TAGGETT v THE COUNCIL OF THE SHIRE OF TWEED

Court of Appeal (NSW)|1993-04-28|Before: Clarke JA, Handley JA, Bannon J, Sheller JJ

CLARKE, HANDLEY and SHELLER JJ 27 and 28 April 1993, 3 November 1993 [1993] NSWCA 260

ENVIRONMENTAL PLANNING - existing use rights - incidental and ancillary uses. ENVIRONMENTAL PLANNING - existing use of drain in wetlands - illegal widening without consent - evidentiary presumption against wrongdoer. ENVIRONMENTAL PLANNING - mandatory injunction - _ certainty. INJUNCTION - environmental planning - mandatory injunction - certainty. EVIDENCE - presumption against wrongdoer.

The appellants purchased rural property near Pottsville south of Murwillumbah in May 1985 which became subject to State Environment Planning Policy No 14 - Coastal Wetlands (SEPP 14) in December 1985. CL7 of SEPP 14 prohibited the clearing, draining or filling of the wetlands without consent. After the commencement of SEPP 14 the appellants undertook extensive clearing and draining work within the wetlands for agricultural and grazing purposes. The Council commenced Class 4 proceedings in the Land and Environment Court. The trial Judge rejected the appellants' claim that they had existing use rights for purposes other than cattle grazing and held that the timber clearing and drain widening contravened SEPP 14. After the trial Judge had delivered reasons for judgment and adjourned the proceedings for argument on costs and the form of the orders, the Council applied for additional declarations in relation to further drainage work subsequently undertaken by the appellants in another part of their property. The trial Judge granted such declarations.

(1) The appellants had been denied procedural fairness in relation to the additional declarations as the existing use rights in respect of the BLM drain had not been fully litigated;

(2) The proper characterisation of the appellants' existing use was for cattle grazing rather than for mixed farming or agriculture generally.

Royal Agricultural Society v Sydney City Council (1990) 61 LGRA 306 applied;

(3) The maintenance of existing drains was incidental or ancillary to the existing use for cattle grazing

(CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 followed;

(4) The widening of a drain beyond its original dimensions was an alteration or extension to or rebuilding of a work within s109(2)(a) of the Environmental Protection and Assessment Act and involved a contravention of SEPP 14;

(5) Where the Court is unable to determine, with any precision, the extent of an existing use or activity ancillary to an existing use, it may resort to the principle that every presumption is to be made against a wrongdoer.

Armory v Delamirie (1722) I Strange 505 (93 ER 664) referred to.

Handley JA The proceedings before this Court comprise an appeal by Mr and Mrs Neil Tagget and a cross appeal by the Tweed Shire Council from declarations and orders made by Bannon J in the Land and Environment Court on 7 August 1992. The proceedings relate to a property of some 189 acres situated west of Pottsville, a village on the coast south of Murwillumbah. The appellants

purchased this property in May 1985 for $140,000. They later subdivided and sold off three five acre blocks but have retained the remaining 189 acres for grazing and farming purposes and as the site of the home they have constructed there.

Under Interim Development Order No 2 - Shire of Tweed (30 September 1966 as amended) which applied at the time of the purchase, the whole of the land could be used for most agricultural purposes, including those relevant to the present proceedings, without any need to obtain Council consent. However, on 12 December 1985 (the relevant date) State Environmental Planning Policy No 14

Coastal Wetlands (SEPP 14) came into force. Approximately 130 acres within the Taggets' property was subject to SEPP 14, the stated aim of which was said in CL2 to be "to ensure that the coastal wetlands are preserved and protected in the environmental and economic interests of the State". CL7 prohibited the clearing, draining, or filling of the wetlands without the consent of the Council and the concurrence of the Director of National Parks and Wildlife. Clearing was defined in CL7(4) as meaning "the destruction or removal in any manner of native plants growing on the land" but did not include the destruction or removal of noxious plants and the destruction or removal of native plants within three metres of a boundary for the purposes of erecting or maintaining dividing fences. SEPP 14 therefore imposed significant restrictions on the use of wetlands but did not directly alter their zoning.

