Turnbull v Director-General, Office of Environment and Heritage

Land and Environment Court (NSW)|2014-06-12|Before: Preston CJ

Introduction 110The parties disagreed on the specifications for the remedial work. To a significant extent, the disagreement was a consequence of each party's selection of different land to be remediated, the Director-General selecting the areas that had been cleared of native vegetation and the applicant selecting offset areas that are still vegetated. The remedial work required necessarily differed between these different types of areas. However, there were still points of disagreement as to the degree of specificity required and the wording of the specifications. The points of disagreement fell into the following categories: period of the remedial work direction; fencing and stock management; weed, exotic species, commercial crop and non-native plant management; fire management; assisted regeneration; direct planting; thinning; records; reporting; and property vegetation plan. I will deal with each category.

Period of the remedial work direction 111The Director-General's remedial work directions each required the applicants to perform remedial works on the property for a period of 15 years from the date of the direction. The applicants' remedial work directions did not expressly specify a period. Originally, the applicants had specified a date until which the applicants were required to monitor of 1 July 2020 (a period of five years). At the hearing, one of the experts called by the applicants, Mr Hall, said this was a typographical error and the date should have been 1 July 2030 (a period of 15 years). The applicants corrected the date in their revised remedial work directions. 112I consider a period of 15 years for monitoring is appropriate, but the same period also needs to be applied to other work and actions required by the remedial work directions, unless a lesser time is specified. I agree with the Director-General that the remedial work directions should expressly state up front that the landholders are required to perform remedial works on their properties within the time specified, if any, for each work, or where no time is specified, for a period of 15 years from the date of the directions.

Fencing and stock management 113The Director-General and the applicants agreed that the remedial work directions should require that livestock be excluded from the remediation areas, at least until regeneration of trees has progressed to a stage where they are unlikely to be affected by browsing. They differed, however, on the specificity of prescription required. 114The Director-General's remedial work direction required the applicants to construct a fence around the entire perimeter of the remediation areas (which were the cleared areas of 421 ha on "Colorado" and 73 ha on "Strathdoon"). The Director-General's direction gave detailed specifications for the fence, including the material and spacing of fence posts; the type, number, location and spacing of strands; the type and use of gates in the fence; and the ongoing inspection, repair and replacement of the fence. 115The applicants adduced evidence that construction of a fence along all of the boundaries of the remediation areas to the specifications required by the Director-General would be prohibitively expensive. This was one of the financial reasons advanced by the applicants in their opposition to the Director-General's remedial work directions. 116The applicants' alternative remedial work directions nominated different remediation areas and were less prescriptive in how the objective of exclusion of livestock from the remediation areas should be achieved. The applicants' direction identified an outcome or objective that must be achieved and left to the landholders the choice of actions that might best achieve the prescribed outcome or objective, rather than prescribing particular actions such as the need for and the location and type of fencing. 117The applicants' direction also permitted the continued use and maintenance of existing access roads and tracks within the remediation area. This was not contested by the Director-General. 118In principle, I agree with the applicants' approach which accords with the principle of subsidiarity that environmental outcomes or objectives, having been established by the remedial work direction, should be pursued in the most cost effective way, by enabling the person subject to the remedial work direction, who is best placed to maximise benefits or minimise costs, to develop their own solutions and responses to best achieve the outcome or objective mandated by the direction. The remedial work direction should specify the outcome (such as exclusion of stock from remediation areas) and allow the landholders to develop solutions and responses that best achieve that outcome. 119For example, the applicants might choose to achieve the outcome by not grazing livestock on their properties at all, but only crop the land, in which event the erection of fencing around the boundaries of the remediation areas within the properties would be unnecessary. In so far as fencing might be required to achieve that outcome, it is unnecessary to prescribe detailed specifications for the fencing - again it will be sufficient to prescribe the outcome (that the fencing effectively exclude livestock from the remediation areas) and allow the landholders to choose the location and type of fencing that will achieve that outcome. 120During the hearing, the experts considered whether grazing within the remediation areas could occur at some time during the term of the remedial work direction without compromising the rehabilitation of those areas. The experts agreed that some grazing could be permitted but only by certain types of livestock (cattle and sheep and not goats), only when the regeneration of trees had progressed to a stage where they were unlikely to be affected by browsing (such as when there is an average of 90 live stems of trees per ha over a height of 3 m), and only if there is a sufficient proportion of groundcover to be browsed by livestock (not less than 70%). The applicants' revised remedial work direction incorporated this evidence. 121I consider this course would be appropriate. However, I do not agree with the applicants that it is necessary to make exception for grazing by livestock if the properties are drought declared and the remediation areas are grazed by native herbivores. The regeneration of the remediation areas should not be compromised in times of drought by detrimental grazing by livestock. The fact that native herbivores might graze in the remediation areas during times of drought does not justify increasing further the grazing pressure on the regenerating vegetation. 122I consider, therefore, that the terms of the remedial work directions dealing with fencing and stock management should be generally based on the applicants' revised direction, but with the changes I have noted as well as some modification of language to improve clarity.

