Manchee v Secretary, Department of Climate Change, Energy, the Environment and Water

Catchwords: CIVIL PROCEDURE — unlawful clearing — whether land should be categorised as Category 1 – Exempt Land or Category 2 – Regulated Land — construction of Remediation Order — whether on proper construction the Remediation Order applied to whole of land or only unlawfully cleared portion — appeal dismissed

Legislation Cited: Local Land Services Act 2013 (NSW), ss 60I, 60L, 60M
Native Vegetation Conservation Act 1997 (NSW) (repealed), ss 21, 47
State Environmental Planning Policy No 46 – Protection and Management of Native Vegetation (1995) (repealed), Sch 3

Cases Cited: Director-General of the Department of Land and Water Conservation v Leverton [2002] NSWLEC 212
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Palmanova Pty Ltd v Commonwealth of Australia (2025) 424 ALR 768; [2025] HCA 35

Texts Cited: Herzfeld and Prince, Interpretation (2nd ed, 2020, Thomson Reuters)

Category: Principal judgment

Parties: Geoffrey Philip Manchee (Applicant)
Secretary, Department of Climate Change, Energy, the Environment and Water (Respondent)

Representation: Counsel:
R Lancaster SC, D Wilcox (Applicant)
L Sims (Respondent)
Solicitors:
Webb & Boland Lawyers (Applicant)
Department of Climate Change, Energy, the Environment and Water (Respondent)

File Number(s): 2025/00154819

Publication restriction: Nil

JUDGMENT

Introduction

1. This case concerns the proper construction of a Direction to Carry out Remedial Work dated 17 September 2002 (Remediation Order). The Remediation Order was given by the Director-General of the then Department of Land and Water Conservation (Department) pursuant to s 47 of the (repealed) Native Vegetation Conservation Act 1997 (NSW) (NVC Act). The Remediation Order was issued to Leverton Pastoral Company Pty Ltd (Leverton) as part of the circumstances of that company pleading guilty on 18 September 2002 to a charge of clearing native vegetation on land without development consent to do so, in contravention of s 21(2) of the NVC Act (Land Clearing Charge). By way of background, Leverton conducts farming operations on a property known as “Luellan”, which is situated near Moree in New South Wales. The sole director of Leverton is Mr Geoffrey Manchee, the Applicant to these proceedings. The Manchee family have farmed Luellan for over 100 years.

2. At the time that the Land Clearing Charge was brought against Leverton, s 21(2) of the NVC Act provided that a “person must not clear native vegetation on any land” except in accordance with either a development consent or a native vegetation code of practice. The charge was in these terms:

“Between about 1 August, 1999 and 22 September, 1999 it [Leverton] failed to comply with a provision of Part 2 of the Native Vegetation Conservation Act, 1997 on land comprised in Lot 1 Deposited Plan 756025 Parish of Tun Cooey County of Stapylton and Lots 7 and 9 Deposited Plan 756014 Parish of Mount Pleasant County of Stapylton, in the State of New South Wales, being land to which no Regional Vegetation Management Plan applied and that was not State protected land, in that it did clear native vegetation on the land, without the development consent under Part 4 of the Environmental Planning and Assessment Act, 1979 of the Minister for Land and Water Conservation and not in accordance with a native vegetation code of practice, in contravention of section 21(2) of the Native Vegetation Conservation Act, 1997” (emphasis added).

3. There is no dispute between the parties that Lot 7 of DP 756014, and the northern part of Lot 9 of that DP constitutes a paddock in Luellan known as “Sandy’s cultivation” (Sandy’s Paddock), which has an area of about 261 hectares.

4. The particulars of the Land Clearing Charge were as follows:

Particulars of Clearing

(a) Pushing native vegetation over with a bulldozer, having the effect of uprooting, felling and killing the native vegetation.

(b) Placing native vegetation in stacks and burning it.

5. As stated, Leverton entered a plea of guilty to the Land Clearing Charge. A Statement of Facts relevantly contained agreement to these matters:

(a) in relation to the clearing that took place on Sandy’s Paddock, “[Leverton] proceeded on the basis that the clearing was exempt from the need for development consent because in the d**efendant’s opinion the clearing was within the minimal clearing, regrowth and rural structures exemption and the grass clearing was with**in the Moree Plains S**hire G**rasslands P**lan exemption”: Statement of Facts at [11], Exhibit 1 pp 11-12; (b) “[t]he clearing was caused by a bulldozer and a loader pushing and gathering trees into piles. The piles were then set alight”: Exhibit 1 p 13; (c) the land area in which the clearing took place on Sandy’s Paddock was “approximately 250 hectares”: Exhibit 1 p 13; and (d) Leverton entered into the Remediation Order referred to above, which was given under s 47(1)(a) of the NVC Act: Exhibit 1 p 15.

