> Reported Decision : 127 LGERA 170 Land and Environment Court of New South Wales CITATION : Buttsworth v Director-General of the Department of Land and Water Conservation [2003] NSWLEC 169 APPLICANTS Warren Ashley Buttsworth Tony Warren Buttsworth PARTIES : Robert Glen Buttsworth RESPONDENT Director-General of the Department of Land and Water Conservation FILE NUMBER(S) : 10552 of 2002 CORAM: Talbot J KEY ISSUES: Question of Law :- whether direction issued by Director-General to carry out remedial work is invalid - severability of invalid provisions - direction sufficient to allow appeal to proceed on the merits Land and Environment Court Act 1979 s 39(2), s 39(5) LEGISLATION CITED: Native Vegetation Act 1997 s 4, s 5(1), s 5(2), s 5(3)(b), s 6, s 47, s 47(1), s 47(1)(a), s 47(1)(b), s 47(2), s 47(2)(b), s 48, s 68 Noxious Weeds Act 1993 State Environmental Planning Policy No 46 - Protection and Management of Native Vegetation Sch 3, cl (a) Calvin v Carr and Others [1979] 1 NSWLR 1; Cann's Proprietary Limited v The Commonwealth and Another (1946) 71 CLR 210; CASES CITED: Coleman and Another v Gray (1994) 55 FCR 412; King Gee Clothing Company Proprietary Limited v The Commonwealth and Another (1945) 71 CLR 184; Sloane and Another v McDonald Industries (Sales) Pty Limited (1989) 17 NSWLR 86 ; The Council of the Upper Hunter County District v Australian Chilling and Freezing Co Limited (1967-1968) 118 CLR 429 DATES OF HEARING: 23/06/2003, 24/06/2003 DATE OF JUDGMENT: 07/09/2003 APPLICANTS Mr A J J Thompson (Barrister) SOLICITORS Last & Maxwell LEGAL REPRESENTATIVES: RESPONDENT Mr M W Hadley (Barrister) SOLICITORS Department of Land and Water Conservation JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10552 of 2002 Talbot J 9 July 2003 Warren Ashley Buttsworth Tony Warren Buttsworth Robert Glen Buttsworth Applicants v Director-General of the Department of Land and Water Conservation Respondent Judgment Introduction 1 These class 1 proceedings have been commenced as an appeal pursuant to s 47(1) of the Native Vegetation Conservation Act 1997 ("the NVC Act") against a Direction to Carry Out Remedial Work ("the Direction") issued by the Regional Director of the Department of Land and Water Conservation ("DLWC") on 23 July 2002. 2 The Direction is addressed to the applicants who are the owners of Lot 45 DP 871973 Parish of Lansdowne, County of Macquarie ("the land") being land to which the Direction purports to apply. 3 In terms, the Direction states that the Regional Director, having delegated authority from the Director-General of the DLWC, is satisfied that clearing vegetation was carried out on the land in contravention of Pt 2 of the NVC Act. It directs the owners of the land, pursuant to s 47(1) of the NVC Act, to carry out the work set out in the annexed Schedule of Work in a manner and time specified therein ("the Schedule of Work"). 4 Section 47 of the NVC Act states as follows:- 47 Directions for remedial work (1) If the Director-General is satisfied: (a) that any native vegetation, or any protected land, has been cleared in contravention of Part 2, or (b) that the clearing of native vegetation on any land, or the clearing of protected 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, (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 and is liable to a penalty not exceeding 1,000 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 100 penalty units for each day the offence continues. (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. (7) Until repayment, the cost is to be a charge on the land. 5 The parties proceed on the basis of the following Statement of Agreed Facts:- (1) The applicants are the owners of the land; (2) The land was transferred to the applicants on 25 May 2000; (3) On or about 31 October 2001 a fire started on the south western corner of the land; (4) The applicants called the Rural Fire Service for assistance on 31 October 2001; (5) The Rural Fire Service attended the land on 31 October 2001; (6) the applicants continued to attend fires burning on the land; (7) Between about 1 November 2001 and 30 November 2001the applicants carried out clearing of approximately 7.3 hectares on the land, including the clearing of native vegetation within the meaning of the NVC Act; (8a) The area measured as cleared was 7.3 hectares; (8b) Of this area approximately 2.2 hectares was either killed by the fire or was dying as a result of the fire or needed to be cleared to put out the fire; (8c) Further of this area, the applicants say and the respondent assumes, a further 2 hectares was cleared pursuant to Sch 3 of State Environmental Planning Policy No. 46 – Protection and Management of Native Vegetation ("SEPP 46"); (9) No development consent was obtained from the respondent for this clearing; (10) On or about 18 December 2001 the respondent inspected the land; (11) On or about 23 July 2002 the respondent issued the Direction pursuant to s 47 of the NVC Act; and (12) On or about 20 August 2002 the applicants lodged an appeal against the Direction with the Land and Environment Court pursuant to s 48 of the NVC Act. 6 The following issues have been raised for preliminary determination as questions of law:- (1) Whether the clearing of dead vegetation is a contravention of Pt 2 of the NVC Act; (2) Whether the undermentioned stated objective in the Schedule of Work is contrary to the provisions of s 47(2)(b) of the NVC Act:- 2.0(a) To revegetate the "Remediation Area" by natural process" ; (3) Whether the undermentioned objectives are beyond power as not relevant to the objects of the NVC Act:- 2.0(b) To facilitate the restoration of the habitat and connectivity values which have been removed as a result of the clearing. 