Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Turnbull v Chief Executive of the Office of Environment and Heritage [2017] NSWCA 161 Hearing dates: 26 May 2017 Decision date: 04 July 2017 Before: Basten JA at [1]; Meagher JA at [2]; Sackville AJA at [3] Decision: 1. Appeal dismissed. 2. Appellant to pay the respondent's costs of the appeal. Catchwords: ENVIRONMENT AND PLANNING – clearing of native vegetation in contravention of s 12 of the Native Vegetation Act 2003 (NSW) – contravention admitted but not extent of clearing – whether "groundcover" had been cleared – whether clearing must be on each and every part of the land – whether remedial orders appropriate Legislation Cited: Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979 (NSW), s 124 Evidence Act 1995 (NSW), s 78 Native Vegetation Act 2003 (NSW), ss 3, 4(1), 6, 7, 8, 12, 20, 38, 39, 41, 44, Pt 4 Protection of the Environment Operations Act 1997 (NSW), s 91 Native Vegetation Regulation 2005 (NSW), reg 42 Native Vegetation Regulation 2013 (NSW), reg 62 Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Chief Executive of the Office of Environment and Heritage v Turnbull (No 4) [2016] NSWLEC 66 Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278 Terranora Group Management Pty Ltd v Director-General, Office of Environment and Heritage [2013] NSWLEC 198; 200 LGERA 1 Turnbull v Director-General, Office of Environment and Heritage (No 2) [2014] NSWLEC 112 Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84; 212 LGERA 163 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Category: Principal judgment Parties: Grant Wesley Turnbull (Appellant) Chief Executive Officer of the Office of Environment and Heritage (Respondent) Representation: Counsel: Mr T Alexis SC / Ms H Irish (Appellant) Mr T Howard SC / Mr DK Jordan (Respondent) Solicitors: Cole & Butler (Appellant) Legal Services Division, Office of Environment and Heritage (Respondent) File Number(s): 2016/198500 Decision under appeal Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 4 Citation: [2016] NSWLEC 66 Date of Decision: 03 June 2016 Before: Craig J File Number(s): 2016/165155 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: I agree that the appeal should be dismissed with costs, for the reasons given by Sackville AJA. 2. MEAGHER JA: I agree with Sackville AJA. 3. SACKVILLE AJA: This is an appeal from a decision of the Land and Environment Court (L & E Court) (Craig J) in its Class 4 jurisdiction. [1] The respondent brought the proceedings, claiming that between 5 January 2013 and 31 July 2014 the appellant cleared native vegetation on a property known as "Colorado" in contravention of s 12(1) of the Native Vegetation Act 2003 (NSW) (NV Act). Colorado is located at Croppa Creek, near Moree and has a total area of 1,533 hectares. 4. The relief sought by the respondent in the L & E Court included orders pursuant to s 41(5) of the NV Act restraining the appellant from clearing native vegetation from Colorado in contravention of the NV Act and requiring the appellant to remedy the unlawful clearing of native vegetation. 5. The respondent's case in the L & E Court was that the appellant had cleared native vegetation on sections of Colorado. Those sections were designated as B1, B2, C1, C2, C3, C4, C5 and C6 on an aerial plan annexed to the summons filed by the respondent and had a total area of 508 hectares. [2] I refer to this as the Cleared Area, without implying thereby that all clearing carried out by the appellant was of native vegetation in contravention of the NV Act. 6. An aerial plan showing the sections is reproduced below: 1. The appellant admitted on the pleadings that he had cleared 29.4 hectares of native vegetation on Colorado in contravention of the NV Act. By that admission he did not mean that he had cleared a discrete area totalling 29.4 hectares. The cleared area was calculated by Dr Jenkins, a "GIS and Remote Sensing Specialist", using what the primary Judge described as "a crown diameter measurement of trees or shrubs along imagery transects within each area". [3] In other words, the area of 29.4 hectares was calculated by reference to the crown cover of trees and shrubs that had been removed from the Cleared Area. Those trees and shrubs had been scattered over all sections of the Cleared Area, in varying densities. 2. The appellant's principal contention in the L & E Court was that he had cleared only a small proportion of the Cleared Area and that the terms of the remedial order should reflect the limited extent of his contravention of the NV Act. The remedial order he proposed (designated as "Scenario 1") assumed that native vegetation had been cleared from a total of only 29.4 hectares. The major factual dispute in the L & E Court was the extent to which the appellant had cleared native vegetation. One aspect of this dispute was whether the respondent had proved that the appellant had cleared "groundcover" as defined in the NV Act. 3. The primary Judge found that the appellant had cleared native vegetation, including groundcover, on the Cleared Area, in contravention of the NV Act. [4] There was a contest on the appeal as to whether his Honour intended to find that the appellant had cleared native vegetation from every part of the Cleared Area or whether his finding was only that the appellant had cleared native vegetation from substantial parts of the Cleared Area. In any event, his Honour clearly rejected the appellant's contention that the clearing of native vegetation was confined to a total of 29.4 hectares within the Cleared Area. 4. The primary Judge made orders pursuant to s 41(5) of the NV Act [5] : * restraining the appellant from clearing native vegetation on Colorado in contravention of the NV Act (Order 1); and * requiring the appellant to carry out remedial works on Colorado as set out in a document described as Annexure B to the order (Order 2). 1. In addition, the orders required the appellant to carry out works specified in a remedial direction that had been made in earlier proceedings in the L & E Court (Order 3). [6] Order 3 affected sections C3 and C4 of the Cleared Area. 2. Annexure B contains a detailed set of remedial works that the appellant must perform and specifies the time within which the works must be completed. Annexure B includes a plan which depicts the sections of Colorado on which the remedial works are to take place. [7] 3. In this appeal, the only challenge is to the order requiring the appellant to carry out remedial works. The notice of appeal contains five grounds and a multitude of sub-grounds. In essence, however, the appellant contends that the primary Judge's exercise of discretion in making remedial orders miscarried. 