6. Following its plea of guilty, on 18 September 2002, Talbot J convicted Leverton of the offence as charged, and ordered it to pay a monetary penalty in the sum of $5000, and noted Leverton’s agreement to pay the Prosecutor’s costs in the sum of $31,000: Director*-*General of the Department of Land and Water Conservation v Leverton [2002] NSWLEC 212 (the Judgment). In the Judgment, Talbot J indicated that he had taken account of “the agreement by the defendant company to accept” the Remediation Order: Judgment at [32]. Although it was agreed in the Statement of Facts that unlawful land clearing took place in Sandy’s Paddock, precisely where in Sandy’s Paddock the clearing took place was not identified, nor was the amount of clearing specified. The Judgment also reflects this: Judgment at [41].

Background to the Class 1 Appeal

7. In about March 2024, the Respondent released a Draft Native Vegetation Regulatory map (Draft Map), which applied to Luellan. For the purposes of the Local Land Services Act 2013 (NSW) (LLS Act), Sandy’s Paddock, and other parts of Luellan, were classified as “Category 2 – Regulated Land” (Category 2 Land) under s 60I of the LLS Act. The Applicant contends that Sandy’s Paddock should be classified as “Category 1 – Exempt Land” (Category 1 Land). At a high level of generality, Category 1 Land may be cleared of native vegetation by a landowner without further approval. Category 2 Land is however regulated, and the clearing of native vegetation from that land may require, inter alia, approval of Local Land Services (a New South Wales Government Agency), and the activities that may be undertaken on Category 2 Land are more limited than Category 1 Land.

8. On 31 August 2024, pursuant to s 60L of the LLS Act, the Applicant requested the Respondent to review the classification of parts of Luellan as Category 2 Land (the Review). Although some of Luellan was reclassified as Category 1 Land following the Review, all of Sandy’s Paddock remained classified as Category 2 Land. As a consequence, the Appellant has challenged that determination by this Class 1 appeal which is brought under s 60M of the LLS Act.

9. Although the Respondent reclassified further parts of Luellan as Category 1 Land following a conciliation conference, it remains the Respondent’s contention that the entirety of Sandy’s Paddock is Category 2 Land. It is common ground between the parties that the reasons why the Respondent maintains that Sandy’s Paddock is Category 2 Land is because the Respondent considers:

(a) all of Sandy’s Paddock was subject to a requirement to take remedial action under the NV**C Act, pursuant to the Remediation Order: see s 60I(2)(f) of the LLS Act; and (b) parts of Sandy’s Paddock were unlawfully cleared of native vegetation after 1 January 1990: see s 60I(1)(b) of the LLS Act.

Legislative Provisions and Remediation Order

10. As stated above, the Remediation Order was given under s 47 of the now repealed NVC Act. That section was relevantly in the following terms:

47 Directions for remedial work

(1) If the Director-General is satisfied:

(a) that any native vegetation, or any protected land, has been cleared in contravention of Part 2, or

(b) that the clearing of native vegetation on any land, or the clearing of protected land, has caused, or is likely to cause, on or in the vicinity of the land, any soil erosion, land degradation or siltation of any river or lake, or any adverse effect on the environment,

the Director-General may, by notice in writing, direct the landholder, or the person having the control or management of the clearing, to carry out specified work in a specified manner and within a specified time.

(2) Any one or more of the following types of work may be directed to be carried out by a notice under this section:

(a) work to repair any damage caused by the clearing,

(b) work to rehabilitate any land affected by the clearing,

(c) work to ensure that specified land, or any specified river or lake, will not be damaged or detrimentally affected, or further damaged or detrimentally affected, by the clearing.

11. Section 60I of the of the LLS Act sets out the basis for land to be classified as Category 2 Land. The provisions of s 60I relevant to these proceedings are as follows:

60I Category 2-regulated land mapping

(1) Land is to be designated as category 2-regulated land if the Environment Agency Head reasonably believes that—

(a) the land was not cleared of native vegetation as at 1 January 1990, or

(b) the land was unlawfully cleared of native vegetation after 1 January 1990.

(2) Land is to be designated as category 2-regulated land if the Environment Agency Head reasonably believes that—

…

(f) the land is or was subject to a requirement to take remedial action to restore or protect the biodiversity values of the land under this Part or the Biodiversity Conservation Act 2016 or under the Native Vegetation Act 2003 or the National Parks and Wildlife Act 1974…

12. The Remediation Order contains a series of definitions, some of which are relevant to the construction issue to be determined in this appeal, and which are as follows:

1.0 Definitions

The following definitions apply to the terms used within this Schedule of Work:

“Clearing” has the same meaning as in the Native Vegetation Conservation Act 1997.

