Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited

Land and Environment Court (NSW)|2007-10-09|Before: Preston CJ

CITATION : Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited [2007] NSWLEC 681

APPLICANT Great Lakes Council

RESPONDENT Nino Lani Aka Rinaldo Lani

FIRST RESPONDENT Nino Lani Aka Rinaldo Lani

SECOND RESPONDENT Lampo Pty Limited

FILE NUMBER(S) : 41278 of 2006; 40237 of 2007

KEY ISSUES: Civil Enforcement :- Clearing of native vegetation on public reserve - placing fill on land without obtaining development consent under relevant environmental planning instrument - breaches admitted by respondent - injunctive orders to remedy and restrain breaches of statutes - whether the Court should make a declaration in addition to injunctive orders so as to publicly expose and denounce the respondent's conduct - declaration not made - indemnity costs sought by Council - no special or unusual circumstances warranting departure from usual order of costs on party and party basis

Corporations Act 2001, s 1317E Environmental Planning and Assessment Act 1979, s 76A, s 123(1), s 63(2) LEGISLATION CITED: Local Government Act 1993 National Parks and Wildlife Act 1974, s 118A(2), s 176A(1) Native Vegetation Conservation Act 1997, s 12, s 21

ASIC v Atlantic 3 Financial (Aust) [2006] QSC 132 ; ASIC v Rich (2005) 50 ACSR 500; ASIC v Sweeney [2001] NSWSC 114; Colgate Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225; Corporation Affairs Commission v Transphere (1999) 15 NSWLR 596; CASES CITED: F Hannan Pty Limited v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306; Harrison v Schippe [2001] NSWCA 13; Liverpool City Council v Roads and Traffic Authority and Interlink Roads (No.1) 1991 LGRA 265; Liverpool City Council v Roads and Traffic Authority and Interlink Roads (No.2) (1992) 75 LGRA 210; Mead v Watson as Liquidator for Hypec Electronics (2005) 23 ACLC 718, (2005) NSWCA 133; Rosniak v Government Insurance Office (1997) 41 NSWLR 608

DATES OF HEARING: 9 October 2007 10 October 2007

APPLICANT P W Larkin (Barrister) SOLICITORS Mallik Rees LEGAL REPRESENTATIVES:

RESPONDENT A Hudson (Solicitor) SOLICITORS Wilshire Webb

JUDGMENT: LAND & ENVIRONMENT COURT OF NEW SOUTH WALES

GREAT LAKES COUNCIL V NINO LANI AKA RINALDO LANI; GREAT LAKES COUNCIL V NINO LANI AKA RINALDO LANI and LAMPO PTY LIMITED

1 HIS HONOUR: Great Lakes Council has brought two sets of proceedings to civilly enforce planning and environmental statutes. 2 In the first, proceedings number 41278 of 2006, the Council seeks orders to remedy and restrain breaches of three statutes: first, the Environmental Planning and Assessment Act 1979; second, the Native Vegetation Conservation Act 1997 (which was then in force); and third, the National Parks and Wildlife Act 1974. The breaches arise from two episodes of clearing of native vegetation on a public reserve by the respondent, Mr Lani, in December 2004 and February 2005. I will refer to these proceedings as the "clearing proceedings". 3 In the second, proceedings number 40237 of 2007, the Council seeks orders to remedy or restrain a breach of the Environmental Planning and Assessment Act 1979 arising from the placing of fill on a parcel of land the respondent owns without first obtaining development consent as required under the relevant environmental planning instrument. I will refer to these proceedings as the "filling proceedings". 4 The Council articulated the facts, matters and circumstances giving rise to each breach of the statutes and the nature of each breach in the points of claim filed in each of the clearing proceedings and the filling proceedings. 5 On the morning of the first day of the trial, 9 October 2007, the respondents in each proceedings, by their solicitor, admitted each and every paragraph of the points of claim in each of the proceedings. These admissions were reduced to writing and tendered as exhibit 1 and exhibit 2 respectively. As a consequence, each and every allegation of breach in each of the clearing proceedings and filling proceedings is admitted by the respondents. The only dispute between the parties became the order or orders that the court should make to remedy or restrain the admitted breaches. 6 The parties requested and the Court acceded to the parties' request that they be given an opportunity to negotiate the terms of injunctive orders of both a preventative and remedial nature that ought be made by the Court. Both proceedings were adjourned to allow the negotiations to proceed. On the morning of the second day allocated to the trial, 10 October 2007, the parties announced to the Court that they had reached agreement as to the injunctive orders to restrain any future breaches and remedy past breaches. However, the parties advised that there were two issues still outstanding between them: first, whether in addition to the injunctive orders agreed between them, declaratory orders should be made that the respondents had breached the statutes and, secondly, in relation to the costs of the proceedings. 7 I will deal with each of these outstanding issues. In order to so, however, it will be necessary to set out the particular breaches of the statutes admitted by the respondents.

Breaches of Statutes 8 In the clearing proceedings, the respondent has admitted each of the following paragraph of the Council's points of claim:

"1 The applicant is a Council established under the Local Government Act 1993 .

2 The applicant is the owner of land known as Golden Ponds Public Reserve, Forster and described as lot 23 in DP 843479 ("the Land"), and has been since about October 1994.

