Land and Environment Court New South Wales

• Medium Neutral Citation: Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159
• Hearing dates: 11 July 2012
• Decision date: 20 July 2012
• Jurisdiction: Class 5
• Before: Biscoe J

Decision

(1) The defendant is convicted of the offence under s 12 of the Native Vegetation Act 2003 as charged; (2) The defendant is fined the sum of $40,000; (3) The defendant is to pay the prosecutor's costs as assessed or agreed.

• