Terranora Group Management Pty Ltd v Director-General Office of Environment & Heritage

SECTION 38 NATIVE VEGETATION ACT 2003 8Section 38 of the Native Vegetation Act provides: 38 Directions for remedial work (1) If the Director-General is satisfied: (a) that any native vegetation has been cleared in contravention of this Act, or (b) that the clearing of native vegetation on any 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 (including the taking of steps to allow the land to regenerate), (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. ... (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. ... (emphasis added)

THE LAND 9The Land comprises Lot 2 DP 867486, Lot 33 DP 1085109 and Lot 4 DP 822786 at Marana Street, Bilambil Heights. Its area is 178.75 hectares and its elevation varies from about 10 m AHD in the north to 200 m AHD along the southern ridge. Lot 2 comprises grazing land and bushland. Lots 4 and 33 comprise a golf course, with bushland to the south.

THE UNLAWFUL CLEARING 10During 2005 and 2006, the applicant engaged a contractor, Lance Rawson, to destroy camphor laurel and broadleaf privet on the Land. He destroyed between 35,000 to 40,000 camphor laurel and privet trees. In the course of these operations, he either damaged or killed 1,279 plants of seven threatened species, as follows: Threatened Species Number of Plants Gossia fragrantissima 22 Grevillea hilliana 17 Randia moorei 134 Hicksbeachia pinnatifolia 22 Macadamia tetraphylla 492 Lepiderema pulchella 560 Acacia bakeri 32

11Mr Rawson was convicted of picking (by cutting, poisoning or otherwise injuring) those 1,279 plants of seven threatened species contrary to s 118A(2) of the National Parks and Wildlife Act 1974: Plath v Rawson [2009] NSWLEC 178, (2009) 170 LGERA 253. 12Only 171 of those plants, 14.5 per cent, were located within the "Remediation Area" defined in the subsequent Direction. 13The threatened plants were cleared from some 18 locations on the Land. The populations of the threatened plants extended to other parts of the Land including the Remediation Area. 14The cleared threatened plants were "native vegetation" under the Native Vegetation Act. This was an essential element in the enlivenment of the power to issue a direction to carry out remediation work under s 38(1) of the Native Vegetation Act.

THE DIRECTION 15On 25 February 2010, the Director General by a delegate, Mr Brett Nudd, issued the Direction to the applicant to carry out the "remedial works" specified in cll 1-3, on the Land within the "Remediation Area" shown in Attachment 1 to the Direction and within the time specified or, where no time is specified, for a period of 12 years. 16Recitals D, E, F and G of the Direction and the chapeau to cl 1-3 are in the following terms: D. Terranora Group Management (TGM) is the owner of Lot 2 of DP 867486, Lot 33 of DP 1085109 and Lot 4 of DP 822786, at MARANA STREET BILAMBIL HEIGHTS NSW 2486 ("the property"). E. DECCW has investigated the damage to threatened species on the property and the Land and Environment Court judgment on Plath v Rawson [2009] NSWLEC 178 was handed down on 28 October 2009.

OPINION F. I, Brett Nudd, Acting Manager North Coast Region, am of the opinion that: a) the unauthorised clearing of native vegetation on the property has caused an adverse effect on the environment; b) the unauthorised clearing of native vegetation on the property is likely to cause an adverse effect on the environment. DIRECTION TO CARRY OUT REMEDIAL WORKS G. In order to: a) repair damage caused by the clearing; b) reb)habilitate land affected by the clearing (including the taking of steps to allow the land to regenerate);

I Brett Nudd, Acting Manager North Coast Region, require that TGM perform the following remedial works on the property within the time specified, if any, for each work, or where no time is specified, for a period of 12 years. 17Clause 1 of the Direction directs the applicant to construct fences around the boundary of each of four sub-remediation areas - together comprising the Remediation Area - shown in Attachment 1, in order to exclude stock. Clause 2 directs the removal of all stock from the Remediation Area. Clause 3 directs the applicant to destroy at least 50 per cent of non-native species found within the Remediation Area within two years, and to remove all non-native plants from the Remediation Area within five years. Each direction contains maintenance and inspection requirements. 18In 2010 and 2011 the respondent varied some of the time limits in the Direction and extended the performance period of 12 years to 14 years.

THE REMEDIATION AREA 19Annexed to this judgment and marked "A" is a copy of the map of the Remediation Area in Attachment 1 to the Direction, which shows four remediation sub-areas numbered 1 to 4. 20That map may be compared with two earlier and different draft remediation area maps prepared by or for the decision-maker prior to the issue of the Direction, copies of which are annexed to this judgment and marked as follows: "B" an internal discussion draft map of the Remediation Area prepared for the decision-maker in around October 2006 (following the Plath v Rawson decision). This map shows 18 numbered sub-remediation areas on the Land, corresponding with the 18 locations where Mr Rawson cleared the threatened plants. The applicant accepts, and I agree, that if the Direction had attached this map, it would not be open to judicial review. "C" a draft map of the Remediation Area forwarded by the decision-maker to the applicant on 21 December 2009 for comment as part of a draft remedial direction. This map shows six numbered sub-remediation areas. The twelve deleted sub-remediation areas shown in the respondent's earlier draft discussion map, together with the southern tip of area 9 shown on the latter map, are here consolidated in one large sub-remediation area numbered 5 on the north-eastern part of the Land. The letter of 21 December 2009 invited the applicant to review this draft direction to make sure it was reasonable and appropriate for the Land, and encouraged discussion. The letter stated that should the applicant wish to propose any amendments to the Remediation Area, justification would be required and evidence that a similar net restoration would be achieved in an ecologically viable configuration. 21Annexed and marked "D" is a useful overview map prepared for these proceedings which in substance consolidates maps A and B and also shows by dots the threatened species that were unlawfully cleared within 18 quadrants. 22On 21 January 2010 the applicant, by its solicitors, replied by letter to the decision-maker's letter of 21 December 2009, stating that a detailed review had been undertaken by the applicant and experts engaged on its behalf and that, as a result, a number of amendments were proposed which did not impact on the integrity of the objectives of the respondent's proposed Direction. One of the applicant's proposed amendments was a change to the decision-maker's proposed Remediation Area, as indicated on a map enclosed with the letter. That map is the same as the map of the Remediation Area later attached to the Direction the subject of these proceedings (annexure A to this judgment). The letter said that the proposed new Remediation Area had been formulated by the applicant's flora consultants who had advised that the applicant's proposed remediation plan "also provides a much higher standard of connectivity for the rehabilitated areas which will produce a superior long-term environmental outcome". The letter concluded by saying that the applicant was prepared to accept an order based upon the applicant's proposed amendments. 23On 19 February 2010 the decision-maker replied, accepting most of the amendments suggested by the applicant including the applicant's map of the Remediation Area, and enclosing a further amended draft Direction. The proposed amended map of the Remediation Area attached thereto was the same as that enclosed with the applicant's letter of 21 January 2010. 24On 23 February 2010 the applicant's solicitor wrote to the decision-maker confirming that the applicant was prepared to accept a direction in the form attached to the decision-maker's letter of 19 February 2010. 25On 25 February 2010 the Direction was issued, which attached the said map of the Remediation Area proposed by the applicant. 26Thus, as I have said, the Remediation Area that the applicant attacks in these proceedings is that proposed by the applicant itself in pre-Direction correspondence.

