of Native Vegetation ("SEPP 46"). Notwithstanding the repeal of SEPP 46, the clearing of native vegetation for a purpose described in Sch 3 to SEPP 46 continues to be clearing that is exempt from any requirement for development consent under Pt 2 of the NVC Act.

6 Section 21(2) of the NVC Act provides as follows:- (2) A person must not clear native vegetation on any land except in accordance with: (a) a development consent that is in force, or

7 There is no real dispute between the parties that the prosecutor bears the onus to show that, notwithstanding s 12(f), the NVC Act does apply to the subject clearing beyond reasonable doubt, whereas the exemption in accordance with Sch 3 to the repealed SEPP 46 pursuant to s 68 and Sch 4 of the NVC Act is a matter which the defendant must prove on the balance of probabilities. I propose to proceed on that basis.

8 It is appropriate to set out s 12 of the NVC Act in full as the arguments rely on an appreciation of the full extent of this section. It provides 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.

9 The exemption of clearing of native vegetation for the purpose of rural structures is set out in Sch 3 to SEPP 46 as follows:-

(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).

10 The parties accept that if the proposed water storage for which the alleged clearing took place is to have a maximum aggregate surface area of water of more than 20 hectares or a maximum total water volume of more than 800 mega litres it will fall within the definition of a water body and the description of an artificial water body in Sch 3 to the Environmental Planning and Assessment Regulation 1994 ("EP&A Regulation") and therefore be designated development pursuant to s 4 and s 77A of the EP&A Act.

11 The prosecutor does not accept however, that the clearing took place solely for the purpose of constructing an artificial water body as defined. Nor does it accept that the proposed water storage is a rural structure and more particularly, a farm dam giving the words in Sch 3 their natural meaning.

12 The two issues relating to designated development and farm structures also arose in earlier litigation in Director-General Department of Land and Water Conservation v Jackson And Ors [2003] NSWLEC 81, unreported.

13 In that case, the Court applied a purposive interpretation of s 12(f) as meaning that the exclusion from the NVC Act in respect of clearing that is, or is part of, designated development within the meaning of the EP&A Act, is the carrying out of development that has been authorised by the grant of a relevant development consent under that Act. The defendant submits that I should not follow Jackson in this respect.

14 In the same case, Bignold J decided that the proper meaning to be given to the word "Farm Structures" in the context of par (e) of Sch 3 to SEPP 46 is the ordinary and natural meaning of those words including the illustrative meanings contained in the bracketed material. His Honour was not prepared to read down the provision so as to apply only to small amounts of clearing. His Honour found that on the basis of the agreed facts in that case, the water storage was relevantly a "farm structure" within the true meaning of those words in the context of par (e) of Sch 3 to SEPP 46. The prosecutor submits I should not follow Jackson in this respect. The Facts

15 It is an agreed fact, that the areas of 64 hectares and 20.4 hectares referred to in par 2 above were cleared.

16 The defendant concedes that apart from a small area outside the boundaries of his property he is responsible for the clearing of the native vegetation undertaken by a contractor on his behalf. The Court finds that the defendant should be acquitted of any charge that relates to the area outside the boundaries of the property as the evidence clearly shows that he did not authorise it and ordered it to cease immediately he became aware of it.

17 In his position as Catchment Manager employed by the Department of Land and Water Conservation ("DLWC"), Barwon region, Rodney Gordon O'Brien attended a pre-application inspection of the property known as the "Strip" with the then owner, Andrew John Pittman, and his son, Andrew Pittman, on 17 June 1999. A second pre-application inspection took place on 17 February 2000 when the defendant was also present. Mr O'Brien became aware during the course of the meetings that Mr Bailey was interested in purchasing the property. The prospect of clearing parts of the Strip was discussed. Both Mr O'Brien and Mr Bailey have given evidence that during the second inspection a conversation did take place regarding the prospect of constructing an irrigation storage or dam on the Strip. Mr O'Brien informed Mr Bailey that it would be necessary to lodge an application for an approval. Mr O'Brien expressed doubt that Mr Bailey would be successful with such an application.

