Hanwood Pastoral Co Pty Ltd v D-G, Dept of Natural Resources

10 Many of the submissions in these proceedings were devoted to an explanation of the statutory regime for clearing under the Act. For convenience the Court sets out the relevant parts of the legislation hereunder. 11 The objects of the Act are set out in s 3. Those objects relevantly include: (a) to provide for the conservation and management of native vegetation on a regional basis, and (b) to encourage and promote native vegetation management in the social, economic and environmental interests of the State, and … (f) to prevent the inappropriate clearing of vegetation; (g) to promote the significance of native vegetation, in accordance with the principles of ecologically sustainable development. 12 "Clearing" is defined in s 5 of the Act to include "cutting down, felling, thinning, logging or removing native vegetation"; "killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation"; "severing, topping or lopping branches, limbs, stems or trunks of native vegetation"; or "substantially damaging or injuring native vegetation in any other way". 13 "Native vegetation" is defined in s 6 of the Act to include trees, understorey plants, groundcover and plants occurring in a wetland. 14 Sections 9 and 10 of the Act set out land which is excluded from the operation of the Act. Section 12 sets out clearing which is excluded from the operation of the Act. 15 Part 2 of the Act comprises ss 13-23 and sets out the provisions relating to the development consent process for clearing native vegetation. Section 14 provides: For the purposes of the EPA Act, the Minister is the consent authority for any development application made under that Act for any clearing that requires development consent because of this Part. 16 Section 15 relevantly provides: (1) If development consent is, because of this Part, required to clear native vegetation or any protected land, that development consent may be obtained by the Minister making a determination, in accordance with Part 4 of the EPA Act, to grant development consent. (2) For the avoidance of doubt, Part 4 of the EPA Act applies to and in respect of that development consent in the same way as it applies to and in respect of development consent that may be required by an environmental planning instrument. 17 Section 17 of the Act makes it a criminal offence to contravene any provision of Pt 2. Section 21, which is the critical section in these proceedings, is set out at [7] above. Applicant's submissions 18 Hanwood submits that clearing constitutes "development" as defined in s 4 of the EP&A Act. The definition of "development" contained in s 4 relevantly includes: (b) the sub-division of land, and … (d) the carrying out of a work, … 19 Hanwood submits that the consent includes clearing as part of the necessary work to achieve the approved subdivision, and says that the Council was entitled to authorise clearing in granting consent to the subdivision. It refers to s 81A(3) of the EP&A Act which provides: (3) Subdivision of land A development consent that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems. 20 Hanwood says that the consent authorised the clearing of land and was granted pursuant to Pt 4 of the EP&A Act. As such, the clearing on the land was carried out "in accordance with a development consent that is in force", as required by s 21(2)(a) of the Act. 21 Hanwood submits that s 21(2)(a) of the Act is clear and unambiguous on its face and that its interpretation is not inconsistent with any other provisions of the Act. It refers to s 14 of the Act which provides that the Minister is the consent authority for "any clearing that requires development consent because of this Part". Hanwood says it did not require development consent because of Pt 2 of the Act because it already had the consent which authorised clearing. 22 Hanwood submits that the words contained "because of this Part" contained in ss 14 and 15 indicate that if a development consent involving clearing was otherwise required and obtained, ss 14 and 15 would have no application. Section 21(2)(a) of the Act does not state that the development consent referred to must be issued under Pt 2 of the Act, and Hanwood says that any consent issued under Pt 4 of the EP&A Act satisfies that definition. 23 Hanwood submits that this interpretation is logical given the development assessment regime. Since s 15 provides that a development application is to be determined in accordance with the provisions of Pt 4 of the EP&A Act, any application for clearing made under Pt 2 of the Act would be considered against the same criteria as a consent issued by the Council. Both would require the same considerations under s 79C of the EP&A Act. The Native Vegetation Conservation Act does not specify any additional criteria for assessment except in respect of land subject to a regional vegetation management plan. As a result, no purpose would be served by having a further development application to the Minister, being determined with reference to identical considerations. 24 Hanwood submits that the Minister becomes the consent authority for the purpose of s 14 of the Act only where a development application is made specifically "for clearing". Hanwood submits that the proposed development is properly characterised as subdivision, to which the clearing is ancillary. In these circumstances, the development application is not "for clearing". It relies upon numerous authorities of the High Court, the Court of Appeal and this Court concerning the proper characterisation of a development application: see Shire of Perth v O'Keefe and Another (1964) 110 CLR 529; Penrith City Council v Waste Management Authority and Another (1990) 71 LGRA 376; Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157; Lyne and Another v Moree Plains Shire Council (1999) 110 LGERA 120; Moore and Another v Yarrowlumla Shire Council (2002) 120 LGERA 109; Logan-Bald Partnership v Byron Shire Council (2002) 123 LGERA 225 and Harden Bergia Pty Limited v Baulkham Hills Shire Council (2002) 125 LGERA 273. 25 Hanwood says that the principles of statutory construction referred to by the respondent apply only where a provision is ambiguous. Since s 21(2)(a) is plain and unambiguous on its face, the Court should not have regard to extrinsic materials to determine the meaning of the section.

