Landers v Director-General, Department of Infrastructure, Planning and Natural Resources

The applicant limited his case to the sole argument that the ploughing fell within the exemption in par (j) of sch 3 of SEPP 46. Schedule 3(j) reads:

SCHEDULE 3 - EXEMPTIONS Clearing of native vegetation for the purpose of the following:… (j) Regrowth. The removal of native vegetation, whether seedlings or regrowth, of less than 10 years of age if the land has been previously cleared for cultivation, pastures or forestry plantation purposes.

Both parties agreed that the onus of proof was on the applicant to establish the following two elements of the exemption in sch 3(j): (1) the native vegetation that was removed was seedlings or regrowth of less than 10 years of age; and (2) the land had been previously cleared for cultivation, pastures or forestry plantation purposes.

This exemption was considered by Lloyd J in Director-General of the Department of Land & Water Conservation v Pye [1998] NSWLEC 301. In that case, Mr Pye was prosecuted for clearing a total area of 235.7 ha of native shrubland at his property near Walgett by blade ploughing the area in mid-1997. Immediately prior to this clearing, there had been approximately 2,955,000 shrubs in the area that was blade ploughed. The prosecutor claimed that this clearing was done without development consent and contrary to SEPP 46. The defendant relied on the exemption in sch 3(j), asserting that what was removed in 1997 was regrowth, that it was regrowth of less than 10 years of age, and that there had been a previous clearing of trees from the land for the purpose of cultivation or pastures. Lloyd J held that the defendant had satisfied the onus on him of establishing on the balance of probabilities that the work carried out in 1997 fell within the exemption in sch 3(j). His Honour accepted the defendant's evidence that in 1988 the land was "a total wasteland". The land was bare because of a drought prior to 1988. There were then floods in 1988, 1989 and 1990 which produced a thick regrowth of native shrubs. His Honour held that all of this regrowth was less than 10 years of age when it was removed in 1997. In respect of the second element of sch 3(j), his Honour held that ringbarking in 1978 and 1984 and the pushing of trees in 1985 and 1994 qualified as previous clearing for the purpose of pastures, notwithstanding the fact that there was no removal of shrubs.

In construing the exemption in sch 3(j), I have also had regard to the objects of the NVC Act. However, as criminal proceedings could ensue from non-compliance with a direction under s 47(1), it seems to me that the benefit conferred on a landowner by the exemption should not be narrowly confined and one should be slow to imply limitations into the plain wording of sch 3(j). I also note in passing that where the validity of a direction under s 47 is in question (which is not the case in the present appeal), the direction must be construed strictly and in favour of the applicant: Holmes v Director-General of the Department of Infrastructure, Planning and Natural Resources [2005] NSWLEC 264 at [26].

In the present case, the parties requested that the hearing be held in Sydney, as they considered that it was not necessary for the Court to take a view of the subject land. Evidence for the applicant was given by: Mr A Ettershank, a former owner of the subject land; Mr G Engi, farmhand; and by the applicant himself. For the respondent, written evidence was given by the following officers from the Department of Infrastructure, Planning and Natural Resources: Ms J Wild, senior regional soil specialist, Murrumbidgee /Murray region (who also gave oral evidence); Mr C Huxtable, environmental officer; and Mr R Oxley, natural resource project officer. The evidence included photographs of the ploughed land and of some immediately-adjoining areas that were unploughed.

In reviewing all the evidence and submissions, I have had the benefit of a transcript of the proceedings. (My references to page numbers of the transcript are prefixed by "T".)

The respondent conceded (T 84) that a regional vegetation management plan does not apply to the subject land (NVC Act, sch 4, cl 3(3)), and consequently that the exemption in sch 3(j) of SEPP 46 (par 5 above) still applies. However, the respondent did not concede that the applicant had established the two elements of sch 3(j).

For the reasons given in more detail later in this judgment, my findings may be briefly stated:

(1) The native vegetation that the applicant removed by ploughing in 2003 could have included perennial native groundcovers (grasses and herbs) and shrubs that were more than 10 years of age. I am not satisfied on the balance of probabilities that the native vegetation that was removed from the remedial area by ploughing in 2003 was only seedlings or regrowth of less than 10 years of age. (See particularly pars 18 ff below.) Therefore the applicant has not satisfied the first of the two elements of sch 3(j) (par 6 above). (2) Previously, probably in 1995 or 1996, the former owner Mr A Ettershank and his farmhand Mr Engi cleared the third railway paddock (part of which included the whole of the remedial area) by using a tractor-drawn scrub rake for the purpose of cultivation or pastures. The scrub rake removed deadwood, dead lignum, roly poly and some other native vegetation. However, the scrub rake left in place other native vegetation that more likely than not included perennial native grasses and herbs. Also, it is uncertain on the evidence whether the scrub raking of the remedial area was done before 10 August 1995, when SEPP 46 came into effect, or after that date. (See particularly pars 39 ff below.) (3) Previously, as conceded by the respondent, sometime between the late 1800s and early 1900s significant and extensive clearing of native trees (by ringbarking) occurred. I find that it is more probable than not that this clearing of native woodland from the remedial area and from large surrounding areas was for the purpose of pastures. This clearing would have allowed stock to have easier access to graze on native pastures of grasses, herbs or small shrubs. This clearing satisfies the second element of sch 3(j). (See particularly pars 59 ff below.) (4) Because of the findings in (1) above, the applicant has not established an entitlement to the exemption in sch 3(j). The parties agreed that if the applicant did not establish that the ploughing came within the exemption, I should dismiss the appeal. Mr P McEwen SC indicated that the applicant did not wish to raise any merit or other matter of discretion justifying the revocation of the s 47 direction, and that his client would (continue to) abide by the direction. This direction will expire on 1 March 2006; after which the land may again be used for sustainable grazing. (5) There should be no order in relation to the costs of this appeal (pars 67 ff below). 3. Written evidence of the applicant's witnesses

The written statements of Mr Ettershank and Mr Engi are set out in full below. Their written evidence has to be viewed in the light of supplementary oral evidence that I will refer to later. The written and oral evidence is relevant to whether the applicant has established that - (1) all the native vegetation that was removed by ploughing in 2003 was seedlings or regrowth of less than 10 years of age; and (2) prior to the ploughing in 2003, the remedial area had been previously cleared in 1995 or 1996 for the purpose of cultivation or pastures, or still earlier, originally cleared in the late 1880s or early 1900s for the purpose of pastures.

