Michael Norvill v Kevin Stokes

Baiada and Others v Waste Recycling and Processing Service of NSW (1999) 130 LGERA 52; Browne v Dunn (1893) 6 R 67; Director General, Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242; Director-General of Department of Land and Water Conservation v Greentree and Another (2003) 131 LGERA 234, 140 A Crim R 25; Director-General, Department of Land and Water Conservation v Pye [1998] NSWLEC 301; Director of Public Prosecutions v United Telecasters Sydney Limited (1990) 168 CLR 594; Environment Protection Authority v Leaghur Holdings Pty Ltd (1995) 80 A Crim R 553; Gabriel v Ah Mook (1924) 34 CLR 591; Hanwood Pastoral Co Pty Ltd v Director-General, Department of Natural Resources (2005) 144 LGERA 139; CASES CITED: James Pennycook Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; May v O'Sullivan (1955) 92 CLR 654; President, etc., of the Shire of Braybrook v Robinson [1920] VLR 552; R v Birks (1990) 19 NSWLR 677; R v Hien Puoc Tang [2006] NSWCCA 167; Reid v Kerr (1974) 9 SASR 367; The Adelaide Steamship Company Limited and Others v His Majesty the King and the Attorney-General of the Commonwealth (1912) 15 CLR 65; The King v Hush; Ex parte Devanny (1932) 48 CLR 487; Vitality Care Pty Ltd v Director-General, Department of Natural Resources [2006] NSWLEC 506; Zanetti v Hill (1962) 108 CLR 433

DATES OF HEARING: 24/07/2006, 25/07/2006, 26/07/2006, 27/07/2006, 17/08/2006

PROSECUTOR Mr P Roberts SC with Mr I Bourke SOLICITORS Crown Solicitor LEGAL REPRESENTATIVES: DEFENDANT Mr T Howard SOLICITORS Mallik Rees

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MICHAEL NORVILL (for the Department of Natural Resources) Prosecutor

JUDGMENT Jagot J: A. The charge 1 The prosecutor charged the defendant with clearing about 65 hectares of State protected land (within lots 21 and 22 in DP 1013433 and lot 3 in DP 732392 at Putty, near Singleton) between about 4 February 2003 and 4 February 2004, other than in accordance with a development consent in force. This conduct was proscribed by s 22 of the Native Vegetation Conservation Act 1997 (now repealed).

2 Section 22 created a strict liability offence (see, by analogy, Director-General of Department of Land and Water Conservation v Greentree and Another (2003) 131 LGERA 234, 140 A Crim R 25 at [74] to [80]). Accordingly, the prosecutor must prove beyond reasonable doubt that, within the period charged: - (1) The defendant cleared land (identified as lots 21 and 22 in DP 1013433 and lot 3 in DP 732392 at Putty, near Singleton).

(2) The land cleared by the defendant was State protected land.

(3) The clearing was not in accordance with a development consent in force.

3 Mr Norvill is a resource compliance officer within the Department of Natural Resources. He was primarily responsible for the investigation of the alleged offence. Mr Norvill had completed training courses provided by the Department with respect to the use of global positioning systems ("GPS") and geographic information systems ("GIS").

4 Ms Victoria Lees assisted Mr Norvill with respect to parts of the investigation, including inspecting the cleared areas. Ms Lees is a natural resource project officer (resource compliance) within the Department. She uses GIS, but is not a specialist in that area.

5 The other officers of the Department who gave evidence, Mr David Thomas and Mr Mark Everett, did not inspect land in connection with the alleged offence. Those officers carried out desktop mapping tasks. Mr Thomas holds a Bachelor of Science and has 20 years experience in "natural resource mapping", including "air photo interpretation, ground surveys and transfer of mapped data from aerial photographs to paper maps and into digital formats". Mr Everett is a resource and information officer within the Hunter Resource Information Unit of the Department. He holds a Bachelor of Applied Science and has 18 months experience with GIS, and 12 years experience in natural resources management, involving the use of "GIS to interpret and analyse "on ground" information".

6 Ms Suzana Green is the owner of lot 22 DP 1013433. Ms Green's purchase of lot 22 settled on or about 14 January 2004. The vendor was Holrock Pty Ltd, a company with which the defendant was associated.

7 The first issue is whether I am satisfied beyond reasonable doubt that the defendant cleared land.

8 I am satisfied that, on 19 January 2004, the defendant told Mr Norvill he had logged land in the vicinity of Kindarun Mountain. Mr Norvill inspected land in the vicinity of Kindarun Mountain with the defendant on 20 January 2004. He saw fallen trees, tree stumps, log dumps, roads and snig tracks. The defendant told Mr Norvill that he had a couple of blokes do the logging before the land was sold, and that the land was split into two lots. Ms Green completed the purchase of lot 22 DP 1013433 on 14 January 2004. Ms Green walked around that property prior to settlement. She saw piles of felled trees, dead wood and machinery. She did not see any logging, but saw cut stumps. Some stumps were old, some relatively new. The stumps were interspersed with standing trees.

9 Mr Norvill and Ms Lees took video footage of land in the vicinity of Kindarun Mountain. The video shows tree stumps, logs and tracks, interspersed with trees over a wide area. Mr Norvill took photographs. They show tree stumps, logs and tracks through otherwise treed areas, log dumps and equipment, including trucks, a Caterpillar with forks, and a skidder dragging a log to a log dump. Mr Norvill observed that within the perimeter of the logged area, there were pockets that had and had not been logged. The defendant told Mr Norvill that the area had also been logged on occasions before the most recent logging.

10 Ms Lees inspected land in the vicinity of Kindarun Mountain with Mr Norvill on 3, 4 and 5 February 2004. She observed log dumps, a partially loaded log truck, a skidder hauling a log into a log dump, a truck being loaded with logs, stumps of trees, snig tracks and roads. With Mr Norvill, Ms Lees located an area she described as totally cleared with the exception of a few large trees. At the edge of this area she saw a windrow of trees stacked on the edge of the escarpment, and several other stacks of trees. This area was different from the balance of the logged area. It had no stumps in it, and had no trees standing apart from the few large trees. In the balance of the logged area, however, there were still trees standing.

11 Ms Lees carried out surveys of 17 quadrats of 25 by 25 metres each within the area affected by logging. She counted the number of tree stumps and broken off and crushed trees within each quadrat. From those counts, she estimated the number of trees harvested, destroyed or damaged per hectare. Ms Lees presented a table setting out these counts and estimates. Her affidavit did not explain her method of estimation. It is apparent that it involved multiplying all the counts by a factor of 16. (Each quadrat was 25m x 25m (625 sqm). One hectare is 10,000 sqm. 10,000 divided by 625 is 16.)

12 Mr Norvill and Ms Lees conducted an interview with the defendant on 5 February 2004. The defendant initialled the notes of this interview. The defendant could not read. However, he did not initial the notes until after Mr Bonski, a person whom the defendant knew, read each question and answer back to him. The defendant required amendments to the notes, which were made. The questions and amended answers were again read to the defendant, before he initialled the document. I am satisfied that this process was adequate to ensure that the defendant acknowledged the notes as a true record of his interview (s 86 of the Evidence Act 1995).

13 In the interview, the defendant said that he had day-to-day management of the logging. He said that he authorised the logging in the vicinity of Kindarun Mountain. He said the logging had been going on, with a few gaps, for a year and a half to two years (from about June 2002 to before Christmas 2003). He said this activity had been going on since he was 13 or maybe 15. He was 38 at the time of the interview. He had logged the land about 4 times during that period. His employees used dozers and log skidders to do the logging. He thought that if the land had been logged before, it would be okay. The logs were taken to the defendant's sawmill. I infer that this is a family business run by the defendant with his father. The defendant, as best he could, marked on an aerial photograph the area within which he thought the logging had occurred, and dated and initialled that photograph. I was not satisfied that the words and scale on that photograph were read to the defendant. The prosecutor said that did not matter, as they were not relied upon to prove the truth of the matters they represented. As such, I do not place any weight on those words or the scale.

14 Mr Norvill was cross-examined about the inconsistencies between his conversations with the defendant as set out in his affidavit and the notes of these conversations in his notebooks. I do not consider the inconsistencies material to the essence of the admissions made by the defendant. Similarly, I accept the signed notes of the interview with the defendant as reliable.

15 I have described the area of land on which the defendant carried out logging as in the vicinity of Kindarun Mountain. The question whether the logging occurred on land within particular lots involves other issues, which I deal with in section D below. Otherwise, I accept the observations of Mr Norvill, Ms Lees and Ms Green, as I have summarised above.

16 On the basis of my findings above, I am satisfied beyond reasonable doubt that the defendant cleared land, by logging, in the vicinity of Kindarun Mountain within the period 4 February 2003 to 4 February 2004.

17 The second issue is whether I am satisfied beyond reasonable doubt that the land logged by the defendant between 4 February 2003 and 4 February 2004 was State protected land.

18 State protected land was defined in s 4(1) of the Native Vegetation Conservation Act. The relevant part of the definition was sub-para (b) - "any land defined as protected land under s 21AB of the Soil Conservation Act 1938 (as in force immediately before the repeal of that section by this Act)". Section 21AB, insofar as relevant, enabled protected land to be identified on maps.

19 Much of the evidence with respect to the land logged by the defendant involved the use of a commercially available GIS known as "ArcView, "ArcMap" and "ArcGIS". The evidence about the GIS involved a number of concepts, steps and issues. These included: (1) Identifying a map identifying land as protected land under s 21AB of the Soil Conservation Act 1938 as in force immediately before its repeal.

