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 - [2002] NSWLEC 93 - NSWLEC 1993 case summary — Zoe

NSWNSWLEC

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

[2002] NSWLEC 93

Land and Environment Court (NSW)|1993-04-22|Before: Pain J, Ms J

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1993-04-22

Before

Pain J, Ms J

Source

Original judgment source is linked above.

Judgment (90 paragraphs)

[1]

Introduction

These two Class 4 proceedings concern Stop Work Orders issued by the Director-General of the Department of Land and Water Conservation (the DG) under s 46 of the Native Vegetation Conservation Act 1997 (the NVC Act) to numerous occupiers of land. An overlapping preliminary issue arose for decision in the two matters, namely: Q1. 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 clause 3 of Part 2 of Schedule 4 of the NVC Act.
In matter number 0040 of 2002 two further issues arise in relation to a Stop Work Order issued by the DG to the Applicant in the proceedings, RL Greentree. The first of those issues is as set out in the Applicant's Points of Claim. Q2. The Stop Work Order dated 19 February 2002 issued to the Applicant by the Respondent pursuant to s 46 of the NVC Act is void in that it was issued ultra vires, for the following reasons: (a) the DG did not form the opinion specified by s 46(1) of the NVC Act; and/or (b) the DG acted unreasonably, in that he purported to form the opinion when there was no material to support that opinion; and/or (c) the DG acted under dictation, merely approving the recommendation of a Departmental Officer; and/or (d) The DG took into account an irrelevant consideration, being the recommendation of the departmental officer; and/or (e) the DG failed to take into account relevant considerations, being the Applicant's right to clear pursuant to the exemptions that apply to the Act; and/or (f) the DG took into account irrelevant considerations, being [at least] his departmental officer's wish to have clearing stopped on the land for the purpose of investigating whether an offence had taken place; the reluctance of an employee to provide information; the need to further investigate past clearing on the land; environmental harm caused by past clearing; and the probability or possibility of contravention of the Act; and/or (g) the DG acted for an improper purpose, in that he issued the order so as to acquire power of entry to the land pursuant to Section 50 of the Act, which was not a lawful purpose; and to obtain further information on whether a contravention of the Act had in fact occurred.

[4]

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.

[26]

(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.

[56]

(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.

[75]

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.

Legislation Cited (1)

"Administrative Decisions (Judicial Review) Act 1977(Cth)

Cases Cited (28)

CITATION : 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 [2002] NSWLEC 93 revised - 26/07/2002 APPLICANT Director-General of the Department of Land and Water Conservation

Judicial review :- does the absence of jurisdictional fact exclude judicial review - whether stop work order ultra vires and void - whether failure to form required opinion - whether acting unreasonably - whether dictation - whether failure to take into account relevant considerations - whether irrelevant considerations taken into account - whether acting for an improper purpose Evidence Act 1995 Part 3.10, s 122 Interpretation Act 1987 s 33 LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 6 r1(2) Native Vegetation Conservation Act 1997 s 3, s 21, s 46, s 47, s 48, s 50, s 61, Sch 4 Pt 2 cl 3 State Environmental Planning Policy No. 46 Supreme Court Rules 1970 Pt 36 r 13 Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729; Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475; Australian Conservation Foundation v Forestry Commission (1989) 19 FCR 127; Australian Unity Health Ltd v Private Health Insurance Administration Council [1999] FCA 1770; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405; Benecke v National Australia Bank (NSWCA, 22 April 1993, unreported); Corporate Affairs Commission of New South Wales v Yuill (1991) 172 CLR 319; Donnelly v Delta Gold Pty Ltd [2001] NSWLEC 55; Goldberg & Anor v Ng & Ors (1995) 185 CLR 83; Mann v Carnell (1999) 201 CLR 1; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666; Minister for Immigration and Ethnic Affairs v Wu Shen Liong (1996) 185 CLR 259; CASES CITED: Multistar Pty Ltd v The Minister for Urban Affairs and Planning [2000] NSWLEC 231; Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 ; New South Wales Crime Commission v Murchie (2000) 49 NSWLR 465; O'Sullivan v Farrer (1989) 168 CLR 210; Oshlack v Richmond River Shire Council and Irongates Developments Pty Ltd (1993) 82 LGERA 222; Public Service Board of NSW v Osmond (1986) 159 CLR 656; Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 48 NSWLR 548; Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170; Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467; Saraswati v The Queen (1991) 172 CLR 1; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52; VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2001] NSWLEC 182 DATES OF HEARING: 29/04/2002 DATE OF JUDGMENT: 07/23/2002

(2002) 124 LGERA 233

(1998) 43 NSWLR 729

(1986) 161 CLR 475

(1989) 19 FCR 127

(1995) 37 NSWLR 405

(1991) 172 CLR 319

(1995) 185 CLR 83

(1999) 201 CLR 1

(1986) 162 CLR 24

(1980) 31 ALR 666

(1996) 185 CLR 259

(1976) 136 CLR 1

(2000) 49 NSWLR 465

(1989) 168 CLR 210

(1993) 82 LGERA 222

(1986) 159 CLR 656

(2000) 48 NSWLR 548

(1981) 151 CLR 170

(1982) 41 ALR 467

(1991) 172 CLR 1

(1991) 33 FCR 87

(1999) 102 LGERA 52

(1999) 201 CLR 49

[2001] NSWLEC 55

[2001] NSWLEC 182

[2000] NSWLEC 231