The Tweed Local Environmental Plan 1987 came into force on 29 January 1988. Most of the Taggets' land that was subject to SEPP 14 was zoned Rural 7(a) (Environmental Protection (Wetlands)) and within this zone agricultural uses were only permissible with development consent. The rest of the property was zoned 1(a) Rural and in this area agricultural and forestry uses were permissible without consent.

The appellants had purchased the property (other than the areas later subdivided and sold off) for the purpose of cattle grazing and farming bananas and cash crops. Initially they could not afford to buy cattle of their own so they allowed Mr Graham Tagget, Neil's father, to run some of his cattle on the property. Later, the appellants acquired cattle of their own and planted bananas and cash crops particularly in the area outside the wetlands. Later still, extensive clearing and draining work was undertaken within the wetlands for the purpose of growing bananas in the cleared area and to facilitate cattle grazing elsewhere on the property. In September 1990 the Council commenced Class 4 proceedings in the Land and Environment Court against the Taggets to restrain clearing, draining and filling of the wetlands within the SEPP. The final hearing of these proceedings lasted for eight days and concluded in May 1992. The Council contended that the Taggets had, without consent, cleared substantial areas of old and regrowth timber on the eastern side of the property within the wetlands and had constructed new drains within this area to drain water to the north and east of the property. The Taggets claimed that they had existing use rights for agricultural purposes which entitled them within the wetlands to clear land, remove regrowth and old growth timber and to cultivate bananas and cash crops. They also claimed that the drains on the property had existed for many years and they had merely cleaned out the east west drain removing accumulated silt and debris, and battering the sandy soil on the sides for stability. Existing use rights were also asserted for these drains but in any event the Taggets claimed that they were entitled to maintain and enlarge them as works or uses ancillary to a dominant use for agricultural purposes.

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There was no dispute by the end of the trial that the so called BLM drain which ran across the property from south to north was in existence before the Taggets bought the land. The trial Judge found that the perimeter drain which ran northwards, and the east west drain were also in existence at that time. There was a dispute as to the size of the east west drain before it was worked on by Mr Neil Tagget. The Judge said:

"Neil said the drains were overgrown with trees and weeds and were silted up to about one and a half feet. He used a bucket excavator and removed what he regarded as silt, using it as a batter and widening the drains. It is almost impossible to now decide if the material removed was actually silt, or was a deepening of the drains. What is clearly true is that by widening the drains Neil has increased their capacity, resulting perhaps in more of the land being drained and resulting in more water flowing east to Pottsville and the sea via the east west drain."

The Judge also rejected a claim by the Council that Mr Neil Tagget had deepened the east west drain more in an easterly direction so as to reverse the previous flow of water from east to west.

The Judge held that the appellants' case on existing use rights substantially failed. He said that the only existing use rights were for the grazing of cattle and that the Taggets could "maintain" drains on the land for that purpose. He rejected their claim that the existing uses extended beyond cattle grazing and that an existing use for any agricultural purpose entitled them to use the land for agricultural purposes generally. He held that the widening of the east west drain was an intensification of an existing work which was unlawful without consent and indicated that he would grant a mandatory injunction for the purpose of reducing the flow of water in that drain to that which had existed previously. He also held that the clearing of the land to the east of the BLM drain in order to grow bananas was a clear breach of SEPP 14 and indicated that he would order the Taggets suitably to fence most of this area and to take reasonable steps to regenerate wetland timber on it.

After the delivery of his reasons on 22 May 1992 his Honour adjourned the proceedings to allow the parties to make submissions on the question of costs and the form of the final orders. This further hearing took place on 7 August. At the start of that hearing the Council sought leave to file an amended Class 4 Application seeking additional declarations relating to the BLM drain and mandatory orders that the Taggets restore that drain and the adjacent area to what was said to have been their previous condition. These issues had not been litigated during the original hearing, and indeed the alleged activities by the Taggets which gave rise to the Council's application were said to have occurred in July 1992.

Counsel for the Taggets objected to the widening of the proceedings. It would seem from a reading of the transcript of the argument that his Honour declined to allow the amended application to be filed and he certainly refused to entertain the Council's claims for relief in respect of the work which it alleged had recently taken place on and near the BLM drain for the reason, as he said, that these matters had arisen since the commencement of the proceedings and indeed since the hearing. However, he indicated that he did not see "any problems" about new declarations sought by the Council in relation to this drain and the trees growing along its banks.