There were two statements of evidence from the former owner of the subject land, Mr A Ettershank. His first statement dated 13 September 2004 reads: First Statement by Andrew Ettershank of Murrabit, Victoria (ex A) (1) I am married and aged 54 years. (2) In about the month of February 2003 I entered into and completed a Contract for Sale of Land for property known as "Caithness" to Donald Landers. (3) Prior to the sale of "Caithness" to Donald Landers that property had been in my family for three generations. (4) The property was acquired in 1926 by my Grandfather, who subsequently transferred that property to my Father, who subsequently transferred the property to me. (5) "Caithness" is situated approximately 50 kilometres north west of Barham, towards Swan Hill. (6) I was born in Swan Hill and raised on "Caithness" for the whole of my life. I attended schools locally and left school at the age of 17 years and immediately commenced full time work on the farm with my Father and my Brother. At that stage we owned two properties namely "Caithness" and "Murrayview". These two properties were farmed jointly. (7) My earliest recollections of "Caithness" was that the land was effectively totally cleared for as long as I can remember. No large scale clearing occurred on the land during my lifetime as it was not required due to the fact that clearing exercises had obviously been carried out in many years prior to my birth and myself becoming aware of what was happening on "Caithness". (8) "Caithness" was a property in excess of 4,000 acres and it was our family practice to create new paddocks from time to time, usually after a period of drought. We would select an area capable of being ploughed and we would usually sow it down to a crop of oats. If it rained, then so be it and the crop would come up, but if it did not then there was no great loss suffered by us as we anticipated eventually that a break would come in the weather and the crop would ultimately germinate and grow. (9) What I have been able to observe over the many years that I have seen my farming property, is that as each of these paddocks were ploughed up the native grasses would ultimately return but the paddock would be freshened up by virtue of the tillage operation carried out to it and that the pasture growing on that paddock, albeit partly native grasses returning, would be of a much more useful nature than the grasses that had been growing prior to the tillage activity being carried out in the creation of that paddock. (10) I am aware that Donald Landers is currently being prosecuted by the Department of Infrastructure Planning and Natural Resources as a result of having ploughed up part of "Caithness" to create a paddock of approximately 800 acres for the sowing of a wheat crop. (11) I am aware of the area that Donald Landers has ploughed and I can say categorically that was an area of land that had previously been cleared, prior to my forefathers coming onto the land. My understanding [is] that it was ringbarked by Chinese moving through the area to the Goldfields and that they were paid in fact by the Government to ringbark the trees to assist in clearing operations for anticipated farming activities down the track. (12) In any event, we cleared the property the subject of the prosecution to Donald Landers again in 1995. There had been some re-growth as to what I would refer to as whip stick lignum, which was really small bushes, no higher than two or three feet from the ground. (13) We carried out this clearing work using was [sic] referred to as a scrub rake in anticipation of ultimately ploughing up that particular area for the purposes of freshening it up and possibly sowing a dry land winter crop. We never did get to plough it up and sow it. (14) The whole of the area that is the subject of the prosecution of Donald Landers did not have any trees at all taken out of it during my lifetime. I can recall that there was some lignum on that area as a young lad, but Father had informed me that the lignum only came onto the area after the 1956 flood, which covered that paddock completely. I make mention of this to make it clear that lignum was not a native to that part of our property prior to 1956 and that the lignum growth that occurred on the property was a result of lignum seeds obviously being deposited by the 1956 flood waters, which covered the whole of the "Caithness" property at once stage or another during that flood event. (15) I wish to make it perfectly clear that at no stage was there any native vegetation moved from or cleared from that property during any part of my lifetime that I can recollect. I certainly did not clear any trees from the property, and other than as mentioned above in 1995 and I do not recall my Father clearing any area either. SIGNED: A Ettershank DATED: 13/09/04. 15. Mr Ettershank explained in oral evidence that when he said in the above statement that the property had not been cleared, he meant that no trees were removed (T 47, 61).

16. Mr Ettershank's second statement, dated 1 March 2005, reads: Second Statement of Andrew Moore Ettershank of Murrabit, Victoria (ex B) (1) My full name is Andrew Moore Ettershank and I reside at Murrabit in the state of Victoria. (2) I was born on 18 June 1951. I have read my statement dated 13 September 2004 and approve its contents. (3) By way of expansion of my previous statement I comment as follows. (4) The paddock the subject of the stop work order we refer to as the "Third railway paddock". (5) There is a tree line, which passes through the middle of that paddock which was an old survey line or road reserve made years ago. In my opinion this would be the original vegetation of the paddock. (6) When you drive through the paddock you can quite clearly see that the paddock excluding the "road reserve" would have been cleared of all existing box trees and this clearing would have been when the area was ringbarked. (7) I can remember examining dead trees in the paddock with evidence of ringbarking on them. (8) The property known as "Riverside" now owned by Don Landers has been predominately cleared of trees. (9) In relation to the scrub rake which was used on the "Third railway paddock", exhibited to me at the time of making this statement is a true photograph of the scrub rake. (10) My father Ronald Ettershank purchased this scrub rake when I was in boarding school in approximately 1966. We have had the scrub rake ever since that time and we have cleared a lot of country with it. (11) The scrub rake operates off a hydraulic ram. (12) I have personally used the scrub rake on many occasions. (13) The tines on the scrub rake will dig in up to 3 inches and we used to put in[sic.] the ground and run over the country so it would pick up everything including roots. (14) In 1995 I was still in partnership with my father Ronald and my mother Annette Louise Ettershank and my brother David Ettershank. (15) My father was not in the best of health and subsequently died in 1997 after suffering a stroke. (16) It was my intention in relation to the "First" and "Second" and "Third railway paddock" to clean them up and thereafter at some stage to sow them to oats or barley. (17) This was a farming practice, which I employed quite often over the various properties which we owned. We would only put the scrub rake over paddocks after we had had a period of drought and the idea was then to plant one dry land crop then usually return the paddock to grazing in the following year. (18) At the same time that we cleaned up the "Third railway paddock" we also used the scrub rake over the "First railway paddock" and on about 50 acres of the "Second railway paddock". We then cropped the "First railway paddock" for a few years after that. I can remember that the first year of cropping was a bit of a failure and the second year's crop was fairly ordinary as well. It was my intention that if the crops went well in the "First railway paddock" to then crop the "Third railway paddock" as well with oats and barley and until that time the "Third railway paddock" would continue to be used for grazing. (19) The "First railway paddock" had 480 acres in it and the "Second railway paddock" had about 600 acres and the "Third railway paddock" 640 acres. (20) The scrub rake collects material behind it and then when you get too much material to pull along you lift up the tines and leave it in clumps. After this occurs you then go around and burn those clumps. (21) I think the use of the scrub rake on the "First" and "Second" and "Third railway paddock" was to the best of my recollection about twelve months before we sowed on the "'First railway paddock". (22) In relation to the farm now owned by Don Landers there is approximately 1600 acres of the farm capable of irrigation and 3100 acres dry land farming. (23) I often used the scrub rake over various other parts of the properties. I would also use the scrub rake even if I was simply just going to continue to gaze the property as it would clean up the paddocks and I found that it reinvigorated the pastures. The pastures were mainly native although we would also go out and sow clover or lucerne into them.

