Secretary, Department of Planning, Industry and Environment v Balmoral Farms Pty Ltd

Legislation Cited: Government Sector Employment Act 2013 (NSW) ss 3, 33
Local Land Services Act 2013 (NSW) ss 60D, 60F, 60G(4), 60I, 60N
Native Vegetation Act 2003 (NSW) (repealed) s 12

Cases Cited: Boddington v British Transport Police [1999] 2 AC 143; [1998] 2 All ER 203; [1998] 2 WLR 639
Director of Public Prosecutions (Cth) v Keating (2013) 248 CLR 459; [2013] HCA 20
Environment Protection Authority v Bartter Enterprises Pty Ltd [2020] NSWLEC 78
Environment Protection Authority v Pullinger (No 2) [2024] NSWLEC 51
Liverpool City Council v Cauchi (2005) 145 LGERA 1; [2005] NSWLEC 675
North East Forest Alliance v Forestry Corporation of NSW [2023] NSWLEC 124
Secretary, Department of Planning and Environment v Harris [2024] NSWCCA 88
Sutherland Shire Council v Benedict Industries Limited [2013] NSWLEC 121
Sutherland Shire Council v Benedict Industries Limited (No 3) [2025] NSWLEC 97
Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101

Texts Cited: Government Sector Employment (Senior Executive Bands) Determination 2014
Anthony Lean, Chief Executive of the Office of Environment and Heritage, Instrument of Delegation of Functions of the Chief Executive of the Office of Environment and Heritage under Part 5A of the Local Land Services Act 2013 (21 December 2017)

Category: Procedural rulings

Parties: Secretary, Department of Planning, Industry and Environment (Prosecutor)
Balmoral Farms Pty Ltd (Defendant)

Representation: Counsel:
G Wright SC and T Hammond (Prosecutor)
J Ireland KC, solicitor, and A Connolly (Defendant)
Solicitors:
Litigation and Investigations, Department of Climate Change, Energy, the Environment and Water (Prosecutor)
McGirr Lawyers (Defendant)

File Number(s): 2021/69608; 2021/69609; 2021/69610; 2021/69611; 2021/69612; 2021/69613

Publication restriction: Nil

JUDGMENT

1. By six summonses filed on 11 March 2021, the Secretary, Department of Planning, Industry and Environment (the prosecutor) charged Balmoral Farms Pty Ltd (the defendant) with five offences under s 12 of the Native Vegetation Act 2003 (NSW) and one offence under s 60N of the Local Land Services Act 2013 (NSW) alleging clearing of native vegetation without approval in relation to two properties owned by the defendant in the Walgett Local Government Area. Four of the alleged offences relate to the property known as "Corombie", located at 2461 Rowena Road, which includes Lot 4 in DP 752245, Lots 6 and 25 in DP 752247 and Lot 9 in DP 752254 (Corombie). The remaining two alleged offences relate to the property known as "Balmoral", located at 29310 Kamilaroi Highway, Burren Junction, which includes Lots 12 and 16 in DP 753926 (Balmoral).

2. There are two related hearings which I will hear which together concern the liability for sixteen offences of clearing native vegetation in breach of s 12 of the Native Vegetation Act 2003 (NSW) and s 60N of the Local Land Services Act in relation to five defendants. The hearing in relation to Balmoral Farms Pty Ltd commenced before me on Monday, 28 April 2025 (the first hearing). This hearing is the first of the three hearings. The second hearing, Secretary, Department of Planning and Environment v JP & LR Harris Pty Ltd; Secretary, Department of Planning and Environment v Woolondoon Pty Ltd, is set to commence on Monday, 12 May 2025 for five days (the second hearing). The third hearing, Secretary, Department of Planning and Environment v Phillip John Harris; Secretary, Department of Planning and Environment v Sue Ellen Harris, is set to commence on Wednesday, 21 May 2025 for five days (the third hearing).

