FEDERAL COURT OF AUSTRALIA

Minister for the Environment & Heritage v Greentree [2003] FCA 857

ENVIRONMENT LAW – Application to dissolve interim injunction granted under s 475(5) of the Environment Protection and Biodiversity Act 1999 (Cth) – serious issue to be tried as to whether respondents engaged in conduct constituting contravention of the Act – possibility that respondents have contravened the Act and possibility of rehabilitation of wetlands relevant to the assessment of balance of convenience

Environment Protection and Biodiversity Act 1999 (Cth), ss 16, 17(1), 475

Convention on Wetlands of International Importance especially as Waterfowl Habitat, done at Ramsar, Iran, on 2 February 1971

MINISTER FOR THE ENVIRONMENT AND HERITAGE v RONALD GREENTREE AND OTHERS

N 914 of 2003

SACKVILLE J

SYDNEY

8 AUGUST 2003

THE COURT ORDERS THAT:

1. The application to dissolve the interim injunction granted on 31 July 2003 be dismissed.
2. The interim injunction granted on 31 July 2003 be varied from the date of these orders to read as follows:

“Each of the respondents is restrained from engaging in the following conduct, either directly, or through his, her or its agents or servants:

(a)           land clearing, ploughing or cropping activities (including the planting of seeds), and any other activities disturbing or otherwise affecting the soil inside and up to 40 metres outside of that portion of the declared Ramsar wetlands known as Gwydir Wetlands (a photograph depicting the boundaries of which portion is attached to the orders of 31 July 2003) which is located within two lots of the property known as “Windella”, in particular Lot 8 in DP 750461 in the Parish of Dundunga and Lot 9 in DP 750444 in the Parish of Collyu, County of Benarba, Local Government Area of Moree Plains (this portion of the Gwydir Wetlands is referred to as “the Windella component of the Gwydir Wetlands”);

(b)   land clearing, ploughing or cropping activities (including the planting of seeds), and any other activities disturbing or otherwise affecting the soil within 40 metres on either side of the entire length of the watercourse on the property known as “Windella” in and leading into the Windella component of the Gwydir Wetlands;

(c)  any work on the property known as Windella designed to alter, or which is reasonably likely to have the effect of altering the flow regime of waters into and out of the Windella component of the Gwydir Wetlands

and that such interim injunction continue in force until further order.”

3. The applicant file an Amended Application by 29 August 2003.
4. The applicant file and serve the evidence on which it relies in support of the final relief sought by 8 September 2003.
5. The proceedings be adjourned to a further directions hearing on 11 September 2003 at 9.30 am.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 31 July 2003 I made orders pursuant to s 475(5) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“the Act”) in the following terms:

“1.       Each of the Respondents be restrained from engaging in the following conduct, either directly, or through their agents or servants:

(a)               land clearing, ploughing or cropping activities inside and up to 40 metres outside of the declared Ramsar Wetlands known as Gwydir Wetlands (the location of which is shown on a photograph attached to these Orders);

(b)               land clearing, ploughing or cropping activities within 40 metres on either side of the entire length of the watercourse on the property known as “Windella” (being lot 11 in DP 750444 Local Government Area: Moree Plains, Parish of Collyu, County of Benarba) upstream of and within the declared Ramsar Wetlands known as Gwydir Wetlands;

(c)                any works designed to or which is reasonably likely to have the effect of altering the flow regime of waters into and out of the declared Ramsar Wetlands known as Gwydir Wetlands.”

2                     I granted liberty to either party to apply to the Court for further orders.  In particular I granted liberty to the respondents to apply on 24 hours notice to seek dissolution of the interim injunction.  The matter was stood over until today, 8 August 2003.

3                     When the matter came on today, Mr Littlemore SC and Ms Lane appeared for the respondents.  Mr Lloyd ultimately appeared for the applicant.  Mr Littlemore indicated that he wished, on behalf of the respondents, to apply for dissolution of the injunction.  The matter proceeded on the basis that such an application had been made.

4                     Section 475 of the Act provides as follows:

“(1)     If a person has engaged, engages or proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of this Act or the regulations:

(a)               the Minister; or

(b)               an interested person (other than an unincorporated organisation); or

(c)               a person acting on behalf of an unincorporated organisation that is an interested person;

may apply to the Federal Court for an injunction.

…

(3)       If the court grants an injunction restraining a person from engaging in conduct and in the Court’s opinion it is desirable to do so, the Court may make an order requiring the person to do something (including repair or mitigate damage to the environment).

…

(5)       Before deciding an application for an injunction under this section, the Court may grant an interim injunction:

(a)               restraining a person from engaging in conduct; or

(b)               requiring a person to do an act.”

5                     The case advanced by the applicant was that there was a serious issue to be tried as to whether the respondents had engaged in conduct constituting a contravention of the Act.  Mr Lloyd relied upon s 16 of the Act, which provides that a person must not take an action that:

“(1)(a)  has or will have a significant impact on the ecological character of a declared Ramsar wetland or

(b)      is likely to have a significant impact on the ecological character of a declared Ramsar wetland.

6                     The expression "ecological character" is given the same meaning as in the Ramsar Convention.  The Ramsar Convention is the Convention on Wetlands of International Importance especially as Waterfowl Habitat, done at Ramsar, Iran on 2 February 1971, and amended by subsequent protocols.  At the seventh meeting of the Conference of the Parties to the Convention (at San Jose, Costa Rica, May 1999), the following definition of “ecological character” was adopted by consensus:

“Ecological character is the sum of the biological, physical and chemical components of the wetland ecosystem and their interactions which maintain the wetland and its products, functions and attributes”.