3 At all relevant times the Land was within the local government area of Great Lakes.

4 At all relevant times, the Land was within the local government area of the applicant.

5 In or about December 2004, Mr Gordon Bagust cleared an area of vegetation from the Land ("the December 2004 Clearing").

6 Mr Bagust carried out the December 2004 Clearing as: a) a servant of, or b) an agent of, the respondent.

7 By reason of paragraphs 5) and 6), the respondent carried out the December 2004 Clearing by his servant or agent.

8 On or about 7 February 2005, Mr Gordon Bagust cleared a further area of vegetation from the Land ("the February 2005 Clearing").

9 Mr Bagust carried out the February 2005 Clearing as: a) a servant of, or b) an agent of, the respondent.

10 By reason of paragraphs 8 and 9, the respondent carried out the February 2005 Clearing by his servant or agent.

Clearing without consent of Council under Tree Preservation Order

11 At the time of both: a) the December 2004 Clearing, and b) the February 2005 Clearing, Great Lakes Local Environmental Plan 1996 ("the LEP") applied to the Land.

12 On or about 28 July 1998, the applicant resolved to make a Tree Preservation Order for part of the local government area of Great Lakes, pursuant to cl 10 of the LEP ("the TPO").

13 On or about 5 August 1998, the applicant published a public notice of its decision to make the TPO in the Great Lakes Advocate, being a newspaper circulating in the Great Lakes local government area.

14 The Land is within an area affected by the TPO in that it falls within item 2 namely it is land within the township of Forster and environs, including Wallis Island and land adjoining the ocean, Wallis Lake and Booti Booti National Park.

15 By reason of paragraph 14, the TPO applied to the Land.

16 In carrying out the December 2004 Clearing, the respondent, by himself, his servants or agents, cut down, topped, lopped, removed or wilfully destroyed vegetation that exceeded a height of three metres above ground.

17 In carrying out the December 2004 Clearing, the respondent, by himself, his servants or agents, cut down, topped, lopped, removed or wilfully destroyed vegetation with a girth exceeding 0.3 metres at 1 metre above the ground.

18 By reason of paragraphs 15-17, the carrying out of the December 2004 Clearing on the Land was prohibited, except with consent of the applicant.

19 As at the date of the December 2004 Clearing, no consent had been given by the applicant to the December 2004 Clearing.

20 By reason of paragraphs 5-7 and 18-19, the respondent carried out the December 2004 Clearing without having obtained the consent of the applicant for that clearing, in breach of clause 10 (2) of the LEP.

21 In carrying out the February 2005 Clearing, the respondent, by himself, his servants or agents, cut down, topped, lopped, removed or wilfully destroyed vegetation that exceeded a height of three metres above ground.

22 In carrying out the February 2005 Clearing, the respondent, by himself, his servants or agents, cut down, topped, lopped, removed or wilfully destroyed vegetation with a girth exceeding 0.3 metres at 1 metre above the ground.

23 By reason of paragraphs 15 and 21-22, the carrying out of the February 2005 Clearing on the Land was prohibited, except with consent of the applicant.

24 As at the date of the February 2005 Clearing, no consent had been given by the applicant to the February 2005 Clearing.

25 By reason of paragraphs 8-10 and 23-24, the respondent carried out the February 2005 Clearing without having obtained the consent of the applicant for that clearing, in breach of clause 10 (2) of the LEP.

Clearing of native vegetation contrary to Native Vegetation Conservation Act

Further or in the alternative to paragraphs 11-25 above:

26 At the time of: a) the December 2004 Clearing; and b) the February 2005 Clearing; the Native Vegetation Conservation Act 1997 ("the NVC Act") applied to the Land.

27 At the time of: a) the December 2004 Clearing; and b) the February 2005 Clearing; no regional vegetation management plan under the NVC Act applied to the Land.

28 At the time of: a) the December 2004 Clearing; and b) the February 2005 Clearing; the Land was not State protected land, within the meaning of the NVC Act.

29 The December 2004 Clearing involved the clearing of native vegetation on the Land, within the meaning of the NVC Act.

30 The December 2004 Clearing was not carried out in accordance with a development consent that was in force.

31 The December 2004 Clearing was not carried out in accordance with a native vegetation code of practice.

32 The December 2004 Clearing was not a type of clearing to which the NVC Act did not apply by reason of section 12 of the NVC Act.

33 By reason of paragraphs 5-7 and 26-32, the respondent by his servant or agent carried out the December 2004 Clearing in breach of section 21 of the NVC Act.

34 The February 2005 Clearing involved the clearing of native vegetation on the Land, within the meaning of the NVC Act.

35 The February 2005 Clearing was not carried out in accordance with a development consent that was in force.

36 The February 2005 Clearing was not carried out in accordance with a native vegetation code of practice.

37 The February 2005 Clearing was not a type of clearing to which the NVC Act did not apply by reason of section 12 of the NVC Act.

38 By reason of paragraphs 8-10, 26-28 and 34-37 of the NVC Act, the respondent by his servant or agent carried out the February 2005 Clearing in breach of section 21 of the NVC Act.

Picking of plants that are part of an endangered ecological community

Further or in the alternative to paragraphs 11-40 above:

39 As at the time of: a) the December 2004 Clearing; and b) the February 2005 Clearing; the endangered ecological community 'Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner bioregions' (the SSF EEC) occurred on the Land.