Weed, exotic species, commercial crop and non-native plant management 123The parties agreed that the remedial work directions should require the landholders to control and manage weeds in the remediation areas but differed as to the non-native species that should be the subject of the directions and the manner of control that should be required. 124The Director-General's direction originally required the landholders to destroy "any exotic species, commercial crops or non-native plant species" found at any time in the remediation areas, by either spot application of herbicide or by removal by non-mechanical means, as soon as practicable and in any event within seven days of becoming aware. Exotic species were defined in the definitions and interpretations section of the remedial work directions to mean "species introduced from outside of the area concerned; in the case of New South Wales, from overseas and/or interstate" and included a list of specified weed species and any non-native cereal crop. 125The Director-General's original direction also required inspection of the remediation areas four times each reporting period with a minimum of 80 days between each inspection. 126The applicants contended that the Director-General's requirements were impractical and expensive. The applicants proposed instead that they should only be required to manage exotic species if they exceeded a certain threshold of infestation of the properties (such as more than 50% of the ground layer). They also contended that the exotic species required to be managed should be limited to six specified weed species and plants listed as noxious in the Moree Plains Shire. They proposed specific procedures for inspection and control of these weed species. 127The experts discussed, in their concurrent evidence at the hearing, the competing directions for weed management. As a consequence, both the Director-General and the applicants revised their respective remedial work directions to reflect the experts' evidence. Nevertheless, many of the essential points of difference remained. 128I consider that the terms of the Director-General's revised direction generally better achieves the objective of management of exotic species that might be invasive or otherwise injurious to the success of the remediation. The Director-General's revised direction identified particular exotic plant species that are already known to be of concern on the properties but did not limit the landholders' obligations to these species but rather required the landholder to inspect for and maintain a list of other exotic species that may be of concern. 129The Director-General's revised direction for inspection was less onerous than the original direction, requiring fewer inspections with greater time between inspections. It accorded with the applicants' revised timings for inspections. I consider these are reasonable. 130The Director-General's revised direction specified methods of control of African boxthorn that were similar to those required by the applicants' revised direction. I consider these to be appropriate. The Director-General's revised direction also specified other means of controlling other weeds within longer periods of time (30 days if the plant is actively reproducing or 90 days otherwise). These were shorter than the applicants' revised timings (control commenced within two months and completed within six months). I consider the Director-General's timings are more likely to effectively control weeds and will not be unduly onerous on the landholders. 131The Director-General's revised direction required control of any commercial crops within the remediation areas. This was based on Dr Nadolny's evidence at the hearing. The applicants' revised direction did not address this issue. As the remediation areas I consider appropriate include small parts of the cleared areas, which might have commercial crops, and large parts of the remediation areas will adjoin land under crop, the issue of commercial crops being in the remediation areas and hindering regeneration is real and needs to be addressed. I consider the methods of control of commercial crops in the Director-General's revised direction are appropriate. 132The applicants' revised direction included a provision that: "Weed control must be done in a way that minimises the impact upon native woody vegetation or native groundcover and does not result in a contravention of another condition in this remedial direction". This is an appropriate provision to be included.

Fire management 133The applicants originally proposed in their alternative remedial work directions that prescribed burning be permitted in the remediation areas. At the hearing, the experts agreed that prescribed burning posed an unacceptable risk to regenerating vegetation in the remediation areas. As a consequence, the applicants' revised direction deleted the provisions permitting prescribed burning. 134The only fire management provision that remained was that: "The Remediation Area must be protected from wildfires through the provision of appropriate firebreaks and the active suppression of wild fires. Firebreaks, where needed, should be situated outside the Remediation Area." The Director-General agreed that this provision was appropriate. I agree that it should be included.