18 Following the meeting of 17 February 2000, Mr Bailey engaged a flora consultant who after an inspection of the property produced a Targeted Flora Survey of the Strip.

19 In early March 2000, the defendant met with Robert James Heterick, an Irrigation Survey and Design Consultant, who has advised Mr Bailey, as the owner of his principal property, Hazeldene (which adjoins the Strip), on the development and management of his property since around 1985. In March 2000 Mr Heterick advised Mr Bailey that for a farm dam with a capacity of approximately 3000 mega litres of water to be constructed on the Strip, the sides of the storage would need to measure approximately 1.4 kilometres on the eastern side and 1.8 kilometres on the western side. On 20 April 2000, Mr Heterick directed two of his employees to attend at the Strip to peg out the clearing line for a proposed new farm dam.

20 During March 2000, Mr Bailey contacted the New South Wales Farmers' Association ("the Association") to obtain advice as to whether he could carry out clearing on the Strip for the purpose of building a farm dam under the exemptions to the NVC Act. The Association recommended that he contact solicitors Allen Allen and Hemsley. After providing the solicitors with a copy of a proposed dam layout sketch that he had prepared, Mr Bailey received a letter of advice from the solicitors dated 20 April 2000.

21 The solicitor's advice included the following:- Clearing of Land under the Native Vegetation Conservation Act 1997 (NSW)

The NVCA provides that a development consent is required to clear native vegetation from land to which no RVMP applies. However, there are certain exemptions under the NVCA from requirements to obtain a development consent. A development consent is not required for the clearing of native vegetation in the following circumstances: the clearing of up to 2 hectares per annum for any contiguous land holding in the same ownership; and 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).

Therefore, you will not require development consent to clear native vegetation from land if: No more that 2 hectares of native vegetation needs to be cleared to construct the proposed dam; or You clear only enough native vegetation to enable the construction of the dam to occur.

Any clearing of native vegetation in excess of the minimum amount required to construct the dam would be in breach of the NVCA

22 The solicitors also advised him that despite the fact that the clearing of native vegetation can take place in the circumstances described above, an application would still be required under Pt 8 of the Water Act 1912 ("the Water Act") for approval to construct any levies for the proposed dam.

23 The Strip was transferred to the defendant and his sister as purchasers on 31 May 2000.

24 From the end of April to June 2000, Mr Bailey retained Leader Earthmoving Pty Ltd, to undertake the clearing of vegetation on the Strip for the proposed storage. He obtained permission from Mr Pittman to start this work prior to the completion of the transfer of the Strip. The design at that stage contemplated that an island of timber would be left within the centre of the proposed farm dam to serve as a bird refuge and wildlife habitat.

25 On 19 July 2000, Garry Gardner, who is employed as a Natural Resource Project Officer by the DLWC, met with Mr Bailey at Hazeldene and completed some parts of an application pursuant to Pt 8 of the Water Act in pencil and partially completed a form titled "Information to Accompany an Application under the Water Act". The information was provided by Mr Bailey and included the statement that less than 90 hectares of vegetation would be cleared. Mr Bailey's recollection is that he explained to Mr Gardner that the dam would hold approximately 3000 mega litres of water and would be approximately 80 hectares in surface area including the island area which eventually would be flooded. A copy of the legal advice provided by Allen Allen and Hemsley was produced to Mr Gardner. Mr Bailey did not sign the Pt 8 Application. The evidence is that it has never been formally submitted or processed. Mr Gardner observed on 19 July 2000 that clearing had taken place in the Strip.

26 On the following day 20 July 2000 Mr Gardner completed further parts of the Pt 8 form in ink rather than in pencil which he had used the previous day but took the matter no further as he was concerned there had been a breach of the NVC Act and he did not want the application to proceed until that issue had been resolved.

27 On 31 July 2000, Mr O'Brien and Mr Gardner again visited the site, this time together, and met Mr Bailey. Mr O'Brien came to the conclusion that the clearing had been carried out in order to build a water storage because the shape of the cleared area was the shape of a water storage and because Mr Bailey had told him when he visited the property on 17 February 2000 that he was intending to construct a water storage on the site. Mr O'Brien asked Mr Bailey to provide him with a copy of the written legal advice upon which he relied for his claim that the clearing was exempt from the provisions of the NVC Act. A copy was subsequently furnished to the Moree office of the DLWC by Mr Bailey.