40 The SSF EEC is an endangered ecological community within the meaning of the National Parks and Wildlife Act 1974 ("the NPW Act ") and the Threatened Species Conservation Act 1995 ("TSA Act")

41 As at the time of: a) the December 2004 Clearing; and b) the February 2005 Clearing; the species Broad-leaved paperbark ( Melaleuca quinquenervia) was part of the SSF EEC.

42 As at the time of: a) the December 2004 Clearing; and b) the February 2005 Clearing; the species Swamp mahogany ( Eucalyptus robusta) was part of the SSF EEC.

43 As part of the December 2004 Clearing, the respondent by his servant or agent picked plants of the following species: Broad-Leaved Paperbark ( Melaleuca quinquenervia) Swamp Mahogany ( Eucalyptus robusta) Pultenaea villosa Swamp Boronia ( Boronia parviflora ) Swamp Wattle ( Acacia elongata ) Wallum Bottlebrush ( Callistemon pachyphyllus ) Native Broom ( Viminaria juncea ) Coast Wattle ( Acacia longifolia var . sophor ae ) Bracken fern ( Pteridium esculentum ) Red Kennedy Pea ( Kennedia rubicunda ) Selaginella uliginosa Goodenia paniculata Gonocarpus micranthus Brown's Lovegrass ( Eragrostis brownii ) Zoysia macrantha Gonocarpus tetragynus Epacris pulchella Baloskion tetraphyllum subsp . meiostachyum Juncus planifolius Frogsmouth ( Philydrum lanuginosum ) Umbrella Sedge ( Cyperus eragrostis ) Swamp Oak ( Casuarina glauca )

44 By reason of paragraphs 5-7 and 39-43 the respondent, in carrying out the December 2004 Clearing, picked plants that were part of an endangered ecological community, in breach of section 118A(2) of the NPW Act .

45 As part of the February 2005 Clearing, the respondent by his servant or agent picked plants of the following species: Broad-Leaved Paperbark ( Melaleuca quinquenervia) Swamp Mahogany ( Eucalyptus robusta) Pultenaea v illosa Swamp Boronia ( Boronia parviflora ) Swamp Wattle ( Acacia elongata ) Wallum Bottlebrush ( Callistemon pachyphyllus ) Native Broom ( Viminaria juncea ) Coast Wattle ( Acacia longifolia var . sophorae ) Bracken fern ( Pteridium esculentum ) Red Kennedy Pea ( Kennedia rubicunda ) Selaginella uliginosa Goodenia paniculata Gonocarpus micranthus Brown's Lovegrass ( Eragrostis brownii ) Zoysia macrantha Gonocarpus tetragynus Epacris pulchella Baloskion tetraphyllum subsp . meiostachyum Juncus planifolius Frogsmouth ( Philydrum lanuginosum ) Umbrella Sedge ( Cyperus eragrostis ) Swamp Oak ( Casuarina glauca )

46 As part of the February 2005 Clearing, the respondent by his servant or agent picked plants of the species Swamp mahogany ( Eucalyptus robusta).

47 By reason of paragraphs 8-10, 39-42 and 45-46, the respondent, in carrying out the February 2005 Clearing, picked plants that were part of an endangered ecological community, in breach of section 118A(2) of the NPW Act ."

9 In the filling proceedings, the respondents admitted each of the following paragraphs of the Council's points of claim: "1 The applicant ("the Council") is a Council established under the Local Government Act 1993.

2 The second respondent is a corporation able to sue and be sued in its corporate name.

3 The second respondent is the owner of land being part of Lot 91 DP 1059068, near Annecy Court, Amanda Crescent and Kenrose Street at Forster ("the Land").

4 At all relevant times, the Land was within the local government area of the applicant.

5 At all relevant times the Land was subject to the Great lakes Local Environmental Plan 1996 ("the GLLEP").

6 At all relevant times, clause 11 of the Great Lakes LEP 1996 provided: Land form modification (1) Despite any other provision of this plan, filling or excavation of land (except as specified in subclause (2)) is permitted only with the consent of the Council. (2) Filling or excavation of land may be carried out without the consent of the Council but only where the development will, in the opinion of the Council, not significantly affect the natural and existing built environment.

7 On or about 27 and 28 September 2004, the first respondent and the second respondent carried out or caused to be carried out the placement of fill ("the Unauthorised Development") on the Land.

8 The Unauthorised Development constituted development that required consent from the Council under cl.11 of the GLLEP.

9 The Council has never granted consent for the Unauthorised Development.

10 The Council has never formed, and does not now hold, the opinion that the Unauthorised Development will not significantly affect the natural and built environment.

Carry Out Development Not in Accordance with a Development Consent

11 On 18 February 1997 the Council granted development consent for a 24 lot subdivision of land which included the Land ("the 1997 Development Consent").

