Walker Corporation Pty Ltd v Director-General of the Department of Environment and Climate Change

Interpretation Act 1987 s 48 LEGISLATION CITED: Native Vegetation Act 2003 s 35, s 36, s 37 Land and Environment Court Rules 2007 r 4.3

City of South Perth v Churchill (1982) 56 LGRA 350 Coco v The Queen (1994) 179 CLR 427 Crowley v Murphy (1981) 52 FLR 123 Director-General, Department of Planning v Epacris Pty Ltd [2006] NSWLEC 306; (2006) 147 LGERA 372 CASES CITED: George v Rockett (1990) 170 CLR 104 Hardie Holdings Pty Ltd v Director-General, Department of Natural Resources [2007] NSWLEC 39; (2007) 151 LGERA 373 Harrison v Melham [2008] NSWCA 67; (2008) 72 NSWLR 380 New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 165 LGERA 68; (2009) 83 ALJR 557 Walker Corporation Pty Ltd v Director-General of the Department of Environment and Climate Change [2009] NSWLEC 138

APPLICANT: J M Ireland QC and M R Hall (barrister) SOLICITORS: Colin Biggers & Paisley LEGAL REPRESENTATIVES: RESPONDENTS: T G Howard (barrister) SOLICITOR: Gordon Plath Department of Environment, Climate Change & Water

JUDGMENT:

• 16 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

WALKER CORPORATION PTY LIMITED v DIRECTOR-GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE & (4) ORS (No.2) [2009] NSWLEC 177

JUDGMENT 1 HIS HONOUR: This is a case about the power, or absence of power, of officers of the Department of Environment and Climate Change, now the Department of Environment, Climate Change and Water, to enter privately owned land under s 35 of the Native Vegetation Act 2003. I note that the Director-General does not rely in these proceedings upon any power of entry under the National Parks and Wildlife Act 1974 and does not rely upon that Act, or any other Act, in support of its case. That is, the present case is confined to a determination of the ambit of the power of entry granted by s 35 of the Native Vegetation Act 2003. 2 Walker Corporation Pty Ltd is the owner of three adjoining properties having a total area of some 130 hectares at Macquariedale Road, Appin. On 18 December 2008, two officers of the Department, Mr Ray Giddins and Mr David Noble, entered the property with the consent of Walker Corporation, accompanied by Mr Gerald Beasley, an employee of Walker Corporation. According to the evidence, the purpose of the inspection was to investigate the possible clearing of native vegetation. The inspection took place over more than three hours and the officers took photographs of the property. At the conclusion of the inspection, both Mr Giddins and Mr Noble stated that they were of the view that clearing had occurred and "the Department will be taking action". 3 At some stage after the inspection, Mr Noble prepared a document titled "Breach Report Director General of DECC [Department of Environment and Climate Change] v Waker Corporation Pty Ltd". The report is undated. Mr Noble has advised that he prepared the breach report after he formed the view that some type of clearing had occurred on Walker Corporation's land and that there was no approval in place for the clearing: see Walker Corporation Pty Ltd v Director-General of the Department of Environment and Climate Change [2009] NSWLEC 138 at [11]. 4 In the week commencing 15 March 2009, Mr Giddins telephoned Mr Beasley and said that he wished to access the land for a second time "in order to compile evidence". Mr Beasley told him that he should write to Walker Corporation notifying it of the proposed inspection with a statement justifying the power of entry. 5 On 24 March 2009, Ms Penny Finlay, Acting Manager Metro Projects and Support Section, Environment Protection and Regulation of the Department, sent a letter to Mr Beasley, Executive Planner of Walker Corporation, stating that the Department has reviewed the information obtained by Ray Giddins and David Noble on 18 December 2008 and "intends to investigate the matter further" and that access to the properties is required for this to occur. The letter then states "DECC [Department of Environment and Climate Change], therefore, requires that access to the properties be provided to DECC officers for this additional survey". The letter also states: " The powers of entry for authorised officers for investigating possible offences under the Native Vegetation Act 2003 are given in section 35 of that Act... The powers of entry for authorised officers investigating offences under the National Parks and Wildlife Act 1974 are given, via section 156B of that Act, in Chapter 7 of the Protection of the Environment Operations Act 1997..." 6 As noted at par [1] above, however, the Director-General does not rely upon the National Parks and Wildlife Act to support the power of entry and inspection in the present case. 7 On 6 April 2009, Mr Roberto Pupo of the Department, made a recommendation to Mr Jason Bentley, an investigator within the Department, to authorise Mr Giddins, Mr Noble and Mr Pupo to enter upon the land under s 35(1)(b) of the Native Vegetation Act. It is not in dispute that Mr Bentley held delegated authority to do so from the Director-General. 8 On 6 April 2009, Mr Jason Bentley, by instrument in writing of that date, purported to authorise Mr Giddins, Mr Noble, Mr Pupo and Mr Greg Stone from the Hawkesbury-Nepean Catchment Management Authority to enter the property. The authorisation was expressly said to be issued under s 35(1)(b) of the Native Vegetation Act. Messrs Giddins, Noble, Pupo and Stone are the other respondents in these proceedings. 9 Walker Corporation now seeks an order restraining each of these persons from entering its land, an order that the Director-General be restrained from authorising any person to enter the land, a declaration that the authorisation purportedly issued by Mr Bentley on 6 April 2009 is void and of no effect, and consequential relief.

