Timbs v Department of Environment Climate Change and Water [2011] NSWLEC 1152

Land and Environment Court New South Wales

Medium Neutral Citation: Timbs v Department of Environment Climate Change and Water [2011] NSWLEC 1152 Hearing dates: 1 April 2011 Decision date: 01 April 2011 Jurisdiction: Class 1 Before: Pearson C Decision: Remedial direction varied Catchwords: CONSENT ORDERS - native vegetation - remedial direction - variation Legislation Cited: Native Vegetation Act 2003 Land and Environment Court Act 1979 Interpretation Act 1987 Category: Principal judgment Parties: Damien Christopher Timbs Simone Rachel Timbs (Applicants)

Department of Environment Climate Change and Water (Respondent) Representation: Solicitors P Colaguiri (Applicants) E Bateman (Respondent) File Number(s): 10059 of 2011

Judgment This determination was given extemporaneously and has been edited prior to publication . 1COMMISSIONER: This is an appeal under s 39 of the Native Vegetation Act 2003 (the Act) against a Direction (No 1119626) issued by the delegate of the Director General of the Department of Environment Climate Change and Water under s 38(1) of the Act on 23 December 2010 directing the applicants to carry out specified remedial works. 2The applicants are the owners of Lots 8, 16, 17, 23, 27, 28, 29 and 37, DP 751476, at Yooroonah, Waterfall Way, Wollomombi (the property). The Direction recorded that the delegate was satisfied that native vegetation had been cleared on the property in contravention of the Act, and that the clearing of native vegetation on the property was likely to cause an adverse effect on the environment. 3The Direction required the applicants to carry out remedial works on the Remediation Area identified in Attachment 1 to the Direction, including fencing, exclusion of stock, and management of weeds and exotic species; to keep specified records; and to report to the Department at specified intervals. The term of the Direction was specified to be for a period of fifteen years. The Remediation Area was contained within Lots 27 and 28, DP 751476, and is identified in the map in Attachment 1 to the Direction as a series of unconnected patches of land within otherwise vegetated land on those two lots. 4The applicants lodged the appeal on 20 January 2011, seeking an order that the Direction be revoked. The parties have reached agreement on the terms of a varied Direction, and are seeking consent orders from the Court. 5The Remediation Area to which the varied Direction is proposed to apply is the whole of lot 28 DP 751476. The varied Direction maintains the requirements for fencing, exclusion of stock, management of weeds and exotic species, recordkeeping and reporting. 6There are a number of substantive changes made to the Direction. Clause 1.1 requires the landholder to plant trees and perform associated works in part of the Remediation Area identified as an Additional Required Planting Area (the planting area). Clauses 1.2 to 1.5 provide details of the planting and inspections required. Clause 2.1 requires the landholder to fence the boundary of the Remediation Area, and to separate the planting area from the remainder of the Remediation Area, for the purposes of excluding stock. The provisions in cl 3 relating to stock management include provisions permitting the introduction into the Remediation Area of a specified number of cattle during "strategic grazing events". The reporting requirements include a requirement to provide a planting report. The term of the varied Direction is specified to be fifteen years, however the parties agree that it may be appropriate to revoke the Direction earlier if the remedial and planting works are successful. 7In support of the application for consent orders, the respondent's representative outlined the background to the issuing of the original Direction. The departmental examination based on aerial photographs and satellite images from the years before and since the applicants acquired the property, late in 2006, provided a conservative estimate that some 59ha of vegetation had been cleared. The Remediation Area in the Direction the subject of this appeal was approximately 46-48ha. The respondent acknowledges that the identification of the Remediation Area in terms of a series of patches within otherwise vegetated land would create practical difficulties in compliance with the fencing requirement. The respondent's ecologist has been involved in a formulation of the planting requirements now in the varied Direction and in the formulation of the strategic grazing provisions, on the basis that some limited grazing can work to promote growth of the revegetated area. The respondent accepts that if the remediation is successful, it may be appropriate to permit additional access for strategic grazing. 8The applicants' representative submitted that the applicants accepted that there had been clearing of native vegetation, and that while they did not accept that it had been in contravention of the Act, they accepted that the clearing was likely to cause an adverse effect on the environment. The areas now identified as the Remediation Area and the planting area are already fenced, and the stock have been removed from the Remediation Area. The planting area is contiguous with the vegetated area to the south and southeast of Lot 28 DP751476. 9In considering whether it is both lawful and appropriate to make the orders sought, I note that there was no dispute that the clearing of native vegetation has occurred, and that there is agreement based on advice from the respondent's experts as to the scope and nature of the remedial work required. I am satisfied that the work specified in the proposed varied Direction is within the scope of the types of works that may be directed to be carried out under s 38(2) of the Act, namely that it includes work including planting, fencing, and restricting stock access, to repair any damage caused by the clearing, and to rehabilitate the land affected by the clearing. 10I am satisfied that the variation of the identification of the Remediation Area to be fenced, and from which stock are to be excluded, is both more practical in terms of implementation, and provides for planting in an area that is contiguous with already vegetated land. In those circumstances, I agree with the parties that the variation of the Direction to achieve that is appropriate. 11The parties are in agreement that if the remedial work, including the planting, achieves the outcomes envisaged, it may be appropriate to revoke the Direction before the end of the fifteen year period, specified in its terms. Pursuant to s 39(5) of the Land and Environment Court Act 1979 , the making of orders in this appeal is deemed to be the decision of the Director General. Section 38(3) of the Native Vegetation Act provides that a direction can be varied or revoked by further notice, and s 48(1) of the Interpretation Act would enable this power to be exercised from time to time as occasion requires. While I am comfortably satisfied that the Director General would have the power to revoke the remediation direction at some point in the future, before it would otherwise expire at the end of fifteen years, I agree to the party's request to confirm their agreement that an earlier revocation may well be appropriate. 12The Court orders, by consent: (1)The Court makes orders varying the direction to carry out remedial work Notice No. 1119626 dated 23 December 2010 in accordance with the remedial Direction annexed hereto. (2)The respondent's Director General or delegate may, where the respondent deems that the remedial direction is no longer necessary, revoke the remedial Direction in accordance with s 38(3) of the Native Vegetation Act 2003 at any time before fifteen years from the date of these orders. Linda Pearson Commissioner of the Court 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: 14 June 2011