12 Condition 9 of the 1997 Development Consent provided, inter alia, as follows: All engineering works being provided to serve all lots with the works complying with Council's Engineering Guidelines … No engineering works are to commence on the development until detailed design plans have been submitted to and registered by Council … The work is to be completed in accordance with the registered plans prior to release of the final subdivision plan. Included in the engineering works is to be the following: (a) the provision of kerb and gutter, ancillary drainage, … (g) Provision of stormwater drainage pipes, open drainage swales, channels for the conveyance, within public roads, public reserves, or adjoining land, of stormwater from the development to a discharge outlet approved by Council. (h) An interallotment drainage system for all lots that cannot drain to the street. (i) Details of drainage ponds within allotments that are to be dedicated as public reserves.

13 In or about February 2000, a road and drainage design and specification was provided to the Council in accordance with condition 9 of the 1997 Development Consent.

14 The plan referred to in the preceding paragraph was registered by the Council pursuant to condition 9, as plan number 1R/346 ("Plan 1R/346").

15 Plan 1R/346 shows the Land as a drainage reserve having an approved finished RL of -0.4. The area is marked with a notation which says:

16 The Unauthorised Development has not been carried out in accordance with Plan 1R/346 and is in breach of condition 9 of the 1997 Development Consent.

The Land has been filled, when it should have been constructed as a drainage reserve and excavated to a finished RL of -0.4, with 1:6 batters.

17 By reason of the matters pleaded in paragraphs 1-7 and 11-16 above, the first and second respondent have carried out work which is not in accordance with the 1997 Development Consent.

18 By reason of the matters pleaded: a) in paragraphs 1-10 above; and/or b) in paragraphs 11-16 above, the first respondent and the second respondent have carried out or caused to be carried out development in breach of s.76A of the Environmental Planning and Assessment Act 1979."

10 On the basis of each of these admissions of the respondents, I make findings in accordance with each of these paragraphs of the points of claim in each of the proceedings. I find, therefore, that: (a) in the clearing proceedings:

(i) the respondent has cut down, topped, lopped, removed or wilfully destroyed vegetation within an area depicted as a cleared area on the survey of Rennie Golledge Pty Limited ("the cleared area") on land known as Golden Ponds Public Reserve, Forster and described as Lot 23 in DP 843479 ("the land"), without the consent of the Council, in breach of cl 10(2) of Great Lakes Local Environmental Plan 1996 and the Environmental Planning and Assessment Act 1979 ;

(ii) The respondent has cleared native vegetation on the land within the cleared area in breach of s 21 of the Native Vegetation Conservation Act 1997; and

(iii) The respondent has picked plants on the land within the cleared area that are part of an endangered ecological community, namely Swamp Sclerophyll Forest on Coastal Flood Plains of the NSW North Coast, Sydney Basin and South-East Corner Bioregions, in breach of s 118A(2) of the National Parks and Wildlife Act 1974; and

(b) in the filling proceedings, the first and second respondents have carried out development being the placement of fill upon certain land off Annecy Court, Amanda Crescent and Kenrose Street, Forster, being part of Lot 91 in DP 1059068, formerly Lot 25 in DP 847246, without the consent of the Council in breach of s 76A(1) of the Environmental Planning and Assessment Act 1979. 11 I now turn to deal with the issue of what orders are appropriate to remedy and restrain the breaches I have found above. Orders to remedy and restrain breaches found 12 In each of the statutes that I found to be breached by the respondents, any person - which includes the Council - can bring proceedings in the Court for an order to remedy or restrain a breach of the statute: see s 123(1) of the Environmental Planning and Assessment Act 1979; s 63(2) of the Native Vegetation Conservation Act 1997; and s 176A(1) of the National Parks and Wildlife Act 1974. The Court, upon finding that a breach of the statute has occurred (any such finding being made on the evidence to the civil standard of proof of on the balance of probabilities), has a wide discretion to make such order as it thinks fit "to remedy or restrain the breach" so found. This enables the Court "to mould the manner of its intervention in such a way as will best meet the practicalities as well as the justice of the situation before it": see F Hannan Pty Limited v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 at 311. The discretion extends to not making any order if the Court does not think that any order is fit to remedy or restrain the breach: F Hannan Pty Limited v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 at 311. 13 The parties have reached agreement as to the injunctive orders that will restrain future breaches and remedy past breaches of the various statutes. In the clearing proceedings, these injunctive orders involve: (a) an order restraining future clearing by or on behalf of the respondent;

(b) appointment of a bush regenerator and an ecologist;

(c) the bush regenerator carrying out weed infestation control measures and removing timber within specified periods of time;

(d) the ecologist installing fauna nest boxes and carrying out a baseline survey within specified periods of time;

(e) the respondent paying the cost and expenses of the bush regenerator and the ecologist carrying out such work;

(f) the provision by the respondent to the Council of the instructions to and the reports from the bush regenerator and the ecologist;

(g) the relisting of the proceedings before the court after the carrying out of the above work to determine whether, and if so what, further injunctive orders should be made by the Court; and

(h) granting liberty to the parties to apply to the Court to revoke, vary or supplement these orders. 14 In the clearing proceedings, these injunctive orders involve: (a) the respondents removing the fill placed on the land;

(b) the respondent completing construction of a wetland in the southern part of the land (the southern wetland) in accordance with a plan and a letter annexed to the draft orders;

(c) the respondent giving notice to the Council prior to carrying out such works and permitting officers of the Council to be present during the carrying out of such works;

(d) the relisting of the proceedings before the Court after the carrying out of the works to determine whether, and if so what, further injunctive orders should be made; and