Powers of entry and inspection 10 Section 35 of the Native Vegetation Act is relevantly as follows:

(1) An authorised officer may enter land for the purpose of determining whether a person is contravening or has contravened this Act, but only if: (a) the landholder consents, or (b) the Director-General has authorised the entry onto the land concerned.

(2) An authorised officer may, for the purposes of determining whether a person is contravening or has contravened this Act: (a) conduct such investigations, make such inquiries, examinations and inspections, and take such samples and recordings (including photographs), as the officer considers necessary, and

(b) require a landholder or other person to produce to the officer any records or documents that relate to any clearing of native vegetation on any land, and

(c) require a landholder or other person to provide such reasonable assistance and facilities as may be requested by the officer to exercise the officer's functions under this section.

(3) A person may accompany an authorised officer and take all reasonable steps to assist an officer in the exercise of the officer's functions under this section if the officer is of the opinion that the person is capable of providing assistance to the officer in the exercise of those functions.

(4) An authorised officer is not entitled to enter any part of premises used only for residential purposes except with the consent of the landholder. 11 Section 36 is a power to obtain "relevant information", which is defined to mean "information about a possible contravention of this Act": sub-s (1). The Director-General may by notice in writing require a person to give to an authorised officer any relevant information of which the person has knowledge or to produce any document containing relevant information: sub-s (2). 12 Mr J M Ireland QC and Mr M R Hall, appearing for Walker Corporation, submit that:

(a) On a literal interpretation of s 35(1) the consent of the landholder, and authorisation by the Director-General, are alternatives; that is, entry with the consent of the landholder fulfils that objective of the provision and the alternative provision under which the Director-General authorises entry does not arise. (b) The unrestricted entry that took place in the present case fulfilled the purpose of investigation, so that by 6 April 2009 the power of entry was exhausted and there was no power to issue the authorisation at the time it was issued; that is, the right of entry was not being exercised " for the purpose of determining whether a person is contravening or has contravened the Act ", but for some other purpose.

13 Mr T G Howard, appearing for the respondents, submits that the power of entry is not spent. He relies upon the following submissions:

(a) Section 48(1) of the Interpretation Act 1987 suggests that the power is not spent.

(b) Section 35(1) must be read with s 35(2), which indicates the sort of things that an authorised officer may do.

(c) Section 35(1) must also be read with s 36, which is not limited in its operation.