3. On day two of the first hearing, Tuesday, 29 April 2025, Ms Wright SC, senior counsel for the prosecutor, tendered the following exhibits:

4. Certificate of Sarah Carr under s 50 of the Native Vegetation Act 2003 (NSW) dated 20 March 2024 (Exhibit A);

5. Certificate of Sarah Carr under s 13.31(2)(a) of the Biodiversity Conservation Act 2016 (NSW) dated 20 March 2024 (Exhibit B); and

6. Certificate of Thomas Celebrezze, Director, Remote Sensing and Landscape Science, Department of Planning and Environment, pursuant to s 13.31(2)(a) of the Biodiversity Conservation Act 2016 (NSW) dated 22 March 2024 (Exhibit C).

7. In opening submissions, Ms Wright indicated that the prosecutor intended to tender a certificate dated 12 October 2020 issued under s 60F(5) of the Local Land Services Act certifying that part of certain land identified in the certificate was category 2-regulated land for the purposes of the Local Land Services Act (the certificate). The certificate relates to proceedings number 2021/69611 (charge 4), being a charge under s 60N of the Local Land Services Act. Ms Wright referred to an objection by the defendant to the further certificate sought to be tendered by the prosecutor pursuant to s 60F(5) of the Local Land Services Act, that of Mr Jeremy Black, Director, Remote Sensing and Landscape Science, dated 12 October 2020. Ms Wright said as follows (emphasis added):

WRIGHT: Then one needs to go to s 60I which sets out the type of land that is to be designated as category 2 regulated land. And that turns on, your Honour will see there, the reasonable belief of the environmental agency head, “If the agency head reasonably believes the land was not cleared of native vegetation as at 1 January 1990 or was unlawfully clear of native vegetation after 1 January 1990.” And subs 5 allows for an evidentiary certificate to be issued in connection with legal proceedings against a land holder that the land described in the certificate--

…

HER HONOUR: Yes. Subsection 5. I see a certificate, yes.

WRIGHT: Which provides prima facie evidence of the category of the land during the transitional period. There’s a certificate in this case that was issued in October 2020 under s 60F subs 5, certifying the land identified in the certificate which includes a number of lots but relevantly, the lots of the parcels of land subject of the present hearing--

HER HONOUR: Within both properties.

WRIGHT: --Yes, is category two regulated land for the purposes of the Act. I believe an objection has been raised in respect of the absence of evidence of the delegation of the delegate who made the certificate, and we will eventually tender that, your Honour, that delegation.

HER HONOUR: You will eventually?

WRIGHT: Tender the delegation of the certifier but it hasn’t formed part of the affidavits and there’s an objection on that basis…

The certificate

5. The certificate, the validity of which was impugned by the defendant, is in the following terms:

Issues

6. At 7:52pm on Tuesday, 29 April 2025, the defendant provided to chambers submissions in relation to its objection to the tender of the certificate. The defendant objected to the tender of the certificate for two reasons:

7. the absence of proof of the delegated authority of the certifier to issue the certificate; and

8. the certificate purportedly issued under s 60F of the Local Land Services Act was not validly issued in any event, because although Mr Black, whose signature appears on the certificate, stated his reasons for concluding that the land in question is category 2-regulated land:

(a) the reasons at B.1. and B.2. are “formulaic and conclusory”; (b) the timing and authorship of the review referred to in B.3., B.4. and B.5. is not disclosed in the certificate; (c) the conclusion of the “review” stated in the certificate is that vegetation was likely present, rather than native vegetation; (d) the name of the person who performed the “very detailed assessment” resulting in Maps A to D attached to the certificate is not identified, nor is the date or methodology applied to produce the maps identified; and (e) the certificate must be “explained”, including because it relates here to a criminal offence.

7. Following receipt of the prosecutor’s submissions provided to chambers at 9:46am on Wednesday, 30 April 2025, the defendant conceded the issue of proof of the delegated authority of the certifier to issue the certificate, and no longer pressed that ground in Court.

8. There remained the question of whether the certificate was not validly issued in any event and, as a preliminary issue, whether, in Class 5 proceedings, the defendant can raise a collateral challenge to the validity of a statutory certificate.

Relevant legislation

9. Section 60D of the Local Land Services Act defines “Environment Agency Head” as “the Chief Executive of the Office of Environment and Heritage”. Section 60D also contains the following relevant definitions:

category 2-regulated land means areas of the State to which this Part applies designated as category 2-regulated land on the native vegetation regulatory map (including category 2-vulnerable regulated land that is so designated).