2.0(c) To facilitate the restoration of floristic and structural diversity of vegetation communities which have been removed as a result of the clearing. (4) Whether the Direction may be issued in respect of a "Remediation Area" not accurately identified prior to the issue of the notice. (5) Whether the Direction is invalid and null and void for the following reasons:- (a) There is no power to direct employees, contractors or agents to carry out work, ipso facto, under the NVC Act; (b) The Direction given to "landholders" as defined in the Schedule of Works is beyond power; (c) The Direction was given to the "owners" not the "landholders" as required by s 47(1) of the NVC Act; (d) The objectives contained in 2.0(b) and 2.0(c) as set out above are beyond power; (e) Objective 2.0(a) set out above is contrary to the provisions of s 47(2)(b) of the NVC Act; (f) A direction to control noxious weeds in the "Remediation Area" in accordance with the requirements of the Noxious Weeds Act 1993 by methods specified in the Direction is beyond power; (g) A direction to cease work in the event that items or sites of Aboriginal heritage significance are found contained in the Direction is beyond power; and (h) On the overall construction of the Direction, it is ultra vires as being unclear and uncertain in its terms. 7 The respondent concedes that a definition of "Landholders" at the commencement of the Schedule of Work is invalid insofar as it extends to the "Landholder's successors in title and includes the registered proprietors as well as any employees, contractors or agents of the Landholder and that the Direction given to "Landholders" as defined in the Schedule of Work is beyond power insofar as it extends beyond the owners. Furthermore, the respondent recognises that there is no power to direct employees, contractors or agents to carry out work pursuant to the NVC Act. Mr Hadley, who appears for the respondent, has indicated to the Court that Conditions 3.2, 3.5, 3.6, 3.8, 3.9, 6.0, 7.0 and 8.0 in the Schedule of Work are not pressed. 8 Development for the purpose of agriculture may be carried out without consent, pursuant to the Greater Taree Local Environmental Plan 1995. 9 Schedule 3 to SEPP 46 provides a list of exemptions from compliance with the provisions of the NVC Act pursuant to transitional provisions contained in Sch 4 to the NVC Act by dint of s 68. Exception (a) in Sch 3 of SEPP 46 provides as follows:- Minimal Clearing . The clearing of up to 2 hectares per annum for any contiguous land holding in the same ownership. 10 The applicants claim that a landholder is entitled to accrue a credit for the minimum clearing area of 2 hectares for each year following the commencement of the NVC Act. It is the respondent's position that if the landholder does not take advantage of the opportunity to clear up to 2 hectares in any one year then that opportunity is lost for all time. 11 Pursuant to s 48 of the NVC Act a person aggrieved by the decision of the Director-General to make an order, or to give a direction in accordance with s 47 of the NVC Act may appeal against the decision to this Court. The lodging of an appeal does not, unless the Court otherwise directs, operate to stay action on the decision appealed against. 12 Section 39(2) of the Land and Environment Court Act 1979 ("the Court Act") applies. 13 In addition to any other functions and discretions that this Court has the Court shall, for the purpose of hearing and disposing of the appeal against the decision of the Director-General to make the direction, have all the functions and discretions which the Director-General had in respect of the matter. 14 Despite having repeatedly challenged both parties to explain why it is necessary to make a finding that the Direction is invalid in whole or in part in these proceedings, no tenable explanation has been forthcoming. 15 Pursuant to s 39(5) of the Court Act the decision of the Court shall, for the purposes of the NVC Act, be deemed to be the final decision of the Director-General and shall be given effect to accordingly. Notwithstanding the absence of any specific provision in Pt 6 of the NVC Act mandating the express powers of the Court where s 48 appears, it is clear that the Court now stands in the shoes of the Director-General for the purpose of making the decision to make the Direction. Although not stated expressly, the power conferred by s 39(2) of the Court Act includes the function of formulating a notice in accordance with the determination of the Court. If I have understood the arguments correctly, neither party appears to suggest that the Court is merely faced with the option of either upholding the decision of the Director-General or disallowing it. The applicants' arguments 16 The applicants firstly submit that the clearing