4. The appellant's written submissions contend that the primary Judge erred in: (i) finding that prior to the clearing which took place between January 2013 and 31 July 2014, the area cleared contained "groundcover" within the meaning of s 6(1)(c) of the NV Act (Grounds 1 and 3); (ii) finding that the majority of the cleared areas satisfied the description of "woodlands" (Ground 2); (iii) finding that the remediation work should be modelled on the remedial direction made by the L & E Court on 31 July 2014 (Ground 4); and (iv) failing to take into account the cost of complying with the remedial order (Ground 5). 1. The appellant's written submissions asserted that the primary Judge's reasons contain numerous errors in addition to those specifically addressed in the submissions. In the absence of argument directed to particular grounds of appeal, the point of this assertion is unclear. In any event, it is not necessary to deal with it. Legislation 1. The objects of the NV Act are stated in s 3: "(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." 1. Section 12 of the NV Act provides as follows: "12 Clearing requiring approval (1) Native vegetation must not be cleared except in accordance with: (a) a development consent granted in accordance with this Act, or (b) a property vegetation plan. (2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the [Environmental Planning and Assessment Act 1979 (NSW)] for a contravention of that Act. (3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4." 1. Sections 6, 7 and 8 of the NV Act define "native vegetation" and "clearing native vegetation": "6 Meaning of native vegetation (1) For the purposes of this Act, native vegetation means any of the following types of indigenous vegetation: (a) trees (including any sapling or shrub, or any scrub), (b) understorey plants, (c) groundcover (being any type of herbaceous vegetation), (d) plants occurring in a wetland. (2) Vegetation is indigenous if it is of a species of vegetation, or if it comprises species of vegetation, that existed in the State before European settlement. … 7 Meaning of clearing native vegetation For the purposes of this Act, clearing native vegetation means any one or more of the following: (a) cutting down, felling, thinning, logging or removing native vegetation, (b) killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation. 8 Meaning of broadscale clearing For the purposes of this Act, broadscale clearing of native vegetation means the clearing of any remnant native vegetation or protected regrowth." 1. The appellant relied on s 20 of the NV Act, which provides as follows: "20 Clearing of certain groundcover permitted The clearing of native vegetation that comprises only groundcover is permitted if: (a) the vegetation comprises less than 50% of indigenous species of vegetation, and (b) not less than 10% of the area is covered with vegetation (whether dead or alive), and (c) those percentages are calculated in accordance with the regulations." 1. The relevant regulation for the purposes of s 20 is reg 62 of the Native Vegetation Regulation 2013 (NSW) (NV Regulation). It provides as follows: [8] "62 Clearing of groundcover-calculations (1) The percentages referred to in section 20 of the Act are to be calculated in accordance with the following methodology: (a) the percentages are to be calculated by the landholder in a scientific and objective manner that is appropriate to the area proposed to be cleared and the species of vegetation that are present, (b) the calculation can only be made at the time of year when the proportion of the amount of indigenous vegetation in the area to the amount of non-indigenous vegetation in the area is likely to be at its maximum. (2) The landholder must retain for at least 5 years after the clearing of native vegetation that comprises only groundcover a record of the calculation carried out for the purposes of this clause, consisting of: (a) a map showing the area that was the subject of the calculation, and (b) a record of the season in which the calculation was made, and (c) a statement as to how the calculation was made, and (d) photographs that clearly show the type of groundcover in the mapped area, taken at the time the calculation was made." 1. Section 38(1) of the NV Act empowers the Director-General, [9] if satisfied that any native vegetation has been cleared in contravention of the Act, to direct the landholder to carry out specified work within a specified time. The work may include repairing any damage caused by the clearing and rehabilitation of land affected by the clearing (including the taking of steps to allow the land to regenerate) (s 38(2)). A failure to comply with a direction given under s 38 is an offence (s 38(4)). An aggrieved person can appeal to the L & E Court against a direction (s 39(1)). 2. Section 41 of the NV Act relevantly provides as follows: "41 Restraint of contraventions of this Act (1) In this section, contravention includes threatened or apprehended contravention. (2) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a contravention of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that contravention. … (5) If the Court is satisfied that a contravention has occurred, or that a contravention will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the contravention." 1. Section 44 is an evidentiary provision: "44 Evidentiary provision In any criminal or civil proceedings, the landholder of any land on which native vegetation is cleared is taken to have carried out the clearing unless it is established that: (a) the clearing was carried out by another person, and (b) the landholder did not cause or permit the other person to carry out the clearing. This section does not prevent proceedings being taken against the person who actually carried out the clearing." "Landholder" is defined to mean "a person who owns land or who … is in lawful occupation or possession, or has lawful management or control, of land" (s 4(1)). Background 1. The appellant has been the registered proprietor of Colorado since 31 January 2012. Colorado is situated within an area of the Moree Plains that is extensively used for grazing and cropping. Native vegetation within that area is of limited extent. 2. The appellant entered into the contract to purchase Colorado in September 2011. Before that time the property had been used for grazing purposes. Following exchange of contracts and prior to settlement the appellant, with the consent of the vendor, cleared approximately 421 hectares on Colorado. This area was subsequently ploughed, sprayed with herbicide and sown with wheat and barley. 