…

regulated rural area means any area of the State to which this Part applies that is category 2-regulated land.

10. Section 60F of the Local Land Services Act relevantly provides in relation to transitional arrangements until the preparation of native vegetation regulatory maps as follows:

60F Transitional arrangement until preparation of maps

(1) This section applies to an area of the State to which this Part applies during the period from the commencement of this Part until the area has been designated on a native vegetation regulatory map (the transitional period).

(2) For the purposes of this Part, the area is taken, during the transitional period, to be—

…

(b) category 2-regulated land, if this Part requires the land to be designated as category 2-regulated land on the native vegetation regulatory map (except as provided by paragraph (c)), or

…

…

(4) A provision of this Part that determines the relevant categorisation of land by reference to a reasonable belief of the Environment Agency Head about a particular matter is to be construed, for the purposes of this section, as a reference to what a reasonable person would believe about the matter.

(5) The Environment Agency Head may, in connection with any legal proceedings against a landholder, issue a certificate that the land described in the certificate is (for the reasons set out in the certificate) category 1-exempt land or category 2-regulated land (including category 2-vulnerable regulated land). The certificate is, in those legal proceedings, prima facie evidence of the category of the land during the transitional period.

11. Section s 60G(4) requires the Environment Agency Head to publish information about the scientific method used to prepare the native vegetation regulatory map.

12. Section 60I contains the requirements to designate land as category 2-regulated land. Section 60I(1) relevantly provides:

60I Category 2-regulated land mapping

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

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

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

…

(3) However, land described in subsection (1) is not to be designated as category 2-regulated land if section 60H (2) or (3) requires the land to be designated as category 1-exempt land.

13. Part 5A of the Local Land Services Act contains s 60N which provides an offence in relation to unauthorised clearing of native vegetation in regulated rural areas as follows:

60N Unauthorised clearing of native vegetation in regulated rural areas—offence

(1) A person who clears native vegetation in a regulated rural area is guilty of an offence unless the person establishes any of the following defences—

(a) that the clearing is for an allowable activity authorised under Division 4 and Schedule 5A,

(b) that the clearing is authorised by a land management (native vegetation) code under Division 5,

(c) that the clearing is authorised by an approval of the Panel under Division 6,

(d) that the clearing is authorised under section 60O (Clearing authorised under other legislation etc),

(e) that the clearing is the carrying out of a forestry operation authorised under Part 5B (Private native forestry).

Maximum penalty—

(a) for an offence that was committed intentionally and that caused or was likely to cause significant harm to the environment—

(i) in the case of a corporation—$5 million, or

(ii) in the case of an individual—$1 million, or

(b) for any other offence—

(i) in the case of a corporation—$2 million, or

(ii) in the case of an individual—$500,000.

(1A) The defences under subsection (1) (a)–(c) do not apply if the clearing was the carrying out of a forestry operation in a State forest or other Crown-timber land to which an integrated forestry operations approval under Part 5B of the Forestry Act 2012 applies.

(2) The higher maximum penalty under this section does not apply unless—

(a) the prosecution establishes (to the criminal standard of proof) that the offence was committed intentionally and caused or was likely to cause significant harm to the environment, and

(b) the court attendance notice or application commencing the proceedings alleged that those factors applied to the commission of the offence.

If any such allegation in the notice or application is not established by the prosecution, the lower maximum penalty under this section applies (whether or not the notice or application is amended).

(3) For the purposes of this section, clearing of native vegetation is not authorised as referred to in subsection (1) unless the conditions to which the authorisation is subject (including any conditions of a land management (native vegetation) code relating to the clearing or any certificate or approval issued or granted for the clearing) are complied with. This subsection extends to conditions that impose obligations on the person who clears the native vegetation that are required to be complied with before or after the clearing is carried out.

(4) This section does not operate to preclude the commission of an offence under the Environmental Planning and Assessment Act 1979 or the Biodiversity Conservation Act 2016 in relation to the clearing of native vegetation.