Respondent's submissions 26 The respondent submits that the Hanwood's submissions are predicated upon a literal construction of s 21(2)(a). The respondent submits that the authorities indicate that a purposive approach should be adopted in preference to the literal approach. 27 The respondent submits that the primary object of statutory construction is to construe a provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355. The context, general purpose and policy of a provision and its consistency and fairness are better guides to its meaning than the logic with which it is constructed: see Project Blue Sky at 381, citing Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397. The respondent also relies upon R v Lavender (2005) 218 ALR 521 especially at [33] where the High Court states: This case provides an example of the importance of context in resolving questions of statutory construction. 28 The respondent says the proper approach to statutory construction is to begin by ascertaining the ordinary grammatical meaning of the words in question (see Corporate Affairs Commission of New South Wales v Yuill and Others (1991) 172 CLR 319) and then to consider whether this meaning gives effect to the purpose of the statute. If the literal interpretation would lead to a result which is incongruous, contrary to the objects of the statute, capricious or irrational, then it is to be abandoned. The respondent relies upon the observations in Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 305 per Gibbs CJ, at 311 per Stephen J and at 320-1 per Mason and Wilson JJ. 29 The respondent says this approach is also supported by s 33 of the Interpretation Act 1987 which expressly recognises the principle that a construction which furthers the purpose of a statute is to be adopted in preference to an interpretation which does not do so. 30 The respondent acknowledges that s 21(2)(a) of the Act does not specifically stipulate that a development consent issued by the Minister is required. However it submits that other provisions of the Act evince the intention that the Minister will be the consent authority with respect to any clearing of native vegetation. The respondent points particularly to s 14 which provides that the Minister is to be the consent authority for all development consents required because of Pt 2 of the Act. 31 The respondent also submits that the objects of the Act indicate that Pts 1 and 2 are intended to provide a regime for the assessment of native vegetation for which the Minister is the consent authority. It submits that the Act contains specific exemptions contained in ss 9, 10 and 12, and that apart from these exemptions the Act is intended to have universal application to the clearing of land in New South Wales. 32 In further support of its submission the respondent relies upon the introductory note to Pt 2 which relevantly provides: Introductory note. The object of this Part is to apply the development consent process under Part 4 of the EPA Act in relation to clearing native vegetation and clearing protected land. Division 1 contains general provisions dealing with the two development consent scenarios described below in this note. The Minister for Land and Water Conservation will be the consent authority in relation to development applications to clear native vegetation or to clear protected land. 33 The respondent submits that the Court can take the introductory note into account pursuant to s 34(2)(a) of the Interpretation Act and based upon the High Court's decision in Lavender. 34 Additionally the respondent submits that Hanwood's interpretation of s 21(2)(a) of the Act would be inconsistent with ss 10 and 11 of the Act. Section 10 exempts land in certain local government areas, as specified in Schedules 1 and 2 of the Act, from the Act. Section 11 enables a local government area to be inserted into Schedule 1 or 2 by the Minister "only if the Minister is of the opinion that adequate provision, consistent with the objects of this Act, has been made with respect to the conservation and management of native vegetation in that area through the operation of a local environmental plan applying to that area": s 11(3). The respondent says this section is a clear indication that local councils are only intended to have decision-making power with respect to clearing where the Minister has specifically exempted them from the provisions of the Act. The Council in this case has not been exempted. 