(d) On the facts it has not been established that a person is contravening or has contravened the Act. 14 In the latter respect Mr Howard submits that, in applying a purposive construction, the power of entry continues to be available unless and until:

(i) it has been established, as distinct from suspected, that the vegetation cleared was "native vegetation" as defined in s 6 of the Act;

(ii) the time over which the clearing has been carried out has been determined, including whether it is continuing;

(iii) it has been established precisely where the clearing has been carried out;

(iv) it has been established that a particular person or persons is or are contravening or has or have contravened the Act;

(v) the extent of any contravention has been determined, including any distinction between "regrowth" and "remnant" native vegetation as described in s 9 of the Act; and

(vi) it has been determined that the clearing is not excluded or exempt clearing under Divs 2, 3 or 4 of Pt 3 of the Act. 15 Mr Howard submits that there is no evidence that any of these matters have been determined in the present case.

The evidence 16 The evidence of what has or has not been established or determined following the initial inspection on 18 December 2008 is presumably contained in the breach report prepared by Mr Noble, noted in par [3] above. The respondents, however, have claimed that this document is privileged and should not be disclosed. In the interlocutory proceeding before Biscoe J the claim for privilege was upheld: Walker Corporation Pty Ltd v Director-General of the Department of Environment and Climate Change [2009] NSWLEC 138 at [28] to [30]. 17 There is, however, some other evidence on the question. The inspection on 18 December 2008 was clearly made for the purpose of determining whether there had been a contravention of the Native Vegetation Act. In addition to the breach report, there is the recommendation by Mr Pupo of 6 April 2009, that Mr Bentley sign an authority to enter under s 35(1)(b) of the Act. The recommendation includes the following statements: " In August 2008, DECC officers identified potential clearing on the Property when comparing SPOT5 images taken of the Property on 6 February 2005 and 17 September 2006. On 18 December 2008, DECC officers conducted a site inspection of the Property with a representative from the Walker Corporation. Based on the SPOT5 images and the site inspection, DECC is investigating the possible clearing of approximately 14 hectares of Shale Sandstone Transition Forest cleared between 6 February 2005 ... and 17 September 2006. In particular, DECC is investigating potential offences under section 12 of the NV [Native Vegetation] Act and section 118A(2) National Parks and Wildlife Act 1974 ("NPW Act"). The possible offences are: i. clearing of native vegetation across an area of about 14 hectares without development consent or a property vegetation plan (NV Act, section 12); and ii. pick plant that is part of an endangered ecological community being Shale Sandstone Transition Forest (NPW Act s 118A). CURRENT POSITION It is necessary for DECC officers to return to the Property to obtain further photos of the alleged clearing, confirm the clearing boundaries on the Property, and formally identify the species of vegetation on the Property to determine whether the vegetation is "native vegetation" within the meaning of the NV Act. It is necessary to take these steps in order to determine whether a contravention of the NV Act has occurred."