Assisted regeneration 135The Director-General's remedial work directions originally required assisted regeneration of the areas from which native vegetation had been cleared between 1 November 2011 and 18 January 2012. At that time, the Director-General believed that the cleared areas could be regenerated with assistance. The direction required the landholders to prepare the ground for regeneration by distributing vegetative debris that was in stacks and piles evenly across the remediation areas and burning it to stimulate seed germination. As events happened, after the clearing, the landholders pushed the debris into piles and burnt it and raked out the ash, but not in the manner later prescribed by the Director-General's directions. Over the next three years, the cleared areas were ploughed, sprayed with herbicide and cultivated with commercial crops. 136At the hearing, the experts agreed that, having regard to what had occurred in the cleared areas, assisted regeneration of the cleared areas was very uncertain and unlikely to be successful. As a consequence, the Director-General's revised direction deleted the original requirements for ground preparation and seed stimulation. 137The applicants' alternative remedial work directions specified different locations for the remediation areas, being the land that was still vegetated rather than the cleared and now cropped land. Accordingly, the Director-General's original requirements for ground preparation and seed stimulation, which were devised for the cleared land, were not appropriate for the vegetated land. 138At the hearing, the experts considered that the methods of ground preparation proposed in the applicants' directions were appropriate provided that an extra safeguard was included that any ground disturbance be conducted in a way that ensured that existing regenerating trees were protected. The applicants' revised directions incorporated this safeguard. 139I consider that the methods of ground preparation for assisted regeneration proposed in the applicants' revised directions are suitable for the remediation areas I consider to be appropriate. 140Both the Director-General's and the applicants' directions required the landholders to monitor the progress and success of the assisted regeneration. At the hearing, the period of monitoring was agreed to be for the term of the remedial work direction, namely 15 years. The frequency of inspection was agreed to be once every 12 months. The agreed performance standard for the assisted regeneration was that the native vegetation within the remediation areas reach a density of at least 100 live stems on average per ha as determined by the quadrat method. 141However, at the hearing, concern was expressed as to whether there should be another performance standard to ensure representation of the key tree species in the regeneration. The Director-General's revised direction, therefore, included an additional performance standard that the native vegetation in the remediation areas "has an average of at least 20 plants/ha of each of Brigalow, Belah and Poplar Box over the entire remediation area" for each property. The applicants' revised direction did not address this issue. 142The applicants' revised directions included a different, additional performance standard specifying the minimum number of native trees that should exist on each property by the end of the term of the remedial work direction. For "Colorado", the suggested provision was: "The Remediation Areas on the property must also contain a minimum of 9,700 native trees not defined as 'remnant native vegetation' by 1 July 2030. Such trees may be included, or be in addition to, the minimum density figure from 4.4 above [the provision fixing the density performance standard of 100 live stems on average per ha]". For "Strathdoon", the minimum number of native trees was 3,100. The figures of 9,700 native trees for "Colorado" and 3,100 trees for "Strathdoon" were based on Mr Sinclair's calculations of the number of trees needed to offset the trees cleared on the respective properties and also on the size of the remediation areas proposed by the applicants. 143I agree that it is appropriate to specify in the remedial work direction a density performance standard at the agreed density of 100 live stems on average per ha. However, I do not consider that it is appropriate to include the applicants' minimum tree number performance standard. The applicants' minimum tree numbers for "Colorado" and "Strathdoon" are based on offset ratios and locations and sizes of remediation areas on the properties that I consider are inappropriate. Furthermore, I do not consider that adding a minimum tree number performance standard will assist in the achievement of the objective of assisted regeneration of the remediation areas on the property. 144The Director-General's additional performance standard requiring certain densities of Brigalow, Belah and Poplar Box, although well intentioned, might have undesired ecological consequences. As I have noted earlier, although three vegetation communities are known to be present on the properties, and in the remediation areas that I consider appropriate, the spatial distribution of these communities across the properties and in the remediation areas is unknown. Requiring that each and every hectare of the remediation areas have at least 20 plants each of Brigalow, Belah and Poplar Box may introduce an unnatural uniformity in the vegetation community across the entire remediation area, altering the natural, spatial distribution of the three vegetation communities. In the absence of better data, I consider a precautionary approach should be adopted and this requirement should not be included. 145Otherwise, the agreed monitoring regime should be included in the remedial work directions.

