Slack-Smith and Anor v Director General Department of Land and Water Conservation

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Matter No . 10267 of 2002 Coram : Bignold J 20 December 2002

DIRECTOR-GENERAL DEPARTMENT OF LAND AND WATER CONSERVATION

The Applicants in class 1 proceedings being an appeal pursuant to the Native Vegetation Conservation Act 1997, s 48 (NVC Act) against the Respondent's decision to give a direction under s 47 of the Act, seek a stay of the direction, on terms, pending the outcome in their appeal. The Respondent opposes the grant of the stay.

The direction under the NVC Act, s 47 was given on 24 May 2002. The Applicants' appeal against the direction was filed on 18 June 2002.

The hearing dates of the appeal have been fixed for 5 to 11 February 2003 (those dates having been allocated on 30 October 2002).

The Applicants' stay application, by way of Notice of Motion, was filed on 13 August 2002.

The Notice of Motion was not originally supported by affidavits, but on the hearing, two affidavits that had been filed and served were relied upon. On 9 October 2002, the hearing of the Notice of Motion was fixed for 3 December 2002.

The stay application is founded upon the provisions of the NVC Act, s 48(2) which provides: The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay action on the decision appealed against. B. THE S 47 DIRECTION

The s 47 Direction contains a recital that the Respondent's authorised delegate, "is satisfied that clearing of native vegetation was carried out on the property known as "Muttabun" Lightning Ridge….between February and June 2000, in contravention of Part 2 of the Native Vegetation Conservation Act 1997".

It then states: I therefore direct you, as owner of the above land, pursuant to Section 47 (1) of the Native Vegetation Conservation Act 1997, to carry out the works set out in the attached Schedule of Works, in the manner specified and within the time specified. This Notice will expire 10 years from the date on which it is singed. If you fail to comply with the terms of this direction under Section 47 the Regional Director may authorise any person to enter the land and carry out the specified works and may recover the cost of that in so doing from you. The Department is also empowered to prosecute you, or to obtain a court Order requiring you to comply with this direction. A person who does not comply with a notice under section 47(1) is liable to a penalty not exceeding $110,000, and in the case of the offence continuing, to a further daily penalty not exceeding $11,000. Under section 48 of the Native Vegetation Conservation Act 1997 a person aggrieved by the decision to give a direction under Section 47 may appeal to the Land and Environment Court within 30 days of the service of the notice of the direction.

The attached "Schedule of Works" is a four page document plus an attachment comprising a plan showing the lease boundaries of "Muttabun" and a Landset Image (aerial photograph) upon which is plotted three separate "Remediation Areas".

The "Schedule of Works" includes the following statement of its "Objectives". (a) To facilitate natural regeneration of native groundcover, shrub and overstorey in the cleared areas. (b) To facilitate the restoration of the habitat and connectivity values that have been removed as a result of the clearing.

It then identifies, by reference to the aerial photograph, the three Remediation areas "to be set aside for regeneration of native vegetation and restoration of habitat and connectivity values" and provides for a meeting between the Applicants and the Respondent "to identify the boundaries of the Remediation Areas on the ground…"

Section 5 of the "Schedule of Works" which is headed "Domestic Stock Management and Fencing in the Remediation Areas" imposes the following requirements: 5.1 The Lessees must remove all domestic stock from the Remediation Areas within 28 days of the date of the site meeting and must thereafter continue to exclude stock from the Remediation Areas for the duration of the Notice. 5.2 If grazing of domestic stock is to occur in an area or areas immediately adjacent to any of the Remediation Areas, the Remediation Area(s) adjacent to the areas where grazing is to occur must be enclosed by stock-proof fencing. 5.3 If grazing of domestic stock is not to occur in areas adjacent to the Remediation Areas, additional fencing will not be required, however existing fencing must be maintained in order to prevent the entry of domestic stock from surrounding areas into the Remediation Areas.