28 At that stage, in July 2000, the island area in the middle had not been cleared. The vegetation on the island area was still present when the property was inspected by three departmental officers on 16 May 2001.

29 During a further inspection on 10 January 2002, Brett Anthony Graham, a Resource Compliance Officer with the DLWC noticed that some clearing had taken place in the island of previously uncleared vegetation.

30 When Mr Graham inspected the property again on 1 July 2002 he noticed that part of the cleared area had been recently cultivated and planted with a crop which he could not identify. He further observed that any vegetation that had been left standing on the island area on 10 January 2002 was no longer present.

31 Mr Bailey says that in April 2002 he employed Andrew Edwards to undertake clearing of the island area. He then ploughed the cleared area and planted oats. He said that he cleared the island as the design of the farm dam had changed to have a shallower borrow pit, in order to address concerns, as he saw them, in relation to the prospect of the presence of porous material and difficult ground conditions experienced at neighbouring sites. Mr Bailey further explained the purpose of the cultivation undertaken after the island area had been cleared was in order to control weed growth and in particular, further lippia growth while the investigation by the department was ongoing. The Court has been informed that lippia is a species of noxious weed.

32 Mr Bailey has explained that when he caused the island area to be cleared he took account of a conversation he had with Mr O'Brien on 17 February 2000 when Mr O'Brien is alleged to have observed that leaving the vegetation in the middle of the dam would be pointless as it would be inundated with water and would die in any event.

33 The Court is satisfied beyond reasonable doubt that the evidence shows Mr Bailey caused clearing to be carried out on the Strip to the extent alleged between the dates particularised for the purpose of constructing a farm storage to enable water to be harvested from the Macintyre River in times of high flow and then stored for the purpose of irrigation of crops, principally cotton, grown on Hazeldene. The Court also finds beyond reasonable doubt that the farm storage is within the definition of an artificial water body in the Sch to the EP&A Regulation.

34 No development consent has been obtained for the clearing or the construction of the farm storage. Agriculture is a use that may be carried on without consent pursuant to the applicable Local Environmental Plan. No application has been lodged, processed or determined pursuant to Pt 8 of the Water Act. However, this Pt only appears to deal with specified works defined as "controlled works" such as earthworks, an embankment or levee. None of these structures have been built.

35 The Court is further satisfied beyond reasonable doubt that the use of any part of the cleared area for the purpose of crop growing was no more than an interim measure to protect the land pending the resolution of issues raised in respect of the applicability of the NVC Act.

36 The question that arises under this heading relates to the exemption of "rural structures" under the former Sch 3 to SEPP 46. Section 68 of the NVC Act provides that Sch 4 has effect. Schedule 4 of the NVC Act relevantly provides as follows:- 3 (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.

37 The description of rural structures in par (e) of Sch 3 to SEPP 46 has already been set out above.

38 The Court agrees that the defendant bears the burden of establishing the exemptions in Sch 3 on the balance of probabilities. The clearing of native vegetation for a purpose described in schedule 3 is a proviso that can be categorised as an excuse or justification for not complying with the obligation to obtain development consent (Avel Pty Ltd v Multicoin Amusements Pty Ltd (1991) 171 CLR 88. See also Woolmington v Director of Public Prosecutions (1935) AC 462 at 481 and Director of Public Prosecutions v United Telecasters Sydney Ltd (1989-1991) 168 CLR 594).

39 The dispute that arises for determination relates to the contextual meaning of the words "rural structures" and "farm structures". There is no statutory definition of either expression. The words used by way of illustration, for example in brackets, are not in themselves definitive or limiting.

40 I agree with the view expressed by Bignold J in Jackson that the terms are not used in any specialised or technical sense and that they are ordinary words of the English language and are to be understood as having their ordinary and natural meaning. The Court nevertheless needs to be satisfied that the subject clearing was to a minimum extent and necessary for the construction, operation and maintenance of the water storage.