Direct planting 146The parties agreed that direct planting should be required if assisted regeneration of the remediation areas is not successful. The parties disagreed as to the trigger for determining whether assisted regeneration had been successful. The Director-General's revised remedial work direction used as the trigger the failure to achieve the two density performance standards of 100 live stems on average per ha and 20 plants per ha of each of Brigalow, Belah and Poplar Box, while the applicants used only the first density performance standard. I consider the applicants' approach is preferable for the reasons given earlier. 147The parties agreed that the time period by which the density performance standard for assisted regeneration must be achieved should be two years from the commencement of the remedial work direction. If the density performance standard is not achieved by that time, direct planting would be required. The Director-General proposed that any required direct planting should be completed within one year afterwards while the applicants proposed two years to complete the direct planting "unless the work is delayed by mutual agreement due to climatic conditions or other unforeseen events". I consider that a period of one year after the requirement for direct planting is triggered should be sufficient to undertake the work and that allowing a longer time would defer the remediation process. I agree with the applicants' suggestion that the trigger date and completion date for direct planting should be able to be extended if the properties are drought declared. 148The Director-General's revised direction included specifications for care after completion of initial planting, including watering, mulching, controlling weeds and installing tree guards around seedlings. The applicants opposed such prescriptions, contending that the landholders should be allowed to choose the best methods of post-planting care. The applicants submitted that they will be required to meet the density performance standard, including by replacing any plants that die. This will be sufficient without prescribing the precise post-planting care requirements. 149I agree with the applicants. The applicants will be required to achieve the outcomes and objectives of direct planting set out in the remedial work direction and they should be allowed to choose appropriate solutions and responses to ensure they achieve the prescribed outcomes and objectives. The methods of post planting care specified by the Director-General are some of the methods that might be appropriate in certain circumstances but they are not necessarily the only ones or necessarily appropriate in all circumstances. For example, all of the specified methods might not be appropriate if direct seeding is employed rather than planting out of seedlings. 150The mix of plant species to be grown and the source of seed of these species were issues between the parties. However, at the hearing, the experts agreed that at least 80% of the plants grown from seed should comprise Belah, Western Rosewood, Poplar Box and Brigalow, and the remaining species should comprise native tree species known to occur on the property. It will be necessary for the experts to identify the names of these other tree species and to include reference to these species in a schedule to the remedial work directions. 151The Director-General's revised direction required the establishment of ripped rows across the remediation areas but the applicants' revised direction did not address this matter. Again, ripping might be an appropriate method to prepare the ground for direct planting in some parts of the remediation areas, but not necessarily in all parts or at all times. In already vegetated areas, ripping might cause damage to existing native trees and shrubs. I consider it is preferable not to mandate ripping in the remedial work direction, but rather to allow the applicants to choose the method of ground preparation that is appropriate at the particular time and particular location. They can report on the selected method of ground preparation in their reports to the Director-General. 152The parties agreed that the landholders should be required to inspect annually the remediation areas and monitor the success of the direct planting. If the number of planted stems or trees that have died brings the average number of living stems below the density performance standard of 100 live stems on average per ha, the landholders should be required to replace the dead trees or stems to restore the density. Replacement should occur within 100 days of the landholders becoming aware of the requirement. This timeframe could be extended due to legitimate reasons such as drought declaration or unavailability of seedlings. I consider these agreed requirements should be included in the remedial work directions.

Thinning 153The applicants had originally proposed that thinning could be undertaken in the remediation areas. That was opposed by Dr Nadolny as causing unacceptable environmental damage to regenerating or planted native vegetation. The other experts agreed. As a consequence, the applicants' revised direction prohibited thinning as part of the remedial work but added a note that the need for thinning may require review at some stage. I consider the prohibition on thinning should be included but not the note.

Records 154The parties agreed on the specifications for record keeping. The applicants' revised direction added a requirement that the record of required work within the remediation area include any ground preparation (such as ripping). I agree with this suggested addition.

Reporting 155The parties' respective specifications for reporting on the remedial work undertaken differed largely because of the different specifications for remedial work that each party proposed. For example, the Director-General's directions required reporting on compliance with the Director-General's requirements for fencing and stock management but the applicants' directions did not require reporting on these matters. The form of the reports proposed by each party accordingly differed. 156The Director-General proposed that the landholders should prepare and submit both an initial works report and subsequent monitoring reports while the applicants proposed the preparation and submission of only monitoring reports. I consider it is appropriate for there to be both an initial works report stating what initial works have been undertaken as well as subsequent monitoring reports. 157The Director-General's directions specified that the monitoring reports should include a description of the regeneration work or activities undertaken and the results of all inspections carried out during the reporting period. The applicants' revised directions required more detail on the various inspections undertaken and proposed a methodology for the annual survey of regeneration. I consider that the monitoring reports should include both the Director-General's and the applicants' suggestions. 158I also consider that the monitoring reports should be used as part of a process of adaptive management so as to: (a)describe the work carried out and measures implemented to comply with all requirements of the remedial direction, including performance measures, outcomes or objectives of the remedial work direction; (b)report on the effectiveness of such work and measures in achieving compliance with the requirements of the remedial direction; and (c)where there has been non-compliance with any requirement of the remedial direction, report on action taken to improve the effectiveness of such work and measures, or to adopt and implement alternative measures, to achieve compliance and improve environmental performance. 159It will be necessary for the parties to prepare revised forms for both the initial works report and the monitoring report that reflects the findings I have made on the appropriate specifications for remedial work. These forms will necessarily differ from both the Director-General's forms and the applicant's form as I have agreed on some matters with the Director-General's specifications but on other matters with the applicants' specifications.

