Genkem Pty Ltd v Environment Protection Authority

Land and Environment Court (NSW)|1997-05-09|Before: Sheahan J, Lloyd J

CITATION : Environment Protection Authority v. Forestry Commission Of New South Wales [1998] NSWLEC 149 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Forestry Commission Of New South Wales FILE NUMBER(S) : 50006; 50007; 50008; 50009; 50010 of 1997 CORAM: Sheahan J KEY ISSUES: :- LEGISLATION CITED: Pollution Control Act 1970 Environmental Offences and Penalties Act 1989 Genkem Pty Ltd v Environment Protection Authority ((1994) 35 NSWLR 33); CASES CITED: Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502; Parker v R (1963) 111 CLR 610 DATES OF HEARING: 20/04/98, 21/04/98, 22/04/98, 23/04/98 DATE OF JUDGMENT: 08/14/1998

PROSECUTOR Mr Docking, Barrister Chris McElwain of EPA LEGAL REPRESENTATIVES: DEFENDANT Mr Preston, Barrister Mr L Wimalaratne

State Forests was charged with five contraventions of the licence and entered pleas of guilty to all five charges on 9 May 1997.

However, on 20 November 1997, Lloyd J granted an application by State Forests for leave to withdraw its pleas of guilty to three of the charges, namely those in matters 50006, 50007 and 50010.

This judgment deals with only those three now-defended matters.

By agreement, the other two matters in which the original pleas of guilty of 9 May 1997 stand (ie 50008 and 50009) were adjourned for mention on the delivery of this reserved judgment. 2. BACKGROUND

On 8 August 1995, State Forests was granted a general licence for "logging operations" in what is known as the Southern Region. This licence was issued by the Environment Protection Authority ("EPA") pursuant to s17D(1)(a) of the Pollution Control Act 1970.

(a) the cutting and removal of timber from land; or

(b) burning associated with the cutting and removal of the timber; or

(d) the maintenance and care of the roads, logged areas, log dumps and snig tracks associated with the cutting and removal of the timber.

The licence required State Forests to submit a "harvesting plan" detailing the specific measures it would take for the prevention of water pollution and soil erosion of every "compartment" of forest in which it proposed to undertake logging operations.

The EPA then had the opportunity to respond to the "harvesting plan" by varying the provisions of the general licence so as to adopt site-specific conditions for the logging of each compartment.

In late 1995, State Forests submitted a harvesting plan in respect of compartment 1021 in Colymea State Forest. After negotiations with the EPA concerning the plan and the final terms of the licence, actual logging commenced there in early 1996.

On 24 January 1996, State Forests commenced construction works in the compartment, namely clearing a road known as Honeysuckle Trail and opening its drains.Part of these works involved the construction of a "crossing structure", i.e. an earth-covered log bridge over an unnamed creek at a site identified on the map of Compartment 1021 as site "A". (A copy of the map is attached to this judgment - attachment 1). The construction of that bridge ceased on 25 January 1996.

On 29 January 1996, State Forests commenced construction work on an earth-covered log bridge over another unnamed creek in the compartment, at a site identified as site "B". Those works ceased on 30 January 1996.

The balance of the logging operations commenced on about 5 February 1996 and ceased on about 4 April 1996.

The areas involved in the alleged breaches were further specified as site A Locations 1 (south west of the bridge) and 2 (north west of the bridge) and site B Locations 1 (west of the bridge) and 2 (north east of the bridge). (See attachments 2 and 3 annexed to this judgment).

All five charges brought against State Forests concern its alleged failure to comply with the provisions of the licence and/or the harvesting plan to prevent pollution of the unnamed creeks at sites A and B and to reduce the risk of soil erosion in their vicinity.

Two of the three defended charges concern the alleged failure of State Forests to complete "stabilisation work", to reduce the risk of soil erosion at sites A and B respectively. The other charge concerns an alleged failure to locate and construct drainage structures in such a way as to minimise the unchecked flow of water from them into the unnamed creek at site B.

In matters 50006 and 50010, State Forests is charged that on or about 29 January 1996 at Compartment 1021 of Colymea State Forest it committed offences against the Environmental Offences and Penalties Act 1989 in that it contravened condition 76 of Schedule 4 of a licence issued under the Pollution Control Act 1970.