35 The respondent also relies upon the explanatory memorandum, second reading speech and White Paper relating to the Act, which it says indicate an intention for the Minister to be the consent authority for all clearing. It says that pursuant to s 34(2)(e) and (f) the Court may take these into account in the interpretation of the Act. 36 The respondent points to the second reading speech by the Honourable J W Shaw, as well as that of the Honourable Mr Yeadon, the Minister for Land and Water Conservation, where he stated: As the Minister for Land and Water Conservation, I will be the consent authority for such clearing when it is required … 37 The respondent also relies upon a White Paper outlining the model for native vegetation management conservation in New South Wales which includes the following statement (at p 3): Development Consent There will be a single system for obtaining development consent for clearing where the proposed clearing is not consistent with a regional vegetation management plan or, where there is no plan, an exemption. The Minister for Land and Water Conservation will be the consent authority and no concurrence will be required from other authorities. 38 At p 9 the following statement appears: Any clearing outside the specifications of the approved Regional vegetation management plans ("RVMP"), or where a RVMP is not in place and the clearing is not exempted, will require assessment and development consent from the Minister for Land and Water Conservation under Part 4 of the EP&A Act. 39 At p 15 the following statement is made: The Minister for Land and Water Conservation will be the consent authority for clearing under the NVC Act. In determining an application for clearing, the Minister will consider the relevant matters in Part 4 of the EP&A Act. 40 The respondent also relies upon a chart printed at p 16 of the White Paper which shows that the ultimate decision maker in respect of clearing of native vegetation is to be the Minister. 41 The respondent submits that both the text of the Act and the extrinsic materials referred to above clearly show that it was intended that clearing of native vegetation could not take place without develop consent of the Minister. The respondent submits that Hanwood's interpretation of s 21(2)(a) would invest local councils with authority to grant permission to clear native vegetation. Such result would be clearly inconsistent with the purpose of legislation. 42 The respondent submits that Hanwood's attempt to distinguish between an application for clearing native vegetation as distinct from a development application which "involves clearing" is invalid and specifically contrary to the purpose of the Act. Such construction could lead to absurd results. For example a subdivision application which "involved" extensive clearing would not require consent of the Minister but a development application for the clearing simpliciter of a small area would require Ministerial consent. 43 The respondent also argues that, because of the objects of the Act, the Minister would give different weight to considerations under s 79C of the EP&A Act in determining an application for clearing. Accordingly an assessment under Pt 4 of the EP&A Act by the Council would not remove the need for an assessment carried out by the Minister. 44 The respondent further relies on the statement of Bignold J in Director-General, Department of Land and Water Conservation v Jackson and Others (2003) 125 LGERA 304 wherein his Honour said that in cases involving clearing of native vegetation (at 312): … the principal form of control that is commonly employed is the requirement that development consent granted by the Minister in accordance with Pt 4 of the Environmental Planning and Assessment Act 1979 (NSW) (the EP&A Act) be obtained to the clearing of native vegetation or the clearing of protected land without which consent the clearing is prohibited. 45 Although this decision was disapproved by the Court of Criminal Appeal in Director General, Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242, the respondent submits that the Court's disapproval did not attach to his Honour's findings in relation to the need for consent. Findings 46 The land is not the subject of a regional vegetation management plan nor is it exempted from the Act by s 9 or s 10 of the Act. Accordingly, the provisions of Pt 2 apply to the land. Statutory Interpretation 47 In Kingston and Another v Keprose Pty Ltd (1987) 11 NSWLR 404 McHugh JA (as he then was) said at 423: A purposive and not a literal approach is the method of statutory construction which now prevails: cf Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 291. In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpsoe [sic] of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act. The Acts Interpretation Act 1901 (Cth), s 15AA, and the Interpretation Act 1987 (NSW), s 33, both require this approach to statutory construction. 48 In Project Blue Sky, under the heading "Conflicting statutory provisions should be reconciled so far as is possible", the majority of the High Court said (at 381): The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: see Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole": Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. 