(e) granting liberty to the parties to apply to the Court to revoke, vary or supplement the orders. 15 I find that these injunctive orders, agreed to between the parties, are in fact appropriate to restrain and remedy the breaches of the various statutes that I have found above. 16 The Council submits, however, that in addition to the Court making these injunctive orders, the Court should make declarations in terms of the findings I have made above of the breaches by the respondents of the various statutes. The respondents contest the appropriateness of the Court making such declarations. 17 The Council submits that the declarations should be made for both procedural and substantive reasons. The procedural reason is essentially that the regime agreed to by the parties, and found by the Court to be appropriate, involves the respondents undertaking work in the short and mid term and then returning to the Court to determine any further injunctive orders. The Council has concerns, arising from the respondents' past conduct and statements, that the respondents may not undertake the works that would be the subject of the injunctive orders either properly or at all, and further that the individual respondent may leave the country to go to Italy and may not return on the return date before the Court. The Council is concerned that if such concerns were to be realised, the Council would be disadvantaged procedurally in circumstances where the Court has not made declarations that the respondents have breached the various statutes. 18 The substantive reason advanced by the Council is that it is appropriate, having regard to the seriousness of the breaches, that there be a public pronouncement by the Court, in the form of declarations, that the respondents have breached the various statutes. The respondents submit:

"Where the matter involves 'the suit of the statutory authority which exists to regulate an industry' the Court will now grant declaratory relief in an appropriate case: Australian Securities & Investment Commission (ASIC) v Sweeney [2001] NSWSC 114 at [31]; Corporate Affairs Commission of NSW v Transphere Pty Ltd (1988) 15 NSWLR 596 at 603 and 609 (Young J). Such declarations should be made because 'it is in the public interest that the declarations sought by the regulatory authority be granted to publicly expose and denounce on behalf of the community the unlawful behaviour in which the respondents have engaged...": Australian Securities & Investment Commission (ASIC) v Atlantic 3 Financial (Aust) [2006] QSC 132 at [52] (5 June 2006)."

19 Whilst the Court would have jurisdiction to make declarations that the respondents have breached the planning or environmental statutes in question in this case, I have determined, as a matter of discretion, that declarations would not be appropriate in the circumstances of this case. 20 First, the making of a declaration by itself would not have any practical effect in the circumstances of this case. A declaration that a breach of a statute has occurred does not have any constitutive effect - it does not bring about any change in the rights or duties of the parties. 21 Secondly, declarations of breach of the statutes are not necessary in order for the Court to have jurisdiction to make other orders including the injunctive orders to remedy or restrain breaches of the statute. The Court can make the injunctive orders agreed to by the parties and found by the Court to be appropriate without first making declarations that the respondents have breached the statutes. The situation in this case is to be contrasted to the regime under the Corporations Act 2001, considered in ASIC v Rich (2005) 50 ACSR 500, where the Court can only make consequential orders of a pecuniary penalty order or a disqualification order once a declaration of breach of the statute has been made under s 1317E of the Corporations Act. 22 Thirdly, a declaration of breach of a statute by itself neither remedies past breaches of the statute nor restrains any future breaches of the statute. Only the injunctive orders, agreed to by the parties and found by the Court to be appropriate to be made, will achieve the consequences of remedying the past breaches and restraining future breaches of the statutes. 23 Fourthly, care must be taken not to use a declaration of breach of a statute in civil enforcement proceedings as a substitute for a criminal prosecution. It is not appropriate for the Court in the exercising of its civil enforcement jurisdiction to punish wrong-doers under the guise of remedying a breach: Liverpool City Council v Roads Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265 at 280. A declaration of breach of a statute in civil enforcement proceedings is not to be equated with the entry of a conviction upon a finding of guilt in a criminal prosecution. The latter does have an effect on the person, including by creating a criminal record for the person, which may have external consequences for that person. A declaration of breach of a statute in civil enforcement proceedings does not have such consequences. 24 The Council could have brought criminal prosecutions in respect of each breach of the statutes but elected not to do so. The reasons why the Council undertook this course are perfectly understandable and related to the greater range of remedial relief available in civil enforcement proceedings compared to that available in criminal prosecutions and to the lower standard of proof in civil enforcement proceedings compared to criminal prosecutions. Nevertheless, that election to bring civil enforcement proceedings having been made, the civil enforcement proceedings should not be now used as a substitute for criminal prosecutions. 25 I accept that a legitimate purpose of civil enforcement proceedings is for there to be a finding by the Court and through its judgment a public pronouncement that a breach of the law has occurred by the respondents. However, this effect can be achieved by the Court making findings in the judgment of the Court, which, of course, is a public document. The Court's judgment will suffice to publicly expose and denounce on behalf of the community the unlawful behaviour in which the respondents have engaged. I have set out above in full each of the findings of the Court, including those that have been admitted in the points of claim, together with the consequences that flow from those findings as to the breaches of each of the statutes. This public pronouncement in the judgment suffices to achieve the purpose of public exposure and denouncement of the unlawful conduct of the respondents. 26 For these reasons, I decline to make the declarations sought by the Council. Costs