Property vegetation plan 160The applicants' revised direction proposed that the landholders submit a property vegetation plan ('PVP') to the Director-General for approval by the Minister under s 26 of the Native Vegetation Act. The PVP must stipulate that any native vegetation that is planted or grows naturally in the remediation area, apart from remnant native vegetation, will be "protected regrowth" as defined in s 10(1)(a) of the Native Vegetation Act. The PVP must further stipulate that "routine agricultural management activities" and other types of native vegetation clearing not provided for in the remedial direction will be prohibited in the remediation area. However, the applicants propose an exception to this prohibition on clearing that would allow limited clearing in the remediation area "to address emergent circumstances such as flood mitigation, to prevent soil loss or to control wild fires, provided that any such clearing does not prevent the objectives of this remedial direction being achieved." The Director-General did not address this issue of a PVP. 161I consider it is not necessary to include in the remedial work direction a provision requiring the landholders to submit a draft PVP for five reasons. First, the obligations on the landholders to carry out remedial work, and to conserve and not clear existing, regenerating native vegetation, in the remediation areas on the properties will have legal effect by force of the remedial work directions. Approval of a PVP that contains the same requirements is not necessary to give the remedial work directions legal force and effect. 162Secondly, although the applicants proposed that the draft PVP include two stipulations concerning designated protected regrowth and prohibiting certain clearing except in certain circumstances, otherwise the content of the draft PVP is unknown. It is unknown whether the draft PVP would apply to the whole of the properties, or only land within the remediation areas, and whether the draft PVP would make proposals on the matters in s 28 or s 29 of the Native Vegetation Act, including proposals for clearing of native vegetation on any parts of the properties other than in the remediation areas. I consider it is inappropriate to require the submission of a PVP that has largely unknown content and hence unknown consequences for native vegetation on the properties. 163Thirdly, the suggested provision only requires the landholder to submit a draft PVP to the Director-General for approval by the Minister. The Minister may or may not approve the draft PVP submitted or may require the draft PVP to be amended before it is approved. There is, therefore, no certainty as to whether the submitted PVP would be approved or as to the content of any PVP that might be approved. 164Fourthly, the greatest long term protection of native vegetation on land is afforded by a PVP that has been registered by the Registrar General, as a registered plan runs with the land. However, the Registrar General may only register a PVP if the landholders and other persons having a prescribed interest in the land to which the PVP applies consent to the registration of the plan (s 31 of the Native Vegetation Act). The applicants have not proposed the registration of any approved PVP for their properties. 165Finally, the land owners have a right to submit a draft PVP to the Director-General for approval under s 26 of the Native Vegetation Act in any event; it is not necessary for a remedial work direction to require them to do so. 166In these circumstances, I consider it is inappropriate to include a requirement in the remedial work direction that the landholders submit a draft PVP to the Director-General for approval by the Minister.

Conclusion and directions 167I consider the Court should, under ss 38 and 39 of the Native Vegetation Act, revoke the directions for remedial work made by the Director-General on 16 April 2013 and instead make new directions for remedial work for each property that reflect the findings in this judgment. The terms of the new directions for remedial work that I propose to make are set out in the attachments to the judgment (Attachment B.1 for Grant Turnbull as the landholder of "Colorado" and Attachment B.2 for Cory and Donna Turnbull as the landholders of "Strathdoon") together with a map on which I have hand drawn the remediation areas on each of the properties to which the directions will apply (Attachment C). 168The parties will need to: (a)delineate accurately the remediation areas on each property on a map that can be attached to each remedial work direction; (b)discuss and endeavour to agree on the revised forms for the initial works report and the monitoring report reflecting the findings in the judgment, which can also be attached to each remedial work direction; (c)discuss and endeavour to agree on the list of other native tree species to be used in direct planting that can be included in a schedule to each remedial work direction; and (d)engross the remedial work directions in a form that can be made. 169I direct the parties to undertake these tasks and to file the agreed remedial work directions by 9 July 2014. If the parties are unable to agree on the remedial work directions, the parties should file their competing versions by that same date. I will adjourn the hearing to 11 July 2014 at 9.30am at which time I will determine any matters disagreed and make the final orders disposing of the appeals, including making separate directions for remedial work on each property. 170I make the following orders: (1)Adjourn the hearing of the appeals to 9.30am on 11 July 2014. (2)Direct the parties to file agreed remedial work directions, including attached maps and forms, or failing agreement, to file their competing versions of the remedial work directions, by 9 July 2014.

Attachment A Attachment B.1 Attachment B.2 Attachment C 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: 25 June 2014