EXPERT EVIDENCE 27The applicant contends that the facts referred to in s 38(2) are objective jurisdictional facts to be determined, on judicial review, by the Court on the evidence before the Court. On that basis, written evidence by the following experts was provisionally admitted, on which they were not cross-examined: (a)Dr Anne Marie Clements for the applicant. Her areas of expertise are botany, ecology and restoration ecology. (b)Dr William McDonald for the respondent, which was also read in the Plath v Rawson proceedings. He is a botanist with expertise in the floristics and ecology of rainforests. (c)Rhonda James for the respondent. Her area of expertise is ecological restoration. (d)two joint expert reports by those experts. The second was produced during the hearing in response to the respondent's observation that their first joint report did not deal with damage to the populations of threatened species. 28The respondent's contrary contention is that the facts referred to in s 38(2) are subjective facts for assessment by the decision-maker on the material before the decision-maker when the Direction was issued, and not by the Court on judicial review. If the respondent's contrary submission were to be accepted, the expert evidence post-dating the Direction (ie all except the affidavit of Dr McDonald) is inadmissible, except perhaps in relation to the ground of manifest unreasonableness. The material before the decision-maker included the report of Dr McDonald tendered in the Plath v Rawson and the reasons for judgment in Plath v Rawson. On the subjective facts basis, there are three judicial review challenges. First, the decision-maker misconstrued s 38(2)(a) and (b). Secondly, the Direction was not reasonably open to the decision-maker. Thirdly, the Direction was not a proportionate and reasonable response to the unlawful clearing. 29The affidavit of Dr McDonald shows that the unlawful clearing damaged populations of threatened species found across the Land. He said: 41. Across the Norvill property [ie the Land] I observed two distinct forest types, being high quality rainforest remnant ("the remnant") and secondary vegetation ("the secondary vegetation"). 42. The remnant is located in the area marked by boxes C, B and A, and south of those boxes. 43. The secondary vegetation is that vegetation on the Norvill property that is not part of the remnant. ... 66. In my opinion the remnant and Nicoll Scrub National park are amongst the richest rainforest stands within the Border Ranges/Big Scrub region. I base my opinion in this regard on the total species diversity present, as well as the observed species diversity of the canopy. ... 72. In my opinion the remnant rainforest on the Norvill property represents a drier form of the Argyrodendron trifoliolatum suballiance (Floyd 1990a) which is found between Tamborine Mountain and Brunswick Heads, but has, in my experience, been almost completely cleared. In this regard I am familiar with aerial photos and satellite imagery which show the extent of clearing through my work producing the Murwillumbah vegetation map sheet in 1979. I have also been responsible for maintaining the Murwillumbah vegetation map in the context of more recent work, for example, through my involvement with the Queensland Herbarium's vegetation survey and mapping for the South east Queensland Forest Agreement process (Bean, Sparshott, McDonald & Neldner 1998) and for the Gold Coast City Council in 2003. 73. In my opinion, the remnant rainforest meets the definition of the endangered ecological community "Lowland Rainforest in NSW North Coast and Sydney basin Bioregion" listed under the NSW Threatened Species Act (1995) (as described in the Final Determination of the NSW Scientific Committee gazetted on 22/12/2006). It occurs at a relatively low altitude and it has the characteristic structural features of warm subtropical rainforest (complex notophyll vine forest), notably the presence of several tree and shrub layers, large woody vines and epiphytic ferns and orchids and many trees with prominent buttresses. One of the dominant tree species at the site is Argyrodendron trifoliolatum, which is particularly characteristic of this endangered ecological community. ... Specific Importance of Macadamia tetraphylla 92. The pre-damage population of Macadamia tetraphylla on the Norvill property was one of the largest, if not the largest, remaining of this vulnerable species. I am not personally aware of a larger population of Macadamia tetraphylla. 93. In my opinion the population of Macadamia tetraphylla on the Norvill property was a key population for maintaining genetic diversity. It was the most northerly population which does not overlap (and presumably interbreed) with wild populations of Macadamia intergrifolia. ... Specific Importance of Randia moorei 95. Pre-damage, the Bilambil Heights population of Randia moorei was estimated to have been at least 200 plants (Burgess et al 1996). This would make it the largest population in New South Wales ahead of that at Brunswick Heads (68 individuals), exceeded only by a recently discovered population in Queensland adjacent to Lake Advancetown, south of Nerang. 96. There was (and remains) a range of size classes in the population. Several damaged specimens were larger in diameter than the maximum (18 cm) recorded for this species by Floyd (1989). The larges (DEC 955) had a dbh of 25 cm. 97. The species occurs in two areas within the remnant rainforest. Those within box C remain mostly undamaged, but individuals within box A on the eastern side of the remnant have been largely destroyed and connectivity within the rainforest habitat has been heavily compromised. Specific Importance of Lepiderema pulchella 98. Lepiderema pulchella is not a widespread or abundant species. It occurs sparingly in eastern Lamington National Park and in parts of the Springbrook foothills, where it can be a relatively frequent species. In my opinion the population of Lepiderema pulchella at the Norvill property is significant in terms of other known areas, in terms of sizes of individual trees and in terms of the actual numbers of trees. In my opinion it was a well developed population that would certainly have been important for genetic diversity on the property itself as well as for interactions with other remnants in the general vicinity. 99 I note that Lepiderema pulchella is acknowledged as a problem weed species in Coffs Harbour and Bellingen in New South Wales. I note that in these areas the species is outside of its natural range which is in fact very narrow. Specific Importance of Acacia bakeri 100. In my opinion, having regard to the presence of several very large trees, the population of Acacia bakeri on the Norvill property was part of a well-established population, which in my experience is quite rare in NSW. Some of the trees observed as damaged, in my estimation, based on dbh, would be in the vicinity of 100-200 years old. Specific Importance of other species 101. Hicksbeachia pinnatifolia, Cryptocarya foetida, Gossia fragrantissima, Sysygium moorei and Grevillea hilliana are significant to the forest communities at the Norvill property in that they provide a further component adding to species diversity. Cryptocarya foetida, Syzygium moorei and Grevillea hilliana are all at or close to the southern limits of their geographical range, and of this reason their occurrence on the Norvill property is of increased significance. ... 