(2) Mr Norvill using a GPS device to record the coordinates of locations on the ground (in particular, the perimeter of areas within which trees had been logged).

(3) Mr Everett using the GIS to create a digital version of the map under s 21AB of the Soil Conservation Act 1938 - by digitally registering or matching a scanned copy of a portion of that map to an existing digital copy of a topographic map of the same area.

(4) Mr Everett using the digital version of the map under s 21AB overlaid on the topographic map, to overlay other information in electronic format, including cadastre and GPS coordinates - thereby representing the perimeter of the area within which trees had been logged relative to the information (protected and unprotected land) on the map under s 21AB and other information (electronic cadastre).

20 I deal with these concepts and steps below, after considering the evidentiary certificate, hard copies of certain deposited plans and the question of the map identifying protected land.

21 The prosecutor tendered a certificate under s 66 of the Act. That section enabled the Director-General to certify certain matters. The certificate is prima facie evidence of the matters certified. The certificate said that, pursuant to s 66(a) of the Act, the land specified in Schedule 1 was State protected land from 2 May 1973 until 22 November 2005. Schedule 1 to the certificate is as follows: SCHEDULE 1

Land within Lot 21 DP 1013433 in the County of Hunter and within the Parish of Kindarun and being land owned previously by Holrock Pty Limited and which was sold on 23rd October 2003 to Annie Wilkie Brown;

Land within Lot 22 DP 1013433 in the County of Hunter and within the Parish of Kindarun other than an area of land in the south west corner and as depicted in the map attached and marked "A" and being land owned previously by Holrock Pty Limited and which was sold on 14th January 2004 to Suzana Green; and

Land within Lot 3 DP 732392 in the County of Hunter and within the Parish of Kindarun and being land owned by Shirley Patricia Lewis.

22 The attached map referred to in the second paragraph of the Schedule contains a legend referring to cadastral parcels, unprotected land and protected land. Three parcels are shown - 013/3//732392, 013/21//1013433 and 013/22//1013433. The map bears a north point and a scale. It shows the whole of the three parcels as "protected", excluding a triangular section in the south-western corner of 013/22//1013433 that is shown as "unprotected". The map also includes the following statement: Department of Natural Resources

Prepared by: - Resource Information Unit - Hunter Region - Newcastle

This map is to be used as a general guide for regional and local scale natural resource planning and management only, not for the assessment of specific sites which can only be assessed by a site specific investigation.

The field information contained on this map may not be verified or complete.

The Department of Natural Resources is not responsible for the result of any actions taken on the basis of the information contained on this map or for any errors, omissions or inaccuracies contained on this map.

ME-W:\AAAworkareas\wr2114\Outputs\wr2114-Stokes.mxd

23 The map is a reduced copy of a map prepared by Mr Everett, other than the blue triangle marked by a person unknown.

24 The certificate must be construed strictly, and cannot operate as evidence of any fact outside the scope of the provisions expressly relied upon on the face of the certificate (President, etc., of the Shire of Braybrook v Robinson [1920] VLR 552). Relevantly, the certificate is prima facie evidence that the "land specified in the certificate was, at a time or during a period specified in the certificate, protected land". Other matters referred to in the certificate and on the attached map are not prima facie evidence, insofar as those matters fall outside the provisions relied upon (s 66(a) and (d)). For example, the certificate is not prima facie evidence that the entity and people nominated in the schedule in fact owned land at all or at any time.

25 The prosecutor chose to put other evidence before the Court to prove that lots 21 and 22 in DP 1013433 and lot 3 in DP 732392 were State protected land. Accordingly, there is a question whether s 66 operates at all (The Adelaide Steamship Company Limited and Others v His Majesty the King and the Attorney-General of the Commonwealth (1912) 15 CLR 65, Gabriel v Ah Mook (1924) 34 CLR 591). However, I proceed on the basis that the certificate operates in accordance with s 66.

26 On that basis, the certificate is prima facie evidence that the land described in the Schedule was State protected land. As prima facie evidence, the certificate must be considered along with all other evidence to determine whether the prosecutor has proved that fact beyond reasonable doubt (The King v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507 - 508, Zanetti v Hill (1962) 108 CLR 433 at 442, May v O'Sullivan (1955) 92 CLR 654 at 657 - 658).

27 Hard copies of DP 732392 and DP 1013433 were tendered.

28 DP 732392 registered 9 May 1986 bears a council's clerk certificate of 7 March 1986 certifying that the applicant had complied with the requirements of the Local Government Act 1919 with respect to proposed subdivision 11/86. This was a subdivision of part lot 141 DP 702589. Lot 3 in DP 732392 is shown as 111.1 hectares. The DP also identifies the shire as Singleton, the locality and parish as Kindarun in the County of Hunter. The DP marks "Kindarun geodetic station" in the south-eastern corner of lot 1 in the DP.

29 DP 1013433 registered 22 May 2000 bears a council's clerk certificate of 10 March 2000 certifying that the applicant had complied with the requirements of the Local Government Act 1919 with respect to proposed subdivision 11/99. This was a subdivision of lot 2 DP 732392 into lots 21 and 22 DP 1013433. Lot 21 is shown as 40.23 hectares, and lot 22 as 133.7 hectares. The DP also identifies the shire as Singleton, the locality and parish as Kindarun in the County of Hunter. The DP marks "Kindarun TS" (trigonometric station) to the west and outside lot 22.

30 I infer from the evidence that the Departmental officers did not use these hard copy deposited plans in their investigations of the clearing or the preparation of their evidence.

Map 8804 - is it a map defining State protected land?

31 I am satisfied that the Departmental officers who gave evidence about the status of land relied on map 8804, which they generally referred to as the "Hawkesbury protected land map".

32 The relevant part of the definition of State protected land in s 4(1) of the Native Vegetation Conservation Act refers to land "defined as protected land under section 21AB of the Soil Conservation Act 1938 (as in force immediately before the repeal of that section by this Act)". Section 21AB(1)(a), as in force prior to its repeal, defined "protected land" as "land identified on a map a copy of which has been deposited in the office of a District Soil Conservationist in accordance with section 21B". Section 21B provided for the depositing of maps prepared by the Commissioner of the Soil Conservation Service, being maps of land that met certain criteria set out in s 21B(1)(a) to (c).

33 The defendant submitted that there was no evidence that map 8804 was a plan deposited in accordance with s 21B immediately prior to the repeal of the Soil Conservation Act 1938. Further, that map 8804 exhibited contrary indications. The defendant observed that map 8804 says it is sheet 1 only of 9 sheets, and a mere part map of "protected land Hawkesbury River catchment area as set out in section 21 Soil Conservation Act 1938 - 1972". However, s 21 had nothing to do with protected land maps. Those maps were regulated by s 21AB. Map 8804 says that it is dated 2 May 1973, but also is the "Fifth edition, Map of the County of Hunter, Eastern Division, NSW," dated 7 February 1946, "compiled drawn and printed at the Department of Lands, Sydney NSW". The defendant noted that map 8804 contains hand written annotations at the top, the provenance of which is unknown, but did not contain any certification as provided for by s 21B(2) immediately prior to its repeal. There was also no evidence, the defendant said, that map 8804 remained in force at the date of repeal of the Soil Conservation Act 1938; subsequent depositing of a map of the same land as an earlier map meant that the earlier map had no effect (s 21B(4)).

34 Mr Everett said in his affidavit that he obtained a copy of map 8804 dated 2 May 1973 by which the Commissioner identified "protected land" within the Hawkesbury River catchment area pursuant to s 21AB of the Soil Conservation Act 1938. A necessary (albeit implied) corollary of this evidence is that map 8804 was deposited as required. Mr Everett identified the map he used as being the same as a map tendered by the defendant, which became exhibit 6 (that is, map 8804). The prosecutor submitted that, as Mr Everett was not cross-examined about his identification of that map as the map by which the Commissioner identified "protected land" within the Hawkesbury River catchment area pursuant to s 21AB, it was not open to the defendant to submit that map 8804 was not such a map (Browne v Dunn (1893) 6 R 67).

35 The operation of Browne v Dunn in criminal proceedings was considered in R v Birks (1990) 19 NSWLR 677. The rule applies in criminal proceedings, albeit subject to the overriding qualification that its central object is to secure fairness (at 689). In my view, Browne v Dunn did not operate in the circumstances of this matter to prevent the defendant from relying on matters said to be anomalies apparent on the face of map 8804 relevant to the status of that map. In particular, nothing in Browne v Dunn affected the fact that the prosecutor had to prove that there was a map that identified protected land under s 21AB of the 1938 Act before its repeal, being a map a copy of which had been deposited in the office of a District Soil Conservationist in accordance with s 21B.

36 While map 8804 contains various markings, it identifies itself as a map of "protected land" under the Soil Conservation Act 1938. The reference to "section 21" is an anomaly. That section, however, had nothing to do with any mapping function. As such, I consider the incorrect section reference to be an immaterial error. The other matters relied on by the defendant with respect to the status of map 8804, taken in the context of Mr Everett's unchallenged evidence, were insignificant or excluded by the evidence.

37 Accordingly, I am satisfied beyond reasonable doubt that map 8804 was a map identifying protected land under s 21AB of the Soil Conservation Act 1938 (as in force immediately before the repeal of that section).