Sections 6 and 7 of the Schedule of Works impose further requirements in respect of the control of noxious weeds and pest animals and property maintenance in the Remediation Areas. C. THE APPLICANTS' CASE FOR THE GRANT OF THE STAY

The Applicants seek a stay of the operation of the s 47 direction pending the outcome of their appeal pursuant to s 48 for two principal reasons -

(i) they wish to continue to graze stock on their rural property "Muttabun" situate at Lightning Ridge, including the two paddocks in parts of which are located the three separate areas identified in the s 47 direction as "remediation areas"; and

(ii) in so utilising their rural property, they wish to avoid exposure to liability to the penalties prescribed by the NVC Act for contravention of the s 47 direction, and any other legal consequences involving the enforcement of the s 47 direction provided by the NVC Act.

The affidavit evidence in support of the Applicants' stay application includes an affidavit sworn by their Solicitor Mr Duncan Anderson on 30 September 2002 which deposes to matters on the basis of his knowledge and belief of what his clients have instructed.

After reciting extracts from "the Schedule of Works" attached to the s 47 direction, Mr Anderson states the following facts -

(i) the total area, the subject of the s 47 Direction is 700 hectares;

(ii) the s 47 Direction operates for a period of 10 years;

(iii) the precise boundaries of the 3 "Remediation Areas" (so identified in the s 47 Direction) have not yet been precisely defined;

(iv) the two paddocks "Sandridge Yard" and "River Paddocks" in parts of which are located the three Remediation Areas, comprise a total area of 2,671 hectares;

(v) in order to continue to use the two paddocks for grazing purposes but to exclude therefrom by appropriate fencing the three Remediation Areas, it would be necessary for the Applicants to erect about 13 kilometres of fencing (this estimate was adjusted to 25 kilometres) at an estimated cost of approximately $39,000.

The other affidavit evidence was given by Mr Geoffrey Cunningham, a Natural Resource Consultant. His affidavit annexes a Report dated 27 September 2002 setting forth his assessment of the likely impacts of the continued grazing of the three Remediation areas within the two paddocks on the Applicants' rural property.

Mr Cunningham's Report states that he inspected the Applicants' property at Lightning Ridge on 16, 17 and 18 September 2002, such inspection encompassing an examination of a "large proportion of the areas", the subject of the s 47 Direction. He carried out measurements of the height and density of native vegetation species on a small number of quadrats which were supplemented by belt transepts on a selected number of sites "to examine the species composition and other characteristics of the community to be revegetated".

After noting the current stocking rates on the property, his Report notes that the two paddocks are currently being grazed as a "single management unit" comprising 2,671 hectares.

After providing a separate assessment of likely impacts on main tree and shrub species and on ground cover species, Mr Cunningham's Report concludes with the following "Overall Assessment" - It is my opinion, based on almost 40 years of working with the trees, shrubs and pastures of the NSW Western Division, that allowing Mr Slack-smith to continue grazing the areas, that are the subject of the Notice, for the next six months if drought conditions persist will not permanently impact on any potential for revegetation [of native tree, shrub and ground cover species] on the three designated remediation sites. When drought breaking rains are received, the areas should be destocked for a period of 6-8 weeks to allow native ground cover species to regrow, flower and seed [perennials] or to germinate, grow, flower and seed [annuals]. The areas could then be restocked at current rates without significantly impacting on the potential of the native vegetation to regenerate.

Mr Cunningham's opinion of the likely impacts of continuing grazing of the three Remediation areas until the end of March 2003 is disputed in the affidavit evidence of Mr Graham Sawtell, Resource Compliance Manager of the Respondent's Department, stationed at Dubbo. His affidavit sworn 23 October 2002 annexes a written statement of his assessment of the likely impacts of the continuing grazing of the three Remediation Areas.

That Statement includes the following opinion: However, because this area is now in a very severe drought, and because the observations of Mr Cunningham on 16, 17 and 18 September 2002 do not suggest sufficient amounts of pasture and browse for cattle as being available, none or significantly less stock than those now grazing should be on the remediation areas.

