Director-General of the Department of Land and Water Conservation v Prime Grain Pty Ltd & Ors; Greentree v Director-General of the Department of Land and Water Conservation

Section 46(1) of the NVC Act provides if the Director-General is of the opinion that a person is contravening or is about to contravene, Part 2, the Director-General may, by notice in writing given to the person, order the person not to carry out the clearing concerned.

Schedule 4 Pt 2 cl 3 of the NVC Act provides that: (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.

Clause 11 of SEPP 46 provides that no development consent is required for clearing of native vegetation described in Sch 3. That schedule provides: SCHEDULE 3 - EXEMPTIONS Clearing of native vegetation for the purpose of the following: a) Minimal Clearing. The clearing of up to 2 hectares 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.

In arguing that a Stop Work Order issued under s 46 prohibits all clearing (including clearing in accordance with the exemptions), the DG (the Applicant in matter no. 40039 of 2002) argued entitlement to clear native vegetation pursuant to the exemptions afforded by SEPP 46, as contained in Sch 4 Pt 2 cl 3 NVC Act, is not an element or factor which the DG must negative prior to forming an opinion under s 46(1) as to whether a stop work order should issue. The nature of the stop work order is that it can take effect immediately and indicates that it is intended to be used in emergency situations.

The DG argued the issue is one of applying the appropriate statutory construction. The DG argued the approach to statutory construction in cases such as Corporate Affairs Commission of New South Wales v Yuill (1991) 172 CLR 319, New South Wales Crime Commission v Murchie (2000) 49 NSWLR 465, Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 48 NSWLR 548 and Saraswati v The Queen (1991) 172 CLR 1 requires that in determining the intention of Parliament, the legislation as a whole must be considered in the construction of specific provisions. Construction of legislation must promote the underlying purpose or object of an Act. The need to have regard to the purpose or objects of the Act is also set out in s 33 of the Interpretation Act 1987. In relation to the NVC Act the DG pointed to the objectives in s 3, namely, the conservation of native vegetation and the prevention of inappropriate clearing of vegetation.

According to the DG, the legislation gives greater weight to the preservation of native vegetation than to the rights of individual land holders. The basis for this argument, the DG submitted, was that the lodging of an appeal against a Stop Work Order does not operate as a stay of that Order by virtue of s 48(2) of the NVC Act. Further, s 61 authorises an officer to enter land for the purpose of determining whether a person is contravening or has contravened any provision of the NVC Act. The lack of a power in s 61 NVC Act to enter land for the purpose of determining whether a contravention is about to occur indicates that the DG is entitled to form an opinion under s 46(1) without a detailed/comprehensive consideration of the exemptions available to land holders under SEPP 46.

The Respondents argued the question is not one of statutory construction as the DG had argued. The wording of the NVC Act is clear. Under s 46(1) the DG is required to form an opinion before issuing a stop work order that there is a present or imminent contravention of Pt 2 of the NVC Act. There is a contravention of Pt 2 if a person is clearing native vegetation without development consent as required by s 21 of the NVC Act. Development consent is not required if the clearing is being done in accordance with the SEPP 46 exemptions identified in Sch 4. Accordingly, no stop work order can be made in relation to clearing of native vegetation conducted in accordance with the SEPP 46 exemptions as continued in Sch 4 Pt 2 cl 3 and no stop work order issued can prevent clearing carried out in accordance with those exemptions.

Finding on Question 1 11. The argument of the Respondents is to be preferred. The provisions of the NVC Act are clear in relation to the application of s 46(1) to current or future clearing of native vegetation in contravention of Pt 2. In circumstances where clearing which complies with the SEPP 46 exemptions is being conducted, no development consent is required under s 21. Such clearing is, accordingly, not in breach of Pt 2 and cannot therefore be clearing about which the DG can form an opinion on which to found a stop work order under s 46(1). Once issued, a stop work order cannot prohibit clearing of land carried out in accordance with the exemptions identified in Sch 4 of the NVC Act. Because the wording of the NVC Act is clear, there is no necessity to consider the statutory construction approach urged on the Court by the Applicant. Accordingly, question 1 should be answered in the negative.

12. Even if I had found it necessary to approach the issue as one of statutory construction, in my opinion, the DG's argument would still fail. The objects of the Act that were relied on by the DG included "to prevent inappropriate clearing of vegetation". Clearing that is exempt, and is therefore permissible, could not fall into that category under the current wording of the NVC Act. Therefore, if it had been necessary to construe the Act in accordance with its objectives, in my opinion a purposive construction of s 46 would lead to the conclusion that a Stop Work Order issued under s 46 does not prevent the person to whom the Order was issued from clearing land in accordance with the exemptions in Sch 4 Pt 2 cl 3. QUESTION 2: WAS THE DG'S DECISION TO ISSUE THE STOP WORK ORDER PURSUANT TO S 46 OF THE NVC ACT ULTRA VIRES AND VOID?

13. The Applicant, R L Greentree, in matter number 0040 of 2002 argued that the Stop Work Order in these proceedings was issued ultra vires and was therefore void. The terms of the Stop Work Order were: To: Ronald Greentree, Maree Greentree, Merrywinebone Pty Ltd being the partners of Greentree Farming Principal place of business: "Oreel" Rowena NSW 2387. I ROBERT PATRICK SMITH, Director General of the Department of Land and Water Conservation, am of the opinion that you have cleared and are about to clear native vegetation in contravention of Part 2 of the Native Vegetation Conservation Act 1997 on part of the property known as "Eastwood" being Lot 7 DP 750444 Folio Identifier 7/750444 Parish of Collyu County of Benarba and Crown Road Reserve crossing Lot 7 DP 750444 for which enclosure permit 42454 is held ("the Land").