38 Given the relevant part of the definition of State protected land in s 4(1) of the Native Vegetation Conservation Act, it follows that the prosecutor must prove beyond reasonable doubt that the defendant cleared land identified as protected land on map 8804. Map 8804 shows protected land shaded grey. Unprotected land is shown white, edged black. There are many irregularly shaped white areas edged black on map 8804. These areas were described as "polygons" in much of the oral evidence.

39 Map 8894 shows the words "Kindarun M". To the north of "Kindarun M" is a white polygon shaped like a "Y". To the southwest is a white polygon shaped like a "T". Just above the eastern crossbar of that "T" shape is a mark, in a diamond or flare shape. That point sits on a line denoting a ridgeline. The symbol does not have a height in metres next to it, and is not identified in the legend on the map (which includes a symbol for "trigonometrical station with altitude").

40 The scale on map 8804 is one inch to two miles. Mr Thomas agreed that, as such, 1mm on map 8804 equals about 126.5 metres on the ground.

41 Mr Norvill and Ms Lees used GPS devices to identify and record locations as part of their investigations. They used GPS devices to record coordinates (easting and northing) of the perimeter of the area within which they observed cut stumps and logs, as well as the location of log dumps, snig tracks and roads. Ms Lees used a GPS device to identify the perimeter of the area she described as wholly cleared but for a few tall standing trees, and the location of her quadrats.

42 Other than the fact of use of GPS devices to determine the coordinates of various locations, Mr Norvill and Ms Lees provided no information in their affidavits about the GPS devices they used, how the devices functioned or their reliability. The defendant initially objected to the evidence of Mr Norvill and Ms Lees as expert evidence absent compliance with the expert witness code of conduct and the other obligations of experts. The defendant subsequently withdrew these objections. The affidavits were read into evidence.

43 Mr Norvill explained in cross-examination that he took the coordinates by placing the GPS device on the ground to "acquire" more than one satellite for at least a minute. Mr Norvill thought the GPS device needed to "acquire" three or four satellites before it would provide coordinates. The GPS device "averages out" the information from the "acquired" satellites. The GPS device showed easting and northing coordinates that Mr Norvill recorded in the GPS device and in his field notebook. Mr Norvill did not know if the GPS device could give inaccurate readings by reason of insufficient line of sight to satellites. He complied with the Department's guidelines for GPS use. The guidelines required the officer to ensure that the GPS device remained still for one minute before taking a reading. Mr Norvill assumed that the GPS device would provide a tolerably accurate location if he complied with these guidelines. He did not return to any location to check any reading. Mr Norvill had no idea what the margin of error could be for any reading he took. He did not agree that his method of taking GPS coordinates would give unreliable readings. Mr Norvill had been told in training that the margin of error for a GPS device could be anywhere from two to ten metres on the ground.

44 Section 79 of the Evidence Act 1995 makes admissible expert opinion evidence where there is a "demonstrable link" between the opinions and the specialised knowledge of the expert (R v Hien Puoc Tang [2006] NSWCCA 167 at [152] per Spigelman CJ). It was common ground between prosecutor and defendant that Mr Thomas and Mr Everett gave expert opinion evidence. The maps and plans they produced involved the application of specialist knowledge. The maps both embodied and formed the basis for their opinions that certain land was State protected land. In Mr Thomas's case, the maps were based on his experience in "natural resource mapping". In Mr Everett's, his experience in using GIS.

45 Mr Thomas and Mr Everett did not acknowledge in their affidavits that they understood their obligations as experts in accordance with Pt 75 r 3J of the Supreme Court Rules 1970 and the code of conduct in Sch K (applicable by reason of Pt 6 r 2 of the Land and Environment Court Rules 1996). The defendant initially objected to the affidavits for this reason. The defendant also submitted that Mr Thomas and Mr Everett had not disclosed the facts, matters and assumptions on which their opinions were based, or the reasons for their opinions, as required by the code of conduct for experts and otherwise (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [59] - [89]). The defendant subsequently withdrew all objections to the affidavits. The affidavits were read into evidence.

46 In cross-examination, Mr Thomas said that he had read this Court's practice direction for expert witnesses, but probably did not fully understand the obligations it imposed. This Court's practice direction is in substantially the same terms as the code in Sch K to the Supreme Court Rules. Mr Everett said that he had been informed about his obligations as an expert, but did not understand that, as part of giving expert evidence, he was obliged to articulate his assumptions.

47 I infer that neither appreciated their obligation to disclose (fully) their assumptions and reasoning processes, or the qualifications (if any) to which their opinions were subject. I infer this not only because they did not acknowledge any expert code in their affidavits, but also because they did not in fact comply with their obligations in their affidavits to disclose their assumptions, reasoning processes and the qualifications to which their opinions were subject. Their non-compliance was inadvertent. It was caused by lack of knowledge about the code and the legal principles about expert opinion evidence that underlie the code's provisions. Certain assumptions made by Mr Thomas and Mr Everett, aspects of their reasoning process, and qualifications to which their work was subject, were not disclosed in their affidavits. Those matters were disclosed through cross-examination in the main. As explained below, I consider some of these assumptions and qualifications significant. But first I must deal with the evidence about the GIS used by all Departmental officers (except Mr Thomas) to produce various maps.

48 "ArcView", "ArcGIS" and ArcMap are references to a software programs used by Mr Everett, Mr Norvill and Ms Lees to create various maps and plans. In their affidavits, Ms Lees and Mr Everett identified that "GIS" meant "geographical information system". Mr Everett also identified that "ArcMap" was a map based software package that assists users to carry out tasks including cartography, map analysis and map editing. Otherwise, none of the officers of the Department explained the operation of the GIS in their affidavits.

49 I granted leave to the prosecutor to adduce evidence in chief from Mr Thomas about the GIS and its use. Mr Thomas explained that "ArcView" is a "cut down version" of "ArcGIS". ArcGIS has more functions than ArcView, and greater skill is required for its operation. The programs enable a person (trained to use the software) to "overlay data sets, manipulate those data sets and to …add new data". The programs did not contain data such as cadastre, aerial photographs or maps. The programs allowed the user to access that information from databases. All cadastral information was held in or accessed via another database known as the "enterprise database". This is a database the Department holds in Parramatta, available to Departmental officers throughout New South Wales. Mr Thomas regularly accessed that database, but did not know how it was maintained, other than that the information in it changed from time to time. Mr Thomas was aware that the Department of Natural Resources generally used ArcView and ArcGIS, as did other State government agencies, including Land and Property Information.

50 In cross-examination, Mr Thomas said that Land and Property Information licensed the electronic cadastral information in the enterprise database to the Department. Mr Thomas identified Land and Property Information as a State government agency. I understood it to be common ground that Land and Property Information was the Department of Lands (and Ms Lees' maps were consistent with that position). Mr Thomas had no knowledge about how the electronic cadastral information was compiled or its accuracy. Mr Everett had no knowledge about either the source of the electronic cadastral information accessed by the software or its accuracy. He assumed that the electronic cadastral information accessed by the software was correct. Mr Norvill thought the ArcView program generated the cadastral information he accessed. He did not know how that was done or whether it was reliable.

51 Mr Thomas explained in his affidavit that he used proportional dividers to scale distances from an extract of map 8804 onto the Kindarun 1:25,000 topographic map. The topographic map shows contours and other features - including a trigonometric station on Kindarun Mountain. Mr Thomas identified limited common points on both maps so his mapping exercise was difficult. Once Mr Thomas considered that sufficient points were marked on the topographic map, he drew an "approximation of the "Protected Land" boundary" onto the topographic map.

52 Mr Thomas's map is thus a representation of the "Y" and "T" shaped polygons (and part of other polygons) on map 8804 placed on the topographic map, at the scale of the topographic map. The Kindarun Mountain trig station appears on Mr Thomas's map at the western end of the crossbar of the "T" shape and within the pencil outline of that shape. Mr Thomas estimated the boundaries located on his marked up topographic map were within 5mm of the mapped position as shown on map 8804. 5mm on the topographic map represented 125 metres on the ground. In other words, his exercise involved a margin of error on the ground of about 125 metres. Mr Thomas said that "in an endeavour to improve the accuracy of the transfer of boundaries" he asked Mr Everett to scan map 8804 and "register" that image to a digital image of the Kindarun 1:25,000 topographic map. To assist Mr Everett in the registration process, Mr Thomas identified a number of common reference points that Mr Everett could use.

53 In his affidavit, Mr Everett said that he scanned a portion of map 8804. He loaded that scanned image into ArcMap. The Kindarun 1:25,000 scale topographic map was already "loaded" into ArcMap (which I infer means that Mr Everett was able to access a digital version of the topographic map from the enterprise database).

54 Mr Everett registered (or matched) a portion of the map 8804 digital image to the Kindarun 1:25,000 scale topographic map digital image. He did so by using 54 common reference points that appeared on both maps. These reference points were all cadastre. Mr Everett said that this process of matching the two digital maps "achieved the best possible fit of the portion of … map [8804] to the Kindarun 1:25,000 scale topographic map".

55 Mr Everett saved this new image. He loaded this image back into ArcMap to carry out a "vectorization process". This process automatically generated (on the computer screen) a preview of GIS line features based on the centre of the black lines on the registered or matched map 8804 image. During this process, Mr Everett referred to the original printed map 8804 "to ensure the correct protected land boundaries lines were retained". Mr Everett then converted the GIS line features to GIS polygon features in ArcMap. This created the polygon shapes on Mr Everett's map. Mr Everett then assigned labels to the GIS polygon features, identifying the protected land boundaries in accordance with map 8804. Mr Everett overlayed his digital version of the registered portion of map 8804 onto the Kindarun 1:25,000 scale topographic map. This created a map that Mr Everett saved, being the same map as attached to the s 66 certificate (except that the s 66 certificate map is a reduced copy, and has a blue triangle marked on it).

