Forgall Pty Limited v Chief Executive Of The Office Of Environment and Heritage

Land and Environment Court (NSW)|2013-03-26|Before: Pain J

Judgment 1This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act) from the decision of a commissioner in Forgall Pty Limited v Chief Executive Of The Office Of Environment and Heritage [2012] NSWLEC 1219 in relation to a remediation notice issued under the Native Vegetation Act 2003 (the NV Act) requiring work to be undertaken on the Appellant's property at Wallabi Point. The notice referred to several areas on the property, known in the proceedings as areas A - G. 2The Appellant company was represented by its agent Mr Wray who applied to represent the company at the hearing under s 63 of the Court Act. Leave was granted to do so. The company was previously represented by two different solicitors, the first filing a notice of ceasing to act on 7 February 2013 and the second on 25 March 2013. The summons commencing an appeal identified numerous grounds including grounds 6a and 6b, which I held could not be pursued in an interlocutory decision Forgall Pty Limited v Chief Executive Of The Office Of Environment and Heritage [2013] NSWLEC 11 at [7]. Mr Wray did not address the other grounds identified in the summons. He appeared to identify four alleged errors of law he submitted were made by the Commissioner. 3Section 56A appeals are limited to the identification of questions of law. The parties are also generally bound by the conduct of the proceedings from which the appeal is conducted. 4Mr Wray provided to the Court a bundle of material divided into categories. Much of it was irrelevant as it identified issues not able to be raised given the limited nature of this appeal, or sought to raise issues not raised before the Commissioner. In particular, the neighbour test submission and attachment A, the landscape master plan and attachment C, the second reading speech given at the time of introduction of the NV Act, exhibit 6, a caution letter sent to a neighbour and exhibit 1, are not relevant to this appeal. 5The Respondent tendered exhibits before the Commissioner but it was not necessary to refer to these in detail. 6The remediation notice was issued pursuant to s 38 of the NV Act which provides: 38 Directions for remedial work (1) If the Director-General is satisfied: (a) that any native vegetation has been cleared in contravention of this Act, or (b) that the clearing of native vegetation on any 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.... ... 7The Commissioner made findings in relation to both subsections 1(a) and 1(b) holding that he was satisfied that native vegetation had been cleared in contravention of the NV Act and, separately, that the clearing was likely to cause an adverse effect on the environment. The Commissioner's decision is vitiated only if there is demonstrated error concerning questions of law in relation to both subsections 1(a) and 1(b) given the "or" in between these subsections. An agreement is recorded in relation to area G (at [7]) that native vegetation was cleared in the period 25 August 1997 to 17 May 2000 and 26 May 2006 to 19 March 2009. It was agreed that no development consent was granted by the Minister in accordance with s 13 of the NV Act or that a property vegetation plan existed for area G (at [7]). At issue was whether that clearing and subsequent clearing on area G was lawful. 8I observe at the outset that concessions were made by the Appellant in relation to areas A - F at the hearing before the Commissioner, as set out at [3] of the judgment, leaving only the scope of any remediation order that the Court might make in relation to these areas in issue. The grounds of appeal can arise only in relation to area G. The Appellant's agent wished to raise the carrying out of routine agricultural maintenance activities (RAMA) on other areas of the property as part of this appeal. Mr Wray referred on several occasions to the RAMA exemptions identified in s 11 of the NV Act submitting that the Appellant intended to build farm infrastructure such as dams across the property and the clearing was directed to that end and was permitted by cl 20 of the Native Vegetation Regulation 2005 (the Regulation). There is no reference to any of these matters in the judgment no doubt because of the concession recorded at [3]. I am unable to consider that submission in this appeal in light of this concession. I also note there is no reference to any work which is a RAMA exception in s 11 in relation to area G. Any questions of law in the appeal must be limited to area G in the context this was raised before the Commissioner. This conclusion means that at least one ground of appeal raised cannot be pressed and I have not referred to it in this judgment. It also affects other grounds of appeal as explained below.

Section 38(1)(a) NV Act 9The Commissioner first considered the issues raised in the context of s 38(1)(a) of the NV Act. The judgment records that a shed was constructed on area G (at [14]), with council approval.