49 In Mills v Meeking & Another (1990) 169 CLR 214 Mason CJ and Toohey J said (at 223): If the language of a statute is ambiguous or uncertain, a risk of injustice will bear upon the construction to be given to words used. But, if the language is not ambiguous or uncertain, a court will apply its ordinary and grammatical meaning unless to do so will give the statute an operation which obviously was not intended: see generally Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation ; also Catlow v Accident Compensation Commission . This legislation is not relevantly ambiguous or uncertain. 50 The above approach was adopted in Thompson v His Honour Judge Byrne and Others (1999) 196 CLR 141 at 158 where Gaudron J said: It is a fundamental rule of construction that, where the words of a statute are clear, they should be given their natural and ordinary meaning unless that would result in absurdity, conflict with some other provision of the statute or lead to a "result which cannot reasonably be supposed to have been the intention of the legislature". Were it otherwise, those who are subject to the law would find it impossible to know on what basis they should conduct their affairs. 51 In The King v Adams (1935) 53 CLR 563, the High Court determined that, in respect of penal statutes where language is uncertain, the legislation should not be construed as extending any penal category: see at 567-8. 52 The above authorities provide guidance as to the appropriate approach to statutory construction. In this case, the respondent submits the applicant's interpretation of s 21 would be inconsistent with the Act as a whole. Accordingly the Court needs to consider the Act in its entirety and the purposes for which it was enacted. Intention of the Act 53 The White Paper for the Native Vegetation Conservation Act states that under the proposed Act: A person will be able to undertake clearing in accordance with: · a regional vegetation management plan; · an exemption; or · a development consent granted by the Minister for Land and Water Conservation. It is noted that the White Paper and Exposure Draft Bill on the Integrated Development Assessment system released by the Department of Urban Affairs and Planning in February 1997, proposes changes to the operation of Part 4 of the EP&A Act. It is intended that the assessment and consent system applicable under the NVC Act be consistent with that proposed in the Integrated Development Assessment system. 54 The second reading speech of Mr Yeadon, Minister for Land and Water Conservation, shows that there was to be a close association between the assessment of clearing under the Act and the development consent process under the Environmental Planning and Assessment Act 1979. Mr Yeadon said: The development consent process under the Environmental Planning and Assessment Act will be used as the basis of controlling clearing in accordance with the proposed Act. That link is important as it allows clearing of native vegetation to be linked with the environmental planning system. This bill has been designed to remove unnecessary duplication and provide a one-stop shop for landholders seeking advice on requirements relating to clearing. As the Minister for Land and Water Conservation I will be the consent authority for such clearing when it is required. When land is managed under a legislative regime providing full protection for native vegetation values, such as a national park or land mapped as a coastal wetland according to State Environmental Planning Policy 14, the bill does not apply. … … Where there is not a [regional vegetation management] plan in place, development consent for clearing will be required for most forms of clearing. However, certain clearing associated with day-to-day farming activities will be exempt from the need to obtain development consent under the Act. Interpretation of Pt 2 of the Act 55 The amendments to Pt 4 of the Act referred to in the White Paper were specifically designed to remove duplication and improve the planning process. The second reading speech also indicates an intention to avoid duplication. The Court cannot accept the submission of the respondent that the intention of the Act was to require a developer of land to obtain two consents, one consent being specifically for clearing. 56 However it is also apparent from the above statements that the Act intended that consent of the Minister be sought for any clearing carried out in New South Wales, except any clearing specifically exempted by the Act. This intention is prima facie expressed in s 14 of the Act which renders the Minister as the consent authority for a development application for clearing that requires consent "because of this Part". 57 By s 21 which is contained in Pt 2 of the Act, a person must not clear native vegetation without a development consent which is in force, except in accordance with the a native vegetation code of practice, on State-protected land, or on land to which a RVMP applies. 