41 In my opinion, the words "to a minimum extent, or necessary" where used in cl (e) are referable to the amount of clearing, not the rural structure itself.

42 There is no evidence to persuade the Court that the purpose of the clearing of the 84.4 hectares was for anything other than the construction of a water storage facility with a surface area of about 75.3 hectares. Moreover, there is no evidence that the extent of clearing was more than was necessary for the construction of the water storage.

43 The exemption contained in cl (e) is not qualified in any respect that requires an authorisation under Pt 8 of the Water Act or the EP&A Act. In respect of the latter, the construction of a farm water storage clearly is for the purpose of agriculture and therefore does not require development consent under the EP&A Act.

44 The evidence of the inspections and conversations that took place between the department officers and respective landowners from 17 February 2000 onwards is consistent with an intention to clear the land for the purpose of facilitating the construction of a storage structure capable of holding approximately 3000 mega litres of water for irrigation purposes. The proposed structure will be at a location that will allow it to conveniently link into the existing channels and pump systems on Hazeldene. The evidence is that farm dams of the size such as that proposed for this site are common in the area which is extensively used for the growing of cotton.

45 The prosecutor's argument is that while the construction of cl (e) to Sch 3 derived by Bignold J is "available" it is not a meaning that promotes the purpose or object underlying the NVC Act and therefore another meaning is to be preferred (Interpretation Act 1987 s 33). This argument relies on the purpose of the NVC Act as being to provide for a consistent state-wide regulation of clearing native vegetation rather than adhoc regulation by local government authorities. It is submitted that the consequence of adopting the reasoning of Bignold J is that the only "clearing" to which the NVC Act would relevantly apply would be clearing for the purposes of grazing or cultivation. This, it is said, would not promote the purpose of the NVC Act.

46 Mrs Kelly seeks to further argue, on behalf of the prosecutor, that the words in brackets in cl (e) suggests that the type of structures contemplated by the legislation are those that would not have a significant impact on native vegetation. That, she says, is to be compared to the impact on the activities of a farmer by having to apply for a development consent to carry out such construction in terms of time, cost and interference with running a farm. Mrs Kelly further suggests that a reference to a farm dam contemplates a small structure that is constructed across a stream in order to confine water. She goes on to argue that a dam is not designed to be filled by human intervention in contrast to the proposed water storage on Mr Baileys property which involves pumping from the Macintyre River or other parts of the property, Hazeldene, with little or no reliance upon runoff or natural feed from a stream or river.

47 Mrs Kelly quotes the following from the second reading speech by Minister Yeadon in the Legislative Assembly on 19 November 1997:- However, certain clearing associated with day-to-day farming activities will be exempt from the need to obtain development consent under the Act.

48 She says that the reference to day-to-day farming activities supports a construction that the exemption is intended to allow farmers to carry out minor construction that does not have a significant impact on native vegetation without the farmer having to go through the development consent procedure.

49 In the Courts 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).

50 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.

51 The defendant is entitled to be acquitted on that ground alone.

52 The structure proposed by Mr Bailey is clearly an artificial water body within the meaning of par (2) of the definition contained in Sch 3 to the EP&A Regulation, namely that it will have a maximum aggregate surface area of water of more than 20 hectares and a maximum total water volume of more than 800 mega litres. Moreover, it is within the meaning of a water body as defined in Pt 4 of Sch 3 being an artificial water body including, inter alia, any constructed dam, pond or lake.

53 The Court rejects the argument raised by the prosecutor that the construction of an artificial water body is ancillary to the permissible development of agriculture and accordingly is in some way subsumed in the activity of agriculture. There is no logical argument which could lead to the conclusion that a farm storage of the size contemplated here would not attract the description of being development that is designated development. Even so, it is nevertheless also development for the permissible purpose of agriculture notwithstanding that it is designated development. The mere fact of it being designated development does not change the fact it is for the purpose of agriculture.