"Stabilisation work at crossing approaches must be completed within five days of crossing construction unless soil conditions are unsuitable. Situations in which the prevailing soil conditions have prevented stabilisation works must be documented on the supervising forest officer's copy of the harvesting plan or roading plan. Temporary stabilisation measures may be used where necessary, and permanent measures put in place as soon as practicable."

The allegation in the summons in 50006 is that no stabilisation work was completed within five days of the crossing being constructed on Honeysuckle Trail at site B.

Further particulars of the alleged offence are as follows:

"1. At Site B Location 1 and/or 2 the defendant failed to stabilise the crossing approaches by way of grass seed mix.

At Site B Location 1 and/or 2 the defendant failed to stabilise the crossing approaches by way of coconut mesh.

At Site B Location 1 and/or 2 the defendant failed to stabilise the crossing approaches by way of grass seed mix and coconut mesh.

At Site B Location 1 and/or 2 the defendant failed to stabilise the crossing approaches by way of any "sediment trap".

At Site B Location 1 and/or 2 the defendant failed to drain the approaches to the "crossing structure" by way of measures such as a "mitre drain" or "rollover bank".

The soil conditions were suitable for stabilisation work of the nature of any or all of the above."

The EPA also set out as further particulars of summons 50006 a proposition that, between 24 January 1996 and 30 January 1996, State Forests had demonstrated a "tendency to act in a particular way, namely, in contravention of condition 76 of the licence." The EPA pointed to the similar factual basis for the charge in matter 50010, as well as the plea of guilty in matter 50009 as evidence of "2 or more related events which because of the improbability of the events occurring coincidentally...proves that the defendant contravened condition 76 of the licence."

In matter 50010, State Forests is charged with a similar breach of condition 76 of Schedule 4, at Site A Location 1 and/or 2.

The further particulars of this alleged offence are the same as those for matter 50006 set out above, except that they refer to site A instead of site B.

Tendency and/or coincidence evidence is again relied on to prove the alleged contravention.

In matter 50007, State Forests is charged with having contravened condition 61 of Schedule 4 of the licence which relevantly provides as follows:

"61. Road drainage structures must be located and constructed in such a way that they will: ....

(c) minimise the unchecked flow of water from table drains directly into watercourses or drainage lines or onto extraction tracks, snig tracks or log dumps."

The allegation in the summons is that the road drainage structure on Honeysuckle Trail at site B was not located and constructed in such a way that "the unchecked flow of water from the table drain directly into the drainage line was minimised".

The further particulars of the charge are as follows:

"1. On the north eastern side of the road at "Site B Location 2" about 38-39 metres of a "table drain" was located and constructed so that it did not minimise the unchecked flow of water into a "drainage line" and/or "watercourse".

There was no other "road drainage" structure, including either a "mitre drain" or a "rollover bank" , on what was about 38-39 metres of road running from a "crossing structure" over the "drainage line" and/or "watercourse", and then to a "mitre drain" constructed and located on the north eastern side of the road.

The "mitre drain" at 38-39 metres was unable to conduct water from the "table drain" to a disposal area, but rather any water was likely to continue to flow down the 38-39 metres of the "table drain" into the "drainage line" and/or "watercourse".

The approach to the "crossing structure" was not drained by a "mitre drain".

The "mitre drain" at 38 or 39 metres was not located or constructed as near as practicable to 10 metres from the "drainage line" and/or "watercourse" in order to minimise the length of road draining into the "drainage line" and/or "watercourse"."

The EPA also relies on the guilty plea in matter 50008, concerning an alleged contravention of condition 61 at site A, as evidence that State Forests had a tendency to act in contravention of condition 61. That tendency is relied upon to support the conclusion that State Forests in fact contravened condition 61 at site B.

3.3 The two charges to which State Forests has pleaded guilty

In matter 50008, State Forests has pleaded guilty to the charge that, on or about 24 January 1996, it contravened condition 61 of schedule 4 at site A. The alleged contravention is that the road drainage structures at site A were not located and constructed in such a way that:

"- the unchecked flow of water from table drains directly into drainage lines was minimised

water discharged onto surfaces or structures which provide for efficient sediment trapping".

In matter 50009, State Forests has pleaded guilty to the charge that, on or about 24 January 1996 at compartment 1021, it contravened condition 75 of schedule 4 of the licence, which relevantly provides as follows:

"Spoil from crossing construction must not be deposited in protection strips or filter strips".