14. In relation to the delegation of power under Part 5A of the Local Land Services Act, the Instrument of Delegation of Functions of the Chief Executive of the Office of Environment and Heritage under Part 5A of the Local Land Services Act 2013 dated 21 December 2017 signed by Anthony Lean, Chief Executive of the Office of Environment and Heritage (as it then was) (the Instrument of Delegation) was annexed to the submissions of the prosecutor dated 30 April 2025:

Senior Executive means a "Public Service senior executive" as defined in section 3 of the Government Sector Employment Act 2013 whose role is assigned within the Office of Environment and Heritage.

15. Section 3 of the Government Sector Employment Act 2013 (NSW) provides (and did so at the date of the certificate) that:

Public Service senior executive means the Secretary of a Department and any other Public Service employee to whom Division 4 of Part 4 applies.

16. Division 4 of Part 4 of the Government Sector Employment Act provides relevantly (and did so at the date of the certificate) as follows:

33 Application of Division

(1) This Division applies to the following—

(a) the Secretary of a Department,

(b) the head of any other Public Service agency if the head is an employee of the agency and not a statutory officer,

(c) any other employees of a Public Service agency who are employed in a Public Service senior executive band.

(2) For the purposes of this Act, the employees to whom this Division applies are Public Service senior executives.

(3) The person who is authorised by this Act to exercise the employer functions of the Government of New South Wales in relation to a Public Service senior executive is referred to in this Division as the employer of the executive.

17. The Government Sector Employment (Senior Executive Bands) Determination 2014 provides at [3]:

3 Public Service senior executive bands

For the purposes of the Government Sector Employment Act 2013, the Public Service senior executive bands are as follows:

BAND 4—Secretary level

BAND 3—Deputy Secretary level

BAND 2—Executive Director level

BAND 1—Director level

Can the defendant challenge the validity of the certificate in Class 5 proceedings

18. It is clear that it is available to the defendant to challenge, in collateral proceedings, the validity of the certificate in these Class 5 proceedings. In Boddington v British Transport Police, [1] Lord Steyn said as follows in relation to a challenge to the validity of a by-law in criminal proceedings (at 664):

There is no good reason why a defendant in a criminal case should be precluded from arguing that a byelaw is invalid where that could afford him with a defence. Sometimes his challenge may be defeated by special statutory provisions on analogy with the decision in Reg. v. Wicks [1998] A.C. 92. The defence may fail because the relevant statutory provisions are held to be directory rather than mandatory. It may be held that substantial compliance is sufficient. But, if an issue as to the procedural validity of a byelaw is raised, the trial court must rule on it.

19. In Liverpool City Council v Cauchi, [2] McClellan CJ of LEC said at [41]-[42]:

41. There are now a number of decisions in which it has been determined that an administrative decision which has no effect may be challenged in collateral proceedings, particularly proceedings in which the recipient of a notice or order is being prosecuted for a failure to comply with it: see Ousley v R (1997) 192 CLR 69 at 79-80 and 86-87, McHugh J at 100 and Kirby J at 146; Attorney-General (Commonwealth) v Breckler (1999) 197 CLR 83 at 108 and 131; see also the discussion in Cox & Hazell Pty Ltd v Gidney (1981) 1 NSWLR 468, in particular the judgments of Hope and Mahoney JJ.

42. It is plain that in circumstances in which an administrative decision has been made by a person, which is infected with jurisdictional error, which would include a failure to afford procedural fairness, that decision has no effect and is regarded in law as no decision at all: see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.

20. In Sutherland Shire Council v Benedict Industries Pty Ltd (No 4), [3] Pepper J at [9]-[10] observed as follows in relation to a collateral challenge to the validity of a tree preservation order made under the Sutherland Shire Local Environmental Plan 2000:

9. It is open to Benedict to mount a collateral challenge to the validity of the TPO. In criminal proceedings in which an accused is charged with an offence contravening a statutory order or instrument, the accused may mount a collateral attack on the validity of the statutory order instrument (Gray v Woollahra Municipal Council [2004] NSWSC 112 at [51]–[112] and Liverpool City Council v Cauchi [2005] NSWLEC 675; (2005) 145 LGERA 1 at [41]–[42] and the authorities cited thereat).