27 The Council seeks indemnity costs in respect of each of the clearing proceedings and the filling proceedings. The respondents concede that an order for costs in each of the proceedings should be made against the respondents but submit, however, that any order for costs should be made on a party and party basis only and, further, that certain items of the Council's costs should be excluded from any order of costs. These items relate to the costs of expert witnesses. 28 The Council submits that the nature of the breaches of the statutes are sufficiently serious and that the conduct of the respondents leading up to the bringing of the civil enforcement proceedings by the Council was sufficiently unreasonable as to warrant an order for indemnity costs in each of the proceedings. 29 An order for indemnity costs is not to be made except where there is some special or unusual circumstance in the case. In Colgate Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Sheppard J said at 233:

"4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course...there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice." See also Harrison v Schipp; Cameron & Anor v Schipp [2001] NSWCA 13 at [139], Mead v Watson (as Liquidator for Hypec Electronics) (2005) 23 ACLC 718, [2005] NSWCA 133 at [8]-[10]. 30 In Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Mason P said at 616 that: "The discretion to depart from the usual "party and party" basis for costs is not confined to the situation of what Gummow J described as the "ethically or morally delinquent party"...nevertheless the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation. This is because party and party costs remain the norm, although it is common knowledge that they provide an inadequate indemnity." 31 I do not consider that there is any special or unusual feature in the circumstances of this particular case justifying a departure from the usual basis for an order of costs that is on a party and party basis. First, the nature of each of the breaches of the statues in question is not a special or unusual feature by itself. Costs are not to be used for punitive purposes. There is no rule that as between the differing bases for ordering costs - party and party, solicitor and client, and indemnity - the selection of the basis depends upon the seriousness of the breach of statute the subject of the civil enforcement proceedings. The seriousness of the breach of the statute cannot be used as an aggravating circumstance warranting departure from ordering costs on the usual basis, namely party and party basis, to another basis such as indemnity basis. 32 Secondly, the conduct of the respondents before each of the proceedings was commenced by the Council in these cases is also not such as to warrant departure from a party and party basis for costs. The conduct that constituted the breach in each case took place some considerable period of time before each of the sets of proceedings was commenced. In the case of the clearing proceedings, the clearing took place in two episodes, one in December 2004 and the second in February 2005. The clearing proceedings were not commenced by the Council until 22 December 2006. In the filling proceedings, the filling took place on 27 and 28 September 2004. The filling proceedings were not commenced by the Council until 21 March 2007. There was an interview conducted by the Council with the respondents and the respondents' advisers. Such interview took place on 26 October 2005. In that interview, the respondents' advisers had said to the individual respondent, Mr Lani, that the adviser had had meetings with certain Council officers and the adviser endorsed the suggestion of one of the Council officers that Mr Lani should speak to the Council about rehabilitating the cleared land. Mr Lani rejected the adviser's suggestion that he should talk to the Council about rehabilitating the cleared land. Nevertheless, subsequent to that interview, there was no further communication between the Council and the respondents before service of the originating process in the first commenced set of proceedings, being the clearing proceedings. Of importance, the Council did not send to the respondents a letter before action, which, in plain terms, set out the particular remedial orders with which the Council required the respondents to comply. 33 Accordingly, before the commencement of the Class 4 proceedings, there was no extant offer which the respondents could accept and thereby obviate the need for the Council to bring the civil enforcement proceedings. 34 In the clearing proceedings, the Council had prepared before commencement of the proceedings and filed on or shortly after commencing the proceedings, the great bulk of its evidence. The balance of the Council's evidence was filed shortly after the first return date of the Class 4 application. The respondent had required the Council to file all of the evidence upon which it relied before they pleaded to the Council's case. After the Council had filed the last of its evidence, the solicitors for the respondent, in the clearing proceedings, indicated the respondent's preparedness to admit the breaches alleged by the Council and to submit to orders remedying those breaches, however it sought further time to seek expert advice as to the orders that would be appropriate. 35 Similarly in the filling proceedings, after the Council had filed all of the evidence upon which it sought to rely, the respondents, through their solicitor, indicated that they would remove the fill, after first making application to the Council through the development application process, for consent to use the filled allotment. However, upon the Council rejecting this proposal, the respondents, through their solicitor, withdrew the suggestion of lodging a development application for the filled land and instead agreed to remove the fill. 36 These circumstances in each proceeding do not disclose the degree of unreasonable conduct that would be required in order for the Court to find that it is appropriate to make an order for costs on an indemnity basis. Rather, the respondent's conduct has the hallmarks of usual litigation. 37 In these circumstances, I do not consider a case has been made out for the Court departing from the usual position that costs be ordered on a party and party basis. 38 The respondents seek to have excluded from the costs order certain items relating to the use by the Council of experts. In the clearing proceedings, the respondents seek to have excluded the quite substantial fees of experts (estimated in a letter from the Council's solicitors to the respondents' solicitors of 31 August 2007 at $55,154.22) and the associated components of counsel's fees and solicitor's profit, costs and disbursements, those costs that relate to such experts' work. In addition, the respondents submit that the Court should state, so that there would be no doubt in any subsequent assessment of the costs, that the costs do not include the costs of Council officers who gave evidence in the proceedings. As to this item, there is no contest between the parties. The Council properly concedes that the Council officers' costs would not form part of the legal costs of the proceedings. 39 In the filling proceedings, the respondents submit that, again, the Council officers' costs should not be included and that the fees of experts who were retained to advise in relation to the wetlands, but whose evidence was not relied upon by the Council in the proceedings, should be excluded from the costs. In a letter also dated 31 August 2007 from the Council's solicitors to the respondents' solicitors, those experts' fees were identified as relating to a company, Australian Wetlands Pty Limited, in the sum of $4,500 and Mr Geoff Sainty of $3,100. The Council, again quite properly, accepts that the Council officers' costs would not be claimed as legal costs of the concedes that the Council officers' costs would not form part of the legal costs of the proceedings and also that the experts' fees associated with Australian Wetlands Pty Limited and Mr Sainty would not be claimed as part of the Council's legal costs. As a result of those concessions, there is no dispute in relation to the items that would be claimed as part of the costs of the filling proceedings. 40 I return to deal with the clearing proceedings and the costs of the expert witnesses. In my opinion, it is entirely appropriate that the Council be reimbursed for the costs of the experts and in the full amount claimed. The Council was entitled to file evidence relevant to establishing both the breach of the various statutes claimed and the orders that would be appropriate to remedy or restrain the breaches. As I have indicated above, three statutes were breached by the respondents in clearing the public reserve. In order to establish a breach of each of those statutes, different elements need to be proved. For example, under the National Parks and Wildlife Act, the Council needed to establish that the vegetation that was cleared on the land constituted an endangered ecological community. That involves adducing evidence as to each of the descriptors of the endangered ecological community in the Scientific Committee's final description of that community. The descriptors of the relevant endangered ecological community in this case, as is common in most of the descriptions of endangered ecological communities, included both floristic and edaphic (soil) descriptors. The Council obtained evidence on the flora that was on the land and the satisfaction of that flora with the floristic description in the Scientific Committee's description of the endangered ecological community from a botanist (Mr T Peake) and on the soils of the land and their satisfaction with the edaphic descriptors of the Scientific Committee's description of the endangered ecological community from a geomorphologist/soil scientist (Dr P Hazelton). The obtaining of evidence from these experts on these matters was appropriate. 41 In relation to remedying the breach, it was relevant to consider the ecological impact that had been caused by the breach. The clearing of an endangered ecological community does not only affect the flora that constitutes that community, it also affects the fauna that depend, in one way or another, on that flora. An ecological community is an assemblage of species of both flora and fauna. In order to remedy damage caused to an endangered ecological community by reason of clearing, measures need to be taken not only to provide for the regeneration or replacement of the flora, but also to provide remedial relief for the fauna that once depended upon the flora that has been cleared. Trees, for example, provide habitat for fauna. The removal of the trees removes the habitat of fauna. Whilst trees can be regenerated or replanted, it takes time before the trees are of a size such as to again provide adequate habitat services for fauna. In the meantime, measures may need to be taken. For arboreal mammals and birds, the provision of nest boxes is one measure that can be taken to provide remedial relief. The Council adduced evidence from Mr S Cox, an expert in fauna, on the adverse effect the clearing of the vegetation had had on threatened fauna species and particularly arboreal mammals and the measures that would be appropriate to remediate the damage caused. This included the provision of nest boxes. Again, the adducing of this evidence was appropriate. 42 The timing of the Council's provision of such evidence is also, in my opinion, appropriate. The Council obtained the evidence of these persons prior to the commencement of the proceedings so that the evidence was available at, or shortly after, the originating process was filed with the court. It would be an undesirable practice that persons, including regulatory authorities, commence proceedings by way of civil enforcement without first ensuring that they have evidence firstly to, establish each and every element said to constitute the breach of the statute and, secondly, that there are orders that are appropriate to remedy or restrain the breaches established. As was said by Cripps J in Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (No. 1) (1991) 74 LGRA 265 at 277-281 and (No. 2) (1992) 75 LGRA 210 at 212, there are two components that a person bringing civil enforcement proceedings must establish: first, that a breach of the relevant statute has occurred and, secondly, that there is an order that is appropriate to remedy or restrain that breach. It is never sufficient to merely establish breach and not obtain appropriate relief to remedy or restrain that breach. In this case, the Council ensured by the filing of its evidence that it met each of these two components and established not only the breaches but also addressed the orders that would be appropriate to remedy or restrain the breaches. 43 In these circumstances, it would not be appropriate to disentitle the Council to the fees of the experts it obtained to prove its case.