It is alleged that spoil was deposited in a filter strip at site A.

It is useful to set out here the meaning of the main technical terms used in these proceedings, as defined in the licence.

"Crossbank" means "a hump of earth constructed across an extraction track, snig track, outrow, log dump or road to baulk the flow of water so that it can be diverted effectively".

"Filter strip" means "a strip of vegetation or groundcover along each side of a watercourse or drainage line retained for the purposes of:

(a) retarding the lateral flow of runoff and facilitating its infiltration into the soil....

(b) retarding sediment movement into the stream...and

"Mitre drain" means "a drain used to conduct runoff water from the shoulders of a road to a disposal area away from the road alignment."

"Protection strip" means a strip of vegetation or groundcover outside a filter strip, retained to buffer the filter strip from the activities occurring in the rest of the compartment...."

"Road drainage" means "any structure designed to direct water along, across or underneath a road, and includes catch drains, mitre drains, relief pipes, rollover banks, spoon drains, and table drains".

"Rollover crossbank" means "a crossbank constructed with a smooth cross-section and gentle batters, and which is well compacted to allow permanent vehicular trafficability".

"Sediment trap" means "a structure designed to collect soil sediment that is being transported by runoff.

"Spoil" means "excess soil, rock or other material excavated during logging operations".

"Stabilisation" means "the provision of adequate vegetative, structural or mechanical measures to prevent or control erosion."

"Supervising forest officer" ("SFO") means "a State Forest employee who is authorised by State Forests to supervise logging operations."

"Table drain" means "the side drain of a road adjacent to the shoulders of the road".

There is relatively little dispute between the parties as to what actually occurred at sites A and B at the relevant time.

In terms of the "stabilisation" charges, it is agreed that State Forests did not stabilise the crossing approaches at sites A or B by way of grass seed mix, coconut mesh and/or sediment traps within five days of constructing the crossings in late January 1996.

It is uncontested that the soil conditions during this period were "dry, water repellent and lacking in organic matter" and that Richard Murrell, the SFO for these logging operations, determined that the conditions were, therefore, unsuitable for stabilisation by way of grass seeding.

In terms of the "drainage structure" charge, it is agreed that there was a mitre drain located about 38 to 39 metres from the crossing structure at Site B, and that there was no other mitre drain, or other drainage structure, apart from the table drain along that 38 to 39 metre section of road, between the mitre drain and the crossing structure.

It was also accepted by State Forests that the outlet to the table drain at site B angled directly into the drainage line.The dispute between the parties is essentially whether or not the facts constitute a breach of condition 61 and/or condition 76 of its licence.

The main questions for the Court to determine are therefore as follows:

(a) What did conditions 61 and 76 require State Forests to do? (ie, what is the proper construction of those conditions?);

(b) Did the actions of State Forests satisfy these requirements?

WHAT DID CONDITIONS 61 AND 76 REQUIRE STATE FORESTS TO DO?

Mr Preston for State Forests submits that the precise meaning of the general conditions in the licence (such as conditions 61 and 76) can be ascertained only by reference to the site-specific criteria contained in the harvesting plan.

The scheme of the licence is to lay down general conditions in the regional licence, and to anticipate, negotiate, and then specify what are the reasonably practicable steps that must be taken to satisfy those general conditions in carrying out works in a particular compartment.

In the end result, the requirements of the general conditions are precisely defined by the special conditions in the harvesting plan so as to be site-specific.

6.1.2 Construing Condition 61 - drainage structures

Mr Preston submits that condition 61 must be read with conditions 63 and 64 and condition 4.7(e) of the harvesting plan.

For convenience I set out again the relevant provision of condition 61:

"61. Road drainage structures must be located and constructed in such a way that they will: ....

(c) minimise the unchecked flow of water from table drains directly into watercourses or drainage lines or onto extraction tracks, snig tracks or log dumps."

"Road drainage structures to be used, and the techniques to be used to achieve the outcomes required in conditions 61 and 62 of this schedule must be specified in the harvesting plan or roading plan".

"The spacing of road drainage structures must be designed to limit erosion of the road surface and table drains in accordance with Figure 1."

Figure 1 determines the maximum spacing of road drainage structures in accordance with the slope of the road and the erodibility of the soil.

At site B, the maximum spacing of drainage structures is 40 metres.