An affidavit sworn by the solicitor for the Taggets was read by their counsel on the issues of late notice and prejudice. His Honour then stated that he was in a position to indicate the final orders he would make. Some further discussion followed between his Honour and counsel for the Taggets which was directed to matters relevant to the original claims. His Honour then terminated further argument and pronounced his final orders which included two of the new declarations sought by the Council. These declarations as pronounced were:

I declare that the clearing of land adjacent to the said BLM drain on the subject land requires consent pursuant to the Environmental Planning and Assessment Act 1979.

I declare that the intensification of the drain known as BLM drain on the subject land requires consent under the provisions of the Environmental Planning and Assessment Act 1979*.

The orders as drawn up and entered included the two new declarations as Declarations 2 and 3. Declaration 2 differed, perhaps significantly, from Declaration 5 as pronounced orally. As entered it was as follows:

The clearing of trees from the land adjacent to the said BLM drain on the subject land requires consent pursuant to the Environment Planning and Assessment Act 1979%.

It will be seen this extends to the clearing of any tree or trees from the adjacent land and is wider than the oral declaration which arguably was restricted to the total clearing of the land.

The Taggets appealed and challenged the findings and conclusions adverse to their interests and the Council cross appealed, contending in substance that SEPP 14 required consent to be obtained for clearing or draining even for the purposes of maintaining and exercising existing use rights. It also contended that the Taggets should have been ordered to reverse the flow of water in the east west drain so that it would normally flow to the west. It will be convenient to consider separately the various challenges to his Honour's conclusions and orders.

The Taggets were first notified of the Council's intention to seek leave to amend its Class 4 application when their Counsel received the proposed amended application on the afternoon of 6 August. During the legal argument the following day, his Honour indicated that he would not allow the new claims for substantive orders and he declined to receive the Council's new evidence. He did say that he saw no problem with proposed new Declarations 5 and 6 but the Council was never given leave to amend its application. Counsel for the Taggets had been heard in opposition to the proposed amendments but was not invited by his Honour to address in relation to proposed new Declarations 5 and 6 as such or, indeed, on the question whether those claims should, in fairness, be adjourned to a later date when counsel for the Taggets could be prepared to meet them. In the absence of a formal amendment, counsel for the Taggets had no reason to think that his Honour was contemplating making those declarations as final orders. There was in any event a procedural irregularity in granting relief which fell outside the ambit of the original Class 4 application without an appropriate amendment.

For these reasons I am satisfied that the circumstances in which these two declarations were granted denied procedural fairness to the Taggets and they must be set aside. This is no mere technical quibble. The merits of the Taggets' claims to existing use rights in respect of this drain have not been fully litigated.

URJ TAGGETT v THE COUNCIL OF THE SHIRE OF TWEED (Handley JA) 5

At the end of the hearing his Honour noted that there was no argument but that Mr Murnane, when he was owner of the property, excavated the drain which became known as the BLM drain. As the argument on 7 August 1992 demonstrated, the parties held widely differing views as to the scope of the work that could lawfully be undertaken by way of maintenance on this drain. The grant of these bare declarations without evidence, without proper argument, and without proper findings would be likely to embarrass any further enforcement proceedings against the Taggets which would be necessary in any event. In my opinion, Declarations 2 and 3 in the formal orders entered by the Land and Environment Court should be set aside.

The trial Judge held that the only existing use of the land at the relevant date was for grazing cattle. Between 1967 and 1985 the successive owners permitted a partnership between Mr Neil Tagget and his father to agist cattle on the property There was no evidence that the land had been used for growing crops at any time since Mr Leo Murnane sold it to Mr Don Beck in 1967. In my opinion, the Judge's finding that the only existing use was for grazing cattle was clearly correct.