Dated: 1 March 2005 - [signed] A Ettershank. 17. Mr G Engi is a farmhand who was employed by Mr Ettershank and who gave evidence as to his use of a scrub rake on the remedial area in 1995 or 1996. Mr Engi's statement is as follows: Statement of Graham Allan Engi Made on 14 February 2005 at "Riverside" New South Wales. (1) My full name is Graham Allan Engi. I reside at 440 Troy Road Myall in the state of Victoria. I am a farmhand. (2) I was born on 19 April 1953 and am currently 51 years old. (3) I have worked as a farmhand in and around the property "Riverview" for the last 23 or 24 years. (4) I was employed by A Ettershank and Sons, which was a farming partnership involving Mr Ettershank senior, his wife and his two sons in 1981. As part of my duties I worked on the farming properties "Riverside" and "Caithness" and "Murrayview". (5) I lived in a cottage on "Riverside" for twelve years with my partner and family. (6) As part of my farmhand duties I was involved in tractor work, stock work, fencing and maintenance. (7) The three farms previously mentioned were run on a mixed farming basis. The properties were used for growing sheep feed, oats, wheat and barley. (8) I have seen the paddock which had been cultivated by Don Landers and which is the subject of the existing stop work order. (9) The paddock which Don was working on was called "Third railway paddock" and comprised so far as I could tell about 600 to 700 acres or thereabouts. (10) The paddock was used for grazing. (11) There is a band of trees running through of the paddock and some around the dam and scattered gums throughout the paddock. (12) I am not aware as to whether or not the paddock proper was cleared of tall timber in the past. (13) I can remember going over the "Third railway paddock" towards the end of the 1990s. As far as I can recall this was in either 1995 or 1996. I went over the paddock with what is known as a scrub rake. (14) The scrub rake belonged to my employers. (15) The scrub rake had been on the farm as long I can remember. (16) Exhibited to me at the time of making this statement is a true picture of the actual scrub rake, which I used. (17) The purpose of using the scrub rake was to clean up the paddock. I presumed it was intended to use the paddock for cropping. I used the scrub rake over this paddock and also adjoining paddocks known as "First railway paddock" and "Second railway paddock". I occasionally used the scrub rake over other paddocks during my period of employment with the Ettershank family. There were grazing reasons why you would use the scrub rake as well as a preliminary to cropping. When you use the scrub rake it would clean all the sticks and rolly polly and other loose material and vegetable matter. (18) I dragged the scrub rake behind a tractor. It had a hydraulic ram. The scrub rake has a type of cage at the back. I would pull the scrub rake along and when all the rubbish has been collected I would then lift up the scrub rake using the hydraulic ram and move forward. This would create a pile of rubbish. (19) I would then go back and set fire to each of the individual piles of rubbish. (20) The rake as can be seen from the photograph has tines. You really had to have the tines in the ground otherwise smaller sticks wouldn't get collected. (21) On other paddocks, which had been sown to crop, it was usual to use the scrub rake before ploughing and sowing. This was especially the case on dry land cropping, as these paddocks required a lot more clearing up before sowing. (22) As far as I can recall during my time the "Third railway paddock" was not sown to crop but was regularly used for grazing. (23) It was part of our usual farming operation to use similar type paddocks for dry land cropping. In a good year you can earn a lot of money from these crops although in a poor year the crops would usually then only be used for stock feed. (24) I used two different tractors when pulling the scrub rake being either a Ford 5000 or a Ford 7700. (25) As far as I can recall I only went over the paddock once and I think this was about the only time that I used the scrub rake on the "Third railway paddock". (26) I can remember that we used the scrub rake on all three railway paddocks and it took a number of weeks because of the large area involved and they were all rough paddocks. As far I can recall this was in the autumn and we then sowed one of the railway paddocks with a crop.Dated: 25-2-05 - [signed] Graham Allan Engi. 4. Ploughing in 2003 of native vegetation less than 10 years old?

It was conceded by the applicant that the "remedial area" of 157 hectares (described at par 3 above) was ploughed in about November 2003. The evidence of the departmental officers Mr Oxley and Mr Huxtable also establishes that fact. However, the evidence of these officers is also relevant to the contention of the applicant that what he did was "the removal of native vegetation, whether seedlings or regrowth, of less than 10 years of age…" (sch 3(j)). I therefore propose to refer to the officers evidence in some detail.