Condition 4.7(e) of the harvesting plan provides, amongst other things, that:

"Road drainage structures must be located and constructed in such a way that they comply with Conditions 61 to 66 of the [licence]".

"The spacing of road drainage structures must be designed to limit erosion of the road surface and table drains in accordance with Figure 1 of the[licence]".

"Where required, rollover drainage banks will be spaced at maximum intervals as outlined in Table 4."

Table 4 is entitled "Maximum Spacing of Road Drainage Structures", and is based on Figure 1 of the licence. It reiterates that the maximum spacing of drainage structures for site B is 40 metres.

Mr Preston's submission, as I understand it, is that these provisions specify what is meant by "minimise" in condition 61. In other words, the road drainage structures will have been located and constructed in such a way as to minimise the unchecked flow of water if they are located and constructed in accordance with these provisions.

Importantly, these requirements exhaustively define the ambit of State Forests' obligations. There is no general "duty of care" in the licence arrangements to take steps above and beyond those specified in the harvesting plan and other related provisions of the licence.

Furthermore, Mr Preston submits that it is necessary to give "minimise" such a specific meaning, because otherwise one could never satisfy the condition - there would always be something more that one could do to "minimise" the flow of water.

Therefore, in Mr Preston's submission, the principal requirement to satisfy condition 61 at site B is that the drainage structures must be spaced at 40 metres or less.

Mr Preston submits that the meaning of condition 76, as it applies to compartment 1021, is particularised in condition 4.7(e) of the harvesting plan, which under the heading "Crossing of Drainage Features", (p 157 of Beaman affidavit) provides:

"Honeysuckle Trail crosses three un-named creeks as indicated on the Harvesting Plan Operational Map.

A washed out bridge occurs on Honeysuckle Trail on the southern compartment boundary. The remains of this bridge will be removed....and replaced by a new bridge. The reconstruction of this bridge will minimise disturbance to the bed and banks, with no spoil being deposited in protection or filter strips. Crossing approaches must be seeded by the SFO with an approved grass seed mix at a rate of 20kg/ha within 5 days of the completion of the crossing construction.

The remaining bridge and natural causeway are suitable for log haulage.

Crossing approaches will be drained by mitre drains during haulage and rollover drains at the completion of the operation, as near as practicable to the edge of the protection strip to minimise the length of road draining into the drainage feature.

Where required, the approaches of these crossings will be stabilised using coconut mesh and grass seed mix. This will be arranged and paid for by State Forests." (Emphasis added)

The bridge referred to at bullet point two is identified as site A. Therefore, the stabilisation measure specified for site A is grass seeding alone.

The crossing approaches referred to at bullet point four includes site B. Therefore, the stabilisation measures specified for site B are coconut mesh and grass seed mix.

To support this suggested interpretation, Mr Preston draws attention to the draft form of the harvesting plan submitted by State Forests to the EPA on 26 September 1995.

Condition 4.7(e) in that draft plan specifies coconut meshing and grass seeding as the designated stabilisation measures for all crossing approaches in the compartment. However, following the EPA request for more information, condition 4.7(e) was amended, so that coconut meshing was excluded as a stabilisation measure required for site A.

Mr Preston submits that this amendment must have been deliberate, and that the condition, as finalised, specifically and exclusively defines what stabilisation measures were required for sites A and B.

As a further point of construction, Mr Preston contends that the suitability of the soil conditions for the implementation of the stabilisation measures is an element of the offence that must be proved by the EPA. The phrase "unless the soil conditions are unsuitable" is included in the condition, so, to establish a breach, the onus is on the EPA to establish that soil conditions were suitable.

Furthermore, the question of the suitability of the soil conditions was to be determined by SFO Murrell. If he turned his mind to the question and determined that the soil conditions were unsuitable, the condition has not been breached.

To support this construction, Mr Preston drew attention to various provisions in the licence and harvesting plan that demonstrate that the SFO was to be responsible for making essential field decisions.

For example, condition 4.7(e) of the harvesting plan provides that "drainage requirements will be specified in the field by the SFO". It also invests in the SFO responsibility for seeding the crossing approaches.

Furthermore, the SFO is defined in the licence as the person generally responsible for supervising the logging operations in the field.

Therefore, the submission goes, the person responsible for supervising the operations, specifying the drainage requirements, and carrying out the seeding at the crossing approaches would also make the field decision as to whether or not soil conditions are unsuitable.