The appellants however submitted that the proper characterisation of the existing use was either for agriculture generally or for mixed farming involving banana growing and cattle raising. The legal principles to be applied to such a question were summarised and restated by McHugh JA in Royal Agricultural Society v Sydney City Council (1987) 61 LGRA 305 at 309 to 311. His Honour said, at 310:

"The Courts have (refused) to categorise an 'existing use' so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the Courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities... which have taken place. But it is not so general that the characterisation can embrace activities... which differ in kind from the use which the activities... have made of the land".

These principles have been consistently applied by this Court. See North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50; Bob Blakemore Pty Ltd v The Anson Bay Co Pty Ltd, 23 March 1990, unreported, and Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404. In my opinion, the characterisation of the existing use in the present case as being either for agriculture generally or for mixed farming would involve "a level of generality" which would be more than "necessary and sufficient to cover the... activities carried on at the relevant date". (see McHugh JA above). Either characterisation would be so general as to "embrace activities... which (differed) in kind" from the activities being undertaken at the relevant date. (ibid). The proper characterisation of the existing use at the relevant date was therefore, as his Honour found, for cattle grazing.

The trial Judge found that at the relevant date the Taggets had existing use rights for maintaining drains on the land as an aid to the grazing of cattle by providing dry areas for the animals to feed. There was, as his Honour recognised, no independent use of the land for this purpose, and in my view the maintenance of drains is more properly regarded as an ancillary use or work akin to the construction and maintenance of a dam for watering livestock which Hope JA in CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 at 272 considered would form part of the use of the land for agricultural purposes, and should not be characterised as a use for an extractive industry. See also per Reynolds JA at 275 to 276 ("truly part of or incidental to the agricultural activities") and per Mahoney JA at 277 to 278 ("that which is done may not itself be agriculture, but may be something which is done for the purposes of agriculture').

The trial Judge also found that the BLM drain, the perimeter drain and the east west drain were all in existence at the relevant date. The Council in its cross appeal challenged the findings in relation to the perimeter drain and the east west drain but did not seriously develop its challenge. In any event, this Court is not entitled to disturb those findings which depended, at least in part, on his Honour's acceptance of the evidence of Mr Neil Tagget. Accordingly, this part of the cross appeal fails.

Mr Webster, for the Council, submitted that the express terms of SEPP 14 prohibited clearing and draining work on the wetlands section of the property without the consent of the Council and that the Taggets' existing use rights for grazing cattle gave them no right to undertake ancillary uses or works such as clearing and draining without the consent of the Council. However, as I have already held, ancillary uses and works such as draining and clearing for agricultural purposes are subsumed in the agricultural purpose which they are intended to serve. Moreover, an existing use will, subject to s109(2), authorise such ancillary activities without any necessity to obtain development consent. Thus, in Vaughan Taylor v David Mitchell Melcann Pty Ltd (1991) 25 NSWLR 580 this Court held that an existing use for mining or quarrying purposes protected ancillary uses for access roads, dumps, buildings and the like. In my opinion, the wide proposition for which the Council contended should not be accepted. SEPP 14 is an environmental planning instrument and it is necessarily subject to the Act. In the event of any inconsistency with s109 the latter would prevail.

Subs(2) and subs(3) were added to s109 by Act No 228 of 1985 which commenced on 31 January 1986. Subs(2) provides:

(a) any alteration or extension to or rebuilding of a building or work;

(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned;

(d) the continuance of the use therein mentioned in breach of any consent...

(e) the continuance of the use therein mentioned where that use is abandoned.

In my view, subs(2) operated purely prospectively and accordingly the restrictions and qualifications it introduced in the enjoyment of existing use rights only took effect on and after its commencement on 31 January 1986. See

URJ TAGGETT v THE COUNCIL OF THE SHIRE OF TWEED (Handley JA) 7

Steedman v Baulkham Hills Shire Council (No 2) (CA, unreported, 13 August 1993). However, there was no evidence that the Taggets undertook any activities between the relevant date and 31 January 1986 which could assist them in these proceedings.