…

“Eastern Shelterbelt” means the strip of remaining vegetation on the eastern boundary of Remediation Area 2, as identified on the map at Attachment 1

…

“Low Intensity Burn” means burning by means of a fire, the intensity of which must be less than 500 kW m-1, and the flame height of which does not exceed 1.5 metres.

“Luellan” means the land comprising Lot 1 DP 756025 Parish Tun Cooey and Lots 7 & 9 DP 756014 Parish Mount Pleasant, all in the County of Stapylton and Local Government Area of Moree Plains, identified on the map at Attachment 1.

“Native vegetation” has the same meaning as in the Native Vegetation Conservation Act 1997.

“Noxious animal” has the same meaning as in the Rural Lands Protection Act 1989.

“Noxious weed” has the same meaning as in the Noxious Weeds Act 1993.

“Remediation Area 1 North” means that part of Lot 1 DP 756025 identified as such on the map at Attachment 1.

“Remediation Area 1 South” means that part of Lot 1 DP 756025 identified as such on the map at Attachment 1.

“Remediation Area 2” means those parts of Lots 7 & 9 DP 756014 identified as such on the map at Attachment 1.

“Remediation Areas” means Remediation Area 1 North, Remediation Area 1 South and Remediation Area 2

…

“This Schedule” means the Schedule of Work referred to as Annexure 1 to the Notice.

“Tree Clump” means the clump of vegetation remaining in the centre of Remediation Area 2, as identified on the map at Attachment 1

13. The map that is “Attachment 1” of the Remediation Order (the Map) is attached to this judgment. It is not easy to discern, but there is no dispute that the area bounded by a yellow border and designated “Remediation Area 2” is Sandy’s Paddock. The “Tree Clump” is the clump of vegetation that can be seen in the middle of Sandy’s Paddock. The “Eastern shelterbelt” is the area of vegetation marked by a red border on the eastern side of Sandy’s Paddock.

14. The objectives of the Remediation Order are as follows:

2.0 Objectives

(a) To restore the vegetation community in Remediation Area 1 South, by allowing natural regeneration

(b) To restore habitat and connectivity values that have been lost as a result of the clearing

(c) To protect the ecological values of the vegetation remaining in Remediation Area 2

15. Clause 3 of the Remediation Order is headed “General Conditions”. Of particular relevance is general condition 3.8, which provides as follows:

3.8 Native vegetation in the Remediation Areas must not be cleared or burnt, except as provided in sections 6.2 and 9.1 of this Schedule or after such time as the restriction periods agreed to in this Schedule expire for the various areas.

16. Clause 6.2, referred to in cl 3.8, relates to a “low intensity burn” as set out in the definitions (see [12] above), and cl 9.1 also relates to fire control. Neither clause is relevant to the construction question in this appeal.

17. Clause 7 of the Remediation Order is headed “Management of Remediation Area 2”, and provides as follows:

7.1 No clearing, cultivation, or pasture improvement using NVC Act exemptions is to occur in the following areas within Remediation Area 2 for five years from 18 September 2002 without the written permission of the Resource Compliance Manager:

The Tree Clump

The Eastern Shelterbelt

The non-cultivated strip on the northern boundary of Remediation Area 2

18. The “Tree Clump”, and the “Eastern Shelterbelt” are easy enough to discern on the Map. The “non-cultivated strip on the northern boundary of Remediation Area 2” can be seen (just) as the area of land to the north of Sandy’s Paddock which appears to have less vegetation on it.

19. Clause 8 of the Remediation Order is headed “Control of Weeds and Pests”. Clause 8.1 provides as follows:

8.1 The Landholder must control noxious weeds in the Remediation Areas in accordance with the requirements of the Noxious Weeds Act 1993 by the methods of manual removal or spot poisoning of individual noxious weeds. Other methods may only be used with the written approval of the Resource Compliance Manager.

Lay Evidence

20. For the Applicant, the following affidavits were read:

(a) Affidavit of Andrew James Carter sworn on 28 November 2025 (Carter Affidavit). (b) Affidavit of Geoffrey Philip Manchee affirmed on 28 November 2025 (Manchee Affidavit).

21. No objection was taken to the Carter Affidavit. Mr Carter is the solicitor on the record for the Applicant. His affidavit covers historical matters such as the Judgment, and exhibited to his affidavit (Exhibit AC-1) are documents relevant to the procedural history and decision making of the Respondent leading up to the commencement of this appeal.