You are therefore ordered pursuant to section 46(1) of the Native Vegetation Conservation Act 1997 not to carry out clearing of native vegetation on the Land.

14. The reasons for the decision provided by the DG appear in the following documents: (a) the Stop Work Order (b) the documents before the DG at the time the decision was made and identified in the "List of documents relied on by the Director-General in making his decision" provided by the DG (some of these documents are subject to a claim for legal professional privilege which is dealt with in Question 3). (c) the findings and recommendations contained in the Department of Land and Water Conservation (DLWC) memorandum dated 14 February 2002 from Graham to Hart, Regional Director, Barwon (the Memorandum) (d) the response in a letter of 19 March 2002 by Andrew Macdonald, Legal and Compliance Branch, DLWC, to Tress Cocks & Maddox in response to the Applicant's request for a statement of the Director's reasons for the decision. Of all these documents the Memorandum (item (c)) was the most pertinent document, in addition to the Stop Work Order, and was considered in great detail by the Applicant.

15. The Applicant's Points of Claim are set out above at par 2. It is appropriate to first set out a number of general submissions raised by the DG in answer to the Applicant's case before dealing with the Applicant's detailed grounds of alleged invalidity of the Stop Work Order.

Is judicial review available in the absence of jurisdictional fact? 16. Counsel for the DG submitted a somewhat novel argument that the DG's decision is not amenable to judicial review because the statutory provision in question does not involve the determination of a jurisdictional fact by the Court. The decisions of Donnelly v Delta Gold Pty Ltd [2001] NSWLEC 55 and Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52 were cited in support. The DG did not take the Court to any relevant passages of these judgments to elucidate this point. The DG also submitted that due to the existence of unfettered appeal provisions in s 48 of the NVC Act there were no judicial review proceedings available to the Applicant.

17. The Applicant argued that the decision to issue a Stop Work Order under s 46(1) can be subject to judicial review. Such a course of action is clearly available under the Land and Environment Court Act 1979 and the NVC Act.
18. It is clear in my view that there is judicial review on the grounds of ultra vires available to the Applicant in relation to the Stop Work Order. I do not agree with the submission put by the DG or his interpretation of the reasoning in Donnelly and Timbarra. The issue of whether there is jurisdictional fact or not, as discussed by the Court of Appeal in Timbarra, is relevant to the nature of the Court's judicial review role when reviewing an administrative decision. The existence of a jurisdictional fact is not, however, an essential precondition to judicial review proceedings in general.

Nature of DG's discretion 19. In general answer to the Applicant's submissions the DG argued that the NVC Act does not exhaustively define the matters the DG is required to take into consideration in relation to the formation of his opinion under s 46(1). General principles of construction suggest that if the legislation does not expressly define the matters that are relevant these may be inferred from the terms, purpose and subject matter of the legislation, the nature of the power to be exercised and the nature of the office held by the decision maker; O'Sullivan v Farrer (1989) 168 CLR 210, Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1. The consequence of this argument is that there is no limit on the matters the DG can consider, subject to the scope and purpose of the legislation, in forming his opinion.

20. The Applicant argued that the DG's discretion was clearly fettered because of the requirement in s 46(1) that the DG form an opinion about current and/or future clearing. Further, the Applicant argued the decisions relied on by the DG were irrelevant. Murphyores did not deal with the situation, as in this case, where the question is one of whether jurisdiction to make a decision exists.

21. I agree with the Applicant that s 46(1) does specify the opinion the DG must hold before he may decide to issue a Stop Work Order. It cannot be said therefore that his discretion in deciding whether he had power to make the Stop Work Order is unfettered, given the clear wording in s 46(1). It is clearly necessary for the DG to form an opinion as required by s 46(1) before deciding to issue a Stop Work Order. The consequence of this finding is that the various grounds of judicial review raised by the Applicant must be considered to see if the DG was legally able to form the necessary opinion under s 46(1).

22. A separate issue to be considered further below at par 57 is that, once the necessary opinion has been formed i.e. that a person is contravening or about to contravene Pt 2, the DG can take into account a wide range of matters, provided these are within the scope of the legislation, in deciding whether to exercise his power to issue a Stop Work Order.

Court's role in judicial review proceedings 23. The general approach to be taken by a Court, the DG submitted, in relation to judicial review is not to itself attempt to evaluate the merits of the decision subject to review and thus substitute its own determination for that of the decision-maker; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 per Hill J at 96 - 97.

Further, the DG argued, the failure of a decision-maker to mention a matter expressly will not necessarily give rise to an inference that it was not considered; Australian Conservation Foundation v Forestry Commission (1989) 19 FCR 127 Burchett J at 132.

As none of these general grounds raised by the DG are a complete answer to the many grounds of invalidity raised by the Applicant I will now consider each of those grounds. Alleged reasons for invalidity (a) the Respondent did not form the opinion specified by s 46(1) of the NVC Act and/or (b) the Respondent acted unreasonably, in that he purported to form the opinion specified by the NVC Act when there was no material to support that opinion

The DG must be of the opinion that a contravention is occurring or is about to occur before he may issue a stop work order. The Applicant argued the DG did not have sufficient information before him to enable him to form an opinion on whether any current or imminent clearing was taking place under the exemptions provided by the repealed SEPP 46 as continued by Sch 4 Pt 2 cl 3 of the NVC Act.