The power to direct remedial work on land other than cleared land 28The alternative directions proposed by the applicants involved undertaking remedial work on parts of the properties other than the areas cleared between 1 November 2011 and 18 January 2012. The Director-General, on the other hand, required the whole of the areas cleared to be remediated, namely, 421 ha on "Colorado" and 73 ha on "Strathdoon". The Director-General submitted that the carrying out of remedial work in the areas proposed by the applicants was not permissible under the terms of s 38 of the Native Vegetation Act. The Director-General argued that the use of the words "the clearing" in s 38(1) and (2) limited the land on which remedial work may be directed to be carried out to only the areas unlawfully cleared. As a consequence, it was not within power to direct remedial work on other locations on the properties where no unlawful clearing occurred. 29The Director-General's argument is rejected on two bases - the text, context and purpose of s 38 of the Native Vegetation Act and the decision in Terranora Group Management Pty Ltd v Director-General Office of Environment & Heritage [2013] NSWLEC 198. 30On the first basis, although the words "the clearing" in s 38 must refer to the land that has been cleared in contravention of the Native Vegetation Act, there are a number of indicators in s 38 that directions for remedial work can apply to land other than the land that has been cleared. 31First, s 38(1) and (2) do not, in express language, limit the power to direct remedial work to only the land that has been cleared. The Director-General's power to give a direction under s 38(1) is expressed in terms of directing "specified work in a specified manner and within a specified time", but not specifying the land on which the remedial work is to be carried out as being the land on which the clearing occurred. Similarly, the specification of the type of work that may be directed to be carried out in s 38(2)(a), namely, repairing any damage caused by the clearing, does not expressly state that the land on which the repair work is to be carried out is the land that has been cleared. Section 38(2)(b) and (c) refer to land on which certain types of work may be directed to be carried out but do not specify that that land is restricted to the land that has been cleared. Section 38(2)(b) uses the wide words "any land" while s 38(2)(c) uses the words "specified land". There is no warrant to construe these words narrowly to mean only the land that has been cleared. 32Secondly, the language of s 38(1) and (2) expressly indicates that a direction can be given to carry out remedial work on land other than the land that has been cleared. Section 38(1)(b) sets as one condition for the giving of a direction for remedial work that 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. Clearly, this is referring to land other than the land that has been cleared. Given that this is one of the conditions on which the Director-General may give a direction for remedial work, it would be incongruous if the direction could not require remedial work on that other land that has been adversely affected by the clearing. 33Section 38(2)(c) in fact expressly permits the giving of a direction to undertake work to ensure that land, including any river or lake, will not be damaged or detrimentally affected, or further damaged or detrimentally affected, by the clearing. Remedial work to achieve these goals might be required at both the site of the clearing, for example to cut off sediment supply at source, or off-site, for example to prevent damage caused by already deposited sediment increasing. 34Section 38(2)(b) also refers to work to rehabilitate "any land affected" by the clearing. Obviously, the land on which native vegetation was cleared is affected by the clearing, but so too land in the vicinity of the land cleared can be affected by the clearing. The examples given in s 38(1)(b) and s 38(2)(c) of land affected by soil erosion, land degradation or siltation, clearly are lands affected by the clearing. Other examples may be where there are edge effects on native vegetation adjoining the land cleared (such as weed invasion) or loss of connectivity between native vegetation on the land cleared and on land in the vicinity of the land cleared, adversely affecting fauna or flora on land in the vicinity of the land cleared. 35Section 38(2)(a) refers to work to repair any damage "caused" by the clearing. The concept of causation is wide enough to embrace not only damage to the land cleared, but also damage occurring on other land in the vicinity of the land cleared. That is to say, clearing may cause both direct damage to the land cleared as well as indirect damage to land in the vicinity of the land cleared. 36Accordingly, the text and context of s 38 do not support the Director-General's argument that the power under s 38 is limited to directing remedial work only on the land that has been cleared. The purpose of s 38 also does not support this argument. The purpose of s 38 is evidently remediation of damage caused by clearing of native vegetation (see also s 3(e) of the Native Vegetation Act). A narrow construction of s 38 that restricts remediation to only the land that has been cleared and leaves other land that has been damaged or affected by the clearing unremediated would be contrary to the purpose of the section. 37The second basis for rejecting the Director-General's argument is the decision in Terranora dismissing a similar argument. Terranora was a case arising from the illegal clearing of 1,279 plants of seven threatened species from a rainforest site in northern NSW. As in the present case, a prosecution of the person who cleared the plants occurred (Plath v Rawson [2009] NSWLEC 178), but subsequently a direction for remedial work was served on the landholder. The direction, which had been settled in consultation with the landholder, required the landholder to clear non-native vegetation on, remove stock from and fence a remediation area, most of which had not been affected by the unlawful clearing. 38After the direction had been issued, the landholder did not exercise its right of appeal under s 39 of the Native Vegetation Act against the direction. However, sometime later, the landholder sought judicial review in Class 4 of the Court's jurisdiction, contending that the direction was ultra vires because, 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 or to offset the unlawful 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 (at [37]). 39Biscoe J analysed the construction of the particular direction for remedial work (at [39]-[42]) and the construction and application of s 38 of the Native Vegetation Act (at [43]-[66]). His Honour considered that the phrase "any damage caused by the clearing" in s 38(2)(a) had very wide scope: The 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. (at [45]) 40Biscoe J therefore rejected the landholder's argument that there is no power under s 38 of the Native Vegetation Act to give a direction to carry out remedial work on land other than the land cleared, and rejected the landholder's challenge to the validity of the direction in that case. 41The Director-General submitted that the decision of Biscoe J in Terranora turned on its own facts and was distinguishable. I do not agree. The decision involved construction of the power under s 38 and was a question of law not fact. In the interest of judicial comity, I should only depart from the decision if I was of the view that it was clearly wrong. I am not of that view. The construction of s 38 accords with that I have given above. 42Accordingly, the Director-General's submission should be rejected. Remedial work can be directed to be carried out at locations on the properties other than those directly impacted by clearing.