22. In his affidavit, Mr Manchee deposes to his belief that the clearing done on Sandy’s Paddock in 1999 was lawful, with reference to various exemptions for clearing that are contained in Sch 3 of State Environmental Planning Policy No 46 – Protection and Management of Native Vegetation (1995) (repealed) (SEPP 46), and in particular the following:

Schedule 3 Exemptions

Clearing of native vegetation for the purpose of the following:

(a) Minimal Clearing. The clearing of up to 2 hectares per annum for any contiguous land holding in the same ownership.

(b) Minimal Tree Cutting. The cutting of no more than 7 trees per hectare in any period of one year for on-farm uses, including fence posts and firewood.

…

(e) Rural Structures. The clearing to a minimum extent of native vegetation if it is necessary for the construction, operation and maintenance of farm structures (such as farm dams, tracks, bores, windmills, fences, fence lines, stockyards, loading ramps, sheds and the like).

…

(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.

23. At [19] and [20] of his affidavit, Mr Manchee explains the nature of his belief in these terms:

“19 I believed that the clearing I carried out in 1999 was lawful, due to a combination of the following exemptions:

a. up to 2 hectares of the clearing was lawful due to the “minimal clearing” exemption;

b. I could clear up to 7 trees per hectare for fenceposts and firewood. As Sandy’s is 264 hectares, this amounts to 1848 trees. We used the wood from these trees for fenceposts around Lesley’s and John’s paddocks on Luellen, and for firewood as all the houses on the property were heated with either wood fire burners or open fires;

c. At the time of the clearing, I had to put a road in place around the boundary of Sandys Cultivation for the movement of machinery and trucks, including the Western boundary where most of the cleared trees were located. As such I believed that the clearing was necessary for the construction of farm infrastructure (namely the road)…

20 I also believed that some of the trees could be lawfully cleared as regrowth”.

24. Mr Manchee’s affidavit evidence concerning his belief is consistent with the Statement of Facts agreed for the purposes of the Land Clearing Charge: see [10] and [11] of the Statement of Facts at pp 11-12, Exhibit AC-1, Carter Affidavit; Judgment at [9], [30], and [43].

25. While maintaining his belief that the clearing done in 1999 on Sandy’s Paddock was lawful, Mr Manchee explained the circumstances in his affidavit which caused him to agree to Leverton pleading guilty to the charge that resulted in the Judgment, and to the circumstances giving rise to the Remediation Order: Judgment at [25]-[29]. In the balance of his affidavit (which was admitted over objection by the Respondent), Mr Manchee deposes to his subjective belief concerning the effect of the Remediation Order, and in particular in relation to Sandy’s Paddock in this way:

“33 I understood my solicitor’s and barrister's advice to be that the only areas subject to the Remediation Order were “South Emilies”, “North Emilies”, and the three areas referred to in paragraph 7.1 of the remediation, namely:

a. The tree clump in Sandy’s;

b. The Eastern Shelterbelt to the East of Sandy’s;

c. The non-cultivated strip on the Northern Boundary of Sandy’s”: Manchee Affidavit at [33].

26. Mr Manchee was cross-examined, and the following matters were agreed to by him, or emerged from his evidence:

(a) the purpose of the clearing done in 1999 was to convert Sandy’s Paddock from a grazing paddock to cultivation: T25.41-44; (b) the clearing was carried out by the use of a bulldozer, a wheel loader, and also trees were cut down “for fences and firewood”: T25.46-48; (c) whilst maintaining that some of the vegetation that was cleared was burnt and some was “removed for fences and firewood”, he agreed that in the Statement of Facts tendered at the sentencing hearing before Talbot J there was no mention of using the cleared timber for fences or firewood: T26.10-12; T29.45-47; and (d) Mr Manchee agreed that an aerial photograph of Sandy’s Paddock taken on 3 August 2000 (2000 Aerial Photo; Exhibit 6) showed that almost the whole of Sandy’s Paddock was under cultivation. Mr Manchee maintained however that at the outer boundary of Sandy’s Paddock was a road or track that was built for the purposes of assisting cultivation: T36.8-42.

Expert Evidence

27. The Applicant read an affidavit of Arjan Wilkie affirmed on 19 November 2025, exhibited to which was his expert report dated 18 November 2025: Exhibit 3.

28. Mr Wilkie is an aerial photography expert. The purpose of having Mr Wilkie provide an expert report was to obtain his opinion, based on his examination of various aerial photographs, as to the extent of the area of Sandy’s Paddock that was cleared of native trees after 1990. In Mr Wilkie’s opinion, the area was about 9.83 hectares.