56 On 26 May 2005, Mr Norvill e-mailed to Mr Everett GPS coordinates in the form of a polygon file, able to be added to maps in the ArcMap software. These GPS coordinates were the points around the perimeter of the clearing that Mr Norvill had recorded with GPS device, and converted into a polygon file. By polygon file, I understand that Mr Norvill used the GIS to convert the GPS points into a shape referable to the easting and northing coordinates, capable of being aligned with, and overlaid on, Mr Everett's maps. Mr Everett added this data to his digital map. The ArcMap program automatically positioned these polygons in the specific location on the map corresponding to the GPS coordinates.

57 The maps produced by Mr Everett show part of the Kindarun 1:25,000 scale topographic map overlaid by polygons representing the unprotected land shown on map 8804, including the "Y" and "T" shaped polygons. On both maps, the Kindarun Mountain trig station is shown to the west of, and outside, the western crossbar of the "T" shaped polygon. Mr Everett's maps also show outlined in red three cadastral parcels, labelled 013/3//732392, 013/21//1013433 and 013/22//1013433. Within those parcels on his final map is an irregular blue-hatched area marked as "area derived from GPS points" (that is, the data from Mr Norvill's polygon file).

58 Both of Mr Everett's maps contain a disclaimer in the same terms as the map attached to the s 66 certificate quoted above. The difference between Mr Everett's maps is that the final map shows Mr Norvill's GPS points representing the perimeter within which clearing had occurred, as a blue-hatched area. Otherwise, the maps are the same.

59 In completing these tasks, Mr Everett was guided by Glenn Byrne, Resource Information Officer in the Department's Newcastle Office.

Mr Everett and Mr Thomas's evidence about their maps

60 Mr Everett did not know the scale of map 8804. Mr Everett did not know that, when that scale was converted to metric, 1mm on map 8804 represented about 126.5 metres on the ground. He considered scale immaterial to his exercise. He used the cadastre on the scanned version of map 8804 to find 54 common reference points with the cadastre on the digital topographic map. He did not use parish boundaries because they might have altered. He did not accept that he had assumed that the cadastre remained unaltered - because a person (unidentified) had informed him that the cadastre had not altered since map 8804 was prepared.

61 Mr Everett agreed that map 8804 showed Kindarun Mountain on top of the ridgeline (assuming those markings denote a ridgeline - which I accept based on Mr Thomas's evidence), and that this made sense. He accepted that the mountain was shown on map 8804 by the diamond or flare shape. He agreed that the location of Kindarun Mountain trig station on his map was about 1.4km away from the location of Kindarun Mountain on map 8804, and that it was unlikely that a trig station on a mountain would be 1.4km away from the mountain. He did not agree that his map was unreliable, because he did not accept that map 8804 and the topographic map were necessarily depicting the same point. He thought that the point shown on map 8804 might be the top of the mountain, not the trig station. He could not comment on the likelihood of a trig station on a mountain being 1.4km away from the mountain top, because he did not know what trig stations represented or how they were placed. He accepted, however, that it was unlikely that a mountain would be located away from the ridgeline. He also accepted that if Kindarun Mountain was accurately located on map 8804, then the relative location of the mountain and the "T" shaped polygon on his map was incorrect at face value, as was the relative location of the three cadastral parcels.

62 Mr Everett agreed that his depiction of the trig station should at least be the same as shown on the topographic map, presumably because he used the topographic map as the base of his map and registered his digital version of map 8804 to the topographic map. Mr Everett then gave this evidence: Q. And if there were a difference in the order of 200 metres or so between the point you mark the Kindarun Mountain trig station on Annexure C and the point where Mr Thomas marks it, a map on which he purports to put the regular polygon shapes over a topographic map, you would consider that an indicator that someone's got it wrong, wouldn't you? A. Yes.

Q. And not only wrong, but very badly wrong? A. Yes.

63 When shown Mr Thomas's map and asked to compare it to his own map, Mr Everett agreed that there was a discrepancy of 200 metres between the locations of the trig station as shown on those maps. This exchange followed: Q. On the assumption that the document put in front of you was prepared by your colleague, Mr Thomas, do you agree that the difference of 200 metres between those two documents calls into question the accuracy of the exercise you've undertaken? A. No it doesn't. I don't agree.

Q. So when you say that, what you say is that Mr Thomas got it wrong. Is that what you mean? A. That would have to be what I mean, yes.

64 Mr Everett agreed that if map 8804 showed the trig station and the trig station had not moved after the map was drawn, then the unprotected land polygons he had shown on his map would have to be shifted to the west to be consistent with map 8804. In that event, the "Y" shaped polygon would be within the cadastral boundaries outlined in red on Mr Everett's map (because the difference in the relative location was 1.4km on the ground).

65 Mr Everett also agreed that there were some differences between the shapes (that is, the white polygons) shown on map 8804 and his map. He explained that this was a consequence of the operation of the GIS. The software generated a line in the middle of the lines on the digital and registered version of map 8804. The lines generated by the software have a different thickness and scale from the lines on the digital and registered version of map 8804. Mr Everett did not know how that process worked or its reliability. He agreed that if 1mm on map 8804 represented 126.5 metres on the ground, then there could be inaccuracies in his depiction of the unprotected land polygons that would equate to distances in excess of 100 metres on the ground by reference to map 8804.

66 Mr Everett agreed that he had found points between map 8804 and the topographic map that did not fit. He could not recall how many points did not fit. He did not use those points, as when he checked them he found they were not cadastre. At the end of the matching process, he had not found any cadastral points that did not match. He said that, as part of the process of electronic matching, the GIS gave him an error reading. He did not record and could not recall the error reading generated by the program, but was "comfortable" with that reading. He also had no record of the 54 matching cadastral points, because they were absorbed in the matching process and could not be printed out.

67 Mr Everett said in re-examination that he had no doubt in his mind that the area shown as blue hatched (Mr Norvill's GPS points of the perimeter of the clearing) on his final map was not encompassed by a white polygon on map 8804. That is, he had no doubt that the hatched area was State protected land.

68 Pursuant to leave, Mr Thomas explained in chief that proportional dividers have a pivot point in the middle and points on both ends that can be set to scale. He said that the major difficulty he had in carrying out his mapping exercise was that the location of Kindarun Mountain marked on map 8804 (that is, the diamond or flaring point on the ridgeline) appeared to be in a different location from the trig station marked as Kindarun Mountain on the topographic map. Mr Thomas thought that the topographic map was "more likely to be correct" than map 8804. Mr Thomas was also assisted by the contours shown on the topographic map in his exercise as "the information [he] was transferring was land that is mapped as being generally in excess of 18 degrees". This "guided [him] to indicate that [he] was in the right location rather than where [he] was drawing the lines". I understand this to be a reference to the fact that s 21B(1)(a) of the Soil Conservation Act 1938 enabled the Commissioner to map land as "protected land" if, in the Commissioner's opinion, the land had a slope of greater than 18 from the horizontal (and earlier provisions were to similar effect). Of course, it is not land that that has a slope of greater than 18 that is State protected land - it is (relevantly) land that is shown grey on map 8804.

69 In cross-examination, Mr Thomas agreed that the Kindarun Mountain trig station was the most proximate known survey point to the land being considered in these proceedings. He agreed that it would be inappropriate to ignore a discrepancy in relation to that point without disclosing why. He had not disclosed that discrepancy in his affidavit because he did not think it relevant at that time. Mr Thomas accepted that, on its face, the different locations of Kindarun Mountain on map 8804 and the trig station on the topographic map were a significant problem in the context of the task he undertook. Subsequently, in re-examination, Mr Thomas said that the trig station is shown on the topographic map, but not on map 8804.

70 Mr Thomas agreed that, if Kindarun Mountain was correctly located on map 8804, then Mr Everett's map was wrong by about 1.4 kilometres in depicting the relative location of the mountain and the area of unprotected land shaped like a "T". Map 8804 showed the location of Kindarun Mountain on the ridgeline - which made sense. Mr Everett's mapped location of Kindarun Mountain, if transposed to map 8804, would place the mountain away from the ridgeline, which was unlikely. However, Mr Thomas did not accept that the location of Kindarun Mountain on map 8804 was in the same location as the Kindarun Mountain trig station shown on Mr Everett's map. In Mr Thomas's opinion, the points represented different locations. He considered Mr Everett's map correct, because it was a "more precise" map than map 8804. Mr Thomas agreed that this ambiguity could be resolved by survey and fieldwork. Mr Thomas had not carried out any fieldwork.

71 Mr Thomas and Mr Everett used the same topographic map as their base, but at different scales. Mr Thomas's map is at the 1:25,000 scale of the original topographic map. Mr Everett's maps are at a scale of 1:30,000. Although both Mr Thomas and Mr Everett used the same topographic map as their base, it is apparent that the Kindarun Mountain trig station is not shown in the same location on their maps relative to the "T" shaped polygon. On Mr Thomas's map, the word "Kindarun" and the adjacent trig station are within the "T" shape towards, but not at, the western end of the crossbar. On Mr Everett's maps, the word "Kindarun" and the adjacent trig station sit wholly outside, and to the west of, the "T" crossbar. Mr Thomas accepted that, given his margin for error was 5mm or 125 metres on the ground, it would mean that either his or Mr Everett's map was wrong if the discrepancy between the relative locations was 200 metres on the ground. Without doing surveys, Mr Thomas did not know whether he was wrong or Mr Everett was wrong.