54 The Court accepts the submission put by Mr Preston as follows:- The step of clearing of native vegetation is properly to be characterised as for the purpose of an artificial water body:

It is unrealistic to sever work of the nature of the clearing activities from later steps in the construction and operation of the water body; Green v Kogarah Municipal Council (2002) 115 LGERA 231 at 250 [70]-[71] per Giles JA with whom Mason P and Ipp AJA agreed. The characterisation of activities in order to determine whether they comprise designated development or not, involves ascertaining their purpose: Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161; Penrith City Council v Waste Management Authority (1990) 71 LGRA 376; Momentum Architects Pty Ltd v Hornsby Shire Council (2002) 123 LGERA 207; Logan-Bald Partnership v Byron Shire Council (2002) 123 LGERA 225; Hynes Urban Planners Pty Ltd v Hawkesbury City Council (2003) 123 LGERA 312. The clear evidence is that the clearing was done for the purpose of construction and operation of the artificial water body.

55 On its face therefore, the effect of s 12(f) is that the NVC Act does not apply to any clearing that is part of the development of the water storage on the Strip.

56 As I have already said, the clear evidence is that the clearing was done for the purpose of construction and operation of the artificial water body. Hence, according to Mr Preston, the clearing is in itself designated development. Alternatively, the clearing was part of designated development.

57 The section does not state expressly that the designated development the subject of s 12(f) be authorised by the grant of a development consent. It is noteworthy that the legislation does expressly state that an authorisation is required for some other clearing referred to in s 12 to which the NVC Act does not apply. For example, s 12(o) provides that the clearing must be carried out in accordance with a permit under Pt 3A of the Rivers and Foreshores Improvement Act 1948 and s 12(p) allows only for clearing carried out in accordance with a licence, permit, authority or approval under the Water Act. Other clauses in s 12, apart from (f), specifically refer to an authority of some sort in accordance with nominated legislation.

58 Mr Preston submits that the decision of Bignold J in Jackson on this aspect should not be followed. Mrs Kelly, on the other hand, relies on Bignold J's decision in Jackson on this point.

59 A difficulty with simply adopting the approach taken by Bignold J can be illustrated by the observations made by Gleeson CJ, Gummow, Kirby and Callinan JJ in a joint judgment in Thompson v Judge Byrne and Ors (1999) 196 CLR 141 when they expressly considered the separate minority decisions delivered by Dawson J and McHugh J in Mills v Meeking and Another (1989-1990) 169 CLR 214. They found at 151-152 that the suggestion that Parliament's purpose could be achieved and the conflicting objectives of the Act, there in question, reconciled by reading words into a statutory provision was unpersuasive in circumstances where the language of the Act is clear and unambiguous. In that case, it was held that to add words as suggested by the minority in Mills would not be to fill an obvious gap in the statute but rather would change the structure of the Act. Gaudron J strongly supported the joint decision at p 159 as follows:- The legislative purpose of an enactment cannot be determined simply by having regard to its stated purpose or, where that is permitted, the relevant legislative debates. Neither is likely to be an exhaustive exposition of the legislation in question or of its purpose. Rather, where "the words of the statute are in themselves precise and unambiguous … [they] best declare [its] intention" (Sussex Peerage Case (1844) 11 Cl & F 85 [ER 1034 at 1057] See also Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518, per Mason CJ, Wilson and Dawson JJ; at 532. per Deane J). Given the clear language of s 49(1)(f) and its context, there is, in my view, no basis for concluding that it was intended to apply only to those driving or in charge of a motor vehicle that was involved in an accident

60 In a minority judgment, McHugh J maintained his opinion that he and Dawson J were correct in Mills but did not support the case for re-examining the correctness of Mills.

61 The principle applied by Mason CJ and Toohey J in Mills, with whom Brennan J agreed, is stated at 223 as follows:- If the language of a statute is ambiguous or uncertain, a risk of injustice will bear upon the construction to be given to words used. But, if the language is not ambiguous or uncertain, a court will apply its ordinary and grammatical meaning unless to do so will give the statute an operation which obviously was not intended: see generally Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 CLR 297 at pp 304-305, 320-321; also Catlow v. Accident Compensation Commission (1989) 167 CLR 543 at pp 549-552. This legislation is not relevantly ambiguous or uncertain.

62 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 have reasonably been expected that the consequences had been properly considered.

63 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(2) 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.