The question therefore, as the trial Judge accepted, was whether the drainage and clearing work undertaken after 31 January 1986 was authorised by s109(1) having regard to the restrictions and qualifications contained in s109(2). His Honour held that by widening the east west drain the Taggets had increased its capacity and that this resulted in an intensification of the use contrary to s109(2)(c). The better view, as I have previously indicated, is that the east west drain was an ancillary work but nothing turns on this distinction in the present case. $109(2)(a) provides that an existing use does not authorise any alteration or extension to or rebuilding of a work. The activities undertaken by the Taggets on the east west drain certainly involved an alteration or extension to that drain, if not its actual rebuilding. On his Honour's findings such activities were not authorised by s109 and therefore were illegal without the consent of the Council.

In my opinion, the Taggets' existing use for cattle grazing entitled them to maintain the existing drains in an efficient condition by the removal of silt, vegetation and debris. However, they were not entitled to widen or deepen the drains beyond their "original" dimensions. The trial Judge said that it was impossible to determine whether the east west drain had been deepened but found that it had been widened. The widening of the drain must have increased the rate at which water drains from the soil above the drain. Widening alone should not reduce the permanent water table but must reduce the time that the surface remains flooded after heavy rain. In other words, a wider drain will tend to destroy the character of the land as wetlands contrary to the stated objective of SEPP 14.

In my opinion, the Council has failed to establish that the Taggets deepened the east west drain but the Taggets have also failed in their challenge to the finding that they had widened it. The widening of the east west drain involved a contravention of SEPP 14 and it became necessary for the trial Judge to consider the question of appropriate relief.

CLEARING OF TREES The Taggets cleared a substantial area north and south of the east west drain for the growing of bananas. The area cleared south of the east west drain had carried dense, old growth timber. Given the earlier findings that the Taggets had no existing use which entitled them to grow bananas, it follows that the clearing was a breach of SEPP 14. An area north of the drain of some one and a half acres had been partially cleared for grazing and agricultural purposes before 1946. The timber in this section included old trees but was mainly regrowth, and as such was considerably more open than the dense old growth south of the drain. This area continued to be used for grazing after cultivation ceased and the Taggets were entitled to continue that use after SEPP 14 came into force. Mr Neil Tagget said that after he bought the property, he regularly slashed the partially timbered and open areas to keep down the undergrowth and increase the area under grass.

After the commencement of s109(2) the existing use for cattle grazing no longer entitled the Taggets to increase the area of the grazing use beyond that "actually physically and lawfully used immediately before the coming into operation of' SEPP 14 (s109(2)(b)). Accordingly, further clearing of trees from the land for grazing purposes without consent was forbidden. Similarly, any work on the drainage system which increased the area normally under dry pasture or

which otherwise increased the carrying capacity of the cleared and partly timbered land within SEPP 14 would either increase the area of the use (s109(2)(b)) or would enlarge, expand or intensify that use (s109(2)(c)). Drainage works which increased (to an extent that could not be ignored as insubstantial) the carrying capacity of the partly timbered areas within the wetlands subject to SEPP 14 would therefore require consent. However, no attempt was made to establish that there had been an intensification of the grazing use in the wetland areas other than in the old cleared area north of the east west drain.

His Honour held that the Taggets should be restrained from concentrating water in a way which leads to some extra dewatering of their wetlands. Instead of the water dissipating slowly over the wetlands, he held that it now leaves in increased volume through the east west drain. However he thought that it would be of little or no value to require that drain to be restored to its former width. He said:

"Sufficient restraint could be achieved, I consider, by requiring the defendants to place a bund or a pond in the east west drain at the eastern boundary of their land... reducing the flow to its previous flow. This will not prevent water flooding towards Pottsville through natural depressions but will restrain the effect of widening the drain. The reduction in water volume can be calculated by subtracting from the capacity of the present truncated V shape of the drain, the carrying capacity of a rectilinear drain of the same depth and same width of base."

The evidence did not enable the Court to estimate, let alone determine what was "the previous flow" in the east west even in the most approximate way. Moreover, it is to be expected that "the previous flow" would vary greatly with the rainfall and the water levels in the wetlands. His Honour's formula for calculating the required reduction in water flow was not based upon any expert evidence or indeed on any evidence at all directed to determining ways in which the flow of water in the east west drain could be reduced to its previous flow. Moreover, with respect, his Honour's reasons failed to give any practical guidance to the parties as to the location, size and shape of the bund or pond in the east west drain at the eastern boundary of the land which would comply. His Honour's reasons appear to ignore the differing rates at which water may flow along this drain.