109 101 individual damaged plants of Randia moorei were recorded by me. This is greater than the Brunswick Heads population (60 individuals), previously considered the largest single occurrence of this species...Thirty-seven had a stem diameter of 5 cm or greater, but plants as small as 1 cm diameter may be capable of flowering and fruiting ...In all over one-half of the estimated total population on the Norvill property were damaged. ... 118. 492 individual damaged plants of Macadamia tetraphylla were identified. Of these, 134 had at least 1 stem with a diameter of 5 cm or greater. One large tree had a single stem 50 cm in diameter at the base, while another had 10 stems ranging between 8 and 30 cm in diameter...Only 30 damaged individuals of M tetraphylla showed any evidence of re-sprouting. Approximately at least 75% of the total estimated population at the site appears to have been destroyed. ... 121 This loss of connectivity has caused actual environmental harm, most particularly to Randia moorei, and other understory trees, by creating a barrier to pollination and dispersal. In my opinion the gaps created may be filled by secondary trees species within a period of about 20 years. It will take much longer for mature phase species to reach the canopy. 122. Apart from the damage directly inflicted on individual plants, the threatened species have also been adversely affected by changes to their habitat resulting from the death of surrounding canopy and sub-canopy trees, both within the remnant and secondary rainforest vegetation. The increased temperature and light regimes caused by the damage have encouraged the germination and growth of large numbers of camphor laurel and privet seedlings, as well as other weed species such as Lantana camara, Solanum mauritianum, Ageratina adenophora, A. riparia, Paspalum mandiocanum and Passiflora subpeltata. These fast-growing species compete with and may exclude threatened and other native rainforest tree and shrub species attempting to re-establish in these areas. ... Recovery of Macadamia tetraphylla 136. As the species is relatively poorly dispersed, relying on gravity and movement by small mammals such as native rodents, it is extremely unlikely that this population will recover in the short to medium term. In my opinion the damage to Macadamia tetraphylla will take some decades of recovery for the population to achieve the degree of structural and floristic development evidence in adjacent untreated areas. The majority of larger individuals (those producing fruit) are dead. Recovery of Randia moorei 137. In the original surveys, only 14 of the 101 damaged stems of Randia moorei showed any evidence of re-sprouting. In my follow-up survey of a sample of 21 damaged stems on 18th September 2007, 11 showed no signs of re-sprouting, 1 had produced shoots which had died off and 9 were found to be re-sprouting. If this sample is representative, then up to 45% of the damaged stems of Randia moorei may ultimately recover. 30Ms James in her report expressed the opinion, which I accept, that the Direction will benefit the recovery of the threatened species. She said: 77. Natural regeneration of native species is evidenced on the site and within the Remediation Areas. In addition exotic trees, shrubs and groundcover species are evidenced throughout the Remediation Area. The exotic species are dominating sections of the Remediation Area and inhibiting the growth of native species. The systematic removal of all weeds will provide the light, space and nutrient required to allow the growth and establishment of the native species. The removal will not cause any disturbance of the soil as all plants will be controlled by chemical methods and left standing to eventually breakdown on site. The removal of the exotic species will benefit the threatened species providing the resources to encourage plant growth and to move in to spaces currently utilized by exotic species. 78. The timing of restoration activities within treated areas of Camphor Laurel avoids threats from falling branches from treated trees. 31Dr Clements in her report observed that most of the Remediation Area was not affected by the unlawful clearing. She agreed that excluding grazing cattle was appropriate. She opined that the clearing of all exotic species in the Remediation Area as specified in the Direction may do more harm than good because the cleared land would be more readily colonised by light-loving exotic species than the desired native species. 32As regards the Remediation Area identified in the Direction, the experts in their first joint report agreed, and I accept, that: (a)The Remediation Area is just over 27 hectares. (b)Rawson removed 1280 [sic 1279] stems of threatened species on the Land. (c)Rawson removed at least 171 stems of threatened species in the Remediation Area. This is 14.5 per cent of the stems of threatened species removed on the Land. (d)Most of the Remediation Area was not affected by the Rawson clearing. In reaching this conclusion, (i)Dr Clements calculated the affected Remediation Area as 3.29 hectares, which is 14 per cent of the total Remediation Area, based on an 8 metre radius buffer around each plotted location; (ii)Ms James' estimate based on a 20 metre radius buffer was 9.01 hectares, which is substantially less than 50 per cent of the Remediation Area. (iii)Dr McDonald's opinion was that the affected area was somewhere between Dr Clement's estimate of 3.29 hectares and Ms James' estimate of 9.01 hectares. I am inclined to accept this estimate. (e)In the portion of the Remediation Area where Rawson cleared, the non-native vegetation was present before the Rawson clearing. 33As regards the Direction, the experts in their first joint report answered the following questions: (a)Whether the clearing of native vegetation on the 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 lake, or any adverse effect on the environment: (i)Dr McDonald considered that environmental harm had occurred through the clearing of native vegetation (both threatened and non-threatened species), but its impact has been confined to less than 50 per cent of the Remediation Area. (ii)Consistently with Dr McDonald's view, Ms James considered that the clearing of native vegetation has caused degradation of the site by providing the environment for increased establishment and growth of exotic species, which inhibit the recruitment of native species. (iii)Dr Clement said she found no evidence that the unlawful clearing directly caused harm on what she described as "this degraded agricultural land". (b)Whether the Direction's requirement is reasonable in terms of all practical alternatives, namely, that the landholder must destroy at least 50 per cent of the existing exotic plants, commercial crops or non-native plants including pasture and exotic grass species within the Remediation Area. The experts indicated that this required additional information relating to specific methods and treatments. They said that it is not consistent with best practice ecological restoration, including mapping of different categories based on restoration potential. (c)Whether the Direction's requirement is reasonable in terms of other practical alternatives, namely, that within five years from its date, all non-native plants must be removed from the Remediation Area. The experts agreed that this is not consistent with best practice, and more details such as condition and restoration potential zones are needed. 