Ground 1 10A ground of appeal was raised in relation to the Commissioner's findings at [23] and [24]: First, and while the hearing proceeded on the basis that the 27 March 2007 approval for the shed was located within Area G, I am not satisfied that this supports the extent of clearing relied upon by the applicant. The approved plan (Sheet 1, Exhibit H) shows a dimension of 220 m from the Saltwater Road property boundary to the proposed shed. To identify the location of the shed, as constructed, I have used two separate plans, being the plan identified as Attachment 1 in Tab 2 of Exhibit 1 and the plan identified as Attachment 6 in Tab 17 of Exhibit 1. Both plans have an identified scale, the property boundary is marked and the shed is visible. In the plans, the existing shed is approximately 180 m from the Saltwater Road property boundary. The closest point of Area G from the Saltwater Road property boundary is around 220 m. Even if Mr Larkin's submissions were to be accepted, the approval of the shed could not authorise the clearing of the vast majority of Area G. At best, a relatively small area of Area G may have been required to be cleared, if the shed was constructed in its approved location. 11These paragraphs are findings of fact based on the evidence and do not raise questions of law. They cannot be considered as jurisdictional in nature and the findings in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] that illogicality of jurisdictional fact finding may arise, cannot apply. The ground of appeal as identified by Mr Wray is not identified in these terms in any event. I note that were this ground intended to be pressed in terms of jurisdictional fact, there does not appear to be illogicality in the Commissioner's reasoning in any event. 12As part of the Respondent's submissions further parts of the judgment concerning the shed on area G were referred to. Paragraph [25] identifies the s 11 NV Act meaning of routine agricultural management activities and [26] sets out s 22 which provides that clearing for routine agricultural activities is permitted. Subsection 2 of s 22 provides that clearing is not authorised if it exceeds the minimum extent necessary for carrying out the activity. That led the Commissioner to conclude at [27] that: Even if the shed was approved within Area G and that the approval of the shed by the council authorised the clearing of vegetation, I agree with the submission of Ms Preston that the clearing of native vegetation is not permitted as a RAMA, pursuant to s 22(2)(b), as it was cleared between August 1997 and May 2000 and again between April 2005 and August 2005 and as such pre-dates the approval granted by the council for the shed on 27 March 2007. 13As the Respondent identified, the Commissioner made relevant findings at [28] - [29] and [31] as follows: Third, I also do not accept that the applicant established that the shed and the area adjoining the shed was a RAMA. Section 22(2)(a) does not allow unlimited clearing but only authorises land to be cleared for a RAMA, if it is cleared to the "minimum extent necessary" for carrying out activities associated with a RAMA. To gain the benefit of s 22(1) and satisfy s 22(2(a), it would be necessary, in my view, to provide at a minimum, evidence in relation to: the types and frequency of activities to be undertaken as "rural infrastructure", the types and number of plant and machinery required to undertake the activities, alternative locations for the storage of plant and machinery, without the need for clearing of vegetation, and importantly, why the clearing is the minimum extent necessary for the identified activity or activities. Without this or similar evidence, it is not possible to determine whether the land is cleared to the minimum extent necessary, as required by s 22(2(a). ... Fourth, I accept that the approval of the shed, by the council, did not authorise the removal of any native vegetation under the NV Act as the shed and associated clearing is not permitted by Division 2 or 3 of the NV Act or s 6 of the Native Vegetation Regulations 2005 or is excluded from the NV Act by Division 4. I agree with the submission of Ms Preston that approval by the Minister is required by s 13 and that as that approval had not been granted, it reasonably follows that the clearing of Area G was unlawful. 14As the Respondent submitted development consent under the Environmental Planning and Assessment Act 1979 (the EPA Act) does not provide consent for the purposes of the NV Act. An order under s 13 of the NV Act from the Minister is required and was not obtained in relation to clearing for the shed. The Commissioner made a factual finding in relation to s 22(2)(a) at [28] and there is no appeal available from that finding. Each of these conclusions related to discrete issues concerning whether clearing for the shed was lawful. None of the other conclusions of the Commissioner are challenged, suggesting that the Appellant raises no other questions of law.

Ground 2 15Paragraphs [58] - [65] deal with the issue of whether historic activities resulted in clearing of native vegetation. Reference is made to the affidavit of Mr Sanders, an elder of the Guiwan tribe, who identified clearing activities for cultural purposes undertaken from the 1940s to the 1980s. The Commissioner's finding that he was not satisfied that any historic activities resulted in any meaningful clearing of native vegetation in area G was criticised because Mr Wray submitted that the evidence of Mr Sanders as an aboriginal elder was final. The Commissioner refers to the competing evidence on this issue, weighs it up and makes a finding of fact. A dispute about a finding on the evidence before the Commissioner is not a question of law. There is no appeal from a finding of fact that is not jurisdictional, which this is not. 16Further, as the Respondent submitted, clearing for traditional aboriginal cultural purposes allowed under s 11(1)(g) cannot be used to justify clearing by the Appellant for other purposes. The clearing wherever it occurred happened well before the commencement of the NV Act in any event.

Ground 3 17The Appellant challenged the part of the judgment which followed the heading "Was the native vegetation cleared defined as "protected regrowth"? At [80] - [81] the Commissioner held: Even though Mr Larkin reasonably expressed concern over the availability of the "Vulnerable Land Map" for the site, it nonetheless is a mandatory consideration. There can also be no question of the location of the "protected regrowth" in Area G. It is land within 20 m of the bed or bank of the watercourse marked in blue on the "Vulnerable Land Map" for NSW. A measurement of 20 m from the blue line captures around 50% of Area G. Again, I do not accept Mr Larkins submission that the clearing was lawful through the 2 hectare exemption or the Rural Structures exemption as these exemptions do not override other statutory obligations, such as the NV Act that also apply to Area G. I have rejected the RAMA defence for the reasons set out in the earlier paragraphs. 18The conclusion at [80] means that up to 50 per cent of area G is protected regrowth. Mr Wray sought to criticise the finding at [81] referring to the RAMA exemption in s 11(1)(a) but this can arise only in the context of the shed on area G and for the reasons already identified above cannot be raised in that context.

Section 38(1)(b) 19The Commissioner made findings on s 38(1)(b) to the effect that the small amount of clearing did have the potential to cause environmental harm for the reasons stated at [91]. This conclusion followed the consideration of the parties' respective evidence on this issue as identified at [87] - [89]. No question of law in these conclusions was identified. This means that even if there was error concerning a question of law found in relation to the consideration of s 38(1)(a) by the Commissioner, that error would not have vitiated the decision. 20The appeal should be dismissed. I understand that the Respondent wishes to seeks its costs if the appeal is dismissed and will hear from the parties on the question of costs before ruling on that matter.

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. Decision last updated: 03 April 2013

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