10. The council bears the burden of proof in respect of Benedict’s collateral challenge to the validity of the TPO (Selby v Pennings (1998) 102 LGERA 253 at 265 per Ipp J and 283 per Owen J).

21. In Environment Protection Authority v Pullinger (No 2), [4] the Court, in light of these authorities, heard and determined the defendant’s challenge to the validity of a direction in a clean-up notice given pursuant to s 110 of the Protection of the Environment Operations Act 1997 (NSW) in Class 5 proceedings. [5]

22. The prosecutor accepted that it was available to the defendant to challenge the validity of the certificate in these Class 5 proceedings.

23. However, it is unusual for a defendant to challenge, in Class 5 proceedings, the validity of a statutory certificate in circumstances where the challenge has not been previously foreshadowed, nor drawn in conventional judicial review grounds.

The absence of proof of the delegated authority of the certifier to issue the certificate

Defendant’s submissions

24. In its submissions received by chambers late on Tuesday, 29 April 2025, the defendant referred to the statement of Mr Black in the certificate, to s 60F(5) of the Local Land Services Act, and to the definition of “Environment Agency Head” in s 60D of the Local Land Services Act, and submitted that the prosecutor had not tendered any evidence of Mr Black’s delegation of authority to issue the certificate.

25. The defendant submitted that a certificate issued under s 60F(5) is “a powerful evidentiary tool” and that it is “very difficult” for a defendant to prove that matters certified by such a certificate are incorrect. Until the prosecutor provided satisfactory evidence of the delegation of power to Mr Black at the time of issuing the certificate, the Court should not receive the certificate as evidence of the matters purported to be certified by it.

Prosecutor’s submissions

26. At 9:46am on Tuesday, 30 April 2025, the prosecutor provided to chambers its submissions in relation to the admissibility of the certificate. The prosecutor said that it had provided the defendant with the Instrument of Delegation, and that it would tender the instrument at the time of tendering the certificate.

27. The prosecutor referred to the Instrument of Delegation, the Government Sector Employment Act and the Government Sector Employment (Senior Executive Bands) Determination, and submitted that as Mr Black is a Director, he was a “Public Service senior executive” and therefore a “Senior Executive” for the purpose of the delegation, and had power to issue the certificate.

28. At the hearing on Wednesday, 30 April 2025 the defendant accepted that the prosecutor had provided evidence of Mr Black’s delegation of authority to issue the certificate.

Consideration

29. A central factor in weighing the admissibility of the certificate is consideration of whether the admission of the evidence would cause prejudice to the defendant and whether its exclusion would cause prejudice to the prosecutor.

30. In Secretary, Department of Planning and Environment v Harris, [6] Sweeney J (with whom Adams J and Hulme AJ agreed), in deciding to grant leave to appeal against the decision of a judge to refuse leave to the prosecutor to tender supplementary evidence, said at [86]:

…Fairness and justice required that her Honour take into account the interest of both parties to the proceedings. The interest of justice require intervention by this Court.

31. In Sutherland Shire Council v Benedict Industries Limited [7] at [27], Biscoe J said:

…The Court has power to control and supervise the conduct of criminal proceedings, including so as to prevent unfairness. In an appropriate case this extends to refusing to permit a prosecutor to lead evidence that is otherwise relevant and admissible, for example if the evidence would cause the defendant to suffer irremediable prejudice, or prejudice which could only be cured by an order that the court is not willing to make, such as for an adjournment of the hearing.

32. In Environment Protection Authority v Bartter Enterprises Pty Ltd, [8] Duggan J referred to Biscoe J’s decision in Sutherland Shire Council v Benedict Industries Limited and said at [7]-[9]:

…In the present case, what is required is a consideration of

(1) Whether the evidence is relevant and admissible;

(2) Whether the evidence would cause a prejudice to the defendant that is unable to be satisfactorily cured; and

(3) Considerations generally relating to the fairness and justice between the parties.

[8] Compliance with the disclosure requirements of the Criminal Procedure Act are important as they provide both notice to the defendant of the case it has to meet but it also significantly contributes to the efficient management of the public resource of court time.