34In their second joint report the experts addressed questions to the following effect concerning the populations of the threatened species on the Land: (1)Taking into account all of the threatened species specimens cleared (as defined in s7 of the Native Vegetation Act) across the Land has that damaged or affected the populations of those species present upon the Land? Dr McDonald and Ms James answered yes. In my opinion, that is self-evidently correct. They observed that the damage to 1179 stems (of threatened species) recorded by Mr McDonald in September 2006 was approximately 58 per cent of the 1035 stems recorded on the whole land by Warren in February 2006. Dr Clements answered no. She considered that given the large proportion of the two most abundant threatened species on the Land, it was unlikely that those two populations were adversely impacted. She also said that it was likely they benefited from the removal of camphor laurel. (2)Do those populations exist within the Remediation Area and, if so, where? The experts agreed that they exist in the four sub-remediation areas comprising the Remediation Area. (3)Will the taking of steps which promote the survival of members of those populations which remained within the remediation sub-areas after the clearing enhance the prospect of those populations recovering from the damage? Dr McDonald and Ms James answered yes. Dr Clements answered not necessarily. (4)Will the taking of steps which promote the germination of new specimens within the Remediation Area enhance the prospect of those populations recovering? Dr McDonald and Ms James answered yes. Dr Clements answered that from 2013 data there are threatened species present in the Remediation Area. (5)Will the removal of competition from exotic species in the manner contemplated by the Direction: (i)promote the survival of specimens within the remediation areas? Dr McDonald and Ms James answered yes. Dr Clements disagreed. (ii)promote the germination of new specimens within the remediation areas? Dr McDonald and Ms James answered yes. Dr Clements answered not necessarily. 35If the facts in s 38(2) are objective or in relation to the ground of manifest unreasonableness (both of which I address later) such that I have to decide between the three experts, then doing the best I can in the absence of cross-examination, I accept their evidence where they are in agreement, I prefer the evidence of Dr McDonald and Ms James where they are in conflict with Dr Clements, I prefer the evidence of Dr McDonald where it conflicts with that of the other experts, and I accept the evidence of each where it is not in conflict with any of the others. In reaching those conclusions, I give particular weight to (a) Dr McDonald's long involvement with the unlawful clearing issue and its sequel and the cogent analysis and reasoning in his report; (b) the fact that the views of Dr McDonald and Ms James are generally identical, similar or consistent; and (c) Dr Clement's disagreement with their (to me) self-evidently correct answers to some questions , eg their evidence in the second joint report that the unlawful clearing damaged or affected the populations of those threatened species present upon the Land. 36The expert evidence that I have accepted supports the conclusion that the unlawful clearing damaged populations of the threatened species across the Land including in the Remediation Area, and that the remedial work specified in the Direction is in order to repair that damage.

SUBMISSIONS 37In summary, the applicant submits: (a)On its proper construction, the Direction relates only to remediation of adverse impacts of the unlawful clearing of threatened species in the Remediation Area - where only a minor proportion of the cleared plants were located. (b)Under s 38, there is no power to give a direction to repair or rehabilitate land that was not damaged or affected by unlawful clearing. There was power under s 38 to make directions to clear non-native vegetation from the 18 locations on the Land where the protected species were cleared. However, there was no power to "offset" that clearing by directing the clearing of non-native vegetation on any other location on the Land that was not damaged or affected by the unlawful clearing, such as most of the Remediation Area. (c)The facts contemplated by s 38(2)(a) and (b) are objective jurisdictional facts for the Court to determine on the evidence before it. On that evidence, those facts were absent. (d)If (as the respondent contends but the applicant denies) the facts contemplated by s 38(2)(a) and (b) are subjective (opinionative) ie for the decision-maker to determine on the facts before the decision-maker when the Direction was issued, the Director-General - (i)misconstrued s 38(2)(a) and (b); (ii)alternatively, it was not reasonably open to the Director-General to form the opinion that the whole of the Remediation Area be cleared; (iii)alternatively, it was not a reasonable and proportionate response to the unlawful clearing given that much of the Remediation Area was not unlawfully cleared. (e)No question of discretion to refuse relief arises where a direction is ultra vires. If discretion does arise, then the criticism of the Direction by each expert in the experts' first joint report is a relevant factor. 38In summary, the respondent submits: (a)On the proper construction of the Direction, it is not limited to remediating the adverse impact of the unlawful clearing of threatened plants in the Remediation Area but is directed to remediating the adverse impact of the unlawful clearing throughout the Land. Therefore, it extends to any such adverse impact on the populations of the threatened species found across the Land including in the Remediation Area. (b)The facts contemplated by s 38(2) are not objective jurisdictional facts to be determined on the evidence before the Court. They are subjective facts for determination by the opinion of the decision-maker on the material before the decision-maker when the Direction was issued. Accordingly, evidence that was not before the decision-maker when the Direction was issued is irrelevant. (c)As for the applicant's challenge to that opinion, the decision-maker did not misconstrue s 38(2)(a) and (b), it was reasonably open to the decision-maker to make the Direction, and it was a reasonable and proportionate response to the unlawful clearing. (d)Alternatively, relief should be refused on discretionary grounds by reason of: (i)the significant delay in bringing this application; and (ii)the fact that the Remediation Area was proposed and agreed to by the applicant. (e)Even if the facts contemplated by s 38(2)(a) and (b) are jurisdictional facts, on the evidence before the Court the applicant has failed to prove that they are absent.