29. The Respondent tendered an “Aerial Imagery Interpretation Report” of Mr Leo Watts (Exhibit A) dated 13 November 2025. Mr Watts has similar qualifications and experience to Mr Wilkie. Based on his examination of various aerial photographs, Mr Watts reached the view that between 9 July 1996 to 3 August 2000, approximately 9.4 hectares of trees were cleared in Sandy’s Paddock, and that a total number of 1760 trees were cleared in Sandy's Paddock from 1 January 1990.

30. Mr Wilkie and Mr Watts prepared a joint report dated 27 November 2025 (First J****oint Report; Exhibit 4). In that Joint Report, Mr Watts confirmed his view that the total area of trees cleared in Sandy’s Paddock in 1999 was “in the order of 9.4 hectares and the number of cleared trees is estimated to be 1760”: Exhibit 4 at [16]. Mr Wilkie maintained his view that the total area of trees cleared was in the order of 9.83 hectares and that the number of trees cleared was “estimated to be 1489”: Exhibit 4 at [17]. Ultimately however, the experts agreed to adopt Mr Watts’ area of 9.4 hectares, and his tree count of 1760 trees: Exhibit 4 at [17].

31. The Applicant was granted leave to tender a late supplementary report of Mr Wilkie dated 8 December 2025. In this report, Mr Wilkie attached as Map A an image of Sandy’s Paddock with purple highlighting around its boundary. From his analysis of various photographs and aerial images, he expressed the opinion that “5.63 hectares were cleared in or around 1999 around the perimeter of the farming area” of Sandy’s Paddock, including a total number of 882 trees cleared. I understood the relevance of this opinion to be that this 5.63 hectare area should be considered to have been lawfully cleared as an exemption under SEPP 46 (see [22] above and the definition of Rural Structures).

32. As a consequence of allowing the Applicant to rely on Mr Wilkie’s supplementary report, I made an order during the hearing for Mr Wilkie and Mr Watts to prepare a supplementary joint report, which is dated 16 December 2025 (Supplementary Joint Report**;** Exhibit 7).

33. In the Supplementary Joint Report, Mr Watts expressed the opinion that based on his analysis of the 2000 Aerial Photo:

“9 … there is a strip of land approximately 10m in width that is immediately adjacent to and surrounding the cultivated paddock to its north, east and south that may be the initial makings of a dirt track around the perimeter of the cultivated paddock on these sides. Such a strip of land was not obvious to the west of the paddock”: Exhibit 7 at [9].

34. Mr Watts’ conclusion concerning the 2000 Aerial Photo was as follows:

“16 LW – My analysis of the 3 August 2000 imagery indicates:

a) 5.7ha was mapped as the “2000 road formation area” as at this date around the perimeter of the later-cultivated paddock extents (“Sandys”). This is indicated on the map in Attachment A.

b) Within this 5.7ha area a total of 0.6 ha of 1994-tree-canopy was cleared in 1999.

c) The tree canopy layer used is the previously agreed tree-clearing area.

d) The remaining 5.1 ha within the “2000 road formation area” associated with the Perimeter Road, was groundcover/grassland cleared in 1999 (i.e. was non tree-canopy area)”: Exhibit 7 at [16].

35. Mr Wilkie’s opinion concerning the 2000 Aerial Photo was:

“18 AW – My analysis of the 3 August 2000 imagery indicates:

a) Net 10.63 ha of “2000 cleared area” has been identified around the perimeter of the later-cultivated paddock extents (“Sandys”).

b) within this 10.63 ha “road-corridor” area a total of 2.19 ha of 1994-tree-canopy was cleared in 1999.

c) The tree canopy layer used is the previously agreed tree-clearing area.

d) The remaining 8.44 ha within the “2000 cleared area” associated with the Perimeter Road “Road Corridor”, was already clear in 1994 (i.e. was non tree-canopy area)”: Exhibit 7 at [18].

36. In cross-examination, Mr Watts explained that in relation to the 2000 Aerial Photo, he could see a 10 metre track around the border of Sandy’s Paddock, with the exception of the Western boundary, in relation to which he did not see “any markings that were obvious to me that a – a road formation, a road, a track was in progress”: T67.20-49.

37. Mr Wilkie did not have a substantially different opinion. However, he could make out a track on all sides of the boundary of Sandy’s Paddock, and agreed it was “possible” there was a track on the Western side as distinct from “probable”: T69.7-42.