[9] The late service of evidence in breach of those requirements will always have a prejudicial effect on the defendant, as it makes decisions, deploys resources and manages the preparation of the case reliant upon the disclosure made to it. Service of material two days before the hearing will always produce some degree of prejudice. I accept that in this case, the late service has resulted in such inherent prejudice.

33. Her Honour found at [15]:

The defendant was unable to identify any particular matter that produced a direct and identifiable prejudice beyond the inherent prejudice that I have already accepted. In the circumstances, the prejudice to the defendant, in the event that the evidence is allowed, is not irremediable and can be accommodated by allowing the defendant time, within the scope of the hearing already fixed, to take instructions, prepare and otherwise deal with this evidence. Further, the adducing of the evidence and these arrangements would not unduly compromise the efficient management and conduct of the hearing.

34. In Sutherland Shire Council v Benedict Industries (No 3), [9] Pepper J said at [68]:

From the available case law, it would appear that the touchstone for the exercise of the Court's discretion to grant leave to rely on further evidence under the Division 2A regime is that of fairness or justice as between the parties. Informing this exercise will be a variety of factors which will include consideration of the prejudice that will be suffered by the defendant if the evidence is permitted; the prejudice to the prosecutor if the evidence is excluded; the conduct of the parties to the proceedings to date; the delay caused by the grant of leave; the costs associated with the grant of leave…

35. I am satisfied that receipt of the tender of the certificate, in circumstances where the defendant accepted that there was satisfactory proof of the delegated authority of the certifier to issue the certificate, would not cause the defendant to suffer any, or irredeemable, prejudice.

Whether the certificate was not validly issued in any event

Defendant’s submissions

36. Turning to the defendant’s second ground of challenge to the validity of the certificate, namely that the certificate was not otherwise validly issued in any event, the defendant submitted that Division 2 of the Local Land Services Act contemplates the preparation and publication of a map designating areas of land in New South Wales which are regulated and those which are not. By s 60G of the Local Land Services Act, the Environmental Agency Head has the responsibility to prepare and publish native vegetation regulatory maps under and for the purposes of the Local Land Services Act. The defendant submitted that s 60F of the Local Land Services Act contains what are called "transitional arrangements" which apply from the commencement of the relevant part of the Act until a map is published. No such map of the relevant area was published at the date that Mr Black signed the certificate on 12 October 2020. That certificate is expressed to be made under statutory authority found in s 60F(5) of the Local Land Services Act. Section 60F(5) of the Act, the defendant submitted, may be invoked where no map is published which was this case at the date Mr Black purported to issue the certificate.

37. The defendant submitted that “the controlling factor” in relation to the validity of the certificate is that the Environment Agency Head must be of a "reasonable belief about a particular matter" and that such reasonable belief must be "what a reasonable person would believe about the matter". Paragraphs numbered B.1. to B.7. in the certificate state the reasons for Mr Black concluding that the land is either regulated or exempt. This is a requirement for the valid exercise of the certification power under s 60F(5).

38. The defendant submitted that the reasons given in paragraphs B.1. and B.2. of the certificate are “formulaic and conclusory”.

39. As to the "review" referred to in paragraphs B.3., B.4. and B.5. of the certificate, the timing and the authorship of that suggested "review" were not disclosed. The conclusion attributed to the "review" that "vegetation was likely present" on the land in paragraph B.4. did not disclose that the "likely" presence was of native vegetation.

40. In relation to Maps A to D attached to the certificate depicting in Map A Corombie and in Map C Balmoral, the defendant submitted that the form of the mapping suggests that a very detailed assessment has been made by someone showing large different areas of exempt and non-exempt land. The person who made that assessment was not identified, nor was the date or methodology applied by that anonymous person. It was submitted to be improbable that Mr Black personally performed the "review" or prepared the maps.