The Memorandum relied on by the DG was referred to in the Applicant's written submissions detailing the numerous alleged inadequacies of this document as follows. The Memorandum:

(i) stated in reference to past clearing that "the use of exemptions will need further investigation" (p5); (ii) stated under "Satisfaction of the Elements of the Offence" that past clearing was "potentially entirely outside the scope of the exemptions to the NVCA" (p6); (iii) made no findings about whether clearing caught by the NVCA had taken place (in the past) other than in precatory terms - "it would seem that the clearing has been undertaken…"(p6) - "Vegetation upon the land is best classified as mature growth Belah…."(p5); (iv) made no findings about the application of any exemption other than in precatory terms or in relation to irrelevant considerations (pp5-6), and only in relation to past clearing work, not present or imminent clearing; (1) (a) Minimal clearing - "There appears to be in excess of 2 ha cleared"; "Air photo interpretation will need to be undertaken" (2) (b) Tree cutting - "No evidence of on-farm use thus far" (3) (e) Rural Structures - "clearing seems to have been to clear up paddocks"; "seemed to be no fencing materials"; "in excess of [distance] prescribed in the relevant Bushfire Management Plan" (4) (j) Regrowth - "None of the vegetation as seen by Departmental officers would have been less than ten years old" (5) (k) Noxious weeds - "no evidence of selective clearing of noxious weeds" (6) (l) Vermin control - "no evidence of serious vermin infestations, nor did the clearing seem consistent with destruction of vermin hides/burrows, etc. (7) The Recommendation's "theory that (past) clearing exceeds that permitted under the current exemptions, and that clearing is likely to continue" (p7 par 5) (v) stated that "interpretation…will also need to occur to ascertain the extent of (past) clearing, and the extent of, and the use of certain exemptions" (in relation to the past clearing) (p6); (vi) recommended that a "stop work order be…served on the responsible bodies in order to prevent any clearing that may be in contravention of Part 2 NVCA" (p7) Further, the Applicant submitted the DG did not have sufficient information before him to enable him to be satisfied that past clearing in any particular areas of land was not exempt.

The Applicant argued the assertion in the recommendation by the departmental officer that there was no development consent granted over any part of the property "Eastwood" did not satisfy the requirement that the DG must form a positive conclusion about whether development consent is required (that is, by considering the exemptions) in order to support the Stop Work Order. As a result the DG could not lawfully have formed the opinion that any present or imminent clearing of the land was clearing for which development consent was required.

As the DG could not lawfully form these opinions there was no power to issue the Stop Work Order. The decisions in Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 and Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 were relied on. In Pochi Deane J (with Evatt J agreeing) stated that the decision of the Immigration Review Tribunal must be based upon findings of material fact and those findings of material fact must be based upon logically probative material (at 690). The Applicant argues there was no such material before the Respondent to enable him to lawfully form the opinion required in s 46(1) and, therefore, there was no power to issue a stop work order.

In response, the DG in his written submissions pointed to various parts of the Memorandum which dealt with material which could form the basis of an opinion that the Applicant was contravening or was about to contravene Pt 2 of the NVC Act as follows:

The material under the headings: · Issues - page 1 - clearing of native vegetation; appears in contravention of Part 2 of the Act; · Background - pages 1, 2 - description of what was happening on the land on 11 February 2002 and of the machinery on site; that clearing is happening ([point] 8) and has happened([point] 9)); advice from Mr Hanks to Mr Hurwood to stop work (page 3 paragraph 5) (Ben Hanks: "We're going to have a look around now. And its my advice to you Chris, to stop working until we sort this out.") · Elements of the offence - pages 5, 6 - under the headings "Clearing", "Vegetation", "On Land to Which the NVCA Applies", "Without Development Consent" (including the discussion of exemptions); "Satisfaction of the Elements of the Offence". · Justifying the Proposed Compliance Response - page 7 - the Departmental investigators' opinion clearing has not finished; the work and machinery on site; · Recommendation - probability of further unauthorised work; recommendation to issue stop work order to prevent further contravention of Part 2 of the Act.

The DG submits that on the whole of the evidence before him i.e. the Memorandum in its entirety, there was sufficient material to justify his opinion.

The DG argued that whether a particular matter has been properly considered is a question of fact to be determined after examination of the whole of the evidence, in this case, the Memorandum in its entirety. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Gibbs J at 30-31 states that a decision maker may discharge his obligation by adopting a briefing paper which adequately lists relevant matters. The approach of the Applicant in listing particular words and phrases taken out of context is not the appropriate approach.

The DG further argued that the reasons of an administrative decision-maker should not be read in an overly critical fashion that blurs the distinction between judicial review and merit review, relying on the majority judgment of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shen Liong (1996) 185 CLR 259, particularly at 281.

Finding on (a) and (b) 34. When the Memorandum is reviewed as a whole it appears to me that there was sufficient regard had to the factors which the DG needed to consider in forming an opinion as required in s 46(1). The Memorandum was prepared by an officer in the field, not a lawyer, so that focussing on particular wording used by that officer, as the Applicant has done, only provides numerous examples of wording which a lawyer would not use. It does not seem to me this negates the overall nature of the material which the Memorandum provided to the DG.