3. The Office of Environment and Heritage subsequently learned of the clearing. On 16 April 2013, a delegate of the Director-General gave a direction pursuant to s 38 of the NV Act that the appellant undertake remedial work. The appellant appealed against the direction pursuant to s 39 of the NV Act. 4. In the meantime, in November 2012, the appellant applied to the Border Rivers-Gwydir Catchment Management Authority (Authority) for approval of a property vegetation plan under Part 4 of the NV Act. The areas that were the subject of the application comprised about 550 hectares and were additional to the areas cleared in 2011 and early 2012. In May 2013, the Authority advised the appellant that his application would not be approved. 5. On 30 November 2012, the appellant applied to the Commonwealth Department of the Environment pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), to carry out broadscale clearing on Colorado in order to convert areas used for grazing into cropping land. The areas to be cleared were the same as those nominated in the unsuccessful application to the Authority. 6. The application under the EPBC Act included the following description: "The proposed clearing areas are mostly open scrubland with low regrowth of desert lime (Citrus glauca) and scattered mature trees of various species. The ground layer within the retained Brigalow/Belah remnant areas is sparse due to a dense leaf litter layer and competition with the tree layer. The ground layer within the regrowth and woodland areas is chiefly comprised of native grasses and Chenopods. All areas examined had a healthy groundcover of native species or leaf litter." 1. On 25 June 2014, Preston CJ upheld the appeal against the direction to undertake remediation work and determined that different directions for rehabilitation should be made. [10] His Honour settled the directions on 31 July 2014 in Turnbull (No 2). The remedial directions applied to areas outside the area that had actually been cleared in contravention of the NV Act. These areas were offset areas, being: "areas where direct actions could be undertaken that would provide measurable conservation gain for the species, populations of species, and ecological communities of the native vegetation affected by the clearing in the cleared areas". [11] 1. In August 2014, the respondent's officers discovered clearing on Colorado that appeared to have been undertaken after 5 January 2013. The respondent commenced proceedings in the L & E Court and obtained interlocutory restraining orders on 19 and 25 September 2014. Primary Judgment 1. The primary Judge described the clearing that took place by reference to the aerial plan reproduced at [6] above. His Honour found that the areas marked B1 and B2 on the aerial plan were cleared between 5 January 2013 and 14 May 2014. [12] The areas marked C1 to C6 were cleared between 14 May 2014 and 31 July 2014. [13] Mr Alexis SC, who appeared with Ms Irish for the appellant, disputed whether these findings were precisely correct in relation to timing. Nothing, however, turns on this. 2. The primary Judge found that the sequence of clearing work generally involved: [14] "(i) the removal of smaller trees and all 'shrubs' (an apparent reference to understorey plants); (ii) ripping the groundcover, including raking and plowing by attachments to bulldozers; (iii) the removal of remaining large trees pushed over by a bulldozer and then moved into piles; and (iv) application of a 'knockdown' herbicide in order to rid the ground surface of all remaining vegetation." 1. By reason of admissions in the appellant's defence, together with the evidence as to the clearing activities, the primary Judge found that the appellant contravened s 12(1) of the NV Act. [15] It followed that s 41(5) of the NV Act was engaged and remedial orders could be made. [16] 2. The primary Judge then considered the evidence relating to the extent of the appellant's contravention. His Honour noted that there was no issue that groundcover existed within the areas cleared and that the groundcover was predominantly native. [17] The issue was the extent to which groundcover was present prior to the clearing of the relevant areas. In this connection his Honour pointed out that the methodology used by Dr Jenkins took no account of groundcover on the Cleared Area outside the dripline of the trees and shrubs Dr Jenkins had identified. [18] 3. The primary Judge recorded the appellant's submission that in order to establish that vegetation had been cleared in contravention of the NV Act, it was necessary to show that the vegetation was living prior to the clearing. His Honour found that the extent and abundance of groundcover varied depending on the season. Fluctuations occurred because of the seedbank or other reproductive mechanisms for groundcover species within the soil profile. [19] A "flush of groundcover" would occur following rain, but its density might diminish after prolonged dry periods. This demonstrated that a viable reproductive organism remained in the soil. While the organism may have been dormant, it was not dead. [20] 4. The primary Judge found that there was little doubt on the expert evidence that the majority of areas cleared constituted "woodlands". [21] His Honour was also satisfied that prior to the clearing taking place, the areas cleared contained "groundcover" within the meaning of s 6 of the NV Act. [22] He did not accept the appellant's submission that: "the fluctuating abundance of native groundcover is a basis upon which some areas need to be excluded because from time to time there were bare patches between the herbaceous vegetation observed to be present as groundcover". 1. His Honour was satisfied that the unlawful clearing had carried significant environmental harm and that remediation was required. [23] 2. The primary Judge observed that the discretion conferred by s 41(5) of the NV Act had to be exercised having regard to the objects stated in the legislation and to the provisions relating to the preservation and conservation of native vegetation. [24] In his Honour's view, the appellant's breach was "neither technical nor accidental". Moreover, the breach had significant consequences: [25] "with the result that orders should be made, not only to reflect the fact that a breach of the law has occurred but that 'private advantage' is not won 'by a particular individual which others cannot enjoy'". (Citation omitted.) 