Findings
Did historic activities result in clearing of native vegetation?
58While there can be little doubt that local indigenous people traversed the site over time and potentially camped there, I am not satisfied that any clearing associated with these activities was significant in terms of clearing of native vegetation. The affidavit of Warner Boyce Sanders (Exhibit R), an elder of the Guiwan tribe, identifies such activities from the 1940s to the 1980s, including the use of the area to the north-west of the shed near Area G. Mr Sanders states that this area was always cleared and was used as a camp when he was a child because of the availability of fresh water. There was dispute between the parties whether the camp site, based on the general description of its location, was actually located in Area G. The uncertainty over the location places considerable doubt on whether any reliance should be placed on the camp site for the purposes of considering historic clearing, particularly considering the evidence from previous owners.
59The affidavit of Susan Elisabeth McPhee (Exhibit 1, Tab 18), indicates that she owned Lot 6 from 19 September 1994 til the time the property was purchased by the applicant on 7 May 1998. She states that:
At the time I purchase the property it was pristine, dense bushland over almost entire property. There was an access road along the southern boundary down to the creek and one track that ran in a generally north south direction off that access road near the eastern side of the property.
60Ms McPhee identifies two other clearing events on the property relating to a fire break and a track from the south western corner in a generally western direction.
61The affidavit of Mr Ronald James McPherson (Exhibit 1, Tab 19), indicates that he (with others) owned Lot 6 prior to Ms McPhee. He states that:
At no stage did the group undertake any formal clearing on the property. I recall Dennis cleared a small area in front of the property near the road to camp on weekends with his family.
The property during the time we owned it was covered with thick bush. I remember there was a lot of Tea Tree on the property. Our group did not cultivate any other plants on the property than what occurred there naturally
62The affadavits of Alan Frederick Smith (Exhibit 1, Tab 22), Terry John Tullipan (Exhibit 1, Tab 23) and Terrence Yewdall (Exhibit 1, Tab 25) support the observations of Ms McPhee and Mr McPherson.
63Again, and while Lot 6 may have been subject to intermittent clearing for a range of uses involving logging, mining and farm activities, the extent of any clearing was likely to be minimal as it was not identified by Ms McPhee or Mr McPherson or in the interpretation of the aerial photographs by Mr Palmer.
64The evidence on the use of Area G as an area for depositing fill from the drain was uncertain, at best. Mr Sanders identifies the drain being constructed "sometime in about the 1970's" Dr Meleo stated that the landform of Area G was consistent with excavated nmaterial being placed on the land but he did not go as far as to state that excavated material from the drain was actually placed in Area G. I note that any attempts to gain access to any information on the drain were unsuccessful. Again, the use of Area G for excavated material from the drain was not identified by Ms McPhee or Mr McPherson.
65Overall, I am not satisfied that any historic activities resulted in any meaningful clearing of native vegetation in Area G.
The remediation notice under the Rivers and Foreshores Improvement Act 1948
66There was also considerable dispute over the remediation notice although I accept the respondents conclusions for the following reasons.
67Under the RFI Act, the vast majority of Area G was "protected land", being within 40 m of Saltwater Gully. The remediation notice issued on 10 May 2000 stated that the DLWC is satisfied that the works carried out "have acted in a way to cause, or likely cause the flow of protected waters to be obstructed or detrimentally affected in contravention of section 22B".
68The RFI Act defines "protected land" as:
protected land means
(a) land that is the bank, shore or bed of protected waters, or
(b) land that is not more than 40 m from the top of the bank, shore or bed of protected waters (measured horizontally from the top of the bank or shore), or
(c) materials at any time deposited, naturally the other was and whether or not in layers, on or under land referred to in paragraph (a) or (b).
69The remedial notice identifies four directions, the second relevantly states:
•Revegetation of disturbed areas within 40 m of both sides of the creek is to be undertaken with locally occurring Australian native species.
70By letter dated 10 August 2000 from the DLWC, and with reference to the remedial notice issued on 10 May 2000, the following comments are made:
Revegetation of the western bank of Saltwater Gully must be undertaken as specified in the Remedial Notice dated 10th May 2000. The remedial notice will not be complete until this work has been undertaken.