In response to a telephone report, Mr R Oxley, a natural resource project officer with the Department, inspected the applicant's property on 27 November 2003. At that time Mr Oxley observed Mr Landers's son ploughing in the remedial area. Mr Oxley measured the groundcover and composition of the herbaceous vegetation immediately adjacent to the ploughed area, and it was his assessment that the herbaceous vegetation was dominated by indigenous species. With another officer, Mr Oxley drove around the perimeter of the area that had been ploughed and GPS readings were taken. The photographs attached to his statement (ex 3) were also taken at that time. On 27 November 2003 in the course of a conversation with Mr Landers Mr Oxley said: "it might be a good idea to stop ploughing while we investigate whether the Native Vegetation Conservation Act may have been breached." Thereafter, it appears that no further ploughing of the remedial area occurred.

One year later, on 28 November 2004, a stop-work order was issued to Mr Landers directing that no more clearing be undertaken of the remedial area (ex 3, par 10).

On 10 December 2004, Mr Oxley returned to the applicant's land and measured the percentages of vegetative groundcover in seven transects immediately adjacent to the ploughed areas. The transect data showed that the mean percentage of groundcover in the unploughed area was: indigenous species 40 percent, introduced species 10 percent, bare ground 27 percent, and litter 23 percent.

I accept that this result shows that the groundcover immediately adjacent to the ploughed area was dominated by native vegetation as defined in s 6 of the NVC Act.

Mr C Huxtable's report (ex 4) contains an assessment he made on 9 June 2004 of the ploughed land and of the immediately-adjacent undisturbed land. I set out below the more important parts of his report (the paragraphs have been numbered for convenient reference): " The Assessment General impressions (1) The site directly adjacent to the ploughed area consisted of groundcover dominated by curly windmill grass (Enteropogon acicularis) and wallaby grass or whitetop (Austrodanthonia caespitosa) with scattered lignum (Muehlenbeckia florulenta) and the occasional black box tree (Eucalyptus florulenta [sic]) [this last-mentioned species should read Eucalyptus largiflorens ] . A full list of species found during the assessment is provided… [I reproduce Mr Huxtable's list in par 25 of this judgment]. (2) In the ploughed area, there were still undisturbed tussocks of native grasses and other native species. In addition, large clods of earth disturbed by the ploughing still had intact grass tussocks in them which may continue to grow following rain.

Assessment of groundcover (3) In order to assess what the groundcover was prior to clearing and if it was native or not, 5 transects in undisturbed areas adjacent to the ploughed area were randomly selected and surveyed using the step-point method.… This technique is accepted as a valid method of assessing groundcover in grasslands. …When averaged, the results showed that groundcover consisted of 40% native vegetation, 3% exotic vegetation, 28% bare ground and 29% litter (dead plant material lying on the ground). This clearly shows that of the total vegetation cover (43%), 93% of this was native. This result is much higher than the minimum of 50% native cover required by the Act to qualify as being native vegetation.

(4) In order to assess the potential of the ploughed area for rehabilitation, I decided that we needed a measure of groundcover in the ploughed area. In this way, the cover of undisturbed grass tussocks and other plants could be estimated. It also allowed the measurement of any regeneration of any uprooted plants or new seedlings. Two transects were surveyed in a similar manner to the unploughed areas.… When averaged, the results showed that groundcover consisted of 17% native vegetation, 1% exotic vegetation, 68% bare ground and 14% litter. The 17% native vegetation category consisted of both undisturbed plants and plants still rooted in clods of soil which had been disturbed by ploughing.

What groundcover may have been present within the remediation area prior to clearing? (5) Based on assessment of the unploughed area adjacent to the ploughed area, the groundcover that may have been present prior to ploughing consisted of grasses and other non-woody plants. This groundcover was dominated by curly windmill grass ( Enteropogon acicularis ) and whitetop or wallaby grass ( Austrodanthonia caespitosa ). Common non-woody plants other than grasses included pale beauty heads ( Calocephalus sonderi ) and creeping saltbush ( Atriplex semibaccata ). There is no reason to assume that the vegetation within the ploughed area was any different to the adjacent unploughed area, as the entire area was within a single paddock and had an apparently similar soil type.

Is remediation of the cleared area possible? (6) Remediation of the ploughed area is possible. Assessment showed that native plants exist within the ploughed area both as intact plants still rooted in the ground, and as plants rooted in clods disturbed by ploughing, but with potential to regenerate. This indicates good potential to regenerate, given favourable rainfall and growing seasons. There is potential for regeneration from existing plants, from seed in the soil and from seed blowing into the site from adjacent areas.

What work is necessary…to repair damage caused by the clearing…? (7) The best option for rehabilitation of this site is to allow natural regeneration to occur, from existing plants and seed existing in the soil and blowing onto the site from adjacent areas.…

What are the values of the vegetation that may have been at the site prior to clearing? (8) Native grasslands, whether naturally treeless or derived after trees have been cleared, possess a range of ecological, production and soil conservation values. The perennial native grasses which dominate the area adjacent to the site of the alleged breach, whitetop ( Austrodanthonia caespitosa ) and curly windmill grass ( Enteropogon acicularis ), have values which confer sustainability through drought, provide useful stock feed and surface protection, prevent salinity and provide habitat for other native fauna and flora.

(9) Whitetop is regarded as being highly palatable to stock, tolerant of drought and grazing (e.g. Williams 1969) as well as forming the basis of native vegetation communities with high conservation value (e.g. Benson et al. 1996). Curly windmill grass similarly is highly persistent under grazing and erratic climate (e.g. Michalk & Herbet 1978) and is tolerant of salinity (e.g. Rogers et al. 1996). Grasslands dominated by these species also support a broad range of other native herbaceous species (e.g. Benson et al. 1996). In addition, most of the biodiversity of flora and fauna in a grassy woodland or forest occurs in the grassy understorey, and relatively little in the woody vegetation component. Considerable biodiversity is therefore still present in areas where trees have been cleared but the grassy understorey has been left intact." 24. I accept the above-quoted findings of the first report of Mr Huxtable. The applicant did not dispute those findings and did not call any expert evidence concerning the native vegetation.