1. The primary Judge declined to make a declaration, as sought by the respondent, that the appellant had contravened the NV Act. While the contravention had been established, it was sufficient that the Primary Judgment identified the breach. This served to announce to the community that the appellant had acted unlawfully. [26] However, his Honour considered that a restraining order was appropriate because of the risk that the appellant would not adhere to the terms of the NV Act in conducting his farming activities on Colorado. [27] 2. The primary Judge noted that both parties accepted that a remedial order should be made but differed as to its terms. [28] The appellant had advanced two alternative proposals. "Scenario 1" was predicated on the assumption that only 29.4 hectares of native vegetation had been cleared. However, the appellant's argument that the clearing was limited to 29.4 hectares had been rejected since his Honour had found that: [29] "the whole of the area cleared was native vegetation, including the areas C3 and C4 located within the saddlebag area". It was therefore "Scenario 2" that had to be considered. 1. The respondent had submitted that it would be a "reasonable and proportionate way of remedying the contravention" if the orders applied to a section of the area cleared in the north-western section of Colorado. As the respondent had pointed out, this section comprised less than "50 per cent of the area cleared, inclusive of areas C3 and C4". [30] 2. His Honour accepted that an order under s 41(5) of the NV Act had to be a "reasonable and proportionate response" to the unlawful clearing found to have occurred. [31] A comparison between the appellant's Scenario 2 and the respondent's proposal revealed only two material differences. One related to the criterion for monitoring and direct planting. On this issue the respondent's draft accorded precisely with the direction given by the L & E Court in Turnbull (No 2). [32] The second difference related to the thinning of vegetation in the rehabilitation areas. [33] 3. The primary Judge favoured the respondent's proposal: [34] "The total area involved does not differ greatly between the [respondent's] proposal and [the appellant's] Scenario 2 but the configuration and comparability of requirements that pertain to the areas required to be rehabilitated in accordance with the direction given in Turnbull No 2 are factors that bear significantly upon my decision." 1. The primary Judge rejected the appellant's submission that the remediation order would inflict undue economic hardship on him and threaten the viability of his farming activities. In his Honour's view, the remediation orders were not very different from those proposed by the appellant himself (assuming the primary Judge's findings as to the extent of clearance). Yet the appellant had not provided evidence as to the cost of his proposal. [35] Reasoning Principles 1. The appellant did not submit that the primary Judge misstated the principles governing the exercise of the power conferred by s 41(5) of the NV Act. Both parties accepted, as his Honour held, that the general principles applicable to the exercise of the discretionary power conferred by s 41(5) of the NV Act are those stated by Kirby P in Warringah Shire Council v Sedevcic (Warringah SC v Sedevcic). [36] While that case involved an application for injunctive relief under s 124 of the Environmental Planning and Assessment Act 1979 (NSW), s 124 is in very similar terms to s 41(5) of the NV Act. 2. The following principles derived by analogy from Warringah SC v Sedevcic are relevant to the present case: 1. The discretion to grant remedies conferred by s 41(5) of the NV Act is wide. 2. The discretion is not fettered and is not limited to particular classes of case or special cases. However, it may be relevant that the breach which enlivens the power is "purely technical" or has little effect on the environment. 3. Remedies are not granted under s 41(5) to enforce private rights, but to enforce a public duty imposed by Parliament in the public interest. In the case of the NV Act, Parliament has said that it is in the public interest to encourage and promote the management of native vegetation, to prevent broadscale clearing unless it improves or maintains environmental outcomes and to protect native vegetation of high conservation value. [37] 4. The discretion is not limited to "special cases". Equal justice ordinarily requires that private advantage should not be gained by a particular individual who breaches the legislation, given that others who comply with the legislation do not enjoy the same advantage. 5. The remedies available under s 41(5) of the NV Act may be moulded in a particular case to avoid unjust results. 6. A review of the exercise of the power conferred by s 41(5) of the NV Act should be conducted in accordance with the principles of restraint which apply to the exercise of a discretion. Restraint is particularly called for when the discretionary power is exercised by a specialist court established by Parliament. 1. Both parties also accepted, as did his Honour, that a remedial order made under s 41(5) of the NV Act must be a "reasonable and proportionate" response to the established contravention. The primary Judge cited Terranora Group Management Pty Ltd v Director-General, Office of Environment and Heritage [38] for this proposition. However, the principle can be derived from Precision Products (NSW) Pty Ltd v Hawkesbury City Council (Precision Products). [39] In that case, Allsop P stated that any notice issued by a regulatory authority under s 91 of the Protection of the Environment Operations Act 1997 (NSW) had to have "a reasonable degree of proportional relationship between the pollution incidents … and the clean-up action required by the notice". [40] The extent of the contravention 1. The appellant's principal argument was that the primary Judge should not have rejected the appellant's Scenario 1 as the appropriate order to remedy the appellant's contravention of the NV Act. The Notice of Appeal seeks to set aside the remedial orders made by the primary Judge and to substitute an order requiring the appellant to carry out remedial works in accordance with Scenario 1. 2. As the primary Judge found, [41] Scenario 1 was predicated on the assumption that only 29.4 hectares of the Cleared Area comprised native vegetation. Scenario 1 provided for remediation to take place over an area of 175 hectares. The appellant's alternative proposal (Scenario 2) would have required remedial action over 236.2 hectares. The "Remediation Area" as defined in Annexure B to Order 2 made by the primary Judge is the whole of the areas marked B2, C1, C2, C5 and C6 on the aerial plan, and part of B1. [42] Appellant's submissions 1. The appellant's submissions were not always easy to follow. However, the contention that the primary Judge erred in not adopting Scenario 1 seemed to rest principally on two alternative arguments. 