He found that the current drain had a truncated V shape with a generally flat bottom and sloping sides, but, in my opinion, there was no evidence that the old drain was rectilinear in shape with the same depth and width of base as the new drain. The sandy soil, the perceived need to batter the sides, and the silted up condition of the drain, would all indicate that prior to the work complained of it was probably in the shape of a shallow U. This means that the Taggets enlarged the drain not only by battering the sides but also by flattening the bottom. Accordingly, the increased capacity of the drain could not be determined simply by deducting from its present size the rectilinear area defined by its present depth and base. His Honour's calculation did not allow for the difference between the area within the shallow U of the former drain and the level bottom of the altered drain.

The order his Honour finally made for the carrying out of work on the east west drain was as follows:

URJ TAGGETT v THE COUNCIL OF THE SHIRE OF TWEED (Handley JA) 9

"The drainage channel known as the East West Drain where it exists at the boundary to Mr Krekelberg's land shall be filled by the respondents to a maximum depth which shall be not greater than three (3) feet from the surface of the land."

There was some debate before us as to whether the word "exists" is a mistake for "exits" but in either case the practical result would appear to be the same. This order failed to define the length of the drain that should be filled in and must be amended to remove this uncertainty. More importantly, his Honour failed to give any reasons for making an order in this form. His earlier reasons indicated that he would require the Taggets to place a bund or pond in the drain at the eastern boundary to reduce the flow to that which occurred previously and he outlined a method for calculating the required reduction in water volume. His Honour failed to indicate how he arrived at the conclusion that the drain should be filled in to a depth no greater than three feet below the surface. Neither party referred us to any evidence which directly supported such an order. It may be that neither party was or is able to call evidence which would allow the Court to determine, with any precision, the depth of this drain which the Taggets were entitled to maintain. If that is the case his Honour must simply do the best he can on the evidence such as it is. In the last resort the Court may have to apply the principle established by the well known case of Armory v Delamirie [1722] 1 Strange 505 (93 ER 664) that every presumption is to be made against a wrongdoer.

It follows that the order in relation to the east west drain must be set aside and the proceedings remitted to his Honour to enable him to determine what relief should be granted to the Council for the purpose of reducing the capacity of that drain so that the adjacent areas may be restored to their previous wetlands condition when they were not affected by extra flooding due to the bunds on Krekelberg's land to the east.

ORDERS FOR THE REAFFORESTATION OF THE CLEARED AREA.

I have previously referred to his Honour's finding that the clearing of land north and south of the east west drain for the purpose of growing bananas was a breach of SEPP 14. In his reasons for judgment he said that he would require the defendants "to suitably fence most of that area and to take reasonable steps to regenerate wetland timber growth thereon". The proceedings were adjourned to enable the parties to bring in short minutes of the orders. The relevant orders as finally entered were: "The Court orders that: 5. The respondents carry out restoration of SEPP 14 Wetland No 54 within Lot 1 DP 746698 as shown on the plan annexed hereto and marked 'A', being the cross hatched land outlined in red, in accordance with the following procedures:

(1) Erect within three months a secure fencing around the area to be revegetated as so outlined on the plan so as to effectively exclude grazing animals during seven (7) years from this date or the period of natural regeneration referred to in O.5(2) hereof, whichever is the greater; (2) Plant within those cleared areas within six months on a clump basis (8 to 10 plants in clumps 5 to 10 metres apart) and thereafter provide suitable maintenance and replacement thereof for seven (7) years or for such greater period as is sufficient to establish natural regeneration of forest cover to a standard acceptable by the Director of Development Services of the following species...; (3) It is noted that the respondents are permitted to construct three (3) gates to allow access to the area to be fenced; (4) It is noted that the fence required under O.5(1) hereof excludes the line of the BLM drain; (5) Nothing in these orders shall prevent the

respondents from entering upon the said fenced land to slash or spray provided they comply with the Local Government Act 1919 and any other relevant statutory enactment."