of native vegetation under the NVC Act only applies to living native vegetation and does not apply to dead native vegetation. To that extent, therefore, any direction given under s 47 of the NVC Act, relating to the clearing of dead native vegetation is null and void. The definition of "clearing" in s 5(1) and s 5(2) of the NVC Act, taken together with the definition of "native vegetation" in s 6, invites a conclusion that the purpose of the NVC Act is to prevent the clearing of vegetation that is comprised of plants or trees, the life of which will be seriously jeopardised by clearing as defined. The words in brackets contained in s 5(3)(b) of the NVC Act imply that it is only on protected land that a tree is to be preserved "regardless of whether it is dead or alive, standing or fallen…". There is no evidence or even a suggestion that the land in this case is protected land. The Court is therefore driven to the conclusion that the reference to native vegetation in s 47(1) is concerned only with living vegetation. This construction is further justified by the legislature's decision to make a clear distinction between a notice in writing by the Director-General that can be made in respect of "native vegetation" or "any protected land" in the terms of s 47(1)(a) itself. 17 Secondly, the applicants submit that the expressed objectives 2.0(b) and 2.0(c) of the Direction, namely to facilitate the restoration of the habitat and connectivity values removed as a result of the clearing and to facilitate the restoration of floristic and structural diversity of vegetation communities cannot be relevant to the issue of a notice pursuant to s 47(1)(a) of the NVC Act. Accordingly, as the Direction relates more particularly to the issue raised by s 47(1)(b) the applicants have been misled as to the reasons for the exercise of the power thereby creating uncertainty in the minds of the applicants. Mr Thompson, who appears for the applicants, relies upon the observations made by Dixon J in King Gee Clothing Company Proprietary Limited v The Commonwealth and Another (1945) 71 CLR 184 at 194. The Court is not persuaded that the uncertainty of the kind addressed in King Gee arises as a consequence of a misstatement of objectives, indeed, if that has happened. The uncertainty raised in cases such as King Gee, Cann's Proprietary Limited v The Commonwealth and Another (1946) 71 CLR 210 and The Council of the Upper Hunter County District v Australian Chilling and Freezing Co Limited (1967-1968) 118 CLR 429 relates to the substantive provisions of the notice or direction in the sense of the effect being unambiguous and certain. The Court is not persuaded that the statement of the objectives would have the effect of leaving the Direction incapable of performance. 18 Thirdly, the applicants raise a complaint that objective 2.0(a) to revegetate the "Remediation Area" by natural process admits of no type of work envisaged by s 47(2) of the NVC Act. Although recognising that the process of re-vegetation may nevertheless fit a description of "work to rehabilitate" the land Mr Thompson submits that in some circumstances allowing the land to be re-vegetated by natural process does not involve work "in its ordinary sense". 19 The Court finds this submission difficult to comprehend. It is inherent in allowing the area to be re-vegetated by natural process that some work needs to be done, albeit only fencing, to facilitate the quarantining of the area to allow the natural process of re-vegetation to take place. Once again, the Court does not find the objective to be misleading to any extent, let alone to the extent submitted by Mr Thompson that it "impeaches upon the exercise of power by the Regional Director". 20 The applicants also rely on the stated objectives 2.0(b) and 2.0(c) to show that the Regional Director took into account irrelevant matters that were not supported by the evidence submitted to her at the time of the decision to issue the Direction. It must be noted, however, that the respondent does not oppose deletion of the objectives from the Direction. Nevertheless, Mr Hadley contends that the inclusion of the objectives does not render the notice invalid. Although a notice can be issued whenever native vegetation is found to have been cleared in contravention of Pt 2 of the NVC Act, nonetheless it is not entirely inconsistent with the purpose of the legislation, which undeniably must be principally to provide for the conservation and management of native vegetation on a regional basis, that regard should be had to the purpose of maintaining the native vegetation the subject of the Direction. In this case, it is the Court's view that the restoration of habitat and connectivity values, together with the restoration of floristic and structural diversity of vegetation communities is consistent with maintaining native vegetation to serve those purposes or, at least, contribute to those objectives. 