2. The first argument was that the respondent had failed to prove that the contravention of the NV Act extended beyond the 29.4 hectares admitted in the Points of Defence. This argument incorporated the proposition that the respondent had not proved that the appellant had cleared "groundcover", as defined in the NV Act, except on the areas totalling 29.4 hectares. 3. The second argument had an air of unreality about it. The argument seemed to proceed on the assumption that the primary Judge found that the appellant had cleared native vegetation from each and every part of the Cleared Area (a total of 508 hectares). This finding was said to be flawed because, on any view, there were patches of barren ground devoid of any native vegetation. In any event, so the appellant submitted, the primary Judge erred in concluding that groundcover could exist in an area even if it was not visible immediately prior to the clearing taking place. 4. In addressing these arguments it is important to appreciate that the appellant did not dispute that he had completely cleared the entirety of the Cleared Area in the manner recorded by his Honour. [43] Except for a few isolated paddock trees, all trees and shrubs were removed and the whole of the Cleared Area was raked and ploughed. To the extent that the Cleared Area had groundcover before the clearing operations, it was removed. The first argument 1. The respondent described the appellant's first argument as "bemusing", in part because, as the primary Judge recorded, [44] at the trial neither the existence of groundcover in the Cleared Area nor the fact that the groundcover was predominantly native was in issue. In any event, there was ample evidence to support a finding that the appellant cleared groundcover, as defined in the NV Act, from much of the Cleared Area. [45] 2. The primary Judge admitted the appellant's affidavit into evidence insofar as it recorded the appellant's observations concerning the areas he examined before commencing the clearing operations. The appellant stated that he observed what he described as "groundcover" in each of the areas marked B1, B2, C1, C2, C5 and C6 on the aerial plan. His Honour rejected the affidavit insofar as it contained the appellant's opinion as to the proportion of vegetation that consisted of indigenous species. Nonetheless, the appellant's observations are consistent with groundcover consisting of indigenous vegetation being present on substantial parts of the Cleared Area (aside from C3 and C4). 3. Mr Hall, an Environmental Consultant, prepared a report in support of the appellant's application under the EPBC Act for permission to clear parts of Colorado, including an area of 315 hectares within the Cleared Area. Mr Hall conducted observations in August 2013 at 28 "transects" at various points on Colorado. Mr Alexis accepted that three of the transects concerned areas within B1 and C1 on the aerial plan. Mr Hall's report recorded that he had observed dense areas of native grasses within B1 and C1. Mr Alexis also accepted that August 2013 was unlikely to be a particularly favourable time for native grasses in this part of New South Wales. 4. Mr Mazzer, a Conservation Planning Officer, inspected the Cleared Area after the clearing had taken place. On the basis of his inspection of remnant vegetation and of vegetation on areas adjacent to the Cleared Area, he expressed the view that the groundcover, prior to clearing, consisted predominantly of native species. The primary Judge accepted this evidence. [46] Mr Mazzer also pointed out in his evidence that some of Mr Hall's structural plots had recorded native grasses within C4. 5. Dr Nadolny, a Senior Ecologist at the Office of Environment and Heritage, gave evidence that he had visited Colorado in February 2012 and found "very heavy groundcover right across the property". While his cross-examination indicated that his inspection at this time mainly was confined to the north-eastern section of Colorado (outside the Cleared Area), he had inspected the Cleared Area in August 2012. On the basis of that inspection, his opinion was that everywhere he went he saw native groundcover. 6. Dr Tierney, a Consultant Ecologist called by the appellant, conducted a field survey on 5 December 2014 for the purpose of assessing the likely quality and type of vegetation on the Cleared Area before the clearing took place. Dr Tierney recorded data from eleven locations near the boundaries of the Cleared Area. As the primary Judge found, [47] Dr Tierney concluded that the uncleared vegetation predominantly consisted of native species. This suggests, in the absence of contrary evidence, that the same would hold true for the Cleared Area prior to the appellant's clearing activities. 7. The appellant signed the application under the EPBC Act. The application included a statement, apparently based on Mr Hall's report, that "all areas examined ha[d] a healthy cover of native species or leaf litter". As Mr Howard submitted, the natural reading of this statement in its context is that the dense leaf litter was mostly in the areas under the tree canopy, while the groundcover was predominantly outside those areas. Mr Alexis warned that care should be taken in interpreting the statement because it did not expressly distinguish between groundcover and leaf litter. However, the obvious inference from this statement, particularly when read with Mr Hall's report, is that healthy groundcover of native species could be observed on the Cleared Area shortly before the clearing took place. It was open to the appellant, or one of his experts, to give evidence rebutting this inference, but the Court was not taken to any such evidence. Accordingly, the primary Judge was entitled to treat the statement in the application as an admission that the Cleared Area, shortly before the appellant comprehensively cleared it, included substantial areas of "groundcover" within the meaning of the NV Act. The second argument 1. The assumption underlying the appellant's second argument is wrong. It was never the respondent's case that native vegetation existed over the entire Cleared Area before the appellant began to clear the land on or about 5 January 2013. The respondent's Points of Claim alleged that: "5. Between 5 January 2013 and 14 May 2014 clearing of native vegetation was carried out on the Land in the areas marked B1 and B2 on [the Photograph]". 