35. Section 46(1) requires the DG to form an opinion that a person is contravening or is about to contravene Pt 2. The Memorandum clearly contains material relevant to the Departmental officer providing information and a recommendation, on whether a stop work order should issue, to the DG including material he needs in order to form an opinion. The Applicant submitted that the Memorandum dealt only with past clearing but there are references in the Memorandum which suggest the clearing is current given the presence of machinery used for clearing in the field, evidence of very recently lit fires, and that the clearing had occurred only recently, possibly in the previous two days, before the inspection by departmental officers on 11 February 2002. There is a reasonable inference that clearing had occurred in the very recent past and was likely to continue in the future. Given that there was burning timber at the time of the inspection it could also be argued that there was possible current contravention at that time. In any event, information about very recent past clearing is clearly relevant to forming an opinion about possible future contravention.

36. The judgment in Wu Shen Liong is important in the context of this case in my view, as there is discussion (at 282) on the nature of the decision-making process in administrative decisions in contrast to the process in a court: "A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law" (at 282).

37. One statement which could be seen as problematic for the DG is the statement in the Memorandum that "The use of exemptions will need further investigation" (at 5). This is clearly a material issue on which the DG needs to be informed in reaching his decision. Having made that statement, the departmental officer goes on to describe his observations on whether the SEPP 46 exemptions appear to apply and concludes they do not. On balance, I consider the Memorandum does adequately review whether the exemptions available under Sch 4 of the NVC Act apply in this case. The DG therefore had sufficient material required to form the necessary opinion under s 46(1).

(c) Dictation 38. The argument was made by the Applicant that the DG acted under dictation, merely approving the recommendation of the departmental officer without forming a separate opinion as he is required to do.

39. The Applicant argues that there was no evidence from which the Court could infer the DG gave independent consideration to whether the Stop Work Order should be made. Rather the Court should infer that the DG merely adopted the reasoning and justification advanced by the departmental officer and did not form an independent opinion. It was suggested that the DG had to demonstrate in some way apart from signing the Stop Work Order that he had considered and agreed with or disagreed with the advice of his departmental officers.

40. The DG argued that the Memorandum on which the DG relied contained all relevant matters, the Stop Work Order sets out reasons and is clearly issued under the signature of the DG. In these circumstances no inference of dictation arises on the evidence.

Finding on (c) 41. A decision maker that is given the power by a statute that is intended to be exercised only by that decision maker must make the required decision themselves, and not under the dictation of another (see de Smith, Woolf and Jowell, Judicial Review of Administrative Action, fifth edition, at 373). In this case that means that the DG must form the requisite opinion under s 46 of the NVC Act, and not act under dictation of another. Generally dictation is said to arise in cases where another person has purported to exercise the power of the decision maker, where the decision maker has made the decision under duress, or where another person has asserted undue influence on the decision maker to exercise their power in a certain way. None of these circumstances arise on the evidence in this case.

42. In Oshlack v Richmond River Shire Council and Irongates Developments Pty Ltd (1993) 82 LGERA 222 it was argued that the Council had acted under dictation by adopting a conclusion in a report prepared by a consultant engaged by the Second Respondent. Stein J rejected the argument that the Council had acted under dictation. His Honour held that "It is trite to state that a council may rely on the inquiry, advice and recommendations of its officers" (at 226). Stein J went on to hold that it was also open to a Council to rely on a consultant's report. Such a report could properly be taken into consideration; "it is for the council to determine what weight it places upon such a report" (at 226). Stein J concluded that in the case before him there was no evidence to suggest dictation and I intend to apply his Honour's reasoning in this matter.

43. It is necessary for the conduct of the DG's responsibilities that he rely on the advice of departmental officers based on their experience in the field. While it may well be good administrative practice for the DG to note on departmental files that he accepts or rejects the advices provided to him I do not think that it is essential to dispel any notion of dictation that he do so. The Memorandum contained material which was clearly material to the DG's decision. It is not inappropriate that he rely on that information. Indeed, I would speculate that had the DG not followed the advice of his departmental officer he would be open to criticism from the Applicant that he had acted without proper foundation in his decision. I do not consider an inference of dictation arises in these circumstances. (d) Taking into account an irrelevant consideration, being the recommendation of the departmental officer
44. It was submitted by the Applicant in oral argument that the departmental officer's Recommendation that a Stop Work Order should issue so that "the matter may then be fully investigated by departmental officers" was not a valid recommendation for a Stop Work Order. It does not address the correct criteria to which the DG must have regard.
45. The DG submitted that the Recommendation to issue a stop work order is a relevant consideration for the DG. Further, the Memorandum sets out the basis for the Recommendation which includes all the matters necessary for the DG to form the requisite opinion.

46. I do not think the Applicant has made out this ground for the reasons stated below at par 56 and 57 in relation to my finding on ground (f).

(e) Failure to take into account relevant considerations 47. The Applicant argued the DG failed to take into account the Applicant's right to clear pursuant to exemptions under SEPP 46. According to the Applicant's written submission: (a) the questions the [DG] had to ask were as follows: (1) Is the activity "clearing" within the meaning of the NVCA? (2) If so, is the clearing either current or imminent? (3) Is development consent required, in that the current or imminent clearing [is] not within the SEPP 46 exemptions? (4) If the previous three questions are answered Yes, do the circumstances warrant the issuing of a stop work order? (b) Crucially, the [DG] did not ask question 3 (p 5 Recommendation), which meant that his answer to question 4 was nugatory. (c) Neither did the DG consider whether to exercise the power available to him under the NVC Act to impose conditions in the Stop Work Order (s 46(2)(b)).

48. In general answer to these matters, the DG pointed to material in the Memorandum which did consider the possible application of the SEPP 46 exemptions on pp 5 and 6, did consider each exemption and determined these did not apply on the basis of the information available to the Departmental Officer, made specific reference to the lack of development consent and referred to the probability of further unauthorised work (p 7).

