Director-General Department Of Land And Water Conservation v Jackson And Ors [2003] NSWLEC 81

Director-General Department Of Land And Water Conservation v Jackson And Ors [2003] NSWLEC 81

Section 12(f) of the NVC Act excludes from its operation clearing that is, or is part of, designated development within the meaning of the EP&A Act only where that designated development has been authorised by a relevant development consent; as the facts are silent on the grant of such consent, clearing associated with the Marra Water Storage is not excluded from the Act. Further, 'farm structures' in SEPP 46 Schedule 3(e) includes the Water Storage within its ordinary meaning, so the Water Storage qualifies as such a structure for exemption purposes.

Jurisdiction
Australia
Judgment Date
31 March 2003
Procedural Posture
Criminal (environmental Offence) / Preliminary Determination of Legal Questions Before Trial
Outcome
Preliminary legal questions determined; not a final disposition of charges
Legal Topics
['native Vegetation Clearing' 'operation of Statutory Exemptions' 'interpretation of Environmental Planning Policies' 'designated Development' 'preliminary Legal Questions']
['environmental Law' 'statutory Interpretation' 'criminal Law'] ['native Vegetation Clearing' 'operation of Statutory Exemptions' 'interpretation of Environmental Planning Policies' 'designated Development' 'preliminary Legal Questions']

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Procedural Posture

Criminal (environmental Offence) / Preliminary Determination of Legal Questions Before Trial

Legal Issues

  1. 1 ['Whether clearing associated with construction/inundation of Marra Water Storage is excluded from NVC Act by s 12(f)' "Whether Marra Water Storage is a 'rural structure' or 'farm structure' for purposes of SEPP 46 Schedule 3(e)"]

Ratio Decidendi

Section 12(f) of the NVC Act excludes from its operation clearing that is, or is part of, designated development within the meaning of the EP&A Act only where that designated development has been authorised by a relevant development consent; as the facts are silent on the grant of such consent, clearing associated with the Marra Water Storage is not excluded from the Act. Further, 'farm structures' in SEPP 46 Schedule 3(e) includes the Water Storage within its ordinary meaning, so the Water Storage qualifies as such a structure for exemption purposes.

Court Disposition

Preliminary legal questions determined; not a final disposition of charges

Orders

  • ['Question 1 answered No: clearing as part of construction/inundation of Marra Water Storage is not excluded by s 12(f) NVC Act on agreed facts.' "Question 2 answered Yes: the Water Storage is a 'farm structure' within the meaning of Schedule 3(e) SEPP 46 on agreed facts."]