41. The defendant referred to the established principle of the interpretation of criminal statutes that a person must be able to know in advance, from published material, whether or not conduct they are considering engaging in will constitute an offence: for example Director of Public Prosecutions (Cth) v Keating [10] at [48] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

42. In a case such as the present, where no map existed at the time of the alleged offence under the Local Land Services Act, it is essential that a certificate such as the present one prepared after the time that the alleged offence was committed (here, relevantly about 25 August 2017 to 31 December 2017) on the basis of information including a "review" by someone other than the certifying person be explained. The defendant submitted that the Court has power to look at the certificate and see whether it satisfies the requirements of the section that authorises its issue. The position is analogous to the approach taken by the Court in North East Forest Alliance v Forestry Corporation of NSW. [11]

Prosecutor’s submissions

43. In relation to the defendant’s second ground of challenge to the validity of the certificate, namely that the certificate was otherwise not validly issued in any event, the prosecutor submitted that by reason of s 60F(4), s 60I(1) is to be construed for the purpose of s 60F as a reference to what a reasonable person would believe about the matter. The certificate includes a statement of Mr Black’s belief that the land to which the certificate applies is category 2-regulated land and the reasons underlying that belief.

44. The prosecutor said that defendant’s submission that Mr Black’s reasons at paragraphs B.1. and B.2. are “formulaic and conclusory” should not be accepted for the following reasons. Paragraph B.1. contains the requisite belief that the land is category 2-regulated land and specifies the grounds for the belief, namely that the land:

a. is an area of New South Wales to which Part 5A of the [Local Land Services Act] applies;

b. was not cleared of native vegetation as at 1 January 1990;

c. was not cleared pursuant to any known property vegetation plan or land management (native vegetation) code approval; and

d. the [Local Land Services Act] does not otherwise require that it be categorised as “category-1 exempt land”.

45. The prosecutor submitted that those grounds reflect the requirement for designation of land as category 2-regulated land under Part 5A of the Local Land Services Act including s 60A, 60I(1)(a) and 60I(3). In particular, a reasonable belief that the land was not cleared of native vegetation as at 1 January 1990 is one of the two alternative preconditions to the making of a certificate stated in s 60I(1)(a) of the Act.

46. The fact that Mr Black stated his belief in a manner that reflects the legislative criteria for categorisation of land as category 2-regulated land did not make the certificate invalid, nor this part of the statement “formulaic and conclusory”. To the contrary, B.1. provides clarity that the certifier had turned his mind to the relevant legislative requirements.

47. Paragraph B.2. elucidates the methodology used to form the belief, being the “Native vegetation regulatory map: method statement” and appendices, the source for which are stated in the certificate. Section s 60G(4) of the Local Land Services Act requires the Environment Agency Head to publish information about the scientific method used to prepare the Native vegetation regulatory map. The method statement and appendices referred to at B.2. of the certificate were prepared to meet that requirement and, as indicated on the certificate, were published on the internet for transparency purposes.

48. In relation to the submission that the timing and authorship of the review referred to in B.3., B.4. and B.5. is not disclosed in the certificate, the prosecutor submitted that there is no necessary inference that the review involves “authorship”. Use of the passive tense did not exclude that Mr Black conducted the review. In any event, the statement of reasons provided in the certificate for the formation of Mr Black’s belief necessarily implied that he personally had regard to the stated matters, including satellite and other imagery showing the presence of vegetation on the land. B.3. provided further exposition of his reasons for forming the requisite belief. The absence of a statement of the date of the review was immaterial. It must have been carried out after 25 August 2017 (having regard to the date specified in B4 and the fact that Part 5A of the Local Land Services Act commenced on 25 August 2017). It was implicit that the review (which included a review of satellite and other imagery spanning pre-1990 to 2017 dates) was carried out for the purpose of issuing the certificate, and was therefore carried out proximate to that date, being 12 October 2020.

49. In relation to the complaint that B.4. of the certificate does not refer to “native” vegetation, it is clear in the context of the certificate as a whole that the reference is to native vegetation, in particular by reason of the reference to “native” vegetation in the chapeau to B.3. in which Mr Black states that “[s]pecifically, the determination that the land had not been cleared of native vegetation as at 1 January 1990 was made…”

50. In relation to the submission that the name of the person who prepared the maps attached to the certificate is not stated (nor the date or methodology applied), the prosecutor submitted that these matters do not provide a valid basis to challenge the validity of the certificate. The methodology applied is that stated in B.2., having regard to the fact that the maps depict the categorisation of the land as category 2-regulated land, according to Mr Black’s belief. The maps referred to at B.4., B.5. and B.6. comprise the depiction of the areas of land falling within each of the categorisations, including category 2-regulated rural land. It followed that the methodology in B.2. was applied to that determination.