Finding on (e) 49. As the DG's submissions point out, there was material in the Memorandum which does clearly relate to the right to clear pursuant to exemptions under SEPP 46. There is also material which considers whether those exemptions apply and concludes they do not. There is also reference to the lack of development consent and a view is expressed on whether further clearing is likely. I do not consider that this ground has been made out given this material before the DG.

50. Further in relation to question (c) in par 47, I do not think the DG is under an obligation to be seen to canvass the need for conditions on the Stop Work Order if the Departmental officers do not raise the matter, nor do I think there is an obligation on the Departmental officers to be seen to be considering whether or not conditions apply.

(f) Taking into account irrelevant considerations 51. The Applicant's written submissions identified a number of matters which were said to be irrelevant considerations applied by the DG in making his decision to issue the Stop Work Order: a) The irrelevancies:

1. The reluctance of an employee to provide information (p7 para 5)
2. The need to further investigate past clearing (p4; p6 para 5; p7 para 5)
3. The need to further investigate the SEPP 46 exemptions (pp5&6)
4. The environmental harm caused by past clearing (p6 para5)
5. The probability of further unauthorised (sic) work (p7 para 6)
6. The need to prevent clearing that may be in contravention (p7 para 6) b) Of those matters taken into consideration, environmental harm might have been relevant to a decision whether to issue a stop work order once the statutory conditions were satisfied, but not before, and yet it has been taken into consideration for what is patently the irrelevant s 47(1)(b) purpose. c) Mr Hurwood's "reluctance" could not be relevant to the exercise of the Director's discretion because it was conduct (if at all) of an employee of the landholder, who - as the Recommendation states - simply referred the Departmental officers to the legal representative of his employer. Plainly, the lawyer was never contacted.

52. The Applicant argued the need to investigate is simply not part of the decision making process required under s 46(1). The probability and/or possibility that the work may prove to be a contravention of the NVC Act if further investigated was the wrong test.

53. In relation to the six irrelevant considerations alleged by the Applicant the DG submitted: Ground (1) Inclusion of the reluctance of an employee to provide information in the material before the DG does not indicate the weight, if any, he gave to it in making his decision; its inclusion in the material does not invalidate the decision made; in any event, the DG is not confined in his consideration by the principles of criminal law in relation to the right of silence of a defendant. Ground (2) In relation to the need to further investigate the past clearing of land, there had been clearing carried out at the time of the departmental officer's inspection and they concluded it would continue, which was relevant to the formation of the DG's opinion. Ground (4) The environmental harm caused by past clearing was relevant to the exercise of the discretion to make the Stop Work Order by the DG.
54. In relation to grounds 3, 5 and 6 of the Applicant's points, provided there was material before the DG on which he could form the requisite opinion under s 46 he was able to discharge his obligations, other material in the Memorandum should not be assumed to have been relevant to his consideration.

Finding on (f) 55. I do not consider that because the Recommendation in the Memorandum referred to other matters not directly pertinent to the opinion the DG had to form, it can be argued that his decision is invalid.

56. Given that I have found there was sufficient material before the DG to form his opinion as required by s 46(1) the fact that the memorandum deals with other matters such as those identified by the Applicant above, does not negate the formation of the DG's opinion.

57. Further, the discretionary matters the DG may consider as to whether he should issue the Stop Work Order, once his opinion has been formed as required by s 46(1) of the NVC Act, are arguably unfettered, subject only to relevance as determined by the scope of the legislation. Provided, therefore, that the opinion in s 46(1) has been lawfully formed there are potentially a wide range of matters to which the DG may have regard in deciding whether to exercise his discretion. The matters referred to by the Applicant are not in my view irrelevant considerations for the exercise of that discretion, given the nature and purpose of the legislation.

How certain must the DG's opinion be? 58. I do not agree with the Applicant's argument that the DG has to be so satisfied that no further investigation is necessary before issuing a stop work order. This standard of certainty would render this legislation unworkable in my view and is not required by the wording in the legislation. The nature of a stop work order is to allow for an immediate halt to clearing of native vegetation which is or will be in contravention of Pt 2. The NVC Act clearly requires the DG to form an opinion before the Order can issue. The material on which he bases that opinion must be sufficient to enable him to act reasonably in forming that opinion. I consider in the circumstances before me that he did have sufficient material. The suggestion on the part of the officer that further investigation is necessary does not negate that.

(g) Improper purpose 59. The reasons the Applicant alleges improper purpose are set out in the Applicant's written submissions and focus once again on the Memorandum as follows: (a) The NVCA (s 50) empowers the [DG], once a stop-work order is in place, to require a person to provide information and furnish documents about a possible offence under Part 6. (b) The [DG] has no power otherwise to compel the provision of information (cf s 61) (c) The Recommendation [in the Memorandum] made to the [DG] referred to the absence of sufficient information to form an opinion on whether an offence had been committed, and whether the SEPP 46 exemptions applied. (d) Further and discretely, the justification contained in the Recommendation was "to prevent any more clearing" on the entire property, whether exempt or not, to enable "investigation officers…to conduct a thorough inspection" (p7 para 5). This was plainly a purpose of facilitating an evidence-gathering exercise for a prosecution in relation to past clearing work - NB the Recommendation's headings "Elements of the Offence" and "Satisfaction of the Elements of the Offence" (pp 5&6) (e) The timetable set out (p7) proposed that an investigative program be implemented immediately after the stop work order issued, involving documentation and classification of already-cleared trees, and interviews with "appropriate parties with involvement in the (past) clearing". There is no scope or role for any investigation if the [DG] has correctly discharged the decision-making duties imposed upon him by s 46. (f) In the premises the Court must find that the purpose for issuing the stop work order was to permit the departmental officers to take advantage of the provisions of s 50 to conduct further investigation, as there was not sufficient evidence to justify a finding that a contravention had occurred. 60. The DG contends in reply that s 50 does not provide a power of entry to the land; there is no relevance to the exercise of the power under s 50 of issuing a Stop Work Notice; there is no reference in the Recommendation to issue a stop work order in the Memorandum (p 7 par 6) to the issuing of a s 50 notice. There is nothing in the material before the DG from which it can be established directly or by inference that he acted for an improper purpose.