71There was disagreement over the interpretation of letter dated 10 August 2000 from the DLWC and specifically why the reference to revegetation "within 40 m of both sides of the creek" in the remediation notice was inconsistent with the reference to the "western bank of Saltwater Gully" in the DLWC letter.
72Mr Larkin submits that the inconsistency effectively means that the DWLC reviewed its position in regard to revegetation of the protected lands and required only the "western bank of Saltwater Gully" to be revegetated. I do not accept this interpretation. In my reading of Exhibit E, the DLWC correspondence on 10 August 2000 was in response to a submission by the applicants consultants (McGlashan & Crisp) to the remedial notice. The DLWC correspondence sought only to respond to the McGlashan & Crisp submission and not amend the remedial notice. The DLWC response stated that it was "satisfied with the suggested treatment" but requiring additional measures to be undertaken (1 - 6 on page 1). The correspondence also required:
Revegetation of the western bank of Saltwater Gully must be undertaken as specified in the Remedial Notice dated 10th of May 2000. The remedial notice will not be complete until this work has been undertaken.
73Importantly, I do not accept that this part of the DLWC correspondence amends the remedial notice by removing the eastern 40 m wide area from Saltwater Gully (or Area G) from the remedial notice. There is no correspondence that makes any reference to any amendment to the remedial notice. It may be that that the McGlashan & Crisp submission did not indicate the revegetation of the western bank of Saltwater Gully, consistent with the second point of the remedial direction and that the DLWC correspondence simply sought to reiterate the original terms of the remedial notice. There may be some other explanation, however in the absence of any evidence to indicate that the remediation notice was amended, I must accept that the terms are those set out in the remediation originally notice issued by the DLWC that requires "Revegetation of disturbed areas within 40 m of both sides of the creek is to be undertaken with locally occurring Australian native species". Unfortunately, the McGlashan & Crisp submission was not included in Exhibit E.
74What is undisputed however is that in November 2000, the DLWC were satisfied that the applicant had completed the works required by the remedial notice, that, in part, required the "revegetation of disturbed areas within 40 m of both sides of the creek is to be undertaken with locally occurring Australian native species".
75I am satisfied that Area G was revegetated with locally occurring Australian native species consistent with the endorsement by the DLWC in November 2000 that the remediation notice had been complied with. This is consistent with the evidence of Mr Palmer that in 2000 vegetation has been cleared but with large trees retained and in 2002 there was a partial re-establishment of a dense, low woody vegetation cover over that part of Area G that had been identified in 2000 as having been cleared.
76It is not necessary to address the submission of Mr Larkin that the RFI Act is directed only towards rectifying obstruction of waters and not necessarily the revegetation of areas, although it is clearly not an interpretation adopted by the DLWC when they issued the remediation notice on 10 May 2000. I accept that the remedial notice is lawful until declared otherwise.
77I also 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 RFI Act, that also apply to Area G.
78I am also not satisfied that the applicant has established that the native vegetation cleared in Area G was "only regrowth". The applicant did not establish that each and every plant comprising the cleared native vegetation in Area G was regrowth. On this basis it has not been established that the native vegetation cleared is "only regrowth" within the meaning of s 19(1) of the NV Act
79For the purposes of the NV Act, the revegetation in 2000, is "growth" rather than "regrowth" and the clearing of the native vegetation between 26 May 2006 and 19 March 2009 was unlawful.
Was the native vegetation cleared defined as "protected regrowth"?
80Even 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.
81Again, 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.
82For the purposes of the NV Act, the clearing of the native vegetation between 26 May 2006 and 19 March 2009 was unlawful within 20 m of the watercourse marked in blue on the "Vulnerable Land Map" for NSW.
83For the reasons in the preceding paragraphs, I am satisfied that the jurisdictional pre-condition in s 38(1)(a) is established so a Direction for Remedial Work made pursuant to s 38(1) of the NV Act may be issued.