21 The next issue raised by the applicants relates to the clear words of s 47(1), which they say are quite specific and empower the Regional Director to "…direct the landholder, or the person having control or management of the clearing, to carry out specified work in the specified manner and within a specified time". It is submitted that in giving the Direction pursuant to s 47 the Director-General failed to state with certainty and clarity the land to which the notice relates. Mr Thompson reiterates that the persons to whom the Direction is given must be under no misapprehension as to where the work is to be carried out. He again refers to King Gee in support of this submission. 22 Condition 4 of the Direction directs that a site meeting will occur between department officers and the landholder to accurately define the boundary of the remediation area within one week of the service of the notice. It goes on to state that the remediation area is as shown in Attachment A1, and as defined at the site meeting. Attachment 1, which is a plan ("the plan"), identifies the lot and deposited plan number in the Parish of Lansdowne and County Macquarie and delineates the remediation area by distinctive colouring. Two sides of the remediation area are identified as part of the boundary of the existing lot. The other two sides are capable of being determined by reference to the scale provided on the plan. It is appropriate and reasonable to read condition 4 and understand it in the context of an on the ground confirmation of the physical features of the site to be set aside as the remediation area. The metes and bounds can be determined sufficiently accurately by reference to the plan. Rather than leading to uncertainty and ambiguity, as Mr Thompson submits, the provision of the plan concisely identifies the area which is the subject of the notice. Reference to the memorandum provided by the investigating officer to the Resource Compliance Manager on 6 June 2002, which is in evidence, states as follows:- The remediation area proposed only contains vegetation considered to have been cleared in contravention of Part 2 of the NVC Act, it does not include any part of the vegetation burnt by fire or cleared to prevent fire from spreading. It adjoins remaining uncleared vegetation and requires fencing construction along only one boundary (owing to the existing fencing on all other boundaries). 23 Not only, therefore, can the land be identified by reference to the plan but also, presumably, the boundaries shown on the plan coincide with existing fencing on three sides. 24 The applicants are correct when they observe that the Schedule of Work incorrectly defines the landholders as including persons not contemplated as landholders in s 4 of the NVC Act. This much is conceded by the respondent. Nevertheless each of the three persons to whom the Direction is specifically addressed are correctly categorised as landholders within the definition as each one of them is the owner of the land. Although the Direction has not been served on any other person, it nevertheless is not unreasonable for the Director-General to have widened the ambit of the notice to cover the prospect that there may have been other persons to whom the Director-General was entitled to issue a notice pursuant to s 47(1) and covered by the description of "the person having control or management of the clearing". Even the reference to the landholder's successors in title is not necessarily inconsistent with the purpose of a notice issued pursuant to s 47 of the NVC Act. Without a direction to the current owner of the land for the time being there would be no practical means of facilitating the work specified pursuant to s 47(2). A successor in title is adequately covered by the definition of "landholder" in s 4 as being an owner. In any event, the respondent no longer seeks to impose an obligation on any person apart from the present applicants. They are the only persons before the Court. Whether or not any alternative notice issued as a consequence of the Court's determination is to be directed to any persons other than the applicants remains to be dealt with at any hearing on the merits provided, of course, that any such third persons are first given an opportunity to be heard. There is no prospect that the notice issued on 23 July 2002 can be enforced against any person who has not been served. Mr Thompson's complaint that the notice could "raise a significant blot on the title" is not a matter which would persuade the Court that the notice should be declared invalid on that account. Rather, to the contrary, the Court would expect that the purpose of a notice would be to ensure that the outstanding obligations to comply with the Direction are raised at any point of sale. 25 The applicants further complain that the Direction does not exercise the power to require certain work to be carried out pursuant to s 47 and, accordingly fails as it requires nothing to be done that falls within the ambit of s 47 and, in particular, s 47(2) of the NVC Act. I have already referred to the requirement to fence at least one boundary of the remediation area. It is difficult to understand how the erection of a fence is not work regardless of what definition of that term is adopted. Although the concept of work is a little more nebulous in terms of a requirement to exclude domestic stock from the remediation area for the duration of the notice, that proscription entails surveillance and inspection from time to time as well as physical maintenance of the fence on all sides of the remediation area. It may require the driving of stock out of the remediation area in the event that they accidentally or inadvertently gain access to the area during the term of the notice. 