38. The essential difference between Mr Wilkie and Mr Watts in relation to the supplementary joint report was that when Mr Wilkie calculated the area cleared based on the 2000 Aerial Photo, he included the Western boundary of what he considers to be a track or road corridor, whereas Mr Watts did not: T71.10-15.

Submissions

39. The principal difference between the parties as to the proper construction of the Remediation Order is as to whether what they describe as the “operative” provision is cl 3.8, or cl 7.1.

40. The Applicant maintains that the only areas of Sandy’s Paddock that are subject to the Remediation Order are those identified in cl 7.1. That is, the Tree Clump, the Eastern Shelterbelt, and the non-cultivated strip on the northern boundary of Remediation Area 2. The “central proposition” of the Applicant is that the Remediation Order only imposes “an obligation to take remedial action in respect to those areas referred to in cl 7.1”: T45.10-13.

41. The Applicant’s contention is first based on the proposition that the definition of “Remediation Area 2” in the Remediation Order, which includes the whole of Sandy’s Paddock, is “limited” by the “operative provisions” of cl 7.1 and to the areas specified therein: Applicant’s Written Submissions (AWS) at [30]. The Applicant contends that cl 3.8 “is not sensibly capable of operation in relation to areas that are already cleared”: T46.30-31.

42. Secondly, relying on Pacific Carriers [1] , the Applicant says an interpretation of the Remediation Order limiting its effect to the areas specified in cl 7.1 is consistent with the “surrounding circumstances known to the Applicant and the [Respondent]” at the time the remediation order was entered into: AWS at [28] and [31]. The Remediation Order, the Applicant submits, was “made to give effect to the resolution of criminal proceedings in relation to the clearing of “sparse and scattered” vegetation”: AWS at [31] and Judgment at [23].

43. Thirdly, and still in the context of “surrounding circumstances”, the Applicant contends that his interpretation of the Remediation Order is consistent with a draft plan of management that was sent by the Crown Solicitors Office to his then solicitors under cover of a letter dated 11 December 2001 during the course of negotiations concerning the prosecution brought against Leverton, in which the following management areas were proposed:

“MANAGEMENT CONDITIONS:

Proposed management Areas

Area 1 – that part of Lot 1 Parish Tun Cooey subject of SWO

- Area 1 North: uncleared area in northern part of Area 1

- Area 1 South: -- the regeneration area - the cleared area in the southern part of Area 1

Area 2 – Lots 7 & 9 Parish Mount Pleasant

- Eastern Corridor – An area 100m wide extending to the south of the existing eastern shelterbelt shall be fenced and allowed to regenerate to form a link with the remaining vegetation around the east-west formed road.

- Northern Corridor – 100 metre strip of land along the northern boundary of Lot 7 that was not cultivated (Note -appeared to have been left as a continuation of the existing northern shelterbelt)”: Manchee Affidavit at Annexure C.

44. The Applicant’s construction of the Remediation Order is also said to be consistent with the understanding of his then solicitors, who considered that he would still be able “to cultivate lots 7 and 9”: Manchee Affidavit at Annexure E; AWS at [36]. Moreover, prior to these appeal proceedings being commenced, the Respondent issued a map identifying “Category 2 – Regulated Land” as only the areas specified in cl 7.1 of the Remediation Order, and not the whole of Sandy’s Paddock: see p 65 of Exhibit AC-1 to Carter Affidavit, and Map 3 at p 70.

45. In relation to the obligation to control weeds in the Remediation Order (cl 8.1) the Applicant also contends that this provision only relates to the areas specified in cl 7.1, and not to the entirety of Sandy’s Paddock: T47.13-19. Weeding, it was submitted, only applies to areas where vegetation remains.

46. While principally contending that the only land that the Remediation Order applies to is the land areas specified in cl 7.1, the Applicant additionally submitted that with respect to s 60I(1)(b) of the LLS Act (see [11] above), and to what extent land was unlawfully cleared after 1 January 1990, the only parts of Sandy’s Paddock that can be determined as Category 2 Land under this provision are the parts that were unlawfully cleared, and not the entire Paddock. It is clear then, at most, based on the agreed joint report evidence, 9.4 hectares of Sandy’s Paddock could have been unlawfully cleared. It was submitted that this area becomes smaller after regard is had to the supplementary joint expert report concerning the part of Sandy’s Paddock that was lawfully cleared for the purposes of a road or track.

47. While the Applicant accepts that Leverton pleaded guilty to a charge of unlawful clearing within Lots 7 and 9 (Sandy’s Paddock), he submits that this conviction does not prevent him from contending that part of the clearing was lawful, and notes that Talbot J did not make any specific findings about the extent or area of unlawful clearing. Rather, his Honour only found that it took place within Sandy's Paddock, and that such clearing (of trees and vegetation) was “sparse and scattered”: Judgment at [23].

