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

Landers v Director-General, Department of Infrastructure, Planning and Natural Resources - [2005] NSWLEC 284 - NSWLEC 2005 case summary — Zoe

[13]

(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

[15]

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.
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.

[17]

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?

[77]

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.

At a glance

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Judgment (82 paragraphs)

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Cases Cited (3)