26 Requirements to comply with statutory provisions outside the ambit of the NVC Act are recognised by the Director-General as being beyond power and are not pressed. 27 Despite the deletion of significant parts of the Direction and the Schedule of Work thereto as a consequence of concessions made by the respondent, it will nevertheless impose requirements couched in reasonably clear terms, namely that the remediation area must be fenced off and isolated for a period of five years. That is the main spring or thrust of the notice. The Court is satisfied that it is within the power of the Director-General pursuant to s 47 to impose such a requirement. 28 Any ambiguities or uncertainties within the notice can be resolved by construction and interpretation. When viewed objectively the intention of the notice is clear, that is, there is a requirement to fence off the area identified in the plan and leave it undisturbed for the nominated period. The words the Director-General concedes can be deleted may be treated merely as surplusage as they are superfluous to the achievement of the principled objective. Validity of the notice is only displaced where the residue which remains after the superfluous material or invalid provisions are removed operates in a manner different to which the whole would have operated (Sloane and Another v McDonald Industries (Sales) Pty Limited (1989) 17 NSWLR 86 and Coleman and Another v Gray (1994) 55 FCR 412). If the Director-General merely lacks the power to impose the surplus or invalid provisions then the balance of the direction will remain valid. There are insufficient grounds to regard the subject Direction and notice as invalid for the reasons propounded by the applicants. 29 Notwithstanding the allegations of invalidity made by the applicants, the notice needs to survive only to the extent necessary to support an appeal to this Court. Until such time as a competent court has declared the notice or direction void it still exists in law and is nevertheless susceptible to an appeal (Calvin v Carr and Others [1979] 1 NSWLR 1). It follows, therefore, that this Court has jurisdiction to hear the appeal irrespective of whether it is now of the opinion that the notice is void. Any injustice, ambiguity or uncertainty can be cured by the Court exercising the power of the Director-General to make a decision pursuant to s 47 and to cause a further notice to be issued in accordance with that decision. 30 Notwithstanding the Court's conclusion that the appeal can proceed irrespective of whether the original notice was valid, it has presumably been of assistance to the parties to resolve the issues raised by the applicants under the guise of being questions of law with the prospect that hereafter the parties may be able to resolve any outstanding dispute between themselves by having regard to the merits of the matter. 31 However, there is one further technical issue raised by the applicants that needs to be resolved. By admission, the total area cleared is 7.3 hectares, 2.2 hectares of which was either killed by a fire or was dying of a result of the fire or alternatively needed to be cleared to put out the fire. Of the residue, namely 5.1 hectares the applicants contend that they were entitled to clear 2 hectares pursuant to the exemption in Sch 3 to SEPP 46, thereby reducing the area cleared contrary to the provisions of the NVC Act to 3.1 hectares. Then, by taking into account a further allowance for 2 hectares accrued credit from the previous year, the area can be further reduced to 1.1 hectares. On that basis it is contended that the remaining area is not sufficient to offend Pt 2 of the NVC Act. Even if those calculations are correct and the facts are fully found to support the applicants' submission, the Court is not satisfied that the exemption in cl(a) Minimal Clearing in Sch 3 to SEPP 46 can be accumulated from year to year. The clause in the schedule, in my view, should be interpreted only to substantiate an exemption for the clearing of up to 2 hectares in any one period of 12 months during which the clearing occurs. Although it is perceivable that "per annum" should be taken to mean "yearly" rather than in the particular year in the sense of an accumulative rate, it is my opinion that the storing up of credits for each year when no clearing takes place would be contrary to the purpose of the NVC Act to limit harm to the environment by proscribing the clearing of native vegetation, except in the case of well defined and identified exceptions. The Court is not prepared to adopt the reasoning propounded on behalf of the applicants that would lead to a conclusion that the amount of clearing not otherwise authorised by the NVC Act was less than 2 hectares. 32 This matter will be listed for further callover before the Registrar at a convenient date to allow an appropriate time for the parties to consider these reasons and findings. The matter can then be listed on that date for a hearing on the merits. 33 The exhibits may be returned. 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