(A SPOT5 image is, I am informed from the bar table, a satellite image.) 18 A departmental document was generated on 22 April 2009, headed "Metropolitan Branch Native Vegetation Campaign". The document commences with the following statement: " Outcomes of a Metropolitan Branch pilot campaign to investigate unauthorised native vegetation clearing using satellite imagery in the Wingecarribee and Wollondilly Shire Council areas." 19 Under the heading "Current Position", the following is stated: " A summary of the outcomes of the native vegetation pilot campaign is provided in Attachment 1. Four of the five sites were inspected to validate the satellite information, the extent of clearing and reasons for the clearing. No action was taken for one of the sites because DNR [Department of Natural Resources] dealt with the clearing by serving a NVCA [Native Vegetation Conservation Act] Warning Letter to the owner of the site. Inspection Reports were generated in ISEMS for all five sites. The campaign resulted in NVA [Native Vegetation Act] Advisory Letters being served to the owners of two of the sites. An NVA Warning Letter was served to the owners of one of the sites. The pilot campaign also resulted in a Breach Report being sent to Legal Services Branch for one of the sites. This site is on Macquariedale Road, Appin and Walker Corporation Pty Limited, (Walker) is the owner. A Breach Report was prepared because Walker had knowledge that the vegetation was likely an endangered ecological community (EEC) and the clearing was done under the NVA. Furthermore, DECC is presently prosecuting Walker in the Land and Environment Court for clearing native vegetation at another nearby site located on Appin Road, Wilton. Legal Services has allocated a case solicitor and DECC is currently determining an appropriate regulatory response." 20 Finally, Mr Bentley has furnished an affidavit in which he sets out his reasons for authorising entry onto the land. In paragraph 14 of his affidavit Mr Bentley states: " My reasons for authorising entry onto the Land are as follows: (a) I considered that it was necessary to identify the species of vegetation on the Land to determine whether the vegetation cleared was "native vegetation" within the meaning of section 6 of the NV Act, in particular to determine whether the vegetation cleared was indigenous within the meaning of section 6(2) of the NV Act, i.e. whether the species existed in the State of New South Whales prior to European settlement. (c) [sic] I considered that it was necessary to determine whether the vegetation cleared was remnant native vegetation or regrowth within the meaning of section 9 of the NV Act. (d) I considered that it was reasonably necessary to enter onto the Land for the purpose of taking measurements and samples of the cleared vegetation and vegetation in its vicinity for the purpose of determining the species and age of vegetation cleared. I understood that conclusions about the species of vegetation cannot be determined with certainty using remote sensing methods such as SPOT 5 imagery and must be verified by carrying out "ground-truthing". (e) I considered that Investigator Roberto Pupo, Mr Ray Giddins and Mr David Noble were all involved in the investigation and that the entry of each of those persons onto the Land was reasonably necessary to investigate the alleged offence. (g) I consider that it is necessary to address these elements of the alleged offence of clearing native vegetation to determine whether a person is contravening or has contravened the NV Act. (i) I considered that there was no other practical way of making these inquiries without entering the Land." Previous decisions 21 Director-General, Department of Planning v Epacris Pty Ltd [2006] NSWLEC 306; (2006) 147 LGERA 372 was a prosecution under the predecessor to the Native Vegetation Act 2003, namely, the Native Vegetation Conservation Act 1997, s 61 of which provided that an authorised officer may enter land for the purpose of determining whether a person is contravening or has contravened any provision of that Act, or whether any native vegetation or protected land is being cleared in contravention of that Act. That section was substantially re-enacted as s 35 of the Native Vegetation Act. In that case, the property having been inspected for the purpose of determining whether there was a contravention of the Act, the prosecutor conceded that the power of entry and inspection under the section was spent. 22 Hardie Holdings Pty Ltd v Director-General, Department of Natural Resources [2007] NSWLEC 39; (2007) 151 LGERA 373, was about the power to obtain information under s 36 of the Native Vegetation Act. The power may be exercised by the Director-General to require a person to give "relevant information" or to produce any document containing "relevant information": s 36(2). As noted at par [11] above, "relevant information" is defined as information about a possible contravention of the Act: s 36(1). I held, at [15], that the power under s 36 continues to be available so long as a contravention of the Act remains possible. This is to be contrasted with the Director-General's power under s 37 to issue a "stop work" order, and with the Director-General's power under s 38 to direct the carrying out of remedial work. The Director-General cannot issue a "stop work" order unless he "is of the opinion" that a person is contravening or is about to contravene the Act: s 37(1). The Director-General cannot direct that remedial work be carried out unless he "is satisfied" that native vegetation has been cleared in contravention of the Act, or that the clearing of native vegetation has caused or is likely to cause any soil erosion, or degradation or siltation of any river or lake or any adverse effect on the environment: s 38(1).

Conclusion 23 The applicant has to overcome the presumption under s 48(1) of the Interpretation Act 1987: " 48 Exercise of statutory functions (1) If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires." 24 I have noted at par [12] above Walker Corporation's submission that paragraphs (a) and (b) of s 35(1) are alternatives, so that once there has been an unrestricted entry with the consent of the landholder then the object of the provision is fulfilled and the alternative provision under which the Director-General authorises entry does not arise. As I understand the submission, in these circumstances the unrestricted entry that took place fulfilled the purpose of the investigation of the land so that s 48 of the Interpretation Act has no part to play - that is, s 48 yields to the contrary intention in s 35 of the Native Vegetation Act. 25 Walker Corporation also contends that by 6 April 2009 the power of entry was exhausted because by that date the relevant authorised officer, Mr Noble, had determined that a contravention of the Act had occurred and accordingly he was no longer seeking to exercise the right for the purpose of determining whether a person is contravening or has contravened the Act. Walker Corporation submits that the power under s 35 is only available in aid of an investigation into whether a contravention has occurred, and it is not available to support a decision as to whether to prosecute after that question has been answered, nor to gather evidence in support of a prosecution. 26 Walker Corporation relies upon the following evidence in support of its submission that a determination had already been made that there had been a contravention of the Act:

(a) At the conclusion of the inspection on 18 December 2008, both Mr Noble and Mr Giddins told Mr Beasley that they were of the view that clearing had occurred and " the Department will be taking action ".