6. The clearing of native vegetation carried out on the Land between 5 January 2013 and 14 May 2014 was across a total area of 220 hectares". (Emphasis added.) 1. The Points of Claim made similar allegations about the clearing of native vegetation carried out on areas C1 to C6 between 14 May 2014 and 20 August 2014. 2. The appellant's Points of Defence admitted that a total of approximately 29.4 hectares of native vegetation had been cleared within the Cleared Area. As has been seen, this was not a discrete area cleared of trees and shrubs, but rather the total area of cleared trees and shrubs scattered throughout the Cleared Area. In essence, the appellant's position was that the only native vegetation that had been removed consisted of trees and shrubs and groundcover within the dripline of the trees and shrubs. 3. Not surprisingly, the primary Judge made no finding that immediately before the appellant cleared the area, the Cleared Area was entirely covered with native vegetation. The critical finding made by his Honour was that "the areas subject to the clearing contained groundcover within the meaning of s 6 of the NV Act". [48] His Honour rejected the appellant's submission that the existence of bare patches between the observed herbaceous vegetation required a finding that the clearing was limited to areas on which woodlands or herbaceous vegetation existed. 4. The appellant seized on the primary Judge's observation, in the context of determining the scope of the remedial order, that he had found that "the whole of the area cleared was native vegetation". Read in context, his Honour was simply intending to convey that native vegetation was present across the whole of the Cleared Area, although not in each and every part of it. 5. It follows that the appellant's contention that the primary Judge erred in finding that the whole of the Cleared Area comprised native vegetation rests on a misapprehension as to the nature of the findings made by his Honour. Construction of "groundcover" 1. The construction of the term "groundcover" in s 6(1)(c) of the NV Act does not appear to have been the subject of any detailed submissions in the L & E Court. The appellant's closing written submissions at the trial asserted that neither the definition of "native vegetation" nor the definition of "clearing" includes the clearing of native vegetation groundcover by removing only the roots and seedstock below the ground (as the respondent had submitted). However, the assertion was not supported by any further argument. 2. Mr Howard SC, who appeared with Mr Jordan for the respondent in this Court, correctly submitted that it is not necessary to consider whether the appellant's construction of s 6(1)(c) of the NV Act is correct. There was ample evidence before the primary Judge, which his Honour accepted, to establish that prior to early January 2013, substantial areas of indigenous herbaceous vegetation were visible across the Cleared Area. 3. If, contrary to my view, it is necessary to deal with the issue, I would conclude that the removal of seedbank and other reproductive mechanisms for indigenous groundcover species within the soil profile is capable of constituting a contravention of the NV Act. Sections 6 and 7 of the NV Act must be construed in the light of the objects stated in s 3. The objects include: * encouraging and promoting the management of native vegetation in the environmental interests of the State; * preventing broadscale clearing unless it improves or maintains environmental outcomes; and * improving the condition of existing native vegetation. 1. There is nothing in the definition of "native vegetation" in s 6(1) of the NV Act that requires "indigenous vegetation" to be visible to the naked eye. As the primary Judge found, seedbanks or other reproductive mechanisms may not be visible depending on seasonal conditions or levels of rainfall. [49] But when conditions are ripe, as the language of reg 62 of the NV Regulation suggests, the vegetation springs into life. To obliterate seedbanks or other reproductive mechanisms destroys the prospect that when conditions are right the groundcover will flourish. 2. The primary Judge's construction of s 6(1)(c) of the NV Act receives support from s 7, which defines the expression "clearing native vegetation" to include "killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation". This language is entirely apt to describe the destruction of seedbanks or other subsoil reproductive mechanisms that lie dormant until seasonal conditions or rainfall allow them to flourish. Having regard to the objects of the legislation, there is no reason to give s 7 any narrow construction. Quite the contrary. 3. The primary Judge's construction is also supported by the terms of s 20 of the NV Act. That provision distinguishes between "the vegetation" (that is, groundcover) that "comprises less than 50% of indigenous species of vegetation" and vegetation (of any kind) that covers an area. If the drafter of the NV Act had intended to confine "groundcover" to vegetation that covers a particular area, it would have been easy to say so by adopting the language in s 20(b) of the NV Act. 4. For these reasons, if it was necessary to do so, I would reject the submission that the removal of seedbanks or other reproductive mechanisms for indigenous species, as distinct from the removal of visible indigenous plants, is incapable of contravening the NV Act. Conclusion 1. Once it is found (as the primary Judge did) that the appellant contravened the NV Act by removing vegetation from across the Cleared Area, it matters not that native vegetation was not present on each and every part of the Cleared Area. The appellant has been shown to have contravened the NV Act. The findings establish the extent of the contravention sufficiently to enable a determination to be made as to whether a proposed remedial order is a reasonable and proportionate response to the contravention. 2. It is not necessary for a party alleging contravention and seeking a remedial order to identify and prove the precise dimensions of each section or native patch of vegetation that has been removed from an area. Parliament did not enact legislation with the intention that it should be unworkable. Woodlands 1. The appellant challenged the primary Judge's finding that there was little doubt that the majority of the areas cleared satisfied the description of woodlands. According to Mr Alexis, the finding was significant because it informed both the extent of the contravention and the form of the remedial order. Mr Alexis said that the finding was particularly relevant to a provision in the remedial order requiring native vegetation within the Remediation Area to reach a density of "at least 100 live stems on average per ha … as determined by the quadrat method". 