His statement contains the following conclusion: It is my opinion based on almost 30 years of direct assessment of grazing impacts on arid/semi-arid native vegetation in the NSW Western Division, that ongoing grazing (particularly at existing stocking rates and in severe drought conditions) will impact on the health of, and ability of, many palatable species to grow naturally to maturity and reproductive capacity. All species mentioned have the ability to regenerate through germination and seedling establishment with specific climatic conditions. However for this to happen, a seed bank in the soil must be available. Ongoing browsing restricting the growth and reproduction capacity of palatable trees and shrubs either growing from germination or resprouting following clearing, will reduce the seed bank over time. A change in species composition will then occur, with unpalatable species becoming dominant. This has an added impact on restoration of habitat and native vegetation connectivity value. D. THE RESPONDENT'S CASE AGAINST THE GRANT OF A STAY

Counsel for the Respondent submitted that in the light of the obvious and unresolved conflict in the expert opinions of the likely impacts of continuing stock grazing on the three Remediation Areas, the Applicants had not made out their case for the grant of the stay.

The Respondent submitted that in exercising its power to grant a stay the Court would give preponderating weight to the policy of the NVC Act as reflected in the express objects contained in s 3.

The Respondent submitted that the Applicants had not established any real need to continue to use the three Remediation Areas forming part of the two paddocks on their rural property, and had not proved that the provision of the extensive fencing that they had estimated, was essential to the management of the property in a manner that kept grazing stock off the three Remediation Areas.

Finally, the Respondent submitted that the Applicants' stay application had been made belatedly. This submission must be rejected since the Applicants' Motion seeking the stay was filed only five weeks after the s 47 Direction requiring de-stocking took effect. E. THE RELEVANT STATUTORY PROVISIONS

Although for the purposes of adjudicating the present case, the most relevant provisions of the NVC Act are found in Part 6 ("other conservation and remedial measures"), those provisions are to be understood in the overall context of the Act.

The express objects of the NYC Act are set forth in s 3 as follows: The objects of this Act are:

(a) to provide for the conservation and management of native vegetation on a regional basis, and (b) to encourage and promote native vegetation management in the social, economic and environmental interests of the State, and (c) to protect native vegetation of high conservation value, and (d) to improve the condition of existing native vegetation, and (e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation, and (f) to prevent the inappropriate clearing of vegetation, and (g) to promote the significance of native vegetation,

in accordance with the principles of ecologically sustainable development.

The attainment of those objects is promoted or secured by the provisions contained in Parts 2, 3, 4, 5 and 6.

Part 2 controls the activity of "clearing", "native vegetation" and "protected lands" (all these key terms are defined in s 4, 5, 6 and 7) by applying to that activity the regime of the Environmental Planning and Assessment Act 1979, Part 4 ("Development Assessment"). Section 17 creates the offence of "contravening" Part 2.

Part 3 provides the procedures for the making of "regional vegetation management plans". When made, such a plan is "taken to be an environmental planning instrument for the purposes of Part 4 of the EP&A Act": s 36(1) prevailing over "any other environmental planning instrument…..to the extent of any inconsistency": s 36(3).

Part 4 provides for the making of a "native vegetation code of practice" which code when made, may be incorporated in or be adopted by, a regional vegetation management plan (s 38(4)) or by regulations (s 39(1)).

Part 5 provides for the making and enforcement of a "property agreement" (made between the Director-General an a land owner of a property) providing for "the conservation and management of vegetation on the land" (s 41(1)).

Part 6 empowers the Director-General (i) to make a "stop work order" and (ii) to direct the carrying out of remedial work, and provides a right of appeal to this Court by a person aggrieved by the decision of the Director-General to make an order or to give a direction.

Since these provisions are crucially relevant to the adjudication of the present Notice of Motion, I should fully set forth the terms of s 46, s 47 and s 48 as follows: 46. Director-General may make "stop work" order (1) If the Director-General is of the opinion that a person is contravening, or is about to contravene, Part 2, the Director-General may, by notice in writing given to the person, order the person not to carry out the clearing concerned. (2) The order:

(a) takes effect immediately (or from a later date specified in the notice), and (b) is subject to such conditions as the Director-General may specify in the notice.

