Land and Environment Court of New South Wales CITATION : Buildev Boundary Road Medowie Pty Ltd v Director-General of Department of Environment and Climate Change NSW [2008] NSWLEC 197 APPLICANT PARTIES : Buildev Boundary Road Medowie Pty Ltd RESPONDENT Director-General of Department of Environment and Climate Change NSW FILE NUMBER(S) : 10387 of 2008 CORAM: Pain J KEY ISSUES: Question of Law :- whether Court has jurisdiction to hear Class 1 appeal in relation to notice to produce information and/or documents under Native Vegetation Act 2003 Interpretation Act 1987 s33 LEGISLATION CITED: Land and Environment Court Act 1979 s17(g) Native Vegetation Act 2003 s3, s36, s37, s38, s39 CASES CITED: Hardie Holdings Pty Ltd v Director-General of Department of Natural Resources (2007) 151 LGERA 373 DATES OF HEARING: 20 June 2008 EX TEMPORE JUDGMENT DATE : 20 June 2008 APPLICANT Mr M Neil QC with Mr T Howard SOLICITORS LEGAL REPRESENTATIVES: Mallik Rees Lawyers RESPONDENT Mr P Hastings QC SOLICITOR Department of Environment and Climate Change JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 20 June 2008 10387 of 2008 Buildev Boundary Road Medowie Pty Ltd v Director-General of the Department of Environment and Climate Change NSW EX TEMPORE JUDGMENT 1 Her Honour: The Applicant has filed a Class 1 application appealing a notice to produce information and/or documents issued by a delegate of the Respondent on 20 March 2008 pursuant to s 36 of the Native Vegetation Act 2003 (the NV Act). The Class 1 appeal is argued to be under s 39 of the NV Act which is referred to in s 17(g) of the Land and Environment Court Act 1979 (the Court Act). Section 17(g) specifies those matters in relation to which the Court has jurisdiction in Class 1 proceedings. The Respondent has filed a Notice of Motion seeking to strike out the Class 1 application on the basis that there is no right of appeal under s 39 of the NV Act in relation to requirements to produce notices under s 36. Sections 36 and 39 are in Div 3 Pt 5 of the NV Act. That Part is headed "Enforcement". Division 3 is headed "Director-General's powers". Under Div 2 headed "Investigation" s 35 refers to powers of entry and inspection. 2 Section 36 provides: 36 Power to obtain information (1) In this section: "relevant information" means information about a possible contravention of this Act. (2) The Director-General may, by notice in writing served on a person, require the person: (a) to give to an authorised officer, orally or in writing signed by the person (or, if the person is a corporation, by a competent officer) and within the time and in the manner specified in the notice, any relevant information of which the person has knowledge, or (b) to produce to an authorised officer, in accordance with the notice, any document containing relevant information. (3) An authorised officer may inspect a document produced in response to such a notice and may make copies of, or take extracts or notes from, the document. (4) A person must not, without reasonable excuse: (a) fail to comply with such a notice to the extent that the person is capable of complying with it, or (b) in purported compliance with such a notice, give information or an answer to a question, or produce a document, knowing that it is false or misleading in a material particular. Maximum penalty: 100 penalty units. (5) A person is not excused from giving information, answering questions or producing documents under this section on the ground that the information, answers or documents may tend to incriminate the person. (6) Any information or document obtained from a natural person under this section is not admissible against the person in criminal proceedings other than proceedings for an offence under this section. 3 Section 37 provides: 37 Director-General may make "stop work" order (1) If the Director-General is of the opinion that a person is contravening, or is about to contravene, this Act, the Director-General may, by notice in writing given to the person, order the person not to carry out the activity concerned. … 4 Section 38 provides: 38 Directions for remedial work (1) If the Director-General is satisfied: (a) that any native vegetation has been cleared in contravention of this Act, or (b) that the clearing of native vegetation on any land has caused, or is likely to cause, on or in the vicinity of the land, any soil erosion, land degradation or siltation of any river or lake, or any adverse effect on the environment, the Director-General may, by notice in writing, direct the landholder, or the person having the control or management of the clearing, to carry out specified work in a specified manner and within a specified time. … 5 Section 39 states: 39 Appeals under this Division (1) A person aggrieved by a decision of the Director-General to make an order, or to give a direction, under this Division may appeal against the decision to the Land and Environment Court within 30 days of the service of the notice of the order or direction. … Respondent's submissions 6 The Respondent argued that the right of appeal provided by s 39 is limited to orders under s 37 and directions under s 38. The requirement under s 36 is not an order or direction to which s 39 refers. The different terminology in s 39 refers to orders and directions rather than requirement. That this is a relevant distinction is confirmed by the fact that the same terms are used in s 40, inter alia, in relation to absolving the Director-General from notifying any person who may be affected by "an order" or "direction" beforehand. Applicant's submissions 7 The grammatical or ordinary sense of the words in a statute should be adhered to. The words "require" "order" and "direct" are similar in meaning and the word "require" in s 36 could be read just as easily to include an order or direction to provide information, that is, the words used