The areal extent of the remedial work 93The Director-General contended that the aggregate area that should be remediated should equate with the aggregate area from which native vegetation was cleared. Mr Spiers, a remote sensing scientist with OEH, estimated that the aggregate of the areas from which native vegetation was cleared between 1 November 2011 and 18 January 2012 was about 421 ha on "Colorado" and 73 ha on "Strathdoon". The Director-General contended that the applicants should be directed to remediate all of the areas cleared, so that the aggregate of the remediation areas would be the same as the aggregate of the cleared areas. 94The applicants contested that they should be required to remediate all of the areas cleared on "Colorado" and "Strathdoon" for a variety of reasons, some financial and some ecological. The financial reasons included the prohibitively high cost of complying with the remedial work directed by the Director-General (including fencing, weed management and direct planting), the loss of income from being unable to commercially crop the areas, and the precarious state of the applicants' finances. The ecological reasons included that remediation of the cleared areas to the standard required by the Director-General, having regard to their current ecological state after three seasons of ploughing, herbicide application and cultivation, would be highly uncertain and involve a disproportionate response to the damage caused by the clearing of native vegetation in those areas. 95The applicants contended that, prior to November 2011, the vegetation in the areas cleared was already highly modified as a result of previous clearing for agricultural use, large parts of the cleared areas did not contain trees and much of the understorey plants and groundcover in the cleared areas was non-native vegetation. The applicants contended that to require the remediation of all of the cleared areas to an undisturbed natural condition would be to more than offset the damage caused by the clearing of native vegetation on the properties. 96For example, the Director-General's direction for remedial work required a density of 100 live stems of trees per ha, yet on Mr Spiers' counts of the number of trees cleared within the total areas cleared, there was an average of only 6.5 trees per ha over the 421 ha cleared on "Colorado" and 9.5 trees per ha over the 73 ha cleared on "Strathdoon". The applicants contended, therefore, that the Director-General's direction for remedial work would result in a disproportionate improvement in the condition of the native vegetation in the cleared areas. 97To illustrate the lack of proportion between the remedial work required by the Director-General's direction for remedial work and the clearing of the native vegetation on the properties, Mr Sinclair estimated the aggregate of the areas beneath the canopies of the trees cleared. He estimated the aggregate area of the projected canopy cover of the trees cleared on "Colorado" to be 29.9 ha and on "Strathdoon" to be 8.8 ha. 98Calculating the area of native vegetation to be remediated based on areas of projected canopy cover cleared is particularly problematic with woodland and open forest communities where the definition of the communities and the functioning of the communities depends on there being spaces between the trees. In a case involving Cumberland Plain Woodland (an endangered ecological community) an approach to determine the area of the community on-site by limiting it to the areas immediately around the trees was rejected by the Court: Commercial & Industrial Property Pty Ltd v Holroyd City Council [2013] NSWLEC 1000 at [26]-[43]. Vegetation communities are more than just the sum of canopy areas of the tallest stratum, such as trees. While the composition of the canopy is important to characterise communities and to permit their recognition, it is the totality of vegetation which provides the structural framework for habitat and primary productivity, which is utilised by the range of biodiversity which forms the ecological communities. 99Perhaps recognising these difficulties with the use of projected canopy cover area, the applicants did not contend, in their final submissions, that the calculated areas of 29.9 ha for "Colorado" and 8.8 ha for "Strathdoon" should be the maximum areas that should be remediated, but only that these calculations revealed how disproportionately large were the remediation areas required by the Director-General. 100In fact, at the hearing, the applicants proposed remediation areas of considerably larger size than these calculated projected canopy cover areas. The applicants calculated the aggregate area of their proposed Remediation Areas A, B and C on "Colorado" to be 134 ha and of Remediation Area D on "Strathdoon" to be 35.4 ha. These figures were simply calculations of the areas contained within the Remediation Areas drawn on the applicants' map attached to their alternative remedial directions. The figures were not based on the calculations of the area of projected canopy cover of the trees cleared on the properties or the area needed to replace the number of trees cleared on those properties. Instead, Remediation Areas A, B, C and D were located and selected by a process whereby Mr Sinclair and Mr Hall initially proposed remediation areas, based on science, from within the high priority offset areas and potential other offset areas that they had identified as being appropriate offsets and then the applicants picked from these proposed areas those areas or parts of areas they preferred having regard to their plans for future agricultural use of the properties. The applicants' preferred areas became Remediation Areas A, B, C and D. 101Notwithstanding this process for selecting the remediation areas, Mr Sinclair sought to support their resultant size by calculations of the area required to replace the number of trees cleared. For