(3) The Director-General may vary or revoke the order or the conditions of the order by further notice in writing given to the person subject to the order. (4) An order under this section remains in force until whichever of the following happens first:

(a) the order is revoked by the Director-General, (b) the period (if any) for which the order is expressed in the notice to be in force ends, (c) the period of 2 years from the day on which the order took effect ends.

(5) A person who does not comply with an order in force under this section is guilty of an offence and is liable to a penalty not exceeding 1,000 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 100 penalty units for each day the offence continues. 47. Directions for remedial work (1) If the Director-General is satisfied:

(a) that any native vegetation, or any protected land, has been cleared in contravention of Part 2, or (b) that the clearing of native vegetation on any land, or the clearing of protected land, has caused, or is likely to cause, on or in the vicinity of the land, any soil erosion, land degradation or siltation of any river or lake, or any adverse effect on the environment,

the Director-General may, by notice in writing, direct the landholder, or the person having the control or management of the clearing, to carry out specified work in a specified manner and within a specified time. (2) Any one or more of the following types of work may be directed to be carried out by a notice under this section:

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

(3) A direction under this section may be varied or revoked by a further notice. (4) A person who does not comply with a direction under this section is guilty of an offence and is liable to a penalty not exceeding 1,000 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 100 penalty units for each day the offence continues. (5) If a person fails to comply with a direction under this section, the Director-General may authorise any other person to enter the land and carry out the specified work. (6) The Director-General may recover the cost of that work from the person given the direction in any court of competent jurisdiction as a debt due by that person to the Crown. (7) Until repayment, the cost is to be a charge on the land. 48. Appeals under this Part (1) A person aggrieved by the decision of the Director-General to make an order, or to give a direction, under this Part may appeal against the decision to the Land and Environment Court within 30 days of the service of the notice of the order or direction. (2) The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay action on the decision appealed against.

Finally, I should note that the NYC Act, s 63(2), empowers any person to bring proceedings in this Court "for an order to remedy or restrain a breach of this Act…." and that the term "breach of this Act" is widely defined in subsection (1) to include a contravention or apprehended contravention of "an order or direction under Part 6" (which contains s 46 and s 47). F. ADJUDICATION OF THE STAY APPLICATION

In my judgment, the Applicants have made out their case for the grant of the stay on terms.

In so concluding, I am of the opinion that the power to direct a stay of the operation of an order or direction given by the Director-General that is conferred upon the Court by s 48(2) is a deliberate and essential part of the statutory regime imposed by Part 6 of the NVC Act.

That essential function so conferred upon the Court operates as a deliberate and salutary concomitant or accoutrement of the right of appeal to this Court against the decision of the Director-General that is conferred by s 48(1).

It would involve a misconstruction, in my opinion, to read into the fact that the relevant power is couched in form of an exceptional power, that some exceptional circumstances must be demonstrated by an appellant to justify the grant of the stay. The Respondent's submissions, I think, bordered on or flirted with this error, when they pressed the paramountcy of the objects of the NVC Act, overlooking the fact that the power conferred upon this Court is an integral and important feature of Part 6.

The parties appeared to commonly accept the applicability to the present case of the approach adopted by Sheahan J in Zouki v Water Administration Ministerial Corporation (2001) NSWLEC 61, a case involving an application for a stay of stop work orders issued under the Rivers and Foreshores Improvement Act 1948. In that case, the power to grant a stay was conferred upon the Court by s 22L(2) of that Act in almost identical terms to the NVC Act, s 48(2).