This accords with practical considerations, because the decision has to be made within five days of the construction, and it would be impractical to require some other person to come out to the site each time to make a determination.

Furthermore, if the EPA had wanted some other person to be responsible for making the determination, for instance, a qualified soil scientist, it could easily have specified that in the condition.

As it did not do so, the implication from the rest of the scheme in the licence is that the decision was one within the field responsibilities of the SFO.

Mr Docking for the EPA essentially argues that conditions 61 and 76 stand alone, and should not be "read down" by reference to site-specific information in the harvesting plan.

State Forests was obliged to satisfy conditions which should be construed according to their ordinary meaning. Site-specific information may have been provided, but the general requirements of the licence conditions have primacy. The obligations of State Forests should not be confined to the prescriptions of the harvesting plan, especially if that would lead to a result that contradicted the object of the licence.

To support this construction, Mr Docking draws attention to the context in which the condition appears, in particular, the preamble of the licence and the power pursuant to which the licence was granted, to demonstrate that the thrust of the scheme was to require practical measures to be taken to prevent or minimise water pollution.

Mr Docking relied on Genkem Pty Ltd v Environment Protection Authority ((1994) 35 NSWLR 33) ("Genkem") as authority for the principle that the preamble of the licence and the statutory power pursuant to which it was granted are especially important reference points for the construction of a licence condition.

Condition 1 of the licence provides that the primary object of the licence is "to require practical measures to be taken to protect the aquatic environment from water pollution caused by logging operations."

The licence was granted pursuant to s17D of the Pollution Control Act 1970 which relevantly provided at the time the licence was granted:

"(4) In exercising its powers under this section, the Authority shall have regard to:

(i) to prevent, control, abate or mitigate that pollution; and

(ii) to protect the environment from defacement, defilement or deterioration as a result of that pollution."

(s17D(4) is now repealed).As a further general proposition, Mr Docking contends that the intended meaning of specific conditions (such as conditions 61 and 76) can be ascertained by reading them with the earlier general conditions of the licence (Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502).

In this regard, Mr Docking draws attention to earlier general conditions of the licence that demonstrate that the overriding intention of the licence is to minimise water pollution.

Accordingly, in his submission, State Forests was obliged by the licence to take all reasonably practicable steps to ensure that water pollution was minimised, not just those measures specifically prescribed in the harvesting plan.

In this regard, "minimise" should be accorded its ordinary meaning, ie, "to reduce to the smallest amount or degree".

6.2.2 Construing Condition 61 - drainage structures

Mr Docking submitted the application of those construction principles to condition 61 means that State Forests was required to take all practical steps necessary to ensure that road drainage structures were located and constructed in such a way as to "minimise" the unchecked flow of water into drainage lines.

It is not enough to comply with the maximum spacing requirements for drainage structures, as specified in the harvesting plan, if that spacing could not be said to achieve "minimisation".To the extent that the site-specific measures in the harvesting plan should be considered, the following requirements in condition 4.7(e) must also be satisfied:

"Crossing approaches will be drained by mitre drains during haulage and rollover drains at the completion of the operation, as near as practicable to the edge of the protection strip to minimise the length of road draining into the drainage feature."

"...It will be ensured that all outlets to the drainage structures will drain into undisturbed vegetation".

Again, the EPA submits that, although it was open to State Forests to nominate some specific techniques it proposed to use to "stabilise" the crossing approaches, its obligation under condition 76 is not confined to those measures. It was required to do "stabilisation work", which may comprise measures above and beyond those specified.

In particular, sediment or silt-stop fences were practical stabilisation measures that could easily have been implemented, and were, therefore, required where necessary, as in this case.

In any event, the harvesting plan is inconsistent in terms of which stabilisation measures it nominates as being required. Condition 5.3(d), for instance, which is in a part of the plan that sets out specific conditions for SFOs, provides that:

"Stabilisation may occur through re-topsoiling and covering with coconut mesh, and or by seeding with an approved grass mix at the rate of 2g/m2.....The above stabilisation works apply also to approved drainage line crossing approaches."

Thus, coconut meshing was contemplated as an independent stabilisation measure for sites A and B.

Furthermore, condition 76 provides for temporary measures to be used where necessary. This imposes an obligation to install measures such as silt-stop fencing where conditions for more permanent stabilisation measures, such as grass seeding, are temporarily inappropriate.