2. The primary Judge made the comment about the majority of the Cleared Area being woodlands in response to the appellant's criticism of par 12 in the joint experts' report, which reads as follows: "The parties agree that woodlands function in a holistic manner with spaces between the canopies of trees being of ecological importance and the integrity of the woodland being dependent on the ground layer vegetation and structural components such as leaf litter and logs." 1. This paragraph cannot be read in isolation. Earlier in the joint report the experts agreed that the vegetation removed was predominantly native and that there was no dispute as to the plant species surveyed. The experts agreed that a Brigalow Endangered Ecological Community had been present on the property and was likely to have been cleared. They also agreed that the Poplar Box, a known koala habitat, and hollow bearing trees had been removed. Read in context, par 12 clearly implies that the experts regarded many of the areas cleared as woodlands. This is made explicit in par 46 of the joint report, where Dr Nadolny states that a regeneration target of 100 trees per hectare "is probably just sufficient a target for established saplings to enable regeneration of woodlands with benchmark canopy cover". 2. The primary Judge also referred to the evidence of Mr Mazzer, who described vegetation in areas B1, C1, C2, C5 and C6 as either "open woodland" or "Belah Rosewood woodland". [50] This evidence supported his Honour's description of the majority of the Cleared Area as "woodlands". There was no error in his Honour describing the Cleared Area in this way. Remedial orders 1. The appellant submitted that if his challenge to the primary Judge's findings as to the extent of the contravention of the NV Act failed, his Honour's exercise of discretion in making the remedial orders miscarried. The grounds upon which Mr Alexis relied for this contention were that: * the remedial orders should not have been modelled on the remedial direction made by Preston CJ in Turnbull (No 2); and * the primary Judge failed to make a finding about the comparative cost of the remedial orders and the appellant's Scenario 2. Form of the remedial order 1. The appellant complained that provisions of the remedial order relating to assisted regeneration overlooked the views expressed by the experts. The provisions are as follows: "4. ASSISTED REGENERATION Monitoring 4.1 The [appellant] must inspect the Remediation Area at least once every 12 months from the date of this order until 1 July 2031 to determine whether native vegetation within the Remediation Area has reached a density of at least 100 live stems on average per ha, as determined by the quadrat method. 5. DIRECT PLANTING Undertake direct planting (if assisted regeneration fails) 5.1 If, by 1 October 2017, native vegetation within the Remediation Area is not at a density of at least 100 live stems on average per ha, as determined by the quadrat method, the [appellant] must direct seed or establish and maintain a number of seedlings or plants to bring the density of native vegetation within the Remediation Area up to at least 100 live stems on average per ha. … 'quadrat method' means counting the number of live tree stems within each circular quadrat in the Remediation Area. Live tree stems includes individual native trees of all ages, from small juvenile plants to large mature adults. Where a single tree has multiple stems, only the largest stem is counted. The location of each quadrat sampled must be defined by GPS waypoint which must be recorded in the next ongoing monitoring report." 1. It is true that the experts opined that: "A better measure of the density threshold for determining whether planting or re-planting is necessary would be that at least 50% of surveyed plots have a stem density of 100 trees/ha rather than that there is an average stem density of at least a 100 trees/ha." However, the difficulty confronting the appellant is that, as the primary Judge pointed out, [51] Scenario 2 included as an alternative precisely the requirement incorporated within the remedial orders – that is, a threshold density of at least 100 live stems on average per hectare. As his Honour pointed out, in that respect the appellant's draft corresponded with the direction given in Turnbull (No 2). 1. The appellant's written submissions made a general complaint that the remedial orders were modelled on the direction made by Preston CJ in Turnbull (No 2). This was not a complaint made in the L & E Court. In any event, the primary Judge gave cogent reasons explaining why the direction constituted an appropriate model for the remedial orders. [52] Cost of remedial orders 1. Contrary to the appellant's submissions, the primary Judge did not overlook the appellant's contention that the remedial orders would impose undue economic hardship upon him. The primary Judge expressly rejected the contention. 2. His Honour took into account the economic consequences of making the remedial order. He accepted that the compliance costs over a 15 year period would amount to $3,948,000 (presumably on a net present value basis) and referred to the appellant's evidence as to the impact of the orders on the viability of his farming activities. [53] 3. His Honour pointed out that the appellant proposed Scenario 2 as an appropriate remedial order should it be found (as it was) that the clearing of native vegetation extended far beyond the area of 29.4 hectares identified by the appellant. Yet the appellant had adduced no evidence as to the cost of complying with Scenario 2, the terms of which precluded use for agricultural purposes of an area greater than the area affected by the remedial orders actually made. In these circumstances it is hardly surprising that the primary Judge concluded that there was no evidentiary basis for determining that the cost of implementing the remedial orders actually made was disproportionate to the cost of implementing Scenario 2. 