The full list of the species that Mr Huxtable found adjacent to the ploughed area (referred to in par 23(1) above) is as follows: Botanical name Common name Atriplex semibaccata creeping saltbush Austrodanthonia caespitosa wallaby grass, whitetop Austrostipa scabra speargrass Calocephalus sonderi pale beauty heads Chamaesyce drummondii caustic weed Chloris truncata windmill grass Convolvulus erubescens bindweed Enchylaena tomentosa ruby saltbush Enteropogon acicularis curly windmill grass Erodium aureum * crowfoot Eucalyptus largiflorens black box Goodenia gracilis slender goodenia Heliotrope europaeum common heliotrope Hordeum leporinum * barley grass Lolium rigidum * wimmera ryegrass Maireana aphylla cottonbush Maireana decalvans black bluebush Marsilea drummondi nardoo Medicago spp. medics Muehlenbeckia florulenta lignum Plantago cunninghamii a plantain Rhagodia spinescens thorny saltbush Sclerolaena muricata black roly poly Sida corrugata corrugated sida Solanum esuriale quena Sonchus oleraceus * common sowthistle Spergularia rubra * sandspurrey Vittadinia sp. fuzzweed Xanthium spinosum * Bathurst burr * indicates an exotic species.

On the 25 November 2004 Mr Huxtable carried out a further assessment using similar techniques to those described in his first report. Overall, his assessment on 25 November 2004 indicated that recovery of the ploughed area was progressing well. Mr Huxtable was of the opinion that the remedial area should continue to be excluded from grazing for the period specified in the s 47 direction, which will expire on 1 March 2006.

For his first report, Mr Huxtable used as one of his references an article by D L Michalk and P K Herbert, "The Effects of Grazing and Season on the Stability of Chloris Spp. (Windmill Grasses) in Natural Pasture at Trangie, New South Wales" published in Australian Rangeland Journal (1978) Vol. 1 No. 2, pp 106-111 ("Michalk"). This article gives the results of a study of the density and basal diameter of Chloris acicularis (which is a synonym for Enteropogon acicularis - curly windmill grass) and Chloris truncata (windmill grass) at two stocking rates over a period of eight years. The proportion of ground covered by these Chloris species varied widely with season, and to a lesser extent with grazing pressure. The density of both species increased in good seasons, while the mean diameter decreased because of the number of new seedlings. Although C. truncata seedlings were more numerous in good seasons, they did not survive as well as did C. acicularis seedlings during prolonged dry periods. (Michalk p 106.)

Chloris acicularis is a tussocky perennial grass which is dormant in winter and depends on effective spring and summer rainfall for both vegetative and reproductive growth (Williams 1970), while C. truncata is similar, except that it behaves as a biennial or short-lived perennial. (Michalk p 107.)

The sampling dates were from August 1967 to November 1971. Basal diameter of each plant was measured by pressing a rule through the crown as near as possible to ground level. The charts also made it possible to plot seedlings throughout the experiment and measure their subsequent survival. Throughout the experiment C. acicularis was denser at the low stocking rate than at the high stocking rate. There was a high survival rate of the originally mapped C. acicularis plants with 65 percent surviving under high stocking and 87 percent under low stocking. (Michalk pp 107-108.)

In relation to basal diameter, Fig. 3 of the article shows the mean basal diameter of C. acicularis declined from approximately 5.9 cm to 4.3 cm under a low stocking rate between 1967 and November 1971. With the other sample of C. acicularis under a high stocking rate, Fig. 3 indicates the mean basal diameter declined from approximately 7.3 cm to 4.5 cm over the same period. (Michalk p 109.)

In the discussion at end of the article, Michalk says (p 110): As observed by Williams (1970), annual crops of C. acicularis were small. However most of the C. acicularis tussocks present in 1967 survived through the study, indicating the true perennial nature based on efficient drought dormancy mechanisms. Whalley and Davidson (1969) reported that such mechanisms cause growth to stop when plants are subjected to water stress; the leaves die but the stem bases and rhizomes remain alive. With the onset of favourable conditions tillering occurs from basal buds and growth resumes. The crops of C. truncata were large but suffered considerable mortality in dry periods as a result of their weak perennial character and lack of drought dormancy mechanisms.

I take judicial notice that a perennial plant or perennial (Latin per, "through"; annus, "year") is a plant that produces flowers and seeds more than once in its lifespan, and usually persists for more than two years. The term is usually applied to herbaceous plants or small shrubs. Plants that flower and produce seeds only once and then die are monocarps, and these include: annual plants, which flower in their first living year, then die; or biennial plants, which usually live for two years but normally produce their flowers and seeds in their second year before dying.

It seems to me that the crucial question is whether the native vegetation that was removed by ploughing in 2003 included perennial plants aged 10 years or older.

If all the native vegetation that was removed in 2003 comprised only annual or biennial grasses or herbs, then there would probably be little difficulty in holding that this native vegetation was seedlings or regrowth of less than 10 years of age. However, from the evidence of Mr Huxtable (par 23 (1), (5), (8) and (9) above), it is clear that the native groundcover that was removed is likely to have been dominated by perennials, namely, curly windmill grass (Enteropogon acicularis) and whitetop or wallaby grass (Austrodanthonia caespitosa). The Enteropogon acicularis is synonymous with Chloris acicularis, studied by Michalk (pars 27-31 above).

As discussed below (par 39 ff), the remedial area was probably cleared in 1995 or 1996, but the evidence of Mr Ettershank and Mr Engi was that this clearing by scrub raking left in place most of the native grassland and even some green lignum shrubs.

Ms S Duggan, counsel for the respondent, submitted that the applicant had removed native vegetation of more than 10 years of age, and therefore the first element in the exemption of sch 3(j) had not been fulfilled. I tend to agree. Some of the native vegetation that was removed could have included some annuals and biennials less than 10 years of age, but that is not enough to gain the benefit of the exemption. In my opinion, the ploughing in 2003 could have included perennial native groundcovers (grasses and herbs) and shrubs that were 10 years of age or more. At least I am not satisfied on the balance of probabilities that the native vegetation that was removed from the remedial area by ploughing in 2003 was limited to only seedlings or regrowth of less than 10 years of age. In my opinion, the applicant has not established an entitlement to the exemption.