72 Mr Thomas was asked to compare the difference between the location of the ridgeline shown on map 8804 passing across the western part of the "T" shape and the location of the ridgeline shown on Mr Everett's map. Mr Thomas did so. He said that he thought Mr Everett's map was "a correct depiction of the polygon shapes". He agreed that "whether those shapes are in the exact location that they should be [was]…"open for question, some question". He thought there could be "some error" in that aspect of Mr Everett's map. He agreed that 1mm on the topographic map represented 25 metres on the ground, and 1mm on map 8804 represented about 126.5 metres on the ground.

73 Mr Thomas did not accept that these (and other) discrepancies between the topographic map (underlying Mr Everett's maps) and map 8804, called into question Mr Everett's work. Instead, Mr Thomas considered that those discrepancies called into question the accuracy of the methods used to produce map 8804.

74 Mr Thomas also identified a number of discrepancies between his map and Mr Everett's map with respect to the relative location and shape of the unprotected land polygons. For example, he accepted that one discrepancy between his map and Mr Everett's map (the location of a part of the "Y" shape) represented a difference of 350 metres on the ground. After reviewing other discrepancies between the shapes depicted on his map and Mr Everett's map, Mr Thomas gave this evidence: Q. Mr Thomas, those differences in distances would call into question would it not the accuracy of the exercise carried out by Mr Everett? A. To call in the - you would have to compare Mr Everett's map with the county map and measure those distances with the protected land map and measure those distances.

Q. But insofar as it's compared to what you've done, there's doubt as to who's correct? A. Yes.

75 In re-examination, Mr Thomas confirmed that there was no doubt in his mind that the area shown as blue hatched on Mr Everett's final map was not encompassed by a white polygon on map 8804.

76 Section 146 of the Evidence Act 1995 applies to outcomes produced by devices or processes. If it is reasonably open to find that a device or process produces an outcome when properly used, then it is presumed that the device or process in fact produced that outcome unless evidence sufficient to raise doubt about that presumption is adduced.

77 I consider that it is reasonably open on the evidence (particularly the evidence of Mr Norvill) to find that a GPS device is a device that is of a kind that, if properly used, ordinarily produces an outcome, being a coordinate expressed as an easting and northing identifying the location of the device. I am also satisfied from Mr Norvill's evidence that there was a margin of error in the coordinates produced by a GPS device, or at least the devices available to Mr Norvill. Mr Norvill thought the device he used might have been called a "Meridian", but knew no more about its functioning parameters than those described above. His understanding about the margin of error (2 to 10 metres on the ground) was not based on personal knowledge. I do not consider that s 146 enables me to presume that a GPS device will identify its location with any particular level of accuracy, given Mr Norvill's evidence. While I accept that the margin of error for any particular coordinate might have been between 2 and 10 metres on the ground, I also consider that the evidence supports an inference that the error could have been outside that range.

78 I accept that a GIS is a system that enables a user, through a combination of computer hardware, software and electronic data, to manipulate geo-spatial information, particularly by overlaying and aligning visual representations of that information.

79 ArcGIS, ArcMap and ArcView are a GIS used by officers of the Department of Natural Resources depending on their access level to this system, and by other State government agencies. ArcGIS, ArcMap and ArcView enable users to access and manipulate digital copies of topographic maps, aerial photographs and the like from the enterprise database maintained by the Department. The GIS allows that information to be overlaid and aligned by reference to a grid system of coordinates.

80 On the evidence (mainly the evidence of Mr Everett), I am satisfied that the GIS represented line features in the centre of lines on the base information at a scale that did not necessarily reflect or account for the scale of the base information. Further, Mr Everett's maps are a representation of the polygon shapes on map 8804 at a different scale from map 8804, and after map 8804 had been digitally registered by common cadastral points to achieve a line of "best possible fit" between map 8804 and the digital topographic map. I do not know the margin for error in this digital matching process, other than that the GIS produced an error reading that Mr Everett considered small and about which he was comfortable. Given that 1mm on map 8804 represented 126.5 metres on the ground, I consider that these factors (centreline drawing over a map - itself representing a line of "best fit" between map 8804 and the digital topographic map) give rise to a reasonable possibility of material inaccuracy in maps produced by Mr Everett (and Mr Norvill and Ms Lees who used the same GIS).

81 I accept that the officers of the Department of Natural Resources who gave evidence were able to use ArcGIS, ArcMap and ArcView to access electronically stored cadastral information licensed to the Department by Land and Property Information. I accept that Land and Property Information, a State government agency, was the source of this electronic data. The officers could (and did) overlay this information onto digital copies of topographic maps, aerial photographs and the like from the enterprise database maintained by the Department. I do not consider that the presumption in s 146 of the Evidence Act 1995 applies to this electronic cadastral information given the absence of evidence about the process by which this data was generated. The fact that Land and Property Information (a State government agency and part of the Department of Lands) licensed the information does not of itself attract the operation of that presumption. Hence, I am not satisfied on the evidence about the process by which this electronic cadastral information was generated or its reliability.

82 State protected land was the land so shown on map 8804. Land shown grey on map 8804 was protected. Land shown white and edged black on map 8804 was unprotected. Other maps and information may have assisted in interpreting map 8804, but map 8804 remained the controlling document.

83 Mr Thomas transferred by freehand the polygons on map 8804 to the topographic map by using proportional dividers. Mr Everett digitally registered or matched map 8804 to the digital topographic map using common cadastral points to achieve the "best possible fit" between the two maps. The topographic map shows the Kindarun Mountain trig station. Yet on Mr Thomas's map the trig station is shown in a location relative to the "T" shaped polygon different from its relative location shown on Mr Everett's map. The difference between the two locations is about 200 metres on the ground. Mr Everett thought Mr Thomas's map was wrong. Mr Thomas did not know whose map was right or wrong, but agreed that this discrepancy in location was outside his own margin of error, and created an ambiguity that could be resolved by survey. Neither did any fieldwork or survey (and they were not surveyors).

84 I am satisfied that map 8804 marks the location of Kindarun Mountain by a diamond or flare shape on the ridgeline. There is a difference of about 1.4km between that point and the location of the Kindarun Mountain trig station on Mr Everett's map (based on the topographic map). Mr Thomas said that a trig station is a geodetic point - a fixed point from which the location of cadastral boundaries (and, I infer, other features) can be determined.

85 Mr Thomas had some knowledge about the function of trig stations. He accepted that the apparent discrepancy between the two maps was a significant problem in his freehand transfer exercise. Mr Thomas resolved the apparent discrepancy by concluding that map 8804 was not showing the Kindarun Mountain trig station and, thus, was not showing the same point as the topographic map. Mr Everett knew nothing about trig stations or their likely location. He said in evidence that the apparent discrepancy assumed that the two maps were showing the same point, which assumption he did not accept. I infer that both Mr Thomas and Mr Everett considered that map 8804 was likely to be less accurate than the topographic map. Neither used the location of Kindarun Mountain on map 8804 as a control point for the mapping exercises they carried out. In other words, all their maps (and opinions based on them) were founded on the premise that the two maps marked different points near Kindarun Mountain.

86 The prime duty of experts giving opinion evidence is to provide the trier of fact with "criteria enabling evaluation of the validity of the expert's conclusions" (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [59] per Heydon JA). This is because the "the trier of fact must arrive at an independent assessment of the opinions and their value, and …this cannot be done unless their basis is explained" (Makita at [68]). The value of the opinions depends on the "qualifications, skill and experience" of the expert in the specialised field of knowledge with respect to which the expert gives opinions (Makita at [59] citing Lord Russell in James Pennycook Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 42). At [87], Heydon JA made these observations about the report of the expert under consideration in Makita: But, given that the court is not obliged to take the opinion of an expert as conclusive even though no other expert is called to contradict it, can it be said that Professor Morton's report goes beyond a series of oracular pronouncements? Does it usurp the function of the trier of fact? More vitally, did it furnish the trial judge with the necessary scientific criteria for testing the accuracy of its conclusions? Did it enable him to form his own independent judgment by applying the criteria furnished to the facts proved? Was it intelligible, convincing and tested? Did it go beyond a bare ipse dixit? Did it contain within itself materials which could have convinced the trial judge of its fundamental soundness?

87 I accept that Mr Thomas and Mr Everett provided their honestly held opinions in all respects. Nevertheless, Mr Thomas and Mr Everett did not comply with the particular obligations of experts in preparing their affidavits. Leaving aside the fact that they did not acknowledge the expert witness code of conduct, it is obvious from their affidavits that they did not understand their obligations as experts. An expert aware of their obligations would (or should) have disclosed that they assumed the electronic cadastral and other information they relied on in the Department's databases was accurate. They would (or should) have recorded all information relevant to the margin of error in the exercises they carried out (which Mr Thomas did, but Mr Everett did not). They would (or should) have disclosed that they assumed that the cadastre on map 8804 had not altered since that map was prepared (1946 for the base map). They would (or should) have disclosed that they observed a difference between the location of Kindarun Mountain on map 8804 and the trig station on the same mountain on the topographic map. They would (or should) have explained how they responded to that matter, and (just as importantly) why they responded the way they did. If they concluded it was immaterial, then the expert would (or should) have explained why that was so by reference to the body of learning that constituted their specialised knowledge. Absent so doing, the expert's evidence might amount to no more than an "oracular pronouncement". The opinions of Mr Thomas and Mr Everett that they had no doubt the land was State protected land had precisely that oracular quality.

