Landers v Director-General, Department of Infrastructure, Planning and Natural Resources [2005] NSWLEC 284

Land and Environment Court of New South Wales

Landers v Director-General, Department of Infrastructure, Planning and Natural Resources [2005] NSWLEC 284 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES : Donald Mervyn Landers v Director-General, Department of Infrastructure, Planning and Natural Resources

FILE NUMBER(S) : 10702 of 2004

CORAM: Nott C

Administrative Law - Appeal :- Land cleared by ploughing in 2003 - direction to carry out remedial work - whether ploughing fell within the exemption in sch 3 (j) of SEPP 46 "Regrowth. The removal of native vegetation whether seedlings or regrowth of less than 10 years of age if the land has been previously cleared for cultivation pastures or forestry plantation purposes" - previous clearing of timber from the land at about the beginning of the 20th century - also previous clearing by stick-raking in about 1995 - onus of proof - previous clearing for those purposes can be at any time in the past - not established that all vegetation removed in 2003 was less than 10 years of age - appeal dismissed KEY ISSUES:

Native Vegetation Conservation Act 1997, s 47 LEGISLATION CITED: State Environmental Planning Policy Number 46 - Protection and Management of Native Vegetation, sch 3(j)

Director-General of the Department of Land and Water Conservation v Pye [1998] NSWLEC 301; CASES CITED: Holmes v Director-General of the Department of Infrastructure, Planning and Natural Resources [2005] NSWLEC 264 at [26]

DATES OF HEARING: 7 March 2005

DATE OF JUDGMENT: 06/29/2005

APPLICANT Mr P J McEwen SC SOLICITORS Mills Hebbard Moore LEGAL REPRESENTATIVES: RESPONDENT Ms S A Duggan, barrister SOLICITOR Christine Hanson, General Manager of Legal Services of the Dept