Orders 44 For these reasons, it is appropriate that the court make orders in terms of those agreed to by the parties. The draft orders that have been provided to the court will need to be adjusted to incorporate the reasons I have given above and I will allow the parties an opportunity to do that. The time period for the return of the proceedings before the court should be five months. This would allow one month after the last of the steps in the orders. In this period the parties can consider the effectiveness of the orders that have been made and negotiate between them as to what might be appropriate future regime. If the parties are not able to reach agreement, then, of course, the court will rule upon the appropriate future orders that should be made when the matter comes back before the court. In relation to costs, for the reasons I have said, there should be an order for costs in favour of the Council in each case. It can be simply stated and there would not be a need to specifically state in the court order the matters that I have dealt with above because that can be noted by the assessing officer and, of course, in the Council in submitting its bill. 45 In those circumstances, I will adjourn the matter to Wednesday 17 October 2007 at 9.15am before me. 46 On 17 October 2007, the Court made the following orders:

ORDER: (a) that, except to the extent necessary to comply with these orders, the respondent, by himself, his servants and agents, be restrained from: (i) cutting down, topping, lopping, removing or wilfully destroying vegetation on land ("the Land") known as Golden P onds Public Reserve, Forster and described as lot 23 in DP 843479, other than in accordance with the consent of the applicant; (ii) clearing native vegetation on the Land contrary to section 12 of the Native Vegetation Act 2003; and/or (iii) picking plants on the Land that are part of the endangered ecological community Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South-east Corner Bioregions contrary to section 118A(2) of the National Parks and Wildlife Act 1974.