I take note under s 38(2) of the Land and Environment Court Act 1979 that most of the species in Mr Huxtable's list (par 25 above) are described in a reference work entitled Native Vegetation Guide for the Riverina, compiled and edited by K Kent, G Earl, B Mullins, I Lunt and R Webster (a joint publication by Charles Sturt University et al., 2002). An online version of this Guide is at http://riverinaguide.mur.csu.edu.au. The applicant's property is in the Riverina. From this Guide, it appears that most of the species in Mr Huxtable's list are native perennials, being mainly grasses with some herbs and shrubs. However, the Guide is silent as to the usual number of years that each perennial species might live; and the views that I have expressed in the immediately preceding paragraphs of this judgment are not dependent upon a consideration of this Guide.

If I came to the view that the applicant did not have the benefit of the exemption in sch 3(j), Mr P McEwen SC indicated that the applicant would abide by the s 47 direction and that the applicant did not wish to raise any matter of discretion justifying the revocation of the direction.

Do the respondent's aerial or satellite photographs (ex 7) disprove the applicant's claim that scrub raking of the remedial area occurred in about 1995? The remedial area shown on these photographs is V-shaped and is contained within red lines that have been added to the photographs. The photographs must have been taken from a considerable height, because the V-shaped area contains about 157 hectares (388 acres); and within that area, isolated trees are seen as small black dots. I accept that if ploughing had occurred in the winter of 1995, the ploughing may have been indicated by a reddish colour on the photograph taken about 9 months later in April 1996. But the applicant has never claimed that ploughing occurred in 1995, only scrub raking.

One of the effects of scrub raking is to cause a more luxuriant growth of grassland. In these circumstances, the respondent's photograph of April 1996 would not necessarily show whether or not scrub raking in 1995 had occurred.

From the aerial photographs of 1993 through to December 1996, Ms Wild was not able to say whether or not a scrub rake had disturbed the topsoil (T 83). However, even in respect of the ploughing that later occurred in 2003, she said that the difference in texture and tone of the photographs of January 2003 and January 2004 would not necessarily relate to the ploughing but that she would have to verify the ploughing by an inspection on the ground (T 81). Differences in the photographs could be accounted for by seasonal rainfall and grazing. (T 81).

After examining several soil profiles and the gilgai microrelief formation near the ploughed area in November 2004, Ms Wild was of the opinion that "traditional cultivation" had never previously occurred in the third railway paddock, because of the stable structure of the profiles at the depth of 4-11 cm. It seems that the "traditional cultivation" that Ms Wild referred to includes ploughing.

Along the same lines, Mr Huxtable said (ex 4, p 1): The unploughed area adjacent to the ploughed area was gilgaid - conspicuously so in some areas. Gilgais consist of hummocks and/or hollows of varying size, shape and frequency and are associated with shrinking and swelling of deep clay subsoils with changes in moisture (Chairman and Murphy 2000). Gilgai structure is generally destroyed by ploughing. The presence of gilgais in the unploughed area adjacent to the ploughed area indicates that the site had never previously been ploughed.

Also, in his statement (ex 3, par 13) Mr Oxley proffered the opinion that the land had never been previously ploughed or cultivated as he had observed numerous logs and dead stumps throughout the paddock. However, the applicant in this appeal is not asserting that the remedial area was previously ploughed, but he does claim that the land was previously cleared in 1995 or 1996 by the use of a tractor-drawn scrub rake for the purpose of cultivation or pasture. The "numerous logs and dead stumps" mentioned by Mr Oxley cannot be seen in the photographs he took on 27 November 2003. The photographs (which presumably are not of the whole of the remedial area) show that in a large expanse of ploughed area, logs and sticks have been pushed together or dumped in an isolated clump (photo 4), and the same clump is seen in a close-up or zoomed-in photo taken 16 seconds later (photo 6).

One of the references that Ms Wild used in the preparation of her written statement (which contains the opinion at par 42 above) was R F Isbell, "The Australian Soil Classification" (CSIRO, 1996, Melbourne). However, in the chapter headed "Vertosols [VE]", the author of that work makes the following comment on the Great Groups of Self-mulching, Epipedal, Crusty and Massive (at p 104): "Each of [these] soil surface conditions tends to reform despite cultivation or surface trampling (emphasis added). Similarly, I note (under s 38(2) of the Land and Environment Court Act 1979) that the online Soil Glossary of the Victorian Department of Primary Industries describes and illustrates Gilgai microrelief and says in part: Gilgais are common in areas with Grey Vertosol soils… Continuous cultivation of paddocks has resulted in the smoothing out of many of these formations. The forces that created them, however, are still operating as is evident by the displacement of fence posts, and if the land is left undisturbed for a number of wetting and drying seasons they will re-form. ( See http://www.dpi.vic.gov.au/dpi/vro/vrosite.nsf/pages/gloss ) 46. Since the previous clearing in about 1995 or 1996 did not involve any ploughing but merely the scrub raking of the paddock, it seems to me that an examination of the soil nine years later in November 2004 could indeed show no signs of this previous scrub raking. In final submissions, Ms Duggan did not submit that the scrub raking had never occurred. But in her cross-examination Ms Duggan did question Mr Ettershank and Mr Engi as to exactly when the scrub raking occurred and suggested that they could be mistaken as to the year.

Both Mr Ettershank and Mr Engi at different times drove the tractor that pulled the scrub rake, but it is a significant time since the work was done and their recollections as to when exactly it occurred is now not altogether clear. Although scrub raking could possibly have occurred in 1996, the evidence of Mr Engi and Mr Ettershank as a whole indicates that it is more likely that the scrub raking of the third railway paddock was commenced in the winter of 1995. In his written statement (par 17 (26) above) Mr Engi said that "it took a number of weeks" to clear all three railway paddocks. However, in his oral evidence Mr Engi said that it took "possibly six months, on and off" to clear the third railway paddock (T 67).

What is involved in the scrub raking? There are probably different kinds, depending on the type of machinery used. This is not the case of wide and thick tines of a broad and heavy clearing-blade that is pushed or pulled by a large earth-moving caterpillar. The actual scrub rake that was used is still in existence and photographs of its use on a nearby property having a soil-type said to be similar to the type of soil in the remedial area were tendered in evidence.