7                     Under the Act a declared Ramsar Wetland is one that is designated by the Commonwealth under Article 2 of the Ramsar Convention for inclusion in the List of Wetlands of International Importance kept under that Article: see s 17(1).

8                     The evidence indicates that the Gwydir Wetlands have been declared Ramsar Wetlands pursuant to the provisions of the Act.  The Gwydir Wetlands are located approximately 60 kilometres west of Moree in the north-west of New South Wales.  They include an area of approximately 100 hectares located on a property known as Windella.  The proprietors of Windella are three of the respondents.  Other respondents are members of a partnership that apparently manages the property.  One of the respondents, Mr Norrie, on the evidence, is the manager of the property.

9                     The 100 hectares constituting the Windella portion of the Gwydir Wetlands are located on Lot 8 in Deposited Plan 750461, and Lot 9 on Deposited Plan 750444.  The total area of Windella is apparently approximately 2000 hectares.  The area around Moree, including Windella, has been subject in recent times to severe drought.

10                  The evidence indicates that in 1999 the Gwydir Wetlands located at Windella enjoyed a reasonable standard of health.  By October 2002, as appears from a report prepared by Dr Peter Bacon which is in evidence, the Wetlands had suffered considerably from the effects of drought.  Dr Bacon reported as follows:

“The historical effects of management were apparent during the site inspection in October 2002 and include:

·        Death of over 95% of trees normally expected to be on the site, possibly resulting from changes in flooding regime or drier conditions.

·        Stress in the few remaining trees due to intensive use for shade by domestic, feral and native animals.

·        Senescence of much of the Typha spp which may have occurred as a result of past fires, lack of water, ploughing and grazing.

·        Loss of all but a few specimens of Muehlenbeckia cunninghamii (lignum), which would have been characteristic of areas close to the watercourse under a natural flooding regime.”

11                  Nonetheless, Dr Bacon recommended a program of remediation in order to restore the area to maximum possible health.

12                  An inspection took place last week by an officer of Environment Australia.  The evidence indicates that at some time between October 2002 and the latest inspection, 99 per cent of the area of the Gwydir Wetlands on the Windella property has been ploughed under.  Only a small portion, being the creek bed and a portion of the banks, remains intact.  Nonetheless, the evidence indicated that with proper management it may be possible to remediate the site over a period of time.

13                  Mr Littlemore, very sensibly if I may say so, conceded that there was a serious issue to be tried as to whether there had been a contravention on the part of the respondents of s 16 of the Act.  He submitted, however, that I should dissolve the injunction that had been granted ex parte, in substance because the damage had already been done.  He contended that the area was effectively dead and that there was no real prospect of rehabilitation.  In any event, even if there was any prospect, the wetlands would not really be harmed by the cultivation of wheat, which is apparently the activity the respondents intend to undertake.

14                  There are a number of factors, I think, to take into account in assessing the balance of convenience.  One is that on the evidence before me, although this may not prove to be the case at a final hearing, I would draw the inference that the area has been deliberately ploughed under without reference to the authorities responsible for the Gwydir Wetlands.  Such actions give rise to the distinct possibility that the respondents have contravened the Act.  Mr Littlemore fairly conceded that this is a matter to take into account in assessing the balance of convenience.

15                  Secondly, the evidence of Ms Schwarz, the officer from Environment Australia, supports the proposition that notwithstanding the ploughing under of the soil and the effects of drought, there is at least a possibility, and probably a reasonable possibility, of a substantial degree of remediation on the site.  Remediation, of course, may be assisted by orders made pursuant to s 475(3) of the Act, although this is a matter that may need to be addressed in due course in the proceedings.

16                  I take into account that the continuation of the injunction would prevent the respondents from making economic use, for their own purposes, of this area of wetlands.  However, because the respondents called no evidence I am not in a position to assess the significance of this adverse economic impact upon them.  While I take it into account, I do not regard the detriment to the respondents as outweighing the factors to which I have referred.

17                  It is, in my opinion, of some importance that there may be an opportunity to rehabilitate the wetlands that have been declared under the Act to be of international importance. Steps should not be permitted that would or could significantly prejudice that outcome.  The evidence indicates to me that if the further action took place by way of cultivation of this land for the purposes of growing wheat, then the prospects of remediation of the land would be significantly impaired.

18                  In my opinion, therefore, the balance of convenience lies clearly in favour of continuing the injunction.  The applicant put forward short minutes of order which vary slightly from the terms of the orders that were made on the last occasion.  Mr Littlemore has indicated that although there might be some quibbles with the wording, he does not seek to modify the substance of what is sought.  Accordingly, what I propose to do is to make orders in accordance with paragraph 1 of the short minutes of order that have been handed up, with the addition of the words "on the property known as Windella" in paragraph (c) after the word "work".

19                  The applicant has sought a direction that it file an amended application by 29 August 2003.  That, I am told, is for the purpose of including an order in the nature of remedial action pursuant to s 475(3) of the Act.  I will make a direction that this course be followed.

20                  In my opinion, notwithstanding the absence of evidence from the respondents, I am prepared to draw the inference that there may be significant detriment to the respondents if the injunction continues for a long period because they will be unable to cultivate this area of land.  That suggests to me that there is merit in providing for an expedited hearing.  What I would propose to do is to put the matter in for further directions early in September when consideration can be given to an early listing of the final hearing.

Associate:

Dated:              8 August 2003