Finding on (g) 61. It is clear that when exercising his powers, a decision maker must do so for a proper purpose and not for an extraneous or improper purpose. It is necessary to have regard to the statute in question in order to determine the purpose for which a decision maker can properly exercise a power. That purpose may be express or implied.

62. In this case the Applicant, relying on the Memorandum, asserts that the Stop Work Order was issued mainly so that the department's officers could conduct more investigations to gather evidence for a prosecution. The DG asserts the Stop Work Order was issued to prevent further clearing under s 46(1). Thus, the issue of plurality of purposes arises. According to de Smith, a text that the Applicant relies on, there are at least six different tests which can be applied where numerous purposes are alleged, several of which overlap and not all of which need be considered here.

63. One of the tests as to whether there is an improper purpose is to ask: If the actor has in truth used his power for the purpose for which it was conferred, it is immaterial that he achieved as well a subsidiary object (at 340).
64. Another test is to determine what was the dominant purpose for which the power was exercised. The legality of the act is determined by reference to the dominant purpose. I note that de Smith is an English text. Where plurality of purpose arises, the test favoured by the High Court of Australia, has not been the dominant purpose test, but rather the test set out in Samrein v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467.

65. In Samrein, the High Court made it clear that it is not necessary for an "ulterior [improper] purpose" to be the sole purpose for which the power was exercised. The exercise of the power will be ultra vires only: if the ulterior purpose is a substantial purpose in the sense that no attempt would have been made to [exercise the power] if it had not been desired to achieve the unauthorised purpose (at 468-9).

66. Assuming for the moment that I accept the Applicant's argument that the Memorandum discloses an "unauthorised purpose" behind the issuing of the Stop Work Order, the question I must ask myself is whether the Stop Work Order would have been issued if the DG did not want to conduct investigations relating to gathering evidence for a prosecution. In my opinion, the answer is clearly yes.

67. Applying the test for improper purpose set out in Samrein I do not accept the submission of the Applicant that the DG acted for an improper purpose in making the Stop Work Order.

Failure to make s 47 order 68. Further the Applicant argued the DG did not consider whether to make any Order under s 47 NVC Act in relation to past clearing on part of the property "Eastwood". Section 47 provides: Directions for remedial work (1) 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.

69. I do not think given the terms of the legislation that the DG was under any obligation to be seen in this context to consider making an order under s 47.

Identification of the Applicant as Stop Work Order recipient 70. A further issue raised in written submissions and at the end of oral argument by the Applicant, although not covered by the Points of Claim filed by the Applicant, was whether the DG had demonstrated that he had grounds on which to form the opinion that a stop work order should be issued against RL Greentree. The Memorandum states on p 5 that it is the view of the Barwon Compliance Unit that various people - …and the partners of Greentree Family, being Ronald Lewis Greentree, Maree Greentree and Merrywinebone Pty Ltd be liable for the clearing undertaken on "Eastwood". 71. This is the only mention of RL Greentree in the material placed before the Court. The Recommendation in the Memorandum on p 7 to take action against certain parties does not refer to RL Greentree as the possible recipient of a stop work order.

72. The DG did not have the opportunity to tender further evidence on this issue, given its very late introduction by the Applicant at the hearing. On the material before me however, it is clear there was material before the DG on the basis of which he could form an opinion that RL Greentree should receive the Stop Work Order.

Conclusion of Question 2 73. The Stop Work Order is valid in that it is not ultra vires as alleged in the numerous grounds in the Applicant's Points of Claim.

QUESTION 3: THE CLAIM OF LEGAL PROFESSIONAL PRIVILEGE 74. Question 3 concerned whether two documents included in a list of documents filed in the Court as a result of an order of Talbot J during interlocutory procedures can be subject to a claim of legal professional privilege. The two documents appear in a list of documents called "List of documents relied on by the Director-General in making his decision to issue a Stop Work Order against the partners of Greentree Farming".

The Applicant (Greentree) argued that the documents over which legal professional privilege has been claimed cannot be part of the Court's decision making process if these are not disclosed. R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 was relied on. The Applicant argues the Court must have access to the DG's reasoning to exercise its functions in judicial review proceedings such as these. As no statement of reasons is provided by the DG, the documents on which he relies are essential to that process. Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 was relied on to support the Applicant's argument that because the documents relied on are part of the reasoning process it is not a question of waiver of legal professional privilege. Fairness requires their disclosure and legal professional privilege cannot be claimed in these circumstances.

The DG argued that he was under no obligation to provide reasons for his decision relying on Public Service Board of NSW v Osmond (1986) 159 CLR 656, which the DG argues answers Kennedy Miller, in relation to the requirement to provide reasons. Deane J in Osmond (at 676) states that: the circumstances in which natural justice or procedural fair play requires that an administrative decision maker give reasons for his decisions are special that is to say exceptional. Accordingly, there was no obligation on the part of the DG to provide reasons in lieu of all the documents on which he relied. Issues of fairness did not arise.