Mr Docking submits that the question of how to determine whether or not the soil conditions were unsuitable at the relevant time is an objective test, not a matter to be determined subjectively by a State Forests' employee.

If the condition is construed to mean that the question is to be determined subjectively by the SFO, State Forests could be relieved of its obligation to implement stabilisation measures, merely because of the subjective opinion of one of its employees.

Such an "unreasonable" result would defeat the intention of the licence, so it should not be construed in that way. Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd, (Unreported, 23 May 1996, Bannon J).

Specific information in the harvesting plan about the soil conditions at compartment 1021, prepared by a soil expert, along with climate data in the plan, and circumstantial evidence about vegetation on the site before and after the logging operations, can be used to determine objectively whether the soil conditions are unsuitable for the implementation of stabilisation measures.

The proper approach to construing the licence conditions in these circumstances is generally to give the words in the conditions their ordinary meaning, but where the harvesting plan provides specific details that clearly relate to the licence conditions, those details should precisely define the ambit of State Forests' obligations.

In other words, where a phrase or word is particularised in the harvesting plan, that should exhaustively define State Forests' obligations, and there should not be read into the conditions an extra, general duty to take all reasonably practicable steps to minimise or prevent water pollution and/or soil erosion.

However, if the whole or part of a licence condition is not particularised, it stands alone, and still has effect according to its ordinary meaning, notwithstanding that there is no specific reference to it in the plan.

In my opinion, the following conditions of the licence support this construction approach:

Condition 16 provides that logging operations may only commence after the preparation of the harvesting plan and its incorporation into the licence.

Condition 20 requires State Forests to forward to the EPA for its consideration copies of the harvesting plan.

Condition 21 provides that the EPA, after considering the harvesting plan may vary the licence by inserting into Schedule 1 any special conditions, as contained in the harvesting plan, and condition 22 requires State Forests to comply with those conditions.

Condition 2 of Schedule 4 provides that logging operations must be carried out in accordance with the harvesting plan or roading plan.

Condition 3 of Schedule 4 provides that the SFO's copy of the harvesting plan must be placed on file at the State Forests district office at the completion of logging operations, and produced on request to an authorised officer.

These conditions highlight the central importance of the harvesting plan in the overall regulatory scheme.

They indicate that the very purpose of the harvesting plan is to define precisely how the general regional licence conditions apply to each specific compartment.

Therefore, a particularisation of the whole or part of a licence condition would strictly limit State Forests' obligations to those particulars.

However, if the harvesting plan fails to particularise the whole or part of a licence condition, that condition or part thereof should be given its ordinary meaning.

I reject Mr Docking's submission that the conditions should be interpreted so as to require State Forests to take all reasonably practicable steps to minimise or prevent water pollution and/or soil erosion.

Mr Docking pressed for that construction on the basis that the preamble to the licence, and the power pursuant to which it was granted, revealed that the intention of the scheme was to require practical measures to be taken to prevent or minimise water pollution.

It is true that, in Genkem, particular importance was placed on the preamble of the licence and the statutory power pursuant to which it was granted to give meaning to a licence condition.

However, in that case, there was no document comparable to the harvesting plan that could otherwise have assisted the Court to determine the meaning of the provision.

The material difference between the circumstances before the Court in Genkem and the scheme in this case, is the existence of the harvesting plan, which plays a pre-eminent role in specifically defining the responsibilities of State Forests.

If the EPA had wanted to impose on State Forests a general requirement to take all reasonably practicable steps to minimise water pollution, it should have made that explicit in the licence or the harvesting plan.

I now turn to the application of these general construction principles to conditions 61 and 76.

6.3.2 Construing Condition 61 - drainage structures

I agree with Mr Preston that condition 61 required State Forests to locate road drainage structures in accordance with Figure 1 of the licence and Table 4 of the harvesting plan (from condition 4.7(e) of the plan), so that, for site B, the maximum spacing of drainage structures was 40 metres.

However, I cannot see why all the relevant requirements contained in condition 4.7(e) should not also be read into the condition.

Condition 4.7(e), in its final form, includes the following requirement under the heading "Crossing of Drainage Features":

The condition also provides, under the heading "Road Construction - Design", details concerning the maintenance of internal compartment roads. After stating that maintenance of the roads will take the form of a number of measures, including the opening up of drainage structures, the condition provides:

"It will be ensured that all outlets to the drainage structures will drain into undisturbed vegetation."

