Oates & Anor v Director General of the Department of Infrastructure Planning and Natural Resources

JUDGMENT:

• 5 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10064of 2004

14 April 2004 JOHN MICHAEL OATES AND DAVID MICHAEL OATES Applicants v DIRECTOR GENERAL OF THE DEPARTMENT OF INFRASTRUCTURE PLANNING AND NATURAL RESOURCES Respondent JUDGMENT

I ntroduction 1 This is the separate determination of questions of law in an appeal under s 48 of the Native Vegetation Conservation Act 1997 ("the NVC Act"). The applicants are the registered proprietors of a rural property called "Castlevilla" near Moree. In about June or July 2002, approximately 206 hectares of Castlevilla were cleared of native vegetation. 2 On 12 July 2002, the applicants were served with Stop Work Orders issued under s 26 of the NVC Act. In November 2003, the respondent served the applicants with a notice, under s 47 of the NVC Act, directing them to undertake certain remedial work on the property. 3 The applicants appeal against this notice. The questions of law that appear to have been raised by the applicants are as follows: Whether the notice issued to the applicants under s 47 of the NVC Act is invalid, on any of the following bases: (a) the zoning of the land; (b) any existing use rights that the applicants might enjoy for use of the land; (c) the Torrens Title registration of the land pursuant to the Real Property Act 1900; or (d) manifest injustice in the decision to issue the notice. Consideration The zoning of the land 4 The relevant part of the property is zoned Rural 1A under the Moree Plains Local Environmental Plan 1995 ("Moree Plains LEP"), in which agriculture is permissible without development consent. Section 21(2) of the NVC Act, however, states: (2) A person must not clear native vegetation on any land except in accordance with: (a) a development consent that is in force, or (b) a native vegetation code of practice. 5 The applicants submit that since agriculture is permissible without consent on the property, then s 21(2) of the NVC Act cannot require consent for the clearing of native vegetation if that clearing is for the purpose of agriculture. 6 It is a principle of statutory interpretation that subordinate legislation, cannot override the operation of an Act. This principle was applied by Kirby P in Water Board v Glambedakis (1992) 28 NSWLR 694 at 701-702 and by Pearlman J in Nymboida Shire Council v Skar Industries Pty Limited & Anor (NSWLEC, Pearlman J, 7 March 1997, unreported). 7 The Moree Plains LEP is subordinate legislation made under Pt 3 Div 1 of the Environmental Planning and Assessment Act 1979, and cannot override the operation of the NVC Act. Consequently, the requirement for development consent for the specific work of clearing native vegetation under s 21(1) of the NVC Act prevails. Existing use rights 8 The applicants submit that they have existing use rights as part of their use of the subject land for the purpose of agriculture. The applicants further submit that these existing use rights invoke the application of s 109B of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). These submissions cannot be accepted. Development for the purpose of agriculture does not necessarily include the clearing of native vegetation. Only in limited circumstances could the clearing of native vegetation be considered ancillary to agriculture: see Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157; Penrith City Council v Waste Management Authority (1990) 71 LGRA 376; Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218; Lizzio v The Council of the Municipality of Ryde (1984) 155 CLR 211. Such circumstances do not arise in the present case. It is thus necessary to look to the clearing of native vegetation on the subject land, rather than the use of the land for the purposes of agriculture to determine whether the applicants have existing use rights. 9 The clearing of native vegetation on the subject land occurred in 2002, after the commencement of the NVC Act in 1997. Since the clearing of native vegetation occurred after the commencement of the NVC Act, it follows that the applicants do not have any existing use rights for the clearing of native vegetation. 10 Section 109B of the EP&A Act cannot be applied in any event. Even if there was an existing use of the land for the purpose of agriculture, the use was not pursuant to any development consent. Moreover, s109B would not apply to the NVC Act. Section 109B applies only where an environmental planning instrument prohibits, or requires development consent to authorise, the carrying out of development. The NVC Act is not an environmental planning instrument as defined in s 4 of the EP&A Act. Torrens Title registration 11 Torrens Title registration is concerned with the title to the land, but does not govern use of the land. Landowners remain subject to the laws of governing land use. As such, the Torrens Title registration of Castlevilla does not invalidate the requirement for development consent for clearing native vegetation under the NVC Act, neither does it affect the notice to carry out remediation work issued under the NVC Act. 12 In any event, a later statute prevails over an earlier statute to the extent of any inconsistency. In Saraswati v R (1991) 172 CLR 1 at 17, Gaudron J stated: It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other… 13 Since the NVC Act was made subsequent to the Real Property Act, it prevails to the extent of any inconsistency concerning its application to the clearing of native vegetation upon the applicants' land. The same principle would apply as between the NVC Act and the EP&A Act. Manifest injustice 14 The applicants' submission that there was manifest injustice in the decision to issue the notice must be rejected. Under s 48 of the NVC Act, the applicants have a right to appeal on the merits against the notice, which is a right to a full re-hearing de novo (s 39(3) of the Land and Environment Court Act 1979). Conclusion 15 The applicants' submissions are rejected. The formal order of the Court is as follows: The question of law, formulated as follows: Whether the notice issued to the applicants under s 47 of the NVC Act is invalid, on any of the following bases: (a) the zoning of the land; (b) any existing use rights that the applicants might enjoy for use of the land; (c) the Torrens Title registration of the land pursuant to the Real Property Act 1900; or (d) manifest injustice in the decision to issue the notice. be answered: No. I hereby certify that the preceding 15 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd Associate Dated: 14 April 2004

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