88 Map 8804 is a 1946 county map over which has been drawn the boundaries of protected and unprotected land. That map presented an obvious and major (1.4km) difference between the location of Kindarun Mountain when compared to the location of the trig station on the same mountain on the topographic map. The evidence of Mr Thomas and Mr Everett did not persuade me that I should accept that the location of Kindarun Mountain on map 8804 was not the same as the location of the trig station on the topographic map. Mr Everett's evidence did not persuade me that Mr Thomas's map was wrong and his own right. Their evidence, taken together, did persuade me that their freehand and digital transfer exercises involved significant uncertainty at many levels and many steps in the process.

89 Given that the topographic map marked a trig station on Kindarun Mountain and map 8804 marked Kindarun Mountain on a ridgeline (where a mountain and a trig station would be expected to be according to Mr Thomas), I consider that there was an apparent discrepancy that required resolution. This is so despite the fact that the mark near Kindarun Mountain on map 8804 does not match the symbol on that map "trigonometrical station with altitude".

90 The evidence of Mr Thomas and Mr Everett did not adequately or cogently disclose the reasons that led them to their conclusion that the maps were showing different points. The apparent discrepancy was not referred to in their affidavits (even though Mr Thomas accepted that it was a significant problem, and had informed Mr Everett about the problem before he prepared his maps). Mr Everett's lack of knowledge about the function of trig stations gave me little confidence in his opinion about this matter. Mr Thomas was right to accept the apparent discrepancy was a significant problem, because his work, and that of Mr Everett, involved a desktop transfer of information from one map to another. Their work did not directly relate map 8804 to the ground by fieldwork, but to another map. Where the maps could not be readily reconciled with respect to the land within the vicinity of Kindarun Mountain, Mr Thomas and Mr Everett considered map 8804 to be the less accurate. Hence, the apparent discrepancy was put to on side by using other control points.

91 I consider the apparent discrepancy significant. A process of transferring (electronically or by freehand) information from map 8804 to another map using other control points, did not resolve the apparent discrepancy - it ignored it. Similarly, concluding that map 8804 was showing a different point or was likely to be inaccurate did not resolve the apparent discrepancy by a process of reasoning applying specialised knowledge to facts - it involved an assumption about the issue requiring resolution. These conclusions are sufficient to raise serious doubt about the work and conclusions of Mr Thomas and Mr Everett, given the features of map 8804 to which I have referred (that is, the scale of the map, and the location of Kindarun Mountain marked by a point apparently inconsistent with the trig station on the topographic map).

92 I am not satisfied that Mr Everett and Mr Thomas's conclusions about the maps marking different points were correct. An equally open and reasonable inference on the evidence is that the maps mark the same point in different locations. This inference is supported by the fact that Mr Thomas agreed that map 8804 shows Kindarun Mountain on a ridgeline, where one would expect the mountain and a trig station to be. Mr Everett's maps, transposed onto map 8804, place the trig station away from the ridgeline, where one would not expect a trig station on a mountain to be. If the maps mark the same point, then the electronic mapping exercise carried out by Mr Everett placed the unprotected land polygons about 1.4kms to the east of their location depicted on map 8804. The "Y" shaped polygon would then shift to the west, somewhere within the three parcels outlined on Mr Everett's map.

93 Even if Mr Thomas and Mr Everett were correct about the maps marking different points, there are other discrepancies between the location and shapes depicted on map 8804 and Mr Everett's map (and Mr Thomas's map) that are serious when translated into distances on the ground. As I have said, 1mm on map 8804 represented about 126.5 metres on the ground. 1mm on the topographic map represented 25 metres on the ground. Mr Thomas was aware of both scales. Mr Everett considered the scale of map 8804 immaterial and was unaware of it. Both transfer processes involved representing the information on map 8804 at a different scale from the scale of map 8804. In these circumstances, I do not accept Mr Everett's opinion that the scale of map 8804 was immaterial. The scale affected the capacity for inaccuracy in the transfer process. Minor errors in transfer could translate into significantly different results on the ground.

94 The differences between Mr Thomas's map and Mr Everett's maps with respect to the location of the Kindarun Mountain trig station relative to the "T" shaped polygon discloses the potential for significant error in the transfer process. Mr Thomas's map located the trig station within the crossbar of the "T" shape towards, but not on its western end. Mr Everett's map located the trig station outside the western end of the crossbar. That is, Mr Everett had the relative location of the trig station 200 metres further west than Mr Thomas. This discrepancy arose in circumstances where they used the same topographic map as their base. This discrepancy is unconnected to the issue about the location of Kindarun Mountain on map 8804. Mr Everett thought Mr Thomas wrong, but Mr Thomas was not so sure. Mr Everett agreed that, in the event he was wrong, his maps did not provide a sound basis for any conclusion about the status of the land. Mr Thomas's position of uncertainty, in the circumstances, was reasonable, and I share it.

95 The representations of the lots on the maps are subject to the same observations. The electronic cadastre was overlaid through the GIS process on the digital version of map 8804, itself overlaid on the topographic map. Hence, the representation of the location of the lots relative to the location of the white polygons derived from map 8804 on the maps created by the GIS is necessarily subject to the conclusions that I have reached above. For example, those representations show the white polygons of unprotected land in a location relative to the lots assuming that the location of Kindarun Mountain on map 8804 is not the same point as the trig station on the topographic map.

96 The hard copy deposited plans do not resolve these matters. The issue is not the shape of the lots or their location relative to the trig station, but their location relative to the white polygons on map 8804, and the location of both relative to the logging carried out by the defendant. For example, if map 8804 shows the same point as the trig station on the topographic map, then one consequence of the evidence of Mr Thomas and Mr Everett is that the hard copy deposited plans themselves (which show the trig station and the lots) give rise to a reasonable doubt about whether the lots are identified as State protected land on map 8804.

97 Mr Thomas's use of the contours on the topographic map does not affect these conclusions. The land the defendant logged was either shown as protected land on map 8804 or it was not. The slope of land was not a reliable basis for interpreting map 8804. The Commissioner had a power (not an obligation) to map land about which the Commissioner formed an opinion. Under amendments to the Soil Conservation Act 1938, land within any one or more of three categories specified in s 21AB could have been identified as protected land (as slope was not the sole controlling factor).

98 The GPS points that Mr Norvill recorded and provided to Mr Everett as a polygon file represented the perimeter of the clearing. Within that perimeter some trees had been logged, and others had not. This was apparent from the video, but was also confirmed by Ms Lees, Ms Green and Mr Norvill. I accept the evidence of Ms Green, consistent with the defendant's admissions taken as a whole, that some logging looked recent and some looked older. The defendant's admissions were that he had logged the land about 4 times over the past 20 or so years, before the most recent logging. I accept that evidence. Leaving aside the reliability or otherwise of the GPS points as a representation of the location of the perimeter of the clearing, the consequence is that Mr Everett's final map represented the perimeter within which clearing had occurred as a blue-hatched area. The blue-hatched area is affected by the potential for material uncertainty. I have set out above my findings on the evidence relating to the GPS points and the GIS. These findings apply to the blue-hatched area because it is based on the same processes. In any event, the location of the blue-hatched area relative to the white polygons on map 8804 is also necessarily subject to the same conclusions that I have reached above (and for the same reasons).

99 I must also take into account the disclaimers that appear on Mr Everett's maps and the map attached to the certificate under s 66. Given the matters to which I have referred, I consider that the disclaimers accurately convey the limitations on the use of those maps - that is, that they were suited for use "as a general guide for regional and local scale natural resource planning and management only…" and that the field information on the maps "may not be verified". As Mr Everett and Mr Thomas's evidence disclosed, the field information on those maps had not been verified.

100 What of the proposition that, given the shapes of the blue-hatched area and the unprotected land polygons on map 8804, the whole of the blue-hatched area could not fall within the unprotected land polygons? The prosecutor (rightly) disavowed any reliance on such a proposition. The difficulty with the proposition is that the blue-hatched area does not represent an area within which all trees were cleared. It represents a perimeter within which some trees were cleared and some were not, in circumstances where some clearing was old (I accept, anything up to 20 or so years old, based on the defendant's admissions) and some relatively new. If map 8804 and the topographic map mark the same point, then all the land within the blue-hatching was unlikely to be State protected land. The "Y" shaped polygon would shift to the west by about 1.4km and fall in the blue-hatched area. Leaving aside that problem, if Mr Thomas's map was correct and Mr Everett's incorrect, then the "Y" shaped polygon would shift to the west again, albeit by a lesser distance - and Mr Everett agreed that his map should not be relied on.

101 The prosecutor did submit that this was a matter where the land logged by the defendant was "nowhere near the margins" of unprotected land so that the matters relied on by the defendant were immaterial. I disagree. The defendant's cross-examination and submissions about the uncertainties inherent within the evidence were not quibbling. The evidence generated significant uncertainty. The cross-examination disclosed that: - + The map that defined State protected land (map 8804) showed a significant topographic feature (a mountain) in a different location from a geodetic marker (a trig station) on the same mountain on the topographic map, the logging having been carried out in that vicinity. + The map that defined State protected land (map 8804) showed the mountain where you would expect it to be - on a ridgeline. + Mr Thomas was aware of that apparent discrepancy but did not consider that relevant to his affidavit. + Mr Everett did not use those points as common reference controls. He obtained a "best fit" between the State protected land map (map 8804) and the topographic map using other points, putting the apparent discrepancy to one side. + Mr Everett had no knowledge about trig stations or their function. + The relative location of the trig station on Mr Everett's maps, if placed on map 8804, would result in a trig station on a mountain being away from the ridgeline - an unlikely notion according to Mr Thomas. + Mr Everett and Mr Thomas agreed that if the map that defined State protected land and the topographic map were showing the same location on the mountain, then Mr Everett's mapping was badly wrong. + If the maps were showing different points, then (nevertheless) Mr Thomas's map and Mr Everett's maps were themselves inconsistent by 200 metres, even though they had used the same topographic map as their base. + Mr Everett thought Mr Thomas wrong. + Mr Thomas thought either he or Mr Everett had to be wrong, but he could not say which without fieldwork or survey. + Mr Thomas and Mr Everett carried out no fieldwork, and were not surveyors.