(b) The fact that a breach report had been prepared by Mr Noble and/or Mr Giddins in February 2009.

(c) The telephone request by Mr Giddins in the week commencing 15 March 2009 to access the land for a second time " in order to compile evidence ".

(d) The statement in the memorandum of 22 April 2009 which noted that the breach report " was prepared because Walker had knowledge that the vegetation was likely an endangered ecological community (EEC) and the clearing was done under the NVA ". 27 There is, however, evidence to the contrary of the submission that a determination had already been made by 6 April 2009, the date on which Mr Bentley authorised the entry upon the land. The evidence is as follows:

(a) The Department's letter to Mr Beasley of Walker Corporation of 24 March 2009, which states that the Department " intends to investigate the matter further " and that it therefore required that access be provided to its officers.

(b) Mr Pupo's memorandum of 6 April 2009 to Mr Beasley requesting his authorisation under s 35(1)(b) of the Act, noted at par [17] above, in which he refers to " possible clearing ", the fact that the Department is investigating the " potential offences " and in which in particular he states that it is necessary to return to the property to obtain further photos of " the alleged clearing ", to " confirm the clearing boundaries on the property ", and to " formally identify the species of vegetation on the property to determine whether the vegetation is 'native vegetation' within the meaning of the NV Act " and that it is necessary to take these steps in order to " determine whether a contravention of the NV Act has occurred ".

(c) I note that this memorandum was prepared after the breach report had been submitted, which suggests that the breach report, which is not in evidence, was not sufficient to establish that there had been a contravention of the Act and that the further inspection was required to determine that question.

(d) Mr Bentley's stated reasons for authorising entry onto the land, noted at par [20] above, show that no determination had been made as to whether there has been a contravention of the Act.