Construction of the Direction 39The Direction, in substance, consolidates into four sub-areas, collectively comprising the Remediation Area, 18 separate locations on the Land where the threatened species were cleared. This Remediation Area is what the applicant itself proposed to the respondent before the Direction was made. The applicant accepts that there could be no judicial review challenge to the Direction if it had required the clearing of non-native vegetation and removal of stock from those 18 locations (or that there would be enormous difficulty in mounting such challenge). I agree. This implicitly acknowledges that under s 38(2)(a) or (b), damage caused or land affected by the unlawful clearing of the threatened species may be repaired or rehabilitated by the clearing of non-native species and removal of stock from that land and fencing of same, since this assists the threatened species to recover. 40Construction of the Direction should be guided by the principle that the validity of a statutory notice requiring someone to do or not do something, subject to penal or forcible entry consequences (as in this case), depends on strict compliance with the statutory conditions governing its issue: Hakim v Waterways Authority of New South Wales [2006] NSWCCA 376, (2006) 149 LGERA 415 at [125]-[129]; Bobolas v Waverley Council [2012] NSWCA 126, (2012) 187 LGERA 63. In Hakim the NSW Court of Criminal Appeal held that a stop order made under s 22D of the Rivers and Foreshores Improvement Act 1948 was invalid because it was not limited to an activity for which the statute permitted it to be issued. Section 22D is headed "Stop Order" and provides: "(1) If the Constructing Authority is satisfied that a person is contravening, or is about to contravene, section 22B, the Constructing Authority may, by written notice given to the person, order the person not to engage in that activity... (5) A person who does not comply with an order in force under this section is guilty of an offence...". Spigelman CJ (Grove & Bell JJ agreeing) held: [125] Section 22D authorises, subject to penal consequences, an order to a person that the person "not engage in that activity". The activity referred to is activity which constitutes an actual or prospective contravention of s 22B. [126] Section 22B is quite specific and refers to three kinds of activity: (i) making an excavation; (ii) removing material; and (iii) obstructing or detrimentally affecting the flow of waters. [127] Read together, s 22B and s 22D are concerned with specific conduct, relevantly, the conduct of excavation. It would not, in my opinion, be necessary to specify a particular act or kind of excavation in a s 22D notice. I think an order requiring the cessation of excavation would have been valid. [128] However, the order in this case prevented all works, whether excavation or not. There is no statutory basis for any such order. Furthermore, there is no reason to accept the proposition that every aspect of the work to be conducted could be classified as "excavation" or "removal of material", being the only two possible kinds of relevant conduct. The words in s 22D on which the respondent relied - "about to contravene" - must also be limited to "excavation" or "removal". [129] The order was not an order within the meaning of s 22D in that it failed to state in any way the "activity" in which the appellant was not to engage. This is, in my opinion, a fundamental defect which invalidates the order. 41In Bobolas the NSW Court of Appeal held that a council order for the removal of rubbish under s 124 of the Local Government Act 1993 was invalid because s 124 spoke in present terms whereas the terms of the subject order left it uncertain whether it required present compliance or, rather, was a warning notice in anticipation of an order requiring removal of the rubbish being issued later: at [49]. In reaching that conclusion, the Court of Appeal took into account that a consequence of non-compliance with a valid notice was that the council could enter the appellant's home and carry out the work: at [43]. 42In my opinion, the Direction should be construed as follows. First, as recital G of the Direction mirrors the language of s 38(2)(a) and (b), the Direction is limited to the types of work referred to in s 38(2)(a) and (b). Secondly, contrary to the applicant's submission, the Direction relates to remediation of adverse impacts of the unlawful clearing of threatened species throughout the Land and is not limited to remediating the adverse impacts of the unlawful clearing in the Remediation Area, for three reasons: (a)recital E is plainly a reference to all the clearing that was the subject of the judgment in Plath v Rawson, that clearing having occurred throughout the Land; (b)recital F records a s 38(1) opinion that the unauthorised clearing has caused an adverse effect on the "environment", again by reference to the unauthorised clearing on the Land; (c)recital G is worded similarly to s 38(2)(a) and (b) in recording that the purpose is to repair "damage" caused and rehabilitate land affected by the clearing, and should be understood in light of recitals E and F.