4. There was no error in the primary Judge reaching this conclusion or in finding that the appellant had not made out a case that the remedial orders would impose undue hardship. Rejection of the appellant's affidavit 1. Deep within the interstices of the Notice of Appeal, the appellant contended that the primary Judge erred by failing to consider the effect of s 20 of the NV Act and reg 62 of the NV Regulation [54] (Particular f(iv) to Ground 1). The reason the primary Judge did not address this issue is that he rejected those paragraphs of an affidavit sworn by the appellant which were apparently intended to lay the evidentiary foundation for a submission that the clearing of groundcover on Colorado was permitted by s 20(1) of the NV Act. In the absence of admissible evidence, the submission could not succeed. 2. The appellant's complaint was that the primary Judge erroneously rejected the affidavit evidence. According to Mr Alexis, the affidavit complied with reg 62 of the NV Regulation and should, therefore, have been admitted. Mr Alexis submitted that the appellant was the "landholder" (a matter not in dispute) and that he had calculated the percentages: "in a scientific and objective manner that is appropriate to the area proposed to be cleared and the species of vegetation that are present" as required by reg 62(1)(a). Accordingly, the rejected paragraphs should have been admitted. 1. In the L & E Court, it was not suggested on behalf of the appellant that he had the expertise necessary to express the opinion (as he did) that the trees and groundcover on the areas in question were "predominantly less than 50% indigenous species, before the ground was levelled and ploughed". It was said, however, that his opinion was admissible under s 78 of the Evidence Act 1995 (NSW), which provides that: "78 Exception: lay opinions The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event." 1. The difficulty with this contention, as the primary Judge observed when rejecting the evidence, is that reg 62(1)(a) requires the percentages to be calculated in "a scientific and objective manner". There is nothing in the affidavit to suggest that the appellant's reasoning involved anything more than "observ[ing] the state of trees and groundcover" and expressing a lay opinion as to the percentage of vegetation represented by groundcover. Indeed, there is nothing in the affidavit to demonstrate that the appellant was able to identify the various species of vegetation that had to be taken into account, let alone the methodology (if any) he used to calculate that the percentage of groundcover was less than 50 per cent. The primary Judge was clearly right to reject the proffered evidence. 2. Section 20 gives rise to questions of construction, although it is not necessary to resolve them in this case. In particular, notwithstanding the terms of reg 62 of the NV Regulation, it is by no means clear what methodology should be employed to determine whether groundcover "comprises less than 50% of indigenous species of vegetation". It does seem, however, that the reference in s 20(1)(a) to "the vegetation" is to "native vegetation that comprises only groundcover". By contrast, the reference in s 20(1)(b) to "vegetation" appears to be to any species of vegetation. If this is correct, s 20(1) of the NV Act permits the clearing of native vegetation that comprises only groundcover if: (a) the groundcover comprises less than 50 per cent "of indigenous species of vegetation", and (b) not less than 10 per cent of the relevant area is covered with vegetation of any kind (whether dead or alive). Orders 1. The appeal must be dismissed. The appellant must pay the respondent's costs of the appeal. ********** Endnotes 1. Chief Executive of the Office of Environment and Heritage v Turnbull (No 4) [2016] NSWLEC 66 (Primary Judgment). 2. At one point, the primary Judge referred to the area as 505 hectares, but the correct area is 508 hectares as his Honour noted at [58]. 3. Primary Judgment at [59]. 4. Primary Judgment at [89]. 5. Reproduced at [22] below. 6. Turnbull v Director-General, Office of Environment and Heritage (No 2) [2014] NSWLEC 112 (Turnbull (No 2)). 7. Annexure B is in fact an annexure to the Primary Judgment, rather than an annexure to the orders. The parties are agreed that the orders need to be amended to correct this error. They are also agreed that the amendments should be made by consent in the L & E Court pursuant to the "slip rule". See also note 42 below. 8. NV Regulation reg 62 came into force on 23 September 2013 – that is, during the period clearing took place. However reg 42 of the Native Vegetation Regulation 2005 (NSW) was in substantially the same terms. It is convenient to refer simply to reg 62 of the NV Regulation. 9. Defined to mean the Director-General of the Department of Environment and Climate Change: NV Act, s 4(1). 10. Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84; 212 LGERA 163 (Turnbull (No 1)). 11. Turnbull (No 1) at [54]. 12. Primary Judgment at [41]. 13. Primary Judgment at [41]. 14. Primary Judgment at [42]. 15. Primary Judgment at [52]. 16. Primary Judgment at [53]. 17. Primary Judgment at [70]. 18. Primary Judgment at [60]. 19. Primary Judgment at [74]. 20. Primary Judgment at [75]. 21. Primary Judgment at [81]. 22. Primary Judgment at [89]. 23. Primary Judgment at [98]. 24. Primary Judgment at [99]. 25. Primary Judgment at [100]. 26. Primary Judgment at [108]-[109]. 27. Primary Judgment at [114]. 28. Primary Judgment at [115]. 29. Primary Judgment at [116]. 30. Primary Judgment at [117]. 31. Primary Judgment at [120]. 32. Primary Judgment at [122]. 33. Primary Judgment at [123]. 34. Primary Judgment at [126]. 35. Primary Judgment at [127]-[129]. 36. (1987) 10 NSWLR 335 at 339-340, followed in ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82 (Kirby P, Samuels JA and Hunt AJA agreeing). 37. NV Act, s 3(1). 38. [2013] NSWLEC 198; 200 LGERA 1 at [62] (Biscoe J) (a case under s 38 of the NV Act). 39. (2008) 74 NSWLR 102; [2008] NSWCA 278. 40. Precision Products at [159] (Beazley and McColl JJA agreeing). 41. Primary Judgment at [116]. 42. The definition of "Remediation Order" in Annexure B to the orders made by the primary Judge includes C3 and C4. The parties are agreed that this is an error which requires correction. 43. Primary Judgment at [42], extracted at [33] above. 44. Primary Judgment at [70]. 45. Much of this evidence is referred to in the Primary Judgment at [76]-[79], [84]-[88]. 46. Primary Judgment at [85]-[86]. 47. Primary Judgment at [88]. 48. Primary Judgment at [89]. 49. Primary Judgment at [74]. 50. Primary Judgment at [82]. 51. Primary Judgment at [122]. 52. Primary Judgment at [121]. 53. Primary Judgment at [127]. 54. See at [20] above. 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: 26 March 2018