example, using Mr Spiers' range of 2,437 to 2,979 trees cleared on "Colorado", Mr Sinclair opined that if many of those trees were assumed to be of significant age (many over 100 years) and of habitat value, it may be necessary to allow regeneration of more trees than the number cleared. Mr Sinclair suggested that typical offset ratios of trees generally range from three to five times the number of trees cleared (considering that the trees will eventually regrow to a similar habitat value). This would equate to roughly 7,300 to 14,900 trees. To remediate 7,300 to 14,900 trees at a density of 100 trees per ha would equate to a remediation area of between 73 ha to 149 ha. The total area of the applicants' Remediation Areas A, B and C on "Colorado" was 134 ha. This was in the range that Mr Sinclair had calculated for the area needed to remediate the required number of trees. Hence, he considered that remediating Remediation Areas A, B and C at 100 trees per ha would "meet and arguably exceed" the remediation needed to address s 38 of the Native Vegetation Act. 102Mr Sinclair's approach suffered from a number of drawbacks. First, Mr Sinclair did not give a source for his suggested offset ratios for trees and hence it was not verifiable from the scientific literature or experimental data. 103Secondly, while accepting the general proposition that a positive offset ratio may be desirable, the appropriate offset ratio for trees may vary between vegetation communities. Mr Hall's data demonstrated that 100 trees per ha was within the range of canopy tree densities found in reference stands of the relevant communities, but some stands of Poplar Box-Belah woodland have densities of around 60 trees per ha. An average density of 100 per ha is reasonable, but not every hectare would have 100 trees. If the target were to be couched in terms of numbers of individual trees, the areas required might be larger than those based on the applicants' current calculations. 104Thirdly, tree density within each vegetation community in the cleared areas of "Colorado" and "Strathdoon" may also have varied spatially and temporally reflecting environmental and demographic variations on those properties. This may mean that, instead of applying a uniform, typical offset ratio for all of the trees in all of the vegetation communities cleared on "Colorado" and "Strathdoon", different and individualised offset ratios may have been more appropriate. 105Finally, Mr Sinclair's approach focussed only on the trees cleared and ignored the habitat and connectivity value of understorey plants and groundcover beneath and between the trees. Dr Nadolny estimated that 50% of the ground layer in the cleared areas was composed of native species. Accounting for the understorey plants and groundcover on the properties may require greater offset ratios and hence larger sized remediation areas than allowed by Mr Sinclair. 106Nevertheless, the ecological reasons advanced by the applicants do suggest that it would be disproportionate to require the offset areas to be of the same aggregate size as the aggregate size of the cleared areas. In the circumstances of this case, the conservation loss caused by the clearing of the native vegetation in the cleared areas might be able to be offset by requiring remediation of a lesser sized aggregate area provided the offset areas selected meet the criteria of being appropriately located and shaped, comprise similar vegetation communities to those cleared, and have potential for measurable conservation gain of similar magnitude to the conservation loss caused by the clearing. 107In my view, the remediation areas that I have earlier described meet these criteria and are of an areal extent that is likely to require remediation of native vegetation proportionate to the native vegetation cleared on "Colorado" and "Strathdoon" and the damage caused by that clearing. Because the areas I have identified differ from the areas proposed by either the Director-General or the applicants, it is not possible to calculate the precise areas involved. Nevertheless, an approximation can be made. 108On "Colorado", the aggregate of, on Lot 17, the high priority offset areas (except for the small patch in the north-east of Lot 17) together with small sections of an adjoining potential other offset area, a high priority remediation area and a potential or disputed remediation area on Lot 17, and, on Lot 1, the high priority offset area together with the narrow strip of high priority remediation area on Lot 1, would be around 290 ha. On "Strathdoon", the aggregate of the high priority offset area in the north-east together with a small strip of adjoining potential other offset area to the east and a strip of potential or disputed remediation area to the south would be around 55 ha. 109The locations of these areas are similar to those of the remediation areas proposed by the applicants and are justified by similar ecological considerations. The sizes are larger than those proposed by the applicants. One reason is that, on "Colorado", I have included nearly all of the high priority offset areas for restoration ecology reasons rather than, as the applicants preferred, for agricultural and financial reasons, including only a small part of the eastern saddlebag of the high priority area and omitting the western saddlebag and instead inserting a smaller part of the potential other offset area. Another reason is that, on both "Colorado" and "Strathdoon", I have added small adjoining areas, again for restoration ecology reasons, to improve the configuration and connectivity of the high priority offset areas. The resultant sizes of the remediation areas on "Colorado" and "Strathdoon" are, therefore, ecologically justifiable and proportionate to the damage caused by the clearing of the native vegetation on the properties.

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Cases Cited (3)

Cited By (9)