In relation to Kennedy Miller the DG argued that this case is to be distinguished. In Kennedy Miller there was an implied statutory duty to give reasons. The DG argues the case does not apply here because there is a statutory right of appeal.

If the first submission of the Applicant is not accepted and I consider the documents can be subject to a claim for legal professional privilege, it was argued by the Applicant that it is necessary for the Court to consider whether there has been an implied waiver of legal professional privilege. Ordinary notions of fairness are relevant to this consideration also, and require that access should be granted to both the Court and the Applicant, relying on Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475. That case concerned whether there had been a waiver of legal professional privilege in relation to documents produced for inspection. An implied waiver occurs when by reason of some conduct on the privilege holder's part it becomes unfair to maintain the privilege. Fairness will usually require that waiver of one part of a protected communication should result in waiver as to the rest of the communication on that subject matter. Hence the implied waiver enquiry is focused on the fairness of imputing such a waiver (487-488). These same concepts of fairness were also affirmed in Goldberg & Anor v Ng & Ors (1995) 185 CLR 83 in which the decision in Maurice on this point is approved. In Goldberg Deane, Dawson and Gaudron JJ in a joint judgment stated: When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether "fairness requires that its privilege shall cease whether he intended that result or not" (at 96, footnotes omitted)

The DG argues there was no waiver of legal professional privilege just because the documents were produced in the list of documents required to be provided by the DG as a result of Orders made by Talbot J on 6 March 2002 in the related Class 1 proceedings. There is no other indication of what the nature of the advice is. The DG was exercising a statutory function under the NVC Act at the time the documents were provided to him and in relation to which he is entitled to take legal advice. That situation is no different to any other client seeking legal advice which can be subject to a claim for legal professional privilege.

In relation to Maurice and Goldberg the DG argues there is nothing novel in those cases. They merely hold that a party cannot have the benefit of a claim for legal professional privilege if the documents over which they claim privilege were given to an expert for the purposes of obtaining an expert's report.

It was apparently assumed by both parties that the Evidence Act 1995 did not apply as neither party raised it. Accordingly, no argument was put to the Court in relation to whether or not legal professional privilege had been lost under the Evidence Act 1995. Since the High Court's decision in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, it has generally been accepted that Pt 3.10 of the Evidence Act 1995 applies only to the adducing of evidence in a court hearing. It does not apply to the production of documents in interlocutory proceedings as in this case. Hence, the common law would seem to apply in this case. However, in VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2001] NSWLEC 182 Bignold J held that due to amendments to the Supreme Court Rules which took effect from 1 October 1999, Pt 3.10 of the Evidence Act 1995 does apply to the production of documents in certain circumstances, as set out in Pt 36, r 13. Part 36, r 13 provides: (1) This rule applies where: (a) the Court, by subpoena or otherwise, orders any person to produce any document to; (b) a party is required by a notice served under rule 16(1) to produce any document to; or (c) a question is put to a person in the course of examination before, the Court or a Judge or any officer of the Court, or any examiner, referee, arbitrator or other person authorised to receive evidence and neither Part 3.10 of the Evidence Act nor Part 3.10 of the Evidence Act 1995 of the Commonwealth is applicable. (2) The Court shall not compel, and rule 16 shall not require, production of a document or an answer to a question, unless and until the Court directs that the production or answer shall not be prevented by this subrule: (a) over the objection of a person if evidence of the document, or of an answer to the question, could not be adduced in the proceedings over the objection of the person, by virtue of the operation of Part 3.10 Division 1 of the Evidence Act.

That rule is adopted by the Land and Environment Court Rules 1998: Pt 6 r 1(2) in relation to Class 4 proceedings (in contrast to Class 1 proceedings). Bignold J held that the Evidence Act applied to the production of documents under this rule and applied s 122 of the Evidence Act. In this case, although the order to produce documents originally arose in the related Class 1 proceedings (No. 10169/02), the issue as to whether legal professional privilege can be claimed over the documents now arises in the Class 4 proceedings. Although it is debatable whether the Evidence Act does apply in these circumstances, I will deal briefly with the matter under the Evidence Act for completeness.

Finding on Question 3 83. At common law there is no general duty for an administrative decision maker to give reasons for their decision. A requirement to give reasons will only arise where it can properly be said that "special circumstances" exist: Kennedy Miller at 734-5 citing Osmond. Kennedy Miller was one example of circumstances in which such special circumstances were held to exist and fairness required disclosure in that case. In Kennedy Miller, the documents over which legal professional privilege was claimed were said to be necessary to the applicant as otherwise the appeal provisions in question would have been useless. I do not see this case gives rise to special circumstances such as occurred in Kennedy Miller. I do not therefore consider that the documents over which legal professional privilege is claimed by the DG lose that status in the circumstances of this case where the Applicant's appeal rights are not affected by the inability to access the documents in question. As the documents can be subject to a claim of legal professional privilege the issue arises as to whether waiver has occurred.

84. As to the Applicant's argument that the documents should be disclosed out of fairness I refer to the judgment of Gleeson CJ, Gaudron, Gummow and Callinan JJ in Mann v Carnell (1999) 201 CLR 1, where their Honours stated: What brings about waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. (at 13)

85. That statement highlights that material that is subject to legal professional privilege does not lose that status simply because of "some overriding principle of fairness operating at large"; the principle of fairness is more limited than that.

