Director General Department of Land and Water Conservation v Bailey [2003] NSWCCA 361

Director General Department of Land and Water Conservation v Bailey [2003] NSWCCA 361

Talbot J did not err in finding the clearing was for a 'rural structure' (water storage/dam) and thus within the SEPP 46 exemption; the statutory language of 'rural structure' includes the type of water storage at issue. Talbot J's requirement that s 12(f) of the NVC Act required the designated development to be 'lawful' was not correct; s 12(f) should apply according to its ordinary meaning, and the ambiguity should be resolved in favour of the defendant.

Jurisdiction
Australia
Judgment Date
05 December 2003
Procedural Posture
Case Stated (statutory Construction/criminal Appeal) / Case Stated in Court of Criminal Appeal From Decision of Land and Environment Court
Outcome
Answers to case stated: (1) No; (2) Yes, in the way that s 12(f) was construed.
Legal Topics
['native Vegetation Conservation' 'exemptions to Offence Provisions' 'statutory Construction' 'designated Development' 'strict Liability Offences']
['environmental Law' 'criminal Law' 'statutory Interpretation'] ['native Vegetation Conservation' 'exemptions to Offence Provisions' 'statutory Construction' 'designated Development' 'strict Liability Offences']

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Procedural Posture

Case Stated (statutory Construction/criminal Appeal) / Case Stated in Court of Criminal Appeal From Decision of Land and Environment Court

Legal Issues

  1. 1 ["Whether the clearing of native vegetation for construction of a water storage qualifies as an exempt 'rural structure' under SEPP 46 and NVC Act" "Whether the exemption in s 12(f) of the NVC Act requires designated development to be 'authorised' or lawful, or applies according to its ordinary meaning"]

Ratio Decidendi

Talbot J did not err in finding the clearing was for a 'rural structure' (water storage/dam) and thus within the SEPP 46 exemption; the statutory language of 'rural structure' includes the type of water storage at issue. Talbot J's requirement that s 12(f) of the NVC Act required the designated development to be 'lawful' was not correct; s 12(f) should apply according to its ordinary meaning, and the ambiguity should be resolved in favour of the defendant.

Court Disposition

Answers to case stated: (1) No; (2) Yes, in the way that s 12(f) was construed.

Orders

  • ["(1) The first question is answered 'No' (Talbot J did not err in finding clearing was for a 'rural structure')." "(2) The second question is answered 'Yes, in the way that s 12(f) was construed' (it should be applied according to its ordinary meaning)."]