Terranora Group Management Pty Ltd v Director General of the Office of Environment and Heritage

BACKGROUND 2On 25 February 2010, the respondent, the Director-General of the Office of Environment and Heritage, gave "a Direction to Carry Out Remedial Work" (the Remediation Direction) to the applicant, Terranora Group Management Pty Ltd, under s 38(1) of the Native Vegetation Act 2003 (NV Act). The Remediation Direction was the subject of negotiation by the applicant and respondent, and its terms were agreed by the applicant. 3On 23 August 2010, the respondent issued a "Notice of Variation of Direction to Carry Out Remedial Work" pursuant to s 38(3) of the NV Act (the First variation). 4On 23 March 2011, a consultant engaged by the applicant wrote to the respondent seeking a further variation of the Remediation Direction. That request was refused. 5On 13 July 2011, the applicant's consultant again wrote to the respondent requesting an extension of time for the completion of the works required by the Remediation Direction. The letter stated that the applicant "remains willing to adhere to the scope of works contained in the Remediation [Direction]". The respondent consulted with the applicant. On 28 September 2011, the respondent wrote to the applicant enclosing its provisional further variation of the Remediation Direction. The applicant's solicitors replied by letter dated 11 November. 6On 25 November 2011, the respondent issued a second "Notice of Variation of Direction to Carry Out Remedial Work" to the applicant pursuant to s 38(3) of the Act (the Second Variation). It extended the times for carrying out works and removing stock. It also changed the specifications for a fence around the boundary of the remediation area. 7On 22 December 2011, the applicant filed an appeal in Class 1 of the Court's jurisdiction "against the direction to carry out Remediation Work made on the 25th November 2011". 8Shortly after commencing its Class 1 appeal, the applicant commenced Class 4 proceedings in this Court challenging the validity of the remediation direction itself. The validity of the remediation direction was affirmed by this Court in Terranora Group Management Pty Ltd v Director-General, Office of Environment and Heritage [2013] NSWLEC 198 per Biscoe J. 9The applicant's Contention 2 seeks to extend the time for the carrying out of works stipulated in the Remediation Direction. It is not challenged by the respondent's motion and will be canvassed on the hearing of the appeal. 10The applicant's Contentions 3 and 4 are challenged by the respondent's motion. Contention 3 seeks to vary paragraph 3.2 of the Remediation Direction, which stipulates that within five years all non-native plants must be removed from the remediation area as shown on a specified map. Contention 3 appears to be to the effect that there be no further removal of native vegetation. Contention 4 seeks to vary the Remediation Direction to require remediation in accordance with details of "best practice" said to be agreed by experts.

JURISDICTION AND POWER OF THE COURT 12Section 39(1) of the NV Act provides for an appeal to this Court against a decision by the respondent to give a direction under s 38 of the NV Act: A person aggrieved by a decision of the Director-General to make all order, or to give a direction, under this Division 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. 13Section 16 of the LEC Act gives the Court the jurisdiction vested in it by s 39(1) of the NV Act and an ancillary jurisdiction, and divides the Court's jurisdiction into 8 classes. Appeals under s 39 of the NV Act are assigned to Class 1 of the Court's jurisdiction: s 17(g). 14The powers of the Court on such an appeal are set out in s 39 of the LEC Act: 39 Powers of Court on appeals ... (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. ... (7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court. ... (emphasis added) 15As is common ground, in the present case "the decision" referred to in s 39(1) of the NV Act and s 39(2) of the LEC Act is the decision to make the Second Variation. That was the only "decision" made in the 30 days prior to the commencement of the appeal, and is the only decision referred to in the appeal filed by the applicant within that time. The decision was confined to extending the time the applicant should have to complete the works contemplated by the Remediation Direction (and to changing the specifications for the fence around the remediation area, which is not in issue in the appeal). As noted earlier, in seeking variation the applicant went so far as to state that it remained "willing to adhere to the scope of works contained in the Remediation [Direction]". Contention 2 is open to a review on the merits. 16However, the applicant now seeks a merits review of the original Remediation Direction; challenging on the merits not only the timing issue the subject of the Second Variation but the very nature of the works required to be undertaken by the applicant under the Remediation Direction. The applicant submits that this is permissible under s 39(2) of the LEC Act. 17The respondent submits that any decision to vary an earlier direction does not re-enliven an otherwise time barred entitlement to merits review of the earlier decision. On the applicant's construction, a person aggrieved by a decision under s 38(2) of the NV Act but out of time to appeal to this Court on the merits, can revive that extinguished right by asking for any variation of the original decision, no matter how trivial that variation might be. 18In the present case, a jurisdiction called an "appeal" has been enlivened by s 39(2) of the NV Act and ss 16 and 17(g) of the LEC Act. Where a jurisdiction called an "appeal" is enlivened, it is essential to identify its nature and the duties and powers of the Court in the exercise of that jurisdiction: Tasty Chicks Pty Ltd v Commissioner of State Revenue of the State of New South Wales [2011] HCA 41, (2011) 145 CLR 446 at [5]. In the present case, s 39 of the LEC Act identifies the duties and powers of the Court. The critical provision is s 39(2). The case turns on the meaning of the words " in respect of the matter the subject of the appeal" therein. The breadth of s 39(2) is apparent from the trend of the authorities I reviewed in Goldberg v Waverley Council [2007] NSWLEC 259, (2007) 156 LGERA 27 at [26] - [44]. Three things are clear. First, the words "in respect of" are wide. Secondly, the "matter" the subject of the appeal may be wider than the "decision" the subject of the appeal. Thirdly, the "functions and discretions" that the Court has must have a relevant nexus to the matter the subject of the appeal in order to be "in respect of" that matter: ibid at [42] - [43]. In the present case, the "decision" the subject of the appeal is the decision to issue the Second Variation. 19Identification of the "matter the subject of the appeal" is informed by three considerations. First, the decision the subject of the appeal. That was the decision to issue the Second Variation, which was only concerned with timing and fencing. That consideration is a starting point, although it is not necessarily determinative. Secondly, the antecedent facts. They included the applicant's request for more time to do the work and its express statement in the letter of request that it "remains willing to adhere to the scope of works contained in the Remediation [Direction]". Thirdly, the issue between the parties when the Second Direction was made. It was relevantly whether more time should be granted and, if so, how much. In my opinion, these considerations lead to the conclusion that the matter the subject to the appeal is this timing issue. It is raised by the applicant's Contention 2. The matter the subject of the appeal does not extend to the issues raised by the applicant's Contentions 3 and 4.

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