The following photograph (ex D photo 11) is of the actual scrub rake that was used on the remedial area back in about 1995 or 1996 according to the evidence presented for the applicant:

As can be seen in the photograph, the tines of the rake are relatively thin and are spaced apart. A bar across the top of the tines enables a hydraulic ram to force the tines into the earth. The tines can penetrate 2 inches or a maximum of 3 inches (T 58, 59, 70). As the rake is drawn across the surface of the land it picks up sticks and other dead matter. As the accumulated material gathers, the tines might not penetrate as much into the surface of the ground. The photograph shows that near each end of the rake, there are several tines that seem to barely scrape the surface of the land. Some grasses and other small plants could be uprooted, but the evidence of Mr Engi and Mr Ettershank was that more native grasses were left in place than were removed. "We always wanted to retain the native grasses" (Mr Ettershank, T 48). However, there was not much grass in the paddock because it was a dry year (T 58).

The majority of what was picked up was loose timber and dead vegetation (T 58). But the stick rake also removed some of the live grasses, according to Mr Ettershank's oral evidence (T 55-56). The scrub rate removed dead lignum, because live lignum was "pretty well rooted down in the ground" (T 61).

According to Mr Engi, the scrub rake also removed roly poly and other loose material and vegetable matter (par 17 (17)).

The material collected by the tines of the scrub rake was pushed into windrows or around old stumps (T 59).

According to both Mr Ettershank and Mr Engi, the scrub rake was used in the third railway paddock by dragging it once over all parts of the land. The scrub rake did not pass and repass over the same ground, which would have removed more live vegetation.

Black roly poly (Sclerolaena muricata) is a short-lived perennial native herb with hairy branches that can cause problems for shearing sheep. Lignum (Muehlenbeckia florulenta) is a native shrub. The fact that lignum seeds were brought onto the subject property by the 1956 flood and might not have been originally on the property is irrelevant, as the species is "indigenous" to the State of New South Wales (NVC Act, 4(2)).

The use of the scrub rake to clear the third railway paddock (which included the remedial area) was "in anticipation of ultimately ploughing up that particular area for the purposes of freshening it up and possibly sowing a dry land crop" (par 14 (13) above). The scrub rake loosened the dirt, and "the native grasses would come back always a lot more prolific and better" (T 47). The scrub rake loosened the earth and "tickled up" the ground (T 56). The use of the scrub rake would clean up the paddock for grazing and reinvigorate the native pastures (par 16 (23) above).

So on the evidence, I find that the remedial area was cleared by use of the scrub rake in 1995 for the primary purpose of the future cultivation of the land and that it was also cleared for the secondary purpose of grazing stock on native grassland in the event that a dry-land crop was not sown. This satisfies the second element of sch 3(j) of SEPP 46, assuming the first element had been met.

It is uncertain whether all the scrub raking occurred before 10 August 1995 when SEPP 46 came into effect. If there was scrub raking after that date, that work could also be exempt if there was a prior clearing of the land, provided that what was cleared in 1995 was not native vegetation of 10 years of age or older.

6. Clearing of woodland in the late 1800s or early 1900s

Prior to the hearing, the respondent conceded in writing that - (a) There was significant and extensive ringbarking of trees both on the remedial area and adjoining lands sometime between the late 1800s and the early 1900s. (b) If ringbarking had not taken place, then it is likely that the timber cover would be similar to that currently located on the old road reserve. This is provided that no subsequent clearing, either natural or man-induced, had occurred since the original ringbarking (since the late 1800s and the early 1900s).

However, the respondent did not concede that the ringbarking was for the purpose of cultivation or pastures. Ms S Duggan, counsel for the respondent, objected to the statement of Mr Ettershank (shown in strikethrough font in par 14 (11) above) that the government paid Chinese workers to ringbark the trees, to assist in clearing operations for anticipated farming activities. As the source of Mr Ettershank's understanding for that written statement was not given, I rejected that part of his written statement in strikethrough font, indicating that additional or better historical evidence would be needed.

Even though additional evidence relating to the purpose of the clearing was not able to be given, it seems to me, for the reasons given below, that it is open to the Court to infer that the likely purpose of the clearing was for pastures or carrying out cultivation; and on the balance of probabilities, I draw that inference.

I take judicial notice that at the end of the 19th and the beginning of the 20th century, it was common that large tracts of bushland in New South Wales were cleared for the purpose of grazing (and by necessary implication, for the purpose of pastures), as appears from the reports of the Land Appeal Court cases (1890-1921). Many conditional purchases of land were granted on condition that the purchaser pay the former licensee or occupant of the land the value of the clearing that had been carried out by the former occupant, as appraised by the Local Land Board: e.g. Cutler v Executors of the Late John Stinson (1897) 7 LCC (NSW) 262. Other cases dealt with the amount to be paid for the value of clearing (particularly by ringbarking or scrubbing) in respect of many different types of land tenures, such as homestead selections and annual leases: e.g. Greene v Hargrave (1897) 7 LCC (NSW) 18; Hubbard v Lawson (1901) 11 LCC (NSW) 38. In other cases, scrub leases were granted subject to conditions relating to clearing, and the land that had been "operated" on had to be kept clear of suckers, seedlings and undergrowth: e.g. In re Australian & NZM Co Ltd (1899) 9 LCC (NSW) 168.

It is generally apparent from the above cases that the carrying out of improvements by way of ringbarking and scrubbing and removal of dead trees, together with any other improvements such as fencing, were for the purpose of making the land more suitable for grazing (and in some cases for cultivation).