86. Bignold J referred in VAW to the decision of Goldberg J in Australian Unity Health Ltd v Private Health Insurance Administration Council [1999] FCA 1770. This case concerned a statement of reasons provided by the respondent which, after setting out the terms of an insurance policy, stated "… this policy is defined in Council Rule No 4. Separate legal advice supporting PHIAC's view of this rule has been received. …". In considering whether legal professional privilege had been waived, Goldberg J identified two alternative bases for argument. Firstly, that the Respondent had, by stating their view of the rule and that there was legal advice in support of that view, waived legal professional privilege because the contents of the advice had been referred to: Maurice, Goldberg v Ng. The alternative basis was that (referring to Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405): where allegations are made which raise the issue of the state of mind of a party and legal advice is likely to have contributed to that state of mind, then the party who was the recipient of the legal advice cannot claim legal professional privilege in relation to it.

87. After noting the grounds of judicial review in issue and that they "make an issue in the case what was the legal advice received", his Honour stated: It seems to me that when it is established that part of the evidence or other material on which the finding was based was the letter of advice and that the letter of advice supports the respondent's view of the rule, it can be said with some force that it is an issue in the case as to what activated or motivated the decision-maker, in the circumstances where part of the material relied on was legal advice. For those reasons legal professional privilege cannot be claimed.
88. I have referred to Australian Unity as it would appear to have potential application to this matter although it was not raised by the parties in argument. I do not think the circumstances in this case are the same as those referred to in Australian Unity where there was a finding that the nature of the legal advice had been disclosed and that was a matter which caused Goldberg J to consider that there had been a waiver of privilege.

89. As to whether there has been waiver in this case, the mere reference to the existence of legal advice does not amount to waiver of its content. In this respect I adopt the decision of Lloyd J in Multistar Pty Ltd v The Minister for Urban Affairs and Planning [2000] NSWLEC 231 referring to Benecke v National Australia Bank (NSWCA, 22 April 1993, unreported) and Bignold J in VAW. In my view the identification of the documents in a list provided to the Court pursuant to the Orders of Talbot J on 6 March 2002 does not amount to implied (or express) waiver of legal professional privilege. There has been no disclosure of the contents of the legal advice and no waiver of legal professional privilege. There is no action on the part of the DG which would give rise to a requirement on the grounds of fairness that the documents be disclosed.

90. Indeed I note that in Australian Unity, there was a document headed "Administrative Decisions (Judicial Review) Act 1977 (Cth) Section 13 Statement of Findings on Material Questions of Fact and Reasons for Decisions". Under a heading titled "Evidence or Other Material on which Findings were Based" was a paragraph stating "Letter from Phillips Fox to PHIAC dated 10 August 1998". Goldberg J held that this did not constitute: A disclosure of the legal advice. It simply says that it is part of the evidence and other material on which the finding was based. … I do not consider that is a disclosure of the contents of the advice or a waiver of legal professional privilege (at [18]) In the present case a similar situation arises.

91. If Part 3.10 of the Evidence Act applies in this situation, s 122(2) of that Act is relevant. As Bignold J stated in VAW, as the common law test of waiver of legal professional privilege is more demanding, once it is found that the content of legal advice has not been disclosed at common law, this will be enough to satisfy the test under the Evidence Act that the substance of the evidence has not been disclosed "knowingly or voluntarily" to another person (at [59]). I therefore find there has been no disclosure of the substance of the advice for the purposes of the Evidence Act. Thus, legal professional privilege over the documents in question has not been lost.

In summary, the answers to the questions raised are:

In relation to 40039 of 2002 and 0040 of 2002 92. Question 1: Does a Stop Work Order issued pursuant to s 46 of the NVC Act prohibit all clearing of native vegetation on the land described within the Order, within the period of time specified in the Order, including any clearing that might be carried out in accordance with the exemptions referred to in cl 3 of Part 2 of Schedule 4 of the NVC Act? Answer: No. Clearing in accordance with the exemptions in Sch 4 Pt 2 cl 3 is permissible.

In relation to 0040 of 2002 93. Question 2: Is the Stop Work Order issued pursuant to s 46 of the NVC Act void and of no effect because it was issued ultra vires? Answer: No.

94. Question 3: Are the documents produced to the Court by the DG, being documents 1 and 2 on the "List of documents relied on by the DG in making his decision to issue a Stop Work Order against the partners of Greentree Farming" documents over which a claim of legal professional privilege can be made? Answer: Yes and the privilege has not been waived. Orders: In matter no. 40039 of 2002 the Court:
95. Declares that a Stop Work Order issued under s 46 of the Native Vegetation Conservation Act 1997 does not prevent clearing of native vegetation on the land described within the order, within the period of time specified in the order, if the clearing is carried out in accordance with the exemptions prescribed in Sch 4 Pt 2 cl 3 of the Native Vegetation Conservation Act 1997.
96. Reserves the question of costs.
97. Orders that the exhibits may be returned.

In matter no. 0040 of 2002 the Court:

1. Declares that the Stop Work Order issued by the Respondent to the Applicant on 19 February 2002 does not prevent the Applicant from clearing on the land referred to in the Stop Work Order in accordance with the exemptions prescribed in Sch 4 Pt 2 cl 3 of the Native Vegetation Conservation Act 1997.
2. Declares that the Stop Work Order issued by the Respondent to the Applicant on 19 February 2002 was not issued ultra vires and is not void on those grounds.
3. Reserves the question of costs.
4. Orders the exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.