102 Mr Everett and Mr Thomas, although aware of these issues, said in re-examination that they had no doubt that the blue-hatched area was not within a white polygon on map 8804 (that is, was State protected land). Those conclusions, taken with all the evidence, do not remove the significant doubts in my mind about the unreliability of the exercises they undertook, the assumptions they made and the conclusions they formed. Accordingly, I do not accept the opinions of Mr Everett and Mr Thomas about the status of land as State protected land or not.

103 Mr Norvill assumed the information he accessed through ArcView was correct. He agreed that the only information depicted on any maps he produced representing his work (and not that of the ArcView program) were the GPS points that he loaded. The maps printed by Mr Norvill from ArcView show tracks, roads, and log dumps within lots - not State protected land. Mr Norvill said in his affidavit that he used the GPS device to determine the location of cleared areas relative to the lots. He did not explain how he did so. None of the evidence enabled me to discern the method by which a GPS (giving easting and northing coordinates) can identify lot boundaries, absent comparison with other information (for example, a map with grid references showing the lot locations). Mr Norvill formed the opinion that the defendant had cleared State protected land based on the map prepared by Mr Thomas. Exhibit J was not the result of any independent exercise by Mr Norvill overlaying his GPS points on the topographic map. Exhibit J was a copy of Mr Thomas's map. Accordingly, I do not consider Mr Norvill's opinions about the status of the land rose any higher than those of Mr Thomas.

104 Ms Lees also used the Arcview program, map 8804 and the 1:25,000 topographic map to reach her opinion that the defendant had cleared State protected land. This was presented in Ms Lees' affidavit as part of an "initial investigation" in November 2003. Ms Lees did not disclose the process by which she reached this opinion. More importantly, Mr Norvill was aware of the opinion that Ms Lees had reached about the status of the land as part of her initial investigation, but did not believe that there was sufficient evidence to establish that the defendant had committed an offence until he saw Mr Thomas's map on 26 February 2004. In these circumstances, I do not consider it appropriate to place weight on the opinion Ms Lees formed as part of her initial investigation.

105 Ms Lees explained in her affidavit and cross-examination that it was necessary for her to prepare her maps again as the Department had converted from one grid reference system (AGD 66) to another (GDA 94). This was part of a national change of grid system, involving a shift in the entire grid of about 200 metres. Mr Everett said the data emailed to him was in AGD 66 format, and that the Department had not converted to the GDA 94 format at the time he carried out his exercise. The problem of conversion from AGD 66 grid references to GDA 94 grid references seems unique to Ms Lees, and does not explain the inconsistencies between the maps of Mr Thomas and Mr Everett.

106 Ms Lees identified one area as totally cleared. She said in her affidavit that she identified this area as on lot 22 DP101343 by using the GPS and topographic map. Ms Lees did not explain how she reached this conclusion. I cannot discern lot 22 on the extracts of the topographic map in evidence (or the other lots). Accordingly, I do not consider it appropriate to place weight on this statement in Ms Lees' affidavit, particularly given my findings above. Ms Lees plotted the perimeter of this area using a GPS device. She then used those points "with the computer mapping program" (ArcView 3.3) to determine that the cleared area was 2.46 hectares. Ms Lees overlaid this area on a 2001 aerial photograph that showed vegetation in the area at that time. Ms Lees annexed to her affidavit a map of this area. The map shows an aerial photograph overlaid by a lot boundary (lot 22), lines depicting logging roads and snig tracks, and a purple area representing the cleared area. The location of this cleared area does not remove the serious doubt I have about the relationship between that area and the white polygons and grey areas on map 8804 (features not represented on Ms Les' map). Otherwise, my conclusions about the reliability of GPS points, the cadastre accessed by ArcView and the processes of line drawing by the GIS, apply to this map.

107 The aerial photograph signed by the defendant identifying the area he thought he logged did not show lots. As noted, I accept that the defendant could not read and thus did not acknowledge that the labels on that aerial photograph were a true record, including the scale (s 86 of the Evidence Act 1995). The prosecutor also did not rely on those labels as evidence of the truth of the facts they asserted. As Mr Norvill's evidence disclosed, it would have been difficult for the defendant to identify the area within which he logged on an aerial photograph with any precision. The evidence did not adequately disclose the relationship between the aerial photograph marked by the defendant and map 8804. That relationship cannot be reliably discerned merely by looking at the aerial photograph (absent any scale or markings except the defendant's acceptance that it shows land near Kindarun Mountain) and map 8804. Hence, I do not think that the aerial photograph marked by the defendant provides a sound foundation for any factual inference about the relationship of the location on the ground of the logging to the location on the ground of the white polygons and grey areas on map 8804.

108 I do not consider the conversations between Mr Norvill and the defendant were reliable evidence of the identification of the lots. From those conversations, I infer that the defendant had little, if any, knowledge of the lot and DP identifiers of the land. I infer that Mr Norvill's identification of lot and DP references was based on the information he accessed in ArcView, which I have dealt with above. I infer that the electronic cadastre (overlaid on other maps by processes within ArcView) was the source of the opinions of Mr Norvill and Ms Lees about the title references of the cleared land. For the reasons given above, I am not satisfied on the evidence that the electronic cadastre overlaid on other maps by ArcView was a reliable method of identifying the clearing as having occurred on particular lots.

109 I consider that it would be inappropriate to place weight on the stop work order and remediation order and the defendant's response to those orders as admissions about the status of the land. People may have many reasons for compliance with orders of this kind, equally consistent with the land not being the lots identified in the order or State protected land. The recipient of an order may not think an argument about the order worthwhile. The order may reflect steps the recipient was going to take in any event. In my view, compliance with the order did not mean that the recipient admitted the identification of the lots or that the land was State protected land.

110 What of Ms Green's evidence of her observations about cut stumps (some older, some newer), felled trees and machinery on lot 22 and the fact that the defendant acknowledged that he had logged land owned by Holrock Pty Ltd (land that had been split into two lots and then sold)? This evidence does not affect any of my conclusions above, but needs to be considered in the context of the certificate under s 66.

111 The prosecutor construed the map attached to the certificate under s 66 as identifying unprotected land, and no more. Accordingly, the prosecutor submitted that the certificate was not dependent on the validity of the mapping exercises of Mr Thomas or Mr Everett, and independently proved that the land logged by the defendant was State protected land. If the map attached to the certificate performed only the limited function the prosecutor allowed it, then the identification of State protected land "within" the lots would be ambiguous. Given the function of the certificate and the principle that it must be construed strictly, that ambiguity could not be satisfactorily resolved by the terms of the second paragraph in Schedule 1 dealing with lot 22 (that is, by reading the word "within" as necessarily meaning the "whole of the land within" the lot). It is the map that makes plain that the certificate is prima facie evidence that the whole of the land within the lots is State protected land. Hence, I do not think the prosecutor's approach to the map can be accepted. The text must be read with the map - they are interdependent.

112 As Mr Everett acknowledged, the map attached to the certificate is a reduced copy of his map (exhibit V), with a blue triangle denoting unprotected land marked on it by a person unknown. The map bears the same word processing reference and disclaimer as Mr Everett's map. Accordingly, I am satisfied that the certificate was founded on Mr Everett's map. Given the significant doubts I hold about Mr Everett's mapping exercise, including the use of the electronic cadastre and its alignment by ArcView, the prima facie evidence represented by the s 66 certificate does not alter the conclusions that I have reached. It is subject to precisely the same uncertainties that confound the evidence of Mr Everett.

113 Even if the certificate should be construed as the prosecutor submitted, I would have to consider the certificate along with all other evidence in the proceedings to determine whether I am satisfied beyond reasonable doubt that the defendant cleared State protected land. While I accept that the defendant logged some trees within lot 22, when the certificate is considered with all the evidence, I am not satisfied that the land within the specified lots was State protected land. My reasons are those above.

114 It follows that I accept the defendant's submission that the "difficulties, ambiguities and inconsistencies" in the evidence about the identification of land as State protected land undermined its reliability in the context set by map 8804. I accept that these matters could have been resolved by survey, but were not. I accept that I cannot appropriately rely on the evidence to "draw any conclusions safely … about where [the] subject land [the land logged by the defendant] is on the ground in relation to" map 8804.

115 For these reasons, I cannot be satisfied that any part of the blue-hatched area on Mr Everett's map was State protected land, because I consider the evidence relevant to that finding unreliable. If it be necessary to say so, I am satisfied that there is a real and substantial, and thus reasonable, doubt as to whether Mr Everett's maps (and the map attached to the s 66 certificate) plot the relative location of the polygons between 200 metres and 1.4km too far to the east, and as to whether all the maps purporting to represent the polygons on map 8804, incorrectly depict their location relative to the trig station on the topographic map, and thus to all other features (including the lots). This conclusion is independent of my findings about the uncertainties on the evidence of the reliability of the GPS points, the electronic cadastre accessed by the ArcView GIS, and the process of line drawing performed by that GIS in the context of a base map (map 8804) where 1mm represented 126.5 metres on the ground. Those uncertainties further confound the evidence about the status of land as State protected land or not.