Construction and application of s 38 43In my opinion, the power to issue a direction to carry out specified work under s 38(1) of the Native Vegetation Act is subject to the limitations as to the types of work in s 38(2): Slack-Smith v Director-General, Department of Land and Water Conservation [2003] NSWLEC 189, (2003) 132 LGERA 1 at [81]- [82] (Talbot J); followed in Holmes v Director-General of the Department of Infrastructure Planning and Natural Resources [2005] NSWLEC 264, (2005) 139 LGERA 102 at [25] - [28] (Lloyd J), and in Joly Pty Ltd v Director-General of the Department of Environment, Climate Change and Water [2009] NSWLEC 217 at [79] (Pain J) upheld on appeal in Joly Pty Ltd v Director-General, Deptartment of Environment, Climate Change and Water [2012] NSWCA 133, (2012) 187 LGERA 82. 44The first construction issue concerning s 38(2)(a) and (b) is whether they authorise a direction to clear non-native vegetation, remove stock and fence the Remediation Area, given that a large part of it was not unlawfully cleared of threatened species. The applicant contends that they do not. The applicant's argument has three strands. First, the Direction "offsets" the damage or affectation on the 18 parts of the Land that were unlawfully cleared of threatened species, by requiring the clearing of non-native vegetation in large parts of the Remediation Area that were undamaged by the unlawful clearing. Secondly, although such offsetting might assist the recovery of threatened species, it is not authorised by s 38(2). Thirdly, s 38 may be contrasted with the wider remediation directions provisions in Division 3 of Part 6A of the National Parks and Wildlife Act 1974, introduced in 2010 after the Plath v Rawson decision under which the Direction could have been made. As to the last point, I do not think that s 38 should be construed by reference to subsequent amendments to another statute. 45The s 38(1)(b) criterion for the enlivenment of the power is that the Director-General is satisfied that "the clearing of native vegetation on any 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". This is part of the context of s 38(2). It is a useful pointer to the conclusion that "any damage" in s 38(2)(a) means any damage of the type contemplated by s 38(1)(b), which plainly extends far beyond physical damage to individual trees that might have been cut down. Textually, s 38(2)(a) authorises a direction to carry out work to repair "any damage" caused by the clearing": the quoted words could hardly be wider. The purpose of s 38 is remediation. In my opinion, having regard to context, text and purpose, "any damage" in s 38(2)(a) is not limited to physical impacts on a particular threatened plant viewed in isolation from the population of the threatened species of which it is part, and includes any damage to the populations of threatened species on the Land. For example, in the present case 75 per cent of the macadamia nut threatened species population on the Land was destroyed by the unlawful clearing. Clearly, in my opinion, this population was damaged. So were the populations of the other unlawfully cleared species on the Land. 46The next statutory construction issue is whether the facts referred to in s 38(2) are (as the applicant submits) objective jurisdictional facts that the Court may determine on the evidence before it, or (as the respondent submits) subjective facts for determination by the decision-maker having regard to the material before the decision-maker when the Direction was issued. 47Generally, the expression "jurisdictional fact" is used to identify a factual criterion the satisfaction of which enlivens the exercise of a statutory power or discretion. If the criterion be not satisfied then the decision purportedly made in the exercise of the power or discretion will have been made without authority: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, 199 (2000) CLR 135 at [28]; Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43, (2008) 236 CLR 120 at [43]; Plaintiff M70/2011 v Minister for Immigration and Citizenship [Malaysian Declaration Case] [2011] HCA 32, (2011) 244 CLR 144 at [57], [107]. 48It is a question of statutory construction whether a jurisdictional fact criterion is objective or subjective. If the criterion is objective, on judicial review the Court may determine the existence or non-existence of the fact on the evidence before the Court: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, (1999) 46 NSWLR 55 at [36]. A subjective criterion is one that is conditioned upon the formation of a state of mind by the decision-maker, for instance an opinion or state of satisfaction: Malaysian Declaration Case at [57], [106] - [109], Timbarra at [39] - [42] and Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, (2004) 61 NSWLR 707 at [5] per Spigelman CJ. The Court may subject that state of mind to judicial review, for example as to whether it was manifestly unreasonable, but cannot itself determine the existence or non-existence of the facts to which the state of mind relates: Woolworths at [25]. If the criterion is subjective, the decision-maker is required to form an evaluative judgment in good faith, within the scope and purpose of the Act, as to the matters referred to in the statutory provision, properly construed: Malaysian Declaration Case at [57] - [59], [108] - [109]. Expert evidence post-dating a decision is generally inadmissible except in limited circumstances in relation to the manifest unreasonableness ground of review: Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 at [123]-139] per Biscoe J. If a factual question requires the formation of a value judgment on matters of considerable complexity, that is an indicator (though not necessarily conclusive) against an objective jurisdictional fact: Woolworths at [58]; Timbara at [89]; Huntlee Pty Ltd v Silverwater Action Group Inc [2011] NSWCA 378, (2011) 185 LGERA 429 at [118]; Walter Construction Group Ltd v Fair Trading Administration Corp [2005] NSWCA 65 at [77], [82]; Australian Education Union v Lawler [2008] FCAFC 135, (2008) FCR 327 at [212]. A reference to a factual matter is more likely to be construed as specifying an objective criterion if it specifies a preliminary requirement to the exercise of the power, as distinct from being an element in the formulation of the power to be exercised by the decision-maker: Timbarra at [44], Huntlee at [119]. 49In my opinion, the state of satisfaction expressly referred to in the chapeau of s 38(1) is a subjective jurisdictional fact. Are the facts referred to in s 38(2) jurisdictional facts, and, if so, are they objective or subjective? In Gedeon the High Court unanimously considered that a statutory provision which "delimits the scope" for any exercise of power, ie which contracts the content of what would otherwise be the power, stands rather differently and is not within the general concept of a jurisdictional fact: at [46]. Section 38(2) likewise delimits the scope of, ie contracts the content of what would otherwise be, the power under s 38(1). This distinction is difficult to reconcile with the analysis in Timbarra at [44] and Huntlee at [119] albeit it was said in those cases that a factual condition that does not enliven the power is unlikely to be an objective jurisdictional fact. The Gedeon distinction seems to be only semantic because even if the label "jurisdictional fact" does not apply to a provision such as s 38(2), the same issue of statutory construction arises on judicial review, namely, whether the facts referred to in s 38(2) are objective facts that the Court may determine on the evidence before the Court, or are subjective facts for assessment by the decision-maker. 