In the present case, the documentary evidence did not disclose the reason for the work of ringbarking the trees on the subject land or for the subsequent removal of the deadwood. However, people do not usually embark upon such a large-scale activity for no reason. Lot 5 (having an area of 780 ha) would have been relatively isolated from centres of population, and it is highly unlikely that such a large tract of land, together with other land in the locality, would have been cleared for simply, say, firewood. Of course, some of the timber could have been used for firewood, but the most likely purpose of the clearing of the property Caithness was for the purpose of pastures. I take judicial notice from the above cases that the clearing of bushland was an expensive operation and that it led to an improvement in land values, because the clearing made the land more accessible for stock and suitable for grazing. Grazing can only occur if there is access to pastures. The clearing of the timber, which has obviously taken place, is likely to have enabled the natural development of pastures of native grassland. Mr A Ettershank's grandfather acquired Caithness in 1926; and the grandfather later transferred the property to his son, who later transferred it to Mr A. Ettershank. Caithness included lot 5 DP 16743; within lot 5 is the third railway paddock, within which is the remedial area the subject of this appeal. Mr A. Ettershank was raised on Caithness, and he can remember examining dead, ringbarked trees in the third railway paddock (par 16 (7) above). The third railway paddock was used for the purpose of grazing.

As Mr McEwen submitted, the previous clearing may be at any time in the past: Director-General of the Department of Land & Water Conservation v Pye [1998] NSWLEC 301 at [19]. It is not necessary that the previous clearing should be of all the native vegetation: Pye at [26]. But the clearing should have been substantial and should have related to the whole of the remedial area, which I find to be the case in the present appeal. The density of box trees formerly on the land would have been at least comparable to what is now seen in the old road reserve.

Accordingly, I accept the submission of Mr P McEwen SC that this previous clearing of woodland from the remedial area and adjoining areas in the late 1800s or early 1900s was for the likely purpose of grazing. This fulfils the second element of sch 3(j) of SEPP 46, that "…the land has been previously cleared for cultivation, pastures or forestry plantation purposes".

At the conclusion of the one-day hearing of this appeal, the parties made brief submissions on costs (T 109-111; and see T 10-13 and 43). Mr McEwen submitted that costs should follow the event. However, after I reserved my judgment he sent a letter to me (and a copy to Ms Duggan) saying that at the time he made that submission, he was unaware of the details of the history of the matter. The letter requested that, if the Court was minded to make any order other than no order for costs, Mr McEwen be given an opportunity to put further material and submissions before the Court on the question.

At the hearing, Ms Duggan had submitted that if the applicant succeeded in his claim for an exemption under sch 3(j), the applicant would be disentitled to costs because the second statement of Mr Ettershank and the statement of Mr Engi were only served the week before the hearing and (it was submitted) the respondent did not know until the Friday before the hearing that the applicant was going to rely upon the exemption in sch 3(j). Ms Duggan further submitted that if the respondent were successful, then the applicant should pay the respondent's costs.

With the concurrence of the Chief Judge, costs may be awarded by a Commissioner under s 69 of the Land and Environment Court Act 1979. Part 16 r 4 of the Land and Environment Court Rules 1996, relating to many types of Classes 1, 2 and 3 proceedings, has not been applied to the present type of appeal, and costs are at the discretion of the Court. In relation to the Chief Judge's concurrence, practice direction (amendment no. 24) applies.

To some extent the present type of appeal is different from an appeal by a developer against the refusal of a development consent. If a landowner is given a stop work order and then a direction under s 47(1) of the NVC Act, the landowner is in effect being deprived of the use of part of his land (over which, before 10 August 1995, there were few, if any, restrictions on clearing).

An appeal against a direction under s 47(1) has to be lodged within 30 days of the service of the direction. In the present case, it appears that the applicant did not raise the facts of the previous clearings before lodging of the appeal on 4 June 2004. However, the previous clearings (by the use of a scrub rake in 1995 or 1996 and the earlier ringbarking of trees) were raised by the applicant in pars (11) to (13) of the first statement of evidence of Mr Ettershank dated 13 September 2004 (par 14 above), which were served on the respondent in October 2004. If the respondent's experts were unfamiliar with the piece of machinery known as a scrub rake referred to in that statement, a request could have been made for further details in the many months prior to the hearing. The respondent did not request any particulars relating to the scrub rake or its use. Mr Ettershank's second statement (par 16) and Mr Engi's statement (par 17) were served on the respondent in the week before the hearing, and Ms Duggan objected to the tender of the statements, but I accepted them into evidence. The statements did not raise any substantially new case but elaborated on the previous clearings (already raised in Mr Ettershank's statement of September 2004). The statements were by lay persons who carried out the scrub raking and who had observed the effects of scrub raking. On the Friday immediately before the hearing on Monday, the applicant's legal representative advised the respondent's representative that the appeal would be limited solely to the issue of the exemption in sch 3(j). It is not apparent whether the applicant's solicitors had earlier expressly stated that the exemption in sch 3(j) would be relied upon. It seems to me that the respective cases of the parties could have been clarified by, for example, a direction at one of the Court's callovers for the filing and serving of points of claim. However, once the hearing commenced, both parties presented their cases expeditiously, and the evidence and submissions were concluded in one day.

Having reflected further on the question of costs, I do not think it appropriate that there should be a general "rule" in this type of appeal that the successful respondent should ordinarily be entitled to an order for costs. It seems to me that a landowner who has been served with a direction to remediate land and who has presented a reasonable case to set aside or vary the direction but who nevertheless has been unsuccessful should not necessarily have an order for costs made against him. If there was a general rule that costs would ordinarily follow the event, this may tend to discourage a landowner (who has a reasonably arguable case) from commencing an appeal. . 73. In some cases an order for costs against an unsuccessful applicant may be justified. But on the facts of the present case, I consider that there should be no order as to costs.

74. At the beginning of this judgment, I gave an "Overview" of the appeal and (at pars 12 ff) a "Summary of main findings". Those findings were made in the light of the more detailed consideration of the evidence in the remainder of this judgment. As earlier indicated, the applicant has not established that all the perennial native vegetation that was removed by ploughing in 2003 fell within the exemption in sch 3(j) of SEPP 46. Accordingly, I have concluded that it is not appropriate that the direction under s 47 of the NVC Act should be revoked or altered. The direction will expire on 1 March 2006, after which sustainable grazing of the naturally remediated area may be continued.

75. The orders of the Court are: 1. The appeal is dismissed. 2. There is no order as to costs. 3. The exhibits are returned.

                  A J Nott,
                  Commissioner of the Court

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.