(e) Under Pt 4 r 4.3 of the Land and Environment Court Rules 2007, the Court ordered the Director-General to furnish a written statement setting out the reasons for the decision of the Director-General's delegate, Mr Bentley, to authorise entry onto the land. The reasons provided mirror those given by Mr Bentley in his affidavit and include the following: "(iv) The reasoning process that lead to the decision Jason Bentley, being a delegate of the first defendant, signed the authorisation for the following reasons: (a) Mr Bentley considered that it was necessary to identify the species of vegetation on the Property in order to determine the species which were cleared and in order to determine whether those species were "native vegetation" within the meaning of section 6 of the Native Vegetation Act 2003 ("the Act"). (b) Mr Bentley considered that it was necessary to determine whether the vegetation cleared was "remnant native vegetation" or "regrowth" within the meaning of section 9 of the Act. (c) Mr Bentley considered that it was reasonably necessary to enter onto the Property for the purpose of taking measurements and samples of the cleared vegetation for the purpose of determining the species and age of vegetation cleared. It was Mr Bentley's understanding that it is not possible to determine with certainty the species of vegetation using remote methods such as SPOT 5 satellite imagery. (d) Mr Bentley considered that Investigator Roberto Pupo, Mr Ray Giddins and Mr David Noble were all involved in the investigation and that the entry of each of those persons onto the Property was reasonably necessary to investigate the clearing. (e) Mr Bentley considered that Greg Stone from the Hawkesbury-Nepean Catchment Management Authority was required to enter the Property to assess whether the vegetation cleared was regrowth. Mr Bentley considered that Mr Stone was capable of providing assistance to the authorised officers with their investigations on the Property. (f) Mr Bentley considered that it is necessary to investigate these matters in order to determine whether the plaintiff or any other person had contravened the Act. (g) Mr Bentley considered that there was no other practical way of making these inquiries without entering the Property. (h) Mr Bentley was aware that DECC officers had conducted a site inspection on the Property with a representative of the Plaintiff on 18 December 2008. However, he considered that further entry onto the Property was required to properly investigate the clearing, in order to determine whether the plaintiff or any other person had contravened the Act." 28 I accept that, on the balance of probabilities, the evidence described at par [27] above, suggests that the opinion expressed on 18 December 2008 by Mr Noble and Mr Giddins to Mr Beasley was a preliminary opinion that was not shared by the Director-General or his delegate, Mr Bentley; that the investigation was not complete; and that no determination has yet been made as to whether a person is contravening or has contravened the Act. 29 I accept the submission that s 48 of the Interpretation Act must yield to any contrary intention in s 35(1) of the Native Vegetation Act. The question then becomes whether s 35(1) expresses a contrary intention to s 48 of the Interpretation Act, or whether it can be read consistently therewith. As Spigelman CJ observed in Harrison v Melham [2008] NSWCA 67; (2008) 72 NSWLR 380 at [16]: " The task of the court is to interpret the words used by Parliament. [citations omitted]. The courts must determine what Parliament meant by the words it used. " 30 In interpreting the words used by Parliament, however, it is also necessary to have regard to the context. In the present context, entry into private land without the consent of the landholder, either express or implied, is at common law, a trespass. In common with all legislation which interferes with private property rights, the power of entry granted by statute must be construed in a way which interferes least with such rights: Crowley v Murphy (1981) 52 FLR 123 at 141 per Lockhart J, City of South Perth v Churchill (1982) 56 LGRA 350 at 353 per Wallace J, George v Rockett (1990) 170 CLR 104 at 110-111, Coco v The Queen (1994) 179 CLR 427 at 437, New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 at [16] and [22] per Kirby J, R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 165 LGERA 68; (2009) 83 ALJR 557 at [43] per French CJ. 31 In construing the power of entry and inspection under s 35(1), the focus must be on the words "for the purpose of determining whether a person is contravening or has contravened this Act". That is, the purpose of entry must not be some other ulterior or foreign purpose. 32 In my opinion, once an authorised officer has entered land and a determination has been made that a person has contravened or is contravening the Act, then the power of entry is spent. This conclusion is consistent with the principles discussed at par [29] and par [30] above. But this does not mean that only one inspection is permitted. It may take several inspections, particularly in the case of a very large landholding, to be able to make a determination as to whether a person is contravening or has contravened the Act. But once that determination has been made, then the section does not authorise any further inspection. Any further inspection could not be for the purpose of determining "whether" a person is contravening or has contravened the Act. This construction of s 35(1) is not inconsistent with s 48 of the Interpretation Act, but on the contrary is entirely consistent therewith; the power of entry may be exercised from time to time as the occasion requires "for the purpose of determining whether a person is contravening or has contravened the Act". Neither is this construction inconsistent with the principle of statutory construction described in par [30] above. 33 Whilst I accept the submission of Walker Corporation that paragraphs (a) and (b) of s 35(1) are alternatives, I do not accept its further submission that the power is necessarily exhausted if either (a) or (b) has been engaged. An authorised officer may exercise either mode of entry and may do so from time to time as the occasion requires for the stated purpose of determining whether a person is contravening or has contravened the Act and may do so until the stated purpose has been fulfilled. 34 In the present case the preponderant weight of evidence, and particularly the evidence to which I have referred at par [27] and par [28] above, suggests that no determination has been made as to whether a person is contravening or has contravened the Act. That is, the investigation as to whether there is or has been a breach of the Act is still continuing. It follows that I do not accept the submission that the power of entry and inspection was spent following the inspection that took place on 18 December 2008. It also follows that Walker Corporation's claim for relief must be dismissed with costs.

(2) The applicant, Walker Corporation Pty Ltd, must pay the respondents' costs.

I hereby certify that the preceding 35 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

19/10/2009 - Catchwords - Native Vegetation Act 2003 - Paragraph(s) Catchwords.

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