58 The provisions of s 21 suggest that s 14 should be construed as requiring the consent of the Minister to any development application involving clearing, except in accordance with the a native vegetation code of practice, on State-protected land, or on land to which a RVMP applies. The applicant resists this interpretation and submits that in accordance with the principles of characterisation, a development application which merely involves clearing as part of a development should not properly be understood as a development application "for any clearing" for the purposes of s 14. It says that s 14 requires Ministerial consent only for applications relating solely to clearing. 59 Several considerations militate against the applicant's submission. Firstly, the Court considers that it was the intention of the Act that the Minister be the consent authority for all clearing in the state. Secondly, the word "any" contained in s 14 suggests to the Court that the section was intended to have operation in respect of all clearing of native vegetation otherwise than as excepted by the Act. Thirdly, the Court notes that in Lyne v Moree Plains SC, Pearlman J considered that the principles of characterisation were inapplicable to applications for subdivision. In that decision, her Honour said (at [34]) that: … the authorities relating to the characterisation of the use of land do not apply, because "subdivision" is defined as a matter of conveyancing, not of use. It follows that the development application seeks consent for a development which is not a "use" but a "subdivision", and it cannot be said that the sewerage removal works constitute a use of the specified allotments which is subservient to the dominant use of the specified allotments for the purpose of subdivision. 60 On the basis of the above, the Court considers that s 14 requires the consent of the Minister to any development application which involves clearing. If this construction were correct, the consent relied upon by the applicant would be invalid. However since neither party made submissions directly pertaining to this construction of s 14, and since for the reasons below it is unnecessary to decide this issue, the Court makes no finding concerning the effect of s 14 of the Act. Definition of development consent 61 Section 21(2)(a) provides that a person must not clear native vegetation except in accordance with "a development consent that is in force". "Development consent" is defined in s 4 of the Act and includes any consent granted pursuant to Pt 4 of the EP&A Act. It follows that a consent granted by a consent authority other than the Minister pursuant to Pt 4 of the EP&A Act would satisfy the definition. 62 As already considered, the Court obvious intention of Parliament was to require all consents for the clearing of native vegetation to be issued by the Minister. However, this is not apparent on the face of s 21. Substantial monetary penalties, including daily penalties, may result from the failure to comply with s 21: see s 17 of the Act and s 126 of the EP&A Act. In these circumstances, the lack of specificity leads to the conclusion that by virtue of the definition contained in s 4 of the Act, any valid consent issued under Pt 4 of the EP&A Act satisfies the requirements of s 21. Whilst the Court has been urged to imply that the words "issued by the Minister" should be incorporated into s 21(2), the Court is unable to do so. In Director-General, Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242 the Court of Criminal Appeal, in holding that Bignold J in Jackson erred by inserting words to give effect to the apparent intent of the legislation, stated that s 12(f) of the Act: should have been applied according to its ordinary meaning, reading the ambiguity raised against the prosecutor in the accordance and policy underlying such methods of construction explained by the High Court in Adams. 63 Such a construction would not leave the respondent without recourse. It is open to it to challenge the validity of the consent upon which the applicant relies. Until such consent is determined invalid, the applicant holds a valid consent under Pt 4 of the EP&A Act, as required by s 21(2) of the Act. Had the legislature intended that the consent referred to in s 21(2) of the Act be one issued by the Minister, it will be necessary to amend the legislation. Orders 64 The Court makes the following declaration and orders: 1. A declaration that the clearing of native vegetation on lots 3, 4 and 5 of DP 1042140 in accordance with development consent 150/596/76 dated 24 February 1998 issued by Cessnock City Council is not a contravention of s 21(2) of the Native Vegetation Conservation Act 1997. 2. A declaration that the Stop Work Order dated 9 September 2005 issued by the delegate of the respondent in respect of lots 3, 4 and 5 of DP 1042140 is void and of no effect. 3. An order setting aside the Stop Work Order dated 9 September 2005 issued by the delegate of the respondent in respect of lots 3, 4 and 5 of DP 1042140. 4. An order that the respondent pay the applicant's costs unless within 21 days of this date an application is made for a different order. 5. The exhibits be returned.

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