The Taggets challenged the order that they replant the cleared area with trees of the specified species as oppressive and unnecessary. There was conflicting evidence as to the cost of such replanting. Mr Neil Tagget estimated that 26,000 seedling trees would have to be planted and that planting would take 52 days work at a cost of about $50,000. His Honour made no finding as to the probable cost of the replanting work and in my view, without such a finding, he could not properly order such work to be carried out.

In any event, there was ample evidence that the wetlands forest would naturally regenerate if the water table was restored and it was fenced off to keep out cattle. Mr Murray, a botanist employed by Byron Bay Shire, who was called by the Council, said that fencing was a prerequisite to reafforestation. However, he said that "... natural regeneration is very effective in these areas especially if hoofed animals are excluded." He continued:

"The only areas that I think that it is not sufficient to ensure a good forest cover are areas where heavy changes in soil have occurred. So ploughed areas, areas where topsoil has been scraped away and the soil seed store removed and the underground rhizomes or growing parts from which many of these trees regenerate naturally after fire and clearing episodes such as happened here.

Q. So what you're saying is the area that hasn't been ploughed need so much attention to regrow but the areas that have had distinct disturbance will need more attention if they are to regrow successfully.

Q. In other words the planting is necessary in the area that has been ploughed, in the areas that weren't ploughed it may be that by reason of the regrowth that's taking place at the moment very few trees will need to be planted in that area, if any.

The total cleared area adjacent to the east west drain comprised some two hectares, but of this area only three quarters of a hectare had been ploughed. It is apparent that the Council's own evidence did not support an order for the replanting of the whole cleared area but, at most, only that part of it which had been ploughed. It follows, in my opinion, that the orders for replanting must be set aside. No such order should have been made in respect of the cleared area that had not been ploughed. The proceedings must be remitted to his Honour to determine whether any, and if so what, orders should now be made for the replanting of the area that was ploughed.

His Honour ordered that "a secure fencing" should be erected around the area to be revegetated but, apart from the reference to the three gates, did not otherwise define the type or standard of fencing required to comply with his order. A mandatory injunction or order such as this should be clear so that a party bound by the order knows exactly what is required. The order failed to meet this standard.

Mr Murray agreed that "a temporary electric fence is all that is necessary... to keep the cattle out". There was evidence that such a fence would be cheaper than any effective wooden fence but it seems that his Honour was not satisfied that an electric fence would be adequate because he ordered the erection of "secure fencing". Here again, his Honour's order failed to define the type or the nature

URJ TAGGETT v THE COUNCIL OF THE SHIRE OF TWEED (Handley JA) 11

of the fence the Taggets were required to erect. The order also failed in terms to require the Taggets to maintain and if necessary re erect the fence. The words "so as to effectively exclude grazing animals during seven (7) years from this date" may only indicate the type of fence to be erected. A wooden fence could be damaged by bushfire or flood, and an electrical fence, if that was contemplated by his Honour's order, could cease to be effective for a number of other reasons.

The duration of such an order should be certain and contain a clear mechanism for its termination. O.5(1) and O.5(2) failed to do this. The order should require the fence to be maintained until the Council or the Court permits its removal.

There are also difficulties with O.5(5). It is inconsistent with the previous orders. Slashing before substantial forest regrowth had occurred would destroy tree saplings in these areas. There should also be no occasion for spraying within these areas while they are required to be fenced off. Accordingly, this order should be set aside. The proceedings should be remitted to his Honour to enable appropriate orders for the fencing of the cleared areas to be made. Any new order would also have to deal with the fencing required to prevent cattle entering the fenced off area along the east west drain.

There are no difficulties of substance with O.5(3) and O.5(4), although they may lack certainty of definition. In all the circumstances the appropriate course is to set aside the whole of O.5.

His Honour ordered the Taggets to pay sixty per cent of the Council's costs of the trial or the costs of the hearing at Murwillumbah whichever was the greater. The Taggets challenged this order and contended that they had substantially succeeded and that his Honour's order failed properly to reflect their success. It is true that the Taggets succeeded on some issues, particularly in relation to the earlier existence of the drains but nevertheless the Council obtained a substantial measure of relief including mandatory orders for the carrying out of fencing and reafforestation work and work on the east west drain. In the circumstances, I have not been persuaded that his Honour's discretion as to costs miscarried. Since, in my opinion, a number of the declarations and orders made by his Honour must be set aside and the proceedings remitted for further hearing it follows that the order as to costs should also be set aside. In due course his Honour can consider what order should be made in the light of the further orders that he might make and the extent to which the parties will have ultimately succeeded or failed in the proceedings.