Furthermore, condition 4.7(e) of the SFO's copy of the harvesting plan, under the heading "Crossing of Drainage Features", additionally specifies that:

"Outlets of drainage structures must not be directed into the drainage feature."

I consider that State Forests was obliged to comply with the requirements of condition 4.7(e), according to the terms in which it appears in both the SFO's copy of the plan and the standard version.

Therefore, I conclude that condition 61 relevantly required State Forests to ensure that:

the maximum spacing for road drainage structures was 40 metres;

mitre drains were placed as near as practicable to the edge of the protection strip to minimise the length of road draining into the drainage feature;

all outlets to the drainage structures would drain into undisturbed vegetation;

outlets of drainage structures were not directed into the drainage feature.

In order to satisfy condition 76, State Forests was primarily required, in my opinion, to implement only the stabilisation measures specified in condition 4.7(e) of the harvesting plan, as that is clearly a particularisation of the licence condition.

Condition 4.7(e) was the subject of careful EPA consideration, and was actually amended in response to an EPA request for more specific information. One must assume, therefore, that the end result of the drafting was deliberate.

Because this condition was specifically deliberated over in this way, I believe it more accurately represents the intention of both parties with regard to State Forests' obligations than, for example, the more general requirement in condition 5.3(d) for stabilisation to occur through re-topsoiling and covering with coconut mesh and/or by seeding.

Therefore, I conclude that State Forests was required by condition 76 to stabilise the crossing approach at site A by way of grass seeding alone, and that at Site B by grass seeding and coconut meshing.

However, I find that State Forests was also required, "where necessary", to implement temporary measures, above and beyond the primary stabilisation measures outlined above. As the term "temporary measures" does not appear to have been particularised in the harvesting plan, it should be given its ordinary meaning, which would include, in my view, measures such as silt-stop fencing.

The question of whether or not the soil conditions were unsuitable for the implementation of the primary stabilisation measures should be determined objectively.

Although I agree with Mr Preston that, in practice, the decision would usually be made in the field by the SFO, that does not displace the requirement that, for the exception to apply, the soil conditions must, in fact, be unsuitable. The condition does not say "unless the soil conditions are unsuitable, as determined by the SFO". It is expressed objectively, and there is nothing in the harvesting plan that explicitly contradicts that.

The expert information in the harvesting plan concerning soil conditions and climate data is obviously there to assist the SFO to come to a reasonable decision.

However, I do not think that the suitability of the soils can be determined solely by reference to that information, because otherwise there would be no need for the caveat in the condition. There must be some field component to the decision, or else the condition could simply refer to the climate and soil information as the basis for the determination.

This accords with the evidence which suggests that, notwithstanding the assessment in the harvesting plan of the soils as "moderately fertile" with the "establishment of up to 70% ground cover ....expected within 12 months", there are some circumstances in which the soil conditions could nevertheless be unsuitable for the implementation of the designated stabilisation measures.

Finally, it is clear that the onus for rebutting the proposition raised by State Forests that the soil conditions were unsuitable rests with the EPA. State Forests has the evidentiary burden, not to make out a prima facie case of the defence, but only to point to material which could induce a reasonable doubt (Parker v R (1963) 111 CLR 610).In summary, I make the following findings in respect of the construction and application of condition 76 in these circumstances:

As primary stabilisation measures, State Forests was required to implement grass seeding at site A, and coconut meshing and grass seeding at site B;

Temporary stabilisation measures, such as silt-stop fences, were required where necessary;

The question of whether or not the soil conditions were unsuitable should be objectively determined;

The onus for rebutting that defence rests with the EPA.

DID STATE FORESTS DO WHAT WAS REQUIRED BY THE CONDITIONS OF THE LICENCE?

7.1.1 Were the drainage structures located within the maximum spacing specifications?

As noted above, the maximum spacing of drainage features for site B is calculated from Figure 1 of the licence and Table 4 of the harvesting plan as 40 metres.

It was not disputed that there was a mitre drain located about 38 to 39 metres "uphill" from the crossing structure at site B.

At a glance

Court

Decision date

Before

Source

Judgment (267 paragraphs)

Parties

Cases Cited (3)

Cited By (1)