in s 36, s 37 and s 38 are interchangeable. Section 39 refers to orders and directions in Div 3 and that should also include the requirement to provide information under s 36. It is telling that s 39 refers to orders and directions made under Div 3 rather than orders and directions made under s 37 or s 38. The structure of the divisions in Pt 5 is significant as s 36 and s 39 are within Div 3, which refers to the Director-General's powers, while Div 2 is headed "Investigation". Section 36 could easily have been included in Div 2 "Investigation" and therefore falls outside Div 3. Finding 8 The short answer to this motion is to consider the words of the statute as written. Section 36 does not include the words "order" or "direct", in contrast with s 37 which refers to the Director-General issuing a stop work order or s 38 which refers to the Director-General directing a landholder to do remedial work. It is not a principle of statutory construction that because words have similar meanings and can be used interchangeably by giving the words their ordinary meaning that this should be done. Rather the choice of words in statutes should be applied on the basis that these have been selected deliberately in the absence of any evidence suggesting otherwise. The Respondent's arguments on the interpretation of s 39 are correct. The use of the words "order" and "direction" in other provisions in Pt 5, see s 33(1)(d), s 35(2) and s 40, confirms the Respondent's arguments not the Applicant's. No particular finding arises from s 36 not being included in Div 2 headed "Investigation". 9 Section 33 of the Interpretation Act 1987 (and many cases) refers to the need when interpreting a provision of an Act to prefer a construction that would promote the purpose or object underlying the Act rather than one that would not. The objects of the NV Act as set out in s 3 are: (a) to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and (b) to prevent broadscale clearing unless it improves or maintains environmental outcomes, and (c) to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and (d) to improve the condition of existing native vegetation, particularly where it has high conservation value, and (e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation, in accordance with the principles of ecologically sustainable development. 10 Both parties' arguments referred to the legislative policy in making the NV Act as supportive of their case. The Respondent submitted that if the Court were to have merits review jurisdiction for a s 36 notice this would lead the Court to effectively stepping into the shoes of an investigator in order to determine the appropriate use of available investigative powers including the determination of what matters should be included in a s 36 notice. This would be a means of inappropriate access to material about the progress of an investigation. It would also potentially frustrate the enforcement process under Pt 5 of the Act which is clearly necessary to achieve the conservation objectives of the NV Act. It is unlikely that the legislature intended that investigations into possible contraventions could be fragmented by lodging a Class 1 appeal. 11 The Applicant argued that because there are coercive powers in s 36 as well as s 37 and s 38, that suggests there should be an appeal under s 39 and this was sound in principle and was also practicable. The conferral of such a right was said not to be prejudicial to the capacity of the Department of Environment and Climate Change to properly investigate potential breaches of the NV Act because there were generous time limits for the commencement of proceedings of two years under s 42(3) and (4). 12 The submission that a Class 1 appeal in relation to a requirement to provide information under s 36 is sound in principle and practicable is not self evidently correct. I note that investigations under Pt 5 of the NV Act lead potentially to criminal prosecution. No case where the Court has reviewed on a merit basis a notice to produce information in Class 1 proceedings under the NV Act or any other Act which provides similar powers to a prosecuting agency, has been provided to the Court by the Applicant. That the Court should have such merit review powers in the context of investigative proceedings which may give rise to criminal proceedings is novel. It is not immediately apparent how such a merit review could be conducted. It would presumably require the Court to consider for itself what sort of information should be requested under s 36 in relation to a possible contravention of the NV Act (s 36(1)). Stated in these terms, the Court's role in a merit review for a matter of this nature whereby the Court essentially stands in a prosecuting agency's investigative "shoes" is not sound in principle. 13 In relation to the giving effect to the legislative objectives of the NV Act, the submissions of the Respondent about the operation of the enforcement provisions in the context of the objects of the NV Act are to be preferred. The Applicant's approach, if granted, would lead to frustration of those objects in that enforcement efforts under the NV Act could be unnecessarily hampered. That suggests such an approach is also not practicable. 14 It is not disputed by the Respondent that the Applicant has available to it proceedings in Class 4 (judicial review) proceedings if it considers the notice under s 36 is harsh or oppressive or considers it is invalid on the basis of another reviewable ground. Such an action is available under s 20(3)(a) of the Court Act. Hardie Holdings Pty Ltd v Director-General of Department of Natural Resources (2007) 151 LGERA 373 is an example of such an action. 15 The Respondent's Notice of Motion should be upheld and the order made that these Class 1 proceedings be struck out. 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.