64 Part 5 of the EP&A Act applies, inter alia, to activity (as defined) for which development consent under Pt 4 is not required or has not been obtained (s110 (1)(g)). Part 5 requires an environmental assessment of the activity to be carried out by a determining authority pursuant to s 111. An environmental impact statement is required in specified circumstances under s 112.

65 It is likely there will be other cases where types of clearing to which the Act does not apply per force of s 12 of NVC Act will be controlled by Pt 5 of the EP&A Act.

66 Although in the main, the statute based exemptions in s 12(a) to 12(p) anticipate the grant of a formal authority or licence, few of the relevant statutes are specifically directed to the conservation and management of native vegetation, or the other objects of the NVC Act stated in s 3. Moreover, the authority of the Noxious Weeds Act 1993, for example, is not limited to circumstances where a consent or direction is issued. There are blanket provisions in that Act such as s 12 and s 13 that place an unqualified obligation on parties to control specified noxious weeds.

67 Mr Preston makes a salient point that rather than the draftsperson overlooking the requirement for development consent to be obtained for the purposes of the exemption in s 12(f), the other clauses in s 12 demonstrate clearly that the draftsperson went through each of the provisions with "methodical consistency" and referred to the appropriate form of authorisation required under each statutory regime. Accordingly, he says it was not a casual drafting exercise. The draftsperson must have made a deliberate decision to follow a different course in the case of designated development.

68 Mrs Kelly raised an argument that the EP&A Act has no application in respect of designated development unless the development is permissible only with development consent. If that is right then she says there is no call to add the words to s 12(f) of the NVC Act as Bignold J did. The apparent fallacy in this argument is that the express words in s 12(f) refer to designated development within the "meaning of the EPA Act". The words of s 77A are plain and unambiguous. It also ignores the prospect that designated development could be a category of prohibited development and thus, still controlled by Pt 4 of the EP&A Act (s 76B). It would be absurd for s 12 to exclude clearing carried out for the purpose of a prohibited development. If the development for which the clearing is required is prohibited under the regime created pursuant to the EP&A Act, then the question of the clearing of native vegetation should not arise.

69 Jackson is the subject of an appeal to the Court of Criminal Appeal ("CCA") and is listed for hearing in that Court in September 2003. If the CCA upholds the decision of Bignold J in Jackson insofar as it relates to the construction of s 12(f), then Mr Bailey will not have the benefit of the exclusion from the operation of the Act as a consequence of the construction of the farm storage being designated development because there is no relevant development consent for the clearing or for the construction of the artificial water body.

70 Accordingly, if the CCA supports the construction applied by Bignold J then the defendant will not be entitled to the benefit of s 12(f). On the other hand, if the CCA determines that Bignold J was in error then this Court could find beyond reasonable doubt that the 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.

71 The defendant has established a defence that it is entitled to be acquitted pursuant to the exemption provided in cl (e) of Sch 3 to SEPP 46. This aspect of Bignold J's judgment in Jackson, with which I agree, is also the subject of an appeal to the CCA.

72 I find it unnecessary in the circumstances to deal finally with the robust but nevertheless, arguably commendable approach to s 12(f) by Bignold J in Jackson.

73 The prosecutor has asked that the Court afford it the opportunity to consider whether a case should be stated for the opinion of CCA in the event that I find in favour of the defendant. If this occurs and the CCA determines that both Bignold J and I are wrong in our determination of what is a rural structure then the matter will have to be referred back to me in any event for a determination in accordance with the ruling by the CCA.

74 As the issues raised in relation to designated development will be fully argued before, and resolved by, the CCA, I therefore propose to do no more in these proceedings except to formally follow the decision of Bignold J so that, in accordance with his construction of s 12(f), the NVC Act applies. Nevertheless, the defendant is entitled to be acquitted pursuant to the exemption raised by the transitional provisions of the Act. Conclusion

75 The Court finds that the defendant is entitled to be acquitted by reason of the exemption in cl (e) of Sch 3 to SEPP 46 applied, pursuant to the transitional provisions in Sch 4 to the NVC Act by dint of s 68.

76 I do not make any formal orders at this time pending the opportunity for both parties to consider these reasons and findings.

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