The appeal and cross appeal have both succeeded in part and failed in part.

The Taggets have succeeded in setting aside Declarations 2 and 3 and the orders for the carrying out of fencing and reafforestation work and work on the east west drain. They have failed on the other issues and on most of their grounds of appeal. In particular, they have failed to establish that their existing use rights were more extensive than those found by his Honour. On the other hand the Council has substantially failed in its cross appeal. In the circumstances the Council should pay half the Taggets' costs of the appeal and cross appeal.

In its cross appeal the Council contended that his Honour should have granted an injunction against the Taggets restraining them from carrying out the work of clearing, draining or filling upon land within the wetlands of SEPP 14 without the consent of the Council. In my opinion, a more limited injunction should have been granted and should be granted by this Court.

Since the proceedings are being remitted to the Land and Environment Court to enable the trial Judge to consider what mandatory orders should now be made, it will obviously be necessary for his Honour to receive further evidence at least as to the current situation on the land and as to any relevant events that have occurred since the original hearing. It is not the intention of these orders that the original trial should necessarily be reopened and the parties entitled to lead further evidence as to matters which had occurred prior to the original hearing. It will be a matter for his Honour to determine, in his discretion, whether either party should be permitted to lead further evidence as to such matters.

In my opinion, the following orders should be made:

"Declare that subject to s109(2) of the Environmental Planning and Assessment Act, the respondents have and had as at 12 December, 1985 and 29 January, 1988 existing use rights to graze cattle on the land and to maintain the then existing drains for that purpose." 4. Order that the respondents Neil A Tagget and Robyn Tagget be restrained by themselves their servants and agents from removing any standing trees from their land that is subject to SEPP 14 and from draining such lands in either case without the consents required by SEPP 14 but nothing in this order shall prevent the respondents from doing work on the original drains in the property which does no more than maintain them in their condition when last reconstructed or cleaned out prior to 12 December, 1985.

Remit the proceedings to the Land and Environment Court for the purpose of considering what orders should now be made for the fencing and reafforestation of the area shown in the plan marked 'A' annexed to the original orders made by the Land and Environment Court and for work to be done on or in connection with the east west drain referred to in those orders.

The costs of the original hearing and of any further hearing to abide the further order of the Land and Environment Court.

The Council to pay one half of the appellants' costs of the appeal and cross appeal.

Sheller JA I have had the benefit of reading the judgment of Handley JA and agree with it and the orders therein proposed.

Declaration 4 is varied so as to read: "Declare that subject to s109(2) of the Environmental Planning and Assessment Act, the respondents have and had as at 12 December, 1985 and 29 January, 1988 existing use rights to graze cattle on the land and to maintain the then existing drains for that purpose".

Order that the respondents Neil A Tagget and Robyn Tagget be restrained by themselves their servants and agents from removing any standing trees from their land that is subject to SEPP 14 and from draining such lands in either case without the consents required by SEPP 14 but nothing in this order shall prevent the respondents from doing

TAGGETT v THE COUNCIL OF THE SHIRE OF TWEED (Sheller JA) 13

work on the original drains in the property which does no more than maintain them in their condition when last reconstructed or cleaned out prior to 12 December, 1985.

Remit the proceedings to the Land and Environment Court for the purpose of considering what orders should now be made for the fencing and reafforestation of the area shown in the plan marked 'A' annexed to the original orders made by the Land and Environment Court and for work to be done on or in connection with the east west drain referred to in those orders.

The costs of the original hearing and of any further hearing to abide the further order of the Land and Environment Court.

The Council to pay one half of the appellants' costs of the appeal and cross appeal.

Counsel for the Appellant: GK DOWNES QC / RS McCOLL

At a glance

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Before

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Judgment (101 paragraphs)

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Cases Cited (2)

Cited By (3)