The approach taken by his Honour in that case is expressed in the following passages of his judgment: 6. In those circumstances it seems to me that the role of the court at this stage of the proceedings is akin to its role in the determination of applications for interlocutory relief in class 4 of the court's jurisdiction. 7. I, therefore, propose to adapt and apply the principles laid down, for example, by Mason ACJ in Castlemaine Tooheys Pty Ltd v South Australia (1986) 161 CLR 148 (at 153), and I have required the parties to demonstrate to the court: (1) whether there is a serious issue to be tried in the appeal; (2) whether irreparable harm may flow if the stopwork order is stayed or not; and (3) where the balance of convenience lies in all the circumstances.

In my opinion, that approach may be considered to be appropriate in the case of an application for stay of a "stop work" order issued pursuant to NVC Act, s 46. In such a case, it may be reasonable to assimilate the exercise of the statutory power to order a stay to the exercise of judicial discretion to grant or to withhold an interlocutory injunction to restrain a breach of the law.

However, with due respect to the parties' common position, I do not think that that approach is necessarily appropriate in a case like the present case, where the stay is sought in respect of a s 47 direction to carry out remedial work.

In my opinion, in a case such as the present, the Court's approach to the exercise of its statutory power to grant a stay must be informed by its consideration of what is needful in the circumstances of the case, in the interests of justice considered in the context of the statutory regime in force under the NVC Act, Part 6 and its place in the overall structure of that Act.

There is, for example, a striking and obvious difference in the circumstances that enliven the power to make a stop work order under s 46 and the circumstances that enliven the power to give a direction under s 47.

In the former, the relevant circumstance is the Director-General's opinion that a person "is contravening or is about to contravene Part 2" whereas in the latter, the relevant circumstance is the Director-General's "satisfaction that native vegetation has been cleared in contravention of Part 2".

Thus, a stop work order may be compared with a prohibitory injunction to restrain a threatened breach of law and a direction for remedial works to be undertaken may be compared with a mandatory injunction to do work to remedy an existing breach of the law.

It is appropriate to sustain this comparison by adding the comment that whereas interlocutory prohibitory injunctions may be readily obtainable, such interlocutory relief is not nearly so readily obtainable by way of mandatory injunction.

It is for this reason that I am unable to accept as providing the appropriate approach to adjudicating the present case, the approach adopted in Zouki which expressly adopted the principles enunciated in Castlemaine Tooheys for the grant of an interlocutory prohibitory injunction.

In a case like the present, if assistance is to be gained by analogy, I would think the more apt analogy to be the exercise of the Court's power to stay the execution of a judgment or order under Part 44 r 5 of the Supreme Court Rules, as adopted by Part 6 r 1 of the Rules of this Court.

In Ritchie's Practice, there is included in the commentary on the nature of the power, the following statement at 2935: Although the power to stay is not confined to closed categories and is exercisable whenever the requirements of justice so demand its exercise is subject to some restraint. (my emphasis)

In my judgment, the requirements of justice so demand the grant of the stay upon terms sought the Applicant because such relief is a reasonable, if not necessary, complement to the right of appeal against the Respondent's decision to give the s 47 Direction which right has been exercised by the Applicants in a bona fide manner and where the hearing of that appeal has been specially fixed for 5 to 11 February 2003 in circumstances where the appeal, if wholly successful would result in the setting aside of the s 47 Direction whereas if the appeal is wholly unsuccessful, the s 47 Direction will take effect and the stay will be terminated.

Although there is conflicting expert evidence concerning the impact of the short term continuing use for grazing purposes of the Remediation Areas, I am satisfied that its continuance will not seriously or meaningfully jeopardise or prejudice either the integrity of the s 47 Direction or its implementation in the event of the Applicants' appeal wholly failing. But in the meanwhile, the Applicants should not be exposed to liability for contravening the s 47 Direction by continuing to utilise their property for grazing purposes. G. ORDERS

For all of the foregoing reasons, I make the following orders -

1. The operation of the s 47 Direction given to the Applicants on 24 May 2002 is stayed pending the outcome of the Class 1 appeal and until further order of the Court.

4. The Court accepts the Applicants' undertaking to maintain a stocking rate of 1 DSE per 2.73 hectares on the paddocks known as "River" and "Sand Ridge Yards" until further order of the Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.