48. The Respondent contends that all of Sandy’s Paddock should be designated as Category 2 Land, because all of it was subject to the Remediation Order on its proper construction, and is therefore caught by s 60I(2)(f) of the LLS Act: see [11] above and Respondent’s Written Submissions (RWS) at [12] and [21].

49. Alternatively, if not all parts of Sandy’s Paddock are covered by the Remediation Order, the Respondent contends that those parts specified in cl 7.1 must be categorised as Category 2 Land, as should any areas of Sandy’s Paddock subject to unlawful clearing after 1 January 1990: RWS at [22]. Only those parts of Sandy’s Paddock not subject to the Remediation Order and not unlawfully cleared should be categorised as Category 1 Land.

50. The Respondent submits that the Remediation Order was made as a “unilateral exercise” of statutory power, notwithstanding Leverton’s acceptance of it for the purposes of the prosecution brought against it. It should therefore be construed according to the principles that apply to the construction of statutes: see Herzfeld and Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at pp 365-366; RWS at [26]-[28].

51. Contrary to the Applicant’s submissions, the Respondent contends that cl 3.8 of the Remediation Order is “an operative provision that relates to all Remediation Areas, including Remediation Area 2” (i.e. the whole of Sandy’s Paddock): RWS at [33]. This, it was submitted, is consistent with objective 2(b) of the Remediation Order which is to “restore habitat and connectivity values that have been lost as a result of the clearing”, and the fact that the entirety of Sandy’s Paddock was cleared by bulldozer (noting that the trees and shrubs that were unlawfully cleared were “sparse and scattered”, while the clearing of grasses in Sandy’s Paddock was not unlawful). The Respondent’s submission in relation to objective 2(b) can be contrasted to the Applicant’s, who submitted that although objective 2(b) was “expressed generally”, and “doesn’t refer to any particular remediation area”, it has a more “natural” link to Remediation Area 1 than to Remediation Area 2: T45.45-49.

52. The Respondent submits that, by contrast to the “operative” and general nature of cl 3.8, cl 7.1 “provides additional restrictions on what can occur in certain sensitive areas within… Remediation Area 2”: RWS at [35]. Clause 7.1 is a more onerous provision, and “does not limit the more general provision clause 3.8”: RWS at [35].

53. As to cl 8.1, the Respondent submits that it clearly applies to all of Sandy’s Paddock, and should not be read down to only those areas specified in cl 7.1: RWS at [36]; T52.43-T53.21.

Resolution

54. The Remediation Order was the result of an exercise of statutory power by the Director-General of the Department: s 47(1) of the (repealed) NVC Act. This provision (see [10] above) empowered the Director-General, upon satisfaction that unlawful clearing had occurred, to direct a landholder or person having control of such clearing, to carry out specified work of the kind described in s 47(2), including work (inter alia) related to repairing any damage caused by the clearing; to rehabilitate land; and to ensure land will not be further damaged by the clearing. There seems no reason not to construe the Remediation Order other than in accordance with a consideration of the natural and ordinary meaning of the words used, and in light of any objectives for the Remediation Order. In other words, there seems no reason not to construe the Remediation Order other than in accordance with the usual rules of statutory construction, which “begins and ends with the statutory text understood in context and in light of the statutory purpose”: Palmanova Pty Ltd v Commonwealth of Australia (2025) 424 ALR 768; [2025] HCA 35 at [4].

55. Whatever the Applicant or his then solicitors may have subjectively thought about the Remediation Order, there is no evidence of some mutual understanding between Leverton and the Director-General that the only parts of the Remediation Order that would apply to Sandy’s Paddock would be the areas identified in cl 7.1. For the reasons that follow then, in my view the text, the context and purpose of the Remediation Order make it clear that “the land” that was “subject to a requirement to take remedial action to restore or protect the biodiversity values of the land” (s 60I(2)(f) LSS Act) was the entirety of Sandy’s Paddock.

56. The Remediation Order is prefaced by a statement of the Director-General of the Department that he was satisfied that “clearing of native vegetation was carried out on… “Luellan”… comprising… Lots 7 and 9.” I accept that the Director-General’s state of satisfaction should be taken to relate to the fact that unlawful clearing had taken place in Lots 7 and 9 (Sandy’s Paddock), and not satisfaction that the entirety of Sandy’s Paddock (an area of about 260 hectares) was unlawfully cleared.