50In Gedeon, legislation empowered a public officer to authorise a law enforcement officer to conduct a certain operation but stipulated that the authority "must not be granted" if it would involve any participant in the operation engaging in conduct that is likely to seriously endanger the health or safety of the participant or anyone else: at [33]. The High Court held that "a reasonable person in the position of the defendant would have foreseen" that the conduct of the operation would involve a risk of seriously endangering the health of certain persons and that this was sufficient to attract the statutory prohibition: at [57]. This language of "a reasonable person in the position of the defendant" suggests that the facts referred to in the prohibition were to be subjectively assessed by the decision-maker subject to the requirement that the assessment be that of a reasonable person in the position of the decision-maker. This is similar to, if not the same as, the test for the manifest unreasonableness ground of judicial review of a decision-maker's exercise of a subjective statutory power. 51In the Malaysian Declaration Case, s 198A(1) of the Migration Act 1958 (Cth) empowered an officer to take persons seeking asylum in Australia to another country, in respect of which a declaration was in force under s 198A(3), for determination of their refugee status. Section 198A(3)(a) empowered the Minister to declare in writing that a specified country (i) provided access, for persons seeking asylum, to effective procedures for assessing their need for protection; and (ii) provided protection for persons seeking asylum, pending determination of their refugee status; and (iii) provided protection to persons who were given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and (iv) met relevant human rights standards in providing that protection. The plurality in the High Court held that s 198A(3)(a) could be satisfied only if the country was under a legal obligation to provide the access and protections to which s 198A(3)(a) refers: at [116]; similarly at [245] per Kiefel J; see also at [66] per French CJ. The plurality considered that the matters in s 198A(3)(a) were objective jurisdictional facts: at [109]. French CJ considered that they were for subjective evaluation by the Minister, but that the Minister had misconstrued the provision because in fact the legal protection was not afforded: at [58]-[59], [66]. As Malaysia was not under such a legal obligation, the High Court made a declaration that the Minister's s 198A(3) declaration was made without power and was invalid and injuncted the Minister and his officers from taking the plaintiff from Australia to Malaysia: at [259]. 52What was at issue in Woolworths was whether the characterisation of a proposed development in an environmental planning instrument under the Environmental Planning and Assessment Act 1979 as a "drive-in take-away establishment" was an objective jurisdictional fact, such that unless the proposed development was accurately characterised, any purported consent based on that characterisation would be invalid. The Court of Appeal unanimously concluded that it was an objective jurisdictional fact. Spigelman CJ identified indicators for and against this conclusion: at 715-720. 53There are competing indicators as to whether the facts in s 38(2) of the Native Vegetation Act should be classified as objective or subjective. Indicators that they are objective include the following: (a)Section 38(2) is not expressed in subjective terms whereas the jurisdictional fact in s 38(1) is. (b)Breach of a direction has serious potential consequences, namely, criminal sanctions and forced entry to the recipient's land by another to carry out the work at the recipient's cost: s 38(4), (5), (6). (c)A landholder who is the recipient of a s 38 direction does not have to have breached the law and may be a victim of the offence of clearing. (d)A s 38 direction involves an invasion of the recipient's rights by obliging the recipient to do work that otherwise it would have no obligation to perform. 54Indicators that the s 38(2) facts are subjective include the following: (a)The facts contemplated by s 38(2) of the Act do not enliven the power. That is done by the facts contemplated in 38(1)(a) or (b). The facts contemplated by s 38(2) are concerned with the manner in which the power granted by s 38(1) is exercised. (b)There is an evaluative element and some complexity in resolving the facts contemplated by s 38(2), on which reasonable expert minds may differ, as to the impact that clearing activities have had upon land, the damage caused, and the works that may repair the damage or rehabilitate the land. 55I have also considered other indicators suggested by the parties but have not found them to be weighty. 56Weighing the competing indicators, I conclude that the facts in s 38(2) are subjective facts that, on judicial review, the court may not determine for itself. 57If the facts in s 38(2)(a) and (b) are subjective, as I think they are, it is necessary to address the applicant's submission that the decision-maker misconstrued those provisions, alternatively that it was not reasonably open to the decision-maker to make the Direction, and alternatively that the Direction was not a reasonable and proportionate response to the unlawful clearing. 58As I have found that s 38(2)(a) extends to damage to populations of threatened species on the Land and the Direction is aimed at repairing that damage, I cannot see that the decision-maker misconstrued that provision in making the Direction. 59Nor do I accept that the Direction was unreasonable in the sense of satisfying the stringent and rarely successful test of manifest unreasonableness that no reasonable decision-maker could have made it: Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 297 ALR 225 at [108], [111], [113]; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, (1999) 197 CLR 611 at [44]; Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145, (2010) 174 LGERA 67 at [105]. If it is relevant to take into account post-Direction expert evidence, then I take into account that the experts agreed in their first joint report that the Direction's requirement to remove all non-native plants from the Remediation Area was not consistent with best practice: above at [33(b)]. That does not mean it will not bring about remedial benefit. Dr McDonald and Ms James both opined that it will, including by promoting the survival of specimens and germination of new specimens within the Remediation Area: above at [34(3) - (5)]. Even Dr Clements acknowledged that the populations benefited from Mr Rawson's removal of camphor laurel: above at [34(1)]. 60Manifest unreasonableness is almost unarguable given that the applicant, by its solicitors, proposed the Remediation Area to the respondent in a pre-Direction letter which represented correspondence and represented that it had been formulated by the applicant's flora consultants who had advised that it provided a much higher standard of connectivity for the rehabilitated areas which will produce a superior long term environmental outcome: above at [22]. The applicant submits that this letter is insignificant by characterising its position as one who is asked by a gunman whether he would like to be shot in the head or the foot. The metaphor is colourful but unpersuasive. 61It is unnecessary to go further but Dr McDonald's report, which was available to the decision-maker when the Direction was made, concerning the significance of and damage to threatened species populations on the Land reinforces the conclusion that manifest unreasonableness has not been established. For example, the unlawful clearing removed approximately 75 per cent of the important population of the threatened macadamia species on the Land. It seems obvious that removing competition from non-native vegetation is likely to result in an enhanced recovery of the macadamia population. 