116 Accordingly, I am not satisfied beyond reasonable doubt that the defendant cleared State protected land.

E. Clearing not in accordance with a development consent?

117 The prosecutor had to establish beyond reasonable doubt that the clearing carried out by the defendant was not in accordance with a development consent in force.

118 Mr Norvill said in his affidavit that he searched the Department's "VegNet" database for consent to clear lots 21 and 22 DP 1013433 and lot 3 DP 732392. He explained that the "VegNet" database was a statewide record of all applications to clear, and that his search revealed no record of the Department having received, granted or refused any application to clear these lots.

119 Ms Lees said in her affidavit that she had searched the records held by the Department and determined that no application had been made to clear land within lot 22 DP 1013433.

120 Mr Norvill agreed in cross-examination that the VegNet database included all applications to the Department to clear land and all consents issued by the Minister to clear land. He did not know whether the database was accurate or not.

121 The defendant submitted that the prosecutor had not proved beyond reasonable doubt that the clearing was not done in accordance with a development consent in force, because the prosecutor had not proved that the relevant council had not granted a consent to clear. The defendant relied on Hanwood Pastoral Co Pty Ltd v Director-General, Department of Natural Resources (2005) 144 LGERA 139 to support this submission. In Hanwood Pastoral, Cowdroy J held that the words "a development consent that is in force" in s 21(2)(a) of the Native Vegetation Conservation Act encompassed any development consent, not merely a consent issued by the Minister. The same words appear in s 22.

122 The prosecutor submitted that it was not open to the defendant to make this submission because the defendant had not made it clear to Mr Norvill in cross-examination that it was being put to him that the VegNet database included Ministerial, but not council, consents - when Mr Norvill's affidavit identified that database as a statewide database of all applications to clear. It is true that the defendant's counsel did not put to Mr Norvill that the VegNet database did not include consents issued by councils. The defendant's counsel put to Mr Norvill that the database contained all applications to the Department to clear land and all consents issued by the Minister to clear land. Mr Norvill agreed with that proposition. The reference to statewide record in Mr Norvill's affidavit must be read in the context of the paragraph as a whole. When the whole paragraph of Mr Norvill's affidavit about this topic is read, his agreement in cross-examination is consistent with what the paragraph says - that he found no record of the Department having received an application or having granted or refused an application to clear. Fairly read, his affidavit does not suggest that the VegNet database included copies of applications to, and development consents granted by, councils.

123 Moreover, the affidavit should be read in the context of the applicable law. There were separate statutory regimes requiring councils to maintain records of development consents they granted (Pt 16 of the Environmental Planning and Assessment Regulation 2000) and requiring the Director-General of the Department of Natural Resources to maintain records of development consents the Minister granted (s 15(3) and (4) of the Native Vegetation Conservation Act). Although he did not identify it as such, Mr Norvill's affidavit was consistent with Mr Norvill having searched the register maintained under s 15(3) of the Native Vegetation Conservation Act (and so too with Ms Lees). The affidavits were inconsistent with any inference that Mr Norvill or Mr Lees searched the register maintained by the relevant council under Pt 16 of the Environmental Planning and Assessment Regulation 2000.

124 The prosecutor bore the onus of proving that the clearing was not in accordance with a development consent in force. The prosecutor chose to do so by evidence on affidavit that, when read fairly, supported an inference that the Minister administering the Native Vegetation Conservation Act granted no such consent.

125 In these circumstances, I do not consider that there was any unfairness in the defendant's submission. Considered in the context of the affidavit evidence and the question put and answered, this was not a case where, in breach of the rule in Browne v Dunn, the defendant's counsel was "willing to wound, and yet afraid to strike" (Reid v Kerr (1974) 9 SASR 367 at 374 per Wells J).

126 The significance of the fact that the prosecutor has not proved that the relevant council granted consent to clear depends on the construction of the Native Vegetation Conservation Act. Biscoe J followed Hanwood Pastoral in Vitality Care Pty Ltd v Director-General, Department of Natural Resources [2006] NSWLEC 506 (a case about s 21 and thus on all fours with Hanwood Pastoral). The present matter involved s 22, which used the same words as s 21 ("a development consent that is in force"). Consistent with Hanwood Pastoral, I consider that those words mean any development consent granted under Pt 4 of the Environmental Planning and Assessment Act 1979 (the "EPA Act"). I do not consider that construction inconsistent with the objects or purpose of the Native Vegetation Conservation Act (a matter discussed in Hanwood Pastoral at some length).

127 The Native Vegetation Conservation Act operated against the background of the EPA Act. It thus assumed the existence of environmental planning instruments regulating the carrying out of development under Pt 3 (including instruments "protecting or preserving trees or vegetation" - s 26(1)(e) of the EPA Act) and councils as consent authorities under Pt 4 (s 4(1) - the definitions of "consent authority" and "council" - and s 76A of the EPA Act). Against that background, construing s 22 as proscribing clearing of State protected land absent a development consent in force (whether the consent be granted by the Minister or the council) accords with the natural and ordinary meaning of the provision, does not yield an absurd result and is capable of advancing the objects of the Native Vegetation Conservation Act.

128 The prosecutor accepted that the absence of consent was an element of the offence that the prosecutor had to prove to the criminal standard. As the defendant submitted, the prosecutor has not proved that the defendant cleared land other than in accordance with a development consent in force granted by the relevant council. Both deposited plans refer to subdivision approvals granted by a council, including one on 10 March 2000. There was no evidence "from which the negative proposition [that is, no such consent] may be inferred" (Baiada and Others v Waste Recycling and Processing Service of NSW (1999) 130 LGERA 52 at [55]).

129 Accordingly, I am not satisfied beyond reasonable doubt that the defendant cleared land other than in accordance with a development consent in force.

130 The defendant submitted that the evidence raised the inference that the clearing was carried out in accordance with various exemptions and exclusions in the Native Vegetation Conservation Act, and that the prosecutor had to prove beyond reasonable doubt that the exemptions and exclusions did not apply. The matters relied on by the defendant were: (1) An exemption order under the Soil Conservation Act 1938 continued in force by cl 4(2) of Sch 4 to the Native Vegetation Conservation Act (clearing of 7 trees on any area of 1 hectare of land per year).

(2) An exemption in Sch 3(i) of State Environmental Planning Policy No 46 - Protection and Management of Native Vegetation continued in force by cl 3(2) of the Native Vegetation Conservation Act (private native forestry).

131 The defendant relied on Director General, Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242 at [28] to [31] to support this submission. The prosecutor submitted that the defendant's submissions again breached the rule in Browne v Dunn, and that (in any event) none of the exemptions were raised on the evidence (also relying on the obiter dicta in Bailey).

132 In Bailey, Shaw J (with whom Mason P and Hidden J agreed) referred to the decision of Lloyd J in Director-General, Department of Land and Water Conservation v Pye [1998] NSWLEC 301. Lloyd J referred to the principle that the prosecution bears the onus to the criminal standard where the qualification is part of the total statement of obligation, and the defence to the civil standard where the qualification provides a justification for not complying with the obligation (Director of Public Prosecutions v United Telecasters Sydney Limited (1990) 168 CLR 594 at 600-601). Lloyd J held that the defendant bore the onus of proving on the balance of probabilities that an exemption in SEPP 46 applied. Although Shaw J referred to Pye by way of comparison, he described the onus with respect to the exemptions in s 12 and SEPP 46 in terms consistent with an evidentiary onus (that is, if there is some evidence giving rise to a reasonable possibility that an exemption applied, the prosecutor must negative that possibility beyond reasonable doubt - for example, and by analogy, see Environment Protection Authority v Leaghur Holdings Pty Ltd (1995) 80 A Crim R 553).

133 I understood the prosecutor accepted that Bailey suggested an evidentiary onus. However, it is not necessary that I resolve this potential inconsistency.

134 Contrary to the defendant's submission, the words "any area of one hectare of the protected land" in the exemption order required a hectare-by-hectare approach, not a parcel-by-parcel approach. Ms Lees' quadrat surveys were inconsistent with the application of the 7 trees on any area of 1 hectare per year qualification. This was so whether "in any period of one year" means calendar year or period of twelve months. The defendant did not put to Ms Lees that her estimates were consistent with the exemption applying. This is an issue where I consider the prosecutor was correct to observe that the issue of the number of trees cleared per hectare had to be squarely put to Ms Lees in cross-examination to support the submission that the exemption applied or that it was raised on the evidence.

135 I also do not accept the defendant's submission that cl 3(2) of Sch 4 operated to apply the SEPP 46 exemptions to protected land. These exemptions did not apply to protected land under SEPP 46 (cl 3(e)). Clause 3(2) of Sch 4 to the Native Vegetation Conservation Act "continues" the operation of the exemptions. I do not construe the savings provision as having had the effect of making the exemptions apply to land that the exemptions never applied to under the principal (repealed) instrument. Accordingly, I do not consider that these exemptions could have applied to land (had it been proved to be State protected land).

136 I am not satisfied beyond reasonable doubt that the defendant cleared State protected land, or that the clearing was other than in accordance with a development consent in force. Accordingly, the summons must be dismissed. The parties may address on costs. ****************************

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