51. As to the author and date of the maps, a statement in relation to those matters in the certificate is immaterial to the validity of the certificate. The maps on their face are documents created by the Department of which Mr Black was a director. It was not necessary for the certificate to go further and identify the particular person or persons who prepared them.

52. In relation to the submission that the certificate must be “explained”, including because it relates here to a criminal offence, that submission was made at a high level of generality and was not borne out by the information provided in the certificate which adequately explains the reasoning underlying the opinion. There was no uncertainty in relation to the content or basis of the certificate. The fact that the certificate was issued for the purpose of the proceedings was inconsequential as s 60F(5) necessarily permits this course, and applies “during the transitional period” (defined in s 60F(1) as “the period from the commencement of this Part until the area has been designated on a native vegetation regulatory map”).

Consideration

53. I am satisfied upon an examination of the certificate that the relevant statutory procedures in 60F of the Local Land Services Act were followed. None of the matters raised by the defendant concerning the reasons and conclusions of the certificate, the authorship and timing of the review referred to in the certificate, or the timing and authorship of the maps attached to the certificate establish a basis to impugn the validity of the certificate.

54. Nor are any of the defendant’s grounds of challenge to the certificate conventional grounds of judicial review challenging the validity of a certificate issued pursuant to a statutory provision.

55. In relation to the defendant’s five grounds of challenge identified to the validity of the certificate “in any event”, I find as follows:

56. I do not accept that the reasons given by Mr Black in paragraphs B.1. and B.2. of the certificate are “formulaic and conclusory”. Paragraph B.1. makes clear that Mr Black considered the relevant legislative requirements, and paragraph B.2. sets out the methodology used in forming his belief.

57. Nor do I accept the defendant’s challenge to the timing and authorship of the review referred to in B.3., B.4. and B.5. of the certificate. It is clear that the review was carried out for the purpose of issuing the certificate, and I do not find that it was required to be separately dated. There is no reason to consider that the review was not performed by Mr Black or that Mr Black did not take the matters the subject of the review into account.

58. I also reject the defendant’s challenge to the conclusion of the review that “vegetation”, rather than specifically “native vegetation”, was likely present. The context of the certificate as a whole, in particular the chapeau to B.3., make clear that it was native vegetation that was being referred to.

59. Nor is it material that there was no statement as to the authorship and date of Maps A to D attached to the certificate. The maps are on their face departmental documents, and it was sufficient that Mr Black as Director, Remote Sensing and Landscape Science, certified the certificate to which they were attached.

60. Likewise, I reject the defendant’s somewhat vague submission that the certificate, being a certificate issued in accordance with s 60F(5) of the Local Land Services Act, must be otherwise “explained”.

Conclusion

56. Accordingly, I dismiss the defendant’s objection to the admissibility of the certificate of Jeremy Black, Director, Remote Sensing and Landscape Science, as a delegate of the Environment Agency Head, dated 12 October 2020, issued pursuant to s 60F(5) of the Local Land Services Act 2013 (NSW).

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Endnotes

[1999] 2 AC 143; [1998] 2 All ER 203; [1998] 2 WLR 639 at 664 (Lord Steyn); cited with approval in Selby v Pennings (1998) 102 LGERA 253 at 268 (Ipp J) and 283-284 (Owen J), Gray v Woollhara Municipal Council [2004] NSWSC 112 (Whealy J).

(2005) 145 LGERA 1; [2005] NSWLEC 675.

[2015] NSWLEC 101.

[2024] NSWLEC 51 (Pritchard J).

[2024] NSWLEC 51 at [221] (Pritchard J).

[2024] NSWCCA 88.

[2013] NSWLEC 121.

[2020] NSWLEC 78.

[2015] NSWLEC 97.

(2013) 248 CLR 459; [2013] HCA 20.

[2023] NSWLEC 124.