62I accept that the Direction had to be a reasonable and proportionate response to the unlawful clearing of the threatened species, but I do not consider that the Direction offended this requirement. In Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278, (2008) 74 NSWLR 102 (a case of alleged negligent exercise of statutory power by a council), a clean-up notice issued under s 91(1) of the Protection of the Environment Operations Act 1997 (POEO Act) effectively required the appellant to close its business on the land. The NSW Court of Appeal held that the notice was beyond power because it was not a reasonable and proportionate response to pollution incidents on the appellant's land in connection with its chemical business. Allsop P (Beazley and McColl JJA agreeing) held: [159] As to the reach of the notice, once again, the matter has to be analysed from both the perspective of validity and reasonable care. In my view, the notice issued went beyond what was reasonably required to deal with the four pollution incidents recognised by Ms Tierney in her evidence. The terms of the notice went beyond dealing with those four incidents and in effect required the closing down of the appellant's business. Implicit within any notice within s 91 is a reasonable degree of proportional relationship between the pollution incidents which are reasonably suspected as having occurred or occurring and the clean-up action required by the notice. This is made clear by the definition of clean-up action to which I have referred which is hinged upon the relationship to a pollution incident. That is not to say that a pedantic or limited scope should be given to what action can be required. The definition of clean- up action is intended to give the Council power to require any step to be undertaken which would deal with the pollution incident in a manner which prevents, minimises, disburses, destroys or mitigates any pollution. [160] Here, the reach of the notice was far greater than the four incidents which Ms Tierney identified as those which she had a reasonable belief about. For those reasons, the notice under s 91 exceeded any proportional and reasonable response to the pollution incidents reasonably suspected. [161] It is unnecessary to define authoritatively the precise relationship between the terms of the clean-up action required in the notice and the pollution incident. It is sufficient to conclude in relation to these circumstances that the notice went far beyond any reasonable remedying or preventing of the four incidents the subject of Ms Tierney's reasonable beliefs. The argument was put that the requirement to cease the business necessarily took the matter outside the possible scope of any issue of a notice under s 91. I am not prepared to go so far and to conclude that a notice under s 91 could never require steps to be taken that were required in this notice. How one prevents any pollution resulting or likely to result from any future incident may well depend upon reasonable apprehension of particular circumstances at the time. Here, the problem was the lack of reasonably proportionate correlation between ultimately what Ms Tierney accepted were the four incidents concerning her and what was demanded of the appellant. 63Although the context is different, the scheme of s 38 of the Native Vegetation Act is similar to the scheme in s 91 of the POEO Act. In each case, the statutory power to issue a notice to take remedial action is limited by a causal relationship with the incident to which it is responsive, although s 38(2) is exhaustive whereas s 91 (see the definition of "clean-up notice") is not. In my opinion, the implication of a reasonable degree of proportionate relationship between a notice and the incident to which it is responsive found in s 91 of the POEO Act in Precision Products is also implicit in s 38 of the Native Vegetation Act. Generally, in my opinion, such an implication is a likely purposive interpretation of statutory schemes where the State is empowered to order a citizen to do or not to do something, under pain of criminal sanction or forced entry, or both, in response to prescribed incidents. The implication is an important safeguard against overreaching by the State. In the present case, in my opinion, the content of the Direction was a reasonable and proportionate response to the unlawful clearing. This conclusion is reinforced by the fact that the applicant itself proposed the Remediation Area formulated by the applicant's flora consultants in respect of which the applicant made the pre-Direction representations to which I have referred. 64The applicant also may be suggesting an inference that the decision-maker did not believe that the Direction requires repairing of damage caused by the unlawful clearing, but rather believed that the Remediation area was merely a bargain struck in negotiating with the applicant, because the Remediation Area differs from the 18 remediation locations corresponding with the specific locations where threatened species were unlawfully cleared, as shown in the draft discussion map initially produced for the decision-maker. I do not accept that such an inference should be drawn. That map was only for draft discussion purposes and prima facie the different remediation sub-areas in the Direction simply reflect a different way of remedying the damage. 65If the facts in s 38(2)(a) and (b) are objective (contrary to my opinion), then in my opinion the applicant has not established that the facts in s 38(2)(a) did not exist. That provision is concerned with any damage, which includes damage to the populations of the threatened species on the Land. On the face of the Direction, its purpose is to repair any damage, which includes any damage to those populations. The evidence of Dr McDonald and the other expert evidence that I have accepted shows that the populations of the threatened species that were on the Land before the unlawful clearing were important; those populations were substantially reduced and thereby damaged by the unlawful clearing; to the extent that they were still there after the unlawful clearing they provided the basis upon which the populations could replenish though their continued survival and seeds they drop which are able to germinate; and that the prospects of the populations surviving will be enhanced by the removal of competition from non-native vegetation. The removal of such competition is what the Direction contemplates. I am satisfied that the remedial work contemplated by the Direction is work to repair damage caused by the clearing. I take into account that the experts agreed in their first report that the Direction's requirement to remove all non-native plants from the Remediation Area was not consistent with best practice. That does not mean it is not going to bring about any remedial benefit. Indeed, as Dr Clements noted in the second joint report, the populations benefited from Mr Rawson's removal of camphor laurel. The fact that the Direction might have defined the sub-areas of the Remediation Area differently is not to the point. It is unnecessary to express a view as to whether the Direction also comes within s 38(2)(b). 66For these reasons, in my opinion, the proceedings should be dismissed.

ORDERS 67The orders of the Court are as follows: (1)The proceedings are dismissed. (2)The applicant is to pay the respondent's costs. (3)The exhibits may be returned. ANNEXURE A ANNEXURE B ANNEXURE C ANNEXURE D 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. Decision last updated: 22 November 2013