(b) that the respondent, within two (2) weeks of the date of these orders, retain the following experts, being experts acceptable to the applicant: (i) a Bush Regenerator; (ii) an Ecologist;

(c) that the respondent cause the Bush Regenerator to complete the following works: (i) within two (2) months of the date of these orders, immediate weed infestation control measures within the area ("the Cleared Area") depicted as "CLEARED AREA" on the survey of Rennie Golledge Pty Ltd which is annexure "A" to these orders and the area within a distance of 30m from the boundary of the Cleared Area using techniques which the bush regenerator determines as appropriate to manage infestations of potentially dominant weed species, including but not limited to lantana ( Lantana camara ) and bitou bush ( Chrysanthemoides monilifera subsp rotundata ); and (ii) within one (1) month of the date of these orders, removal of the piles of timber from the Cleared Area.

(d) that the respondent will cause the Ecologist to complete the following works: (i) within one (1) month of the date of these orders, the erection of eleven (11) nest boxes on the Land, outside the Cleared Area, but within 30m of the boundary of the Cleared Area. (ii) within two (2) months of the date of these orders, the carrying out of the comprehensive baseline year 0 survey, in accordance with the vegetation monitoring program as set out in annexure "B" to these orders and the submission of a report of this survey to the applicant ("the baseline year 0 report").

(e) that the respondent will provide copies to the applicant of all retainers with, and instructions given to, the Bush Regenerator and the Ecologist, at the same time(s) as they are given to the Bush Regenerator or the Ecologist, as the case may be. (f) that, in the event that the Bush Regenerator or the Ecologist is unable to continue to act under these undertakings, they may be replaced by the respondent engaging a replacement expert acceptable to the applicant to perform the relevant functions under these orders. 2. DIRECT that Schedule 7 to the Uniform Civil Procedure Rules applies to the performance of the duties of the Bush Regenerator and the Ecologist, as though they were a parties' single expert witness in these proceedings. 3. ORDER, notwithstanding Order 2, that the respondent pay all of the professional fees, costs and expenses of the Bush Regenerator and the Ecologist. 4. RESERVE liberty to all parties to apply for any further or other orders (including orders revoking or varying or supplementing or replacing these orders in whole or part, upon sufficient cause, such as unforseen or changed circumstances, being shown). 5. GRANT Liberty to apply on five (5) days notice. 6. ORDER that the respondent pay the applicant's costs of and incidental to these proceedings, as agreed or assessed, and that the applicant have leave to proceed to an assessment forthwith. 7. ORDER that the proceedings (including in relation to the question of what orders should be made for the further remediation of the Land) be adjourned to 20 March 2008 at 9.15am before Preston CJ. To the Respondent, Nino Lani (also known as Rinaldo Lani): TAKE NOTICE that if you disobey these orders, you will be liable to imprisonment and sequestration of property. DATED: 17 October 2007 ….………………………………. By the Court

ORDER that the respondents complete the following works upon the land ("the Land") off Annecy Court, Amanda Crescent and Kenrose Street, Forster, being part of Lot 91 in DP 1059068, formerly Lot 25 in DP 847246, within four (4) months of the date of these orders:

(a) remove the fill from the area marked in yellow on annexure "A" to these Orders;

(b) complete construction of the "southern wetland" as depicted on the plan which is annexure "B" to these Orders;

(c) complete all works relating to the southern wetland as described on pages 3 and 4 of the letter which is annexure "C" to these orders;

(d) give notice to the applicant prior to the carrying out of the works referred to in this Order and permit the officers of the applicant to be present upon the Land during the carrying out of such works.

RESERVE liberty to all parties to apply for any further or other orders (including orders revoking or varying or supplementing or replacing these orders in whole or part, upon sufficient cause, such as unforseen or changed circumstances, being shown).

ORDER that the respondent pay the applicant's costs of and incidental to these proceedings, as agreed or assessed, and that the applicant have leave to proceed to an assessment forthwith.

ORDER that the proceedings be adjourned to 20 March 2008 at 9.15am before Preston CJ.

To the Respondent, Nino Lani (also known as Rinaldo Lani):

TAKE NOTICE that if you disobey these orders, you will be liable to imprisonment and sequestration of property.

To the Respondent, Lampo Pty Limited and its directors:

TAKE NOTICE that if you disobey these orders, Lampo Pty Limited and its directors will be liable to sequestration of property and the said directors to imprisonment.

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.

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Judgment (128 paragraphs)

Cases Cited (9)

Cited By (47)