57. “Remediation Area 2” is defined as “those parts of Lots 7 and 9 DP 756014 identified as such on the map at Attachment 1”. The Map does not identify isolated parts of Sandy’s Paddock as Remediation Area 2. It is clear that Remediation Area 2 includes the whole of Sandy’s Paddock, bounded by a yellow border on the Map.

58. The relevant “objectives” or purposes of the Remediation Order that relate to Remediation Area 2 are cl 2(b) and (c) of the Remediation Order, set out at [14] above.

59. I do not agree that the objective to “restore habitat and connectivity values” relates only or primarily to Remediation Area 1 – South. It does not say this. The objective is to “restore habitat and connectivity values” that have been “lost as a result of the clearing” (emphasis added). The clearing is the clearing referred to by the Director-General, and includes the clearing that occurred in Sandy’s Paddock.

60. Clause 3.8 of the Remediation Order (see [15] above) contains no ambiguity in my view. The prohibition on clearing or burning native vegetation relates to the “Remediation Areas”. This is defined to mean all of them, including Remediation Area 2, which the Map indicates includes the whole of Sandy’s Paddock.

61. There is no reason in my view then to read cl 7.1 as a limitation on cl 3.8 such that “Remediation Areas” in cl 3.8 is only a reference to the areas set out in cl 7.1 when it comes to Sandy’s Paddock. Clause 3.8 prohibits the clearing of native vegetation in all Remediation Areas. It is not expressed to be limited to native vegetation “remaining” as submitted by the Applicant. That would make no sense in any event, given native vegetation is capable of regrowing in an area after it has been cleared. As submitted by the Respondent, cl 7.1 contains additional restrictions beyond cl 3.8 – no cultivation, no pasture improvement using exemptions – to the areas identified within it: namely, the Tree Clump, the Eastern Shelterbelt, and the non-cultivated strip on the northern boundary of Remediation Area 2.

62. It is true that in the Judgment Talbot J, although finding that the “land area in which clearing took place… in lot 7 and lot 9… was approximately 250 hectares” and that Leverton “did clear native vegetation on the said lots… 7 and 9 without first obtaining development consent”, also found that “the actual vegetation on lot 7 and lot 9 was sparse and scattered”: Judgment at [12], [41] and [23]. I do not consider that this finding in the Judgment has any bearing on the proper construction of the Remediation Order, which is to be construed according to the natural and ordinary meaning of its text, understood in context and in light of its purposes.

63. I am also of the view that the requirement to “control noxious weeds in the Remediation Areas” set out in cl 8.1 of the Remediation Order applies to all of Sandy’s Paddock, and not just to the areas described in cl 7.1 as submitted by the Applicant. I do not agree with the Applicant’s submission that the control of noxious weeds is “not a type of remedial action as referred to in the statute”: T47.27-29. In other words, I do not accept that the control of noxious weeds should not be seen as a “requirement to take remedial action to restore or protect the biodiversity values of” the Remediation Areas, including all of Sandy’s Paddock in accordance with s 60I(2)(f) of the LLS Act.

64. I am therefore of the view that the Remediation Order applies to the whole of Sandy’s Paddock. I am satisfied then that the whole of Sandy’s Paddock (Area C in the Respondent’s Map Review Determination) was properly designated as Category 2 – Regulated Land by the Respondent by reason of s 60I(2)(f) of the LLS Act. The appeal should be dismissed.

65. For completeness, I note that the Respondent accepted that if it was wrong concerning the proper construction of the Remediation Order, then those areas of land identified in cl 7.1 of the Remediation Order must be categorised as Category 2 – Regulated Land, as must any areas of Sandy’s Paddock that were unlawfully cleared (see s 60I(1)(b) of the LLS Act), but those parts of Sandy’s Paddock that were not unlawfully cleared must be categorised as Category 1 – Exempt Land: RWS at [22]. I agree with this submission, but because of my construction of the Remediation Order it is unnecessary for me to determine what parts of Sandy’s Paddock were not unlawfully cleared.

Orders

66. I make the following orders:

67. The Applicant’s Class 1 appeal is dismissed.

68. Costs reserved.

69. Should any party wish to apply for an order for costs, they are to do so in written submissions limited to three pages that are to be filed and served (with a copy emailed to my Associate) within seven days of the date of this judgment. Any reply submissions (also limited to three pages) are to be filed and served (and provided to my Associate) within a further seven days. Any application for costs will be determined on the papers.

70. Should there be no application for costs within the time period set out in order 3, then there will be no order as to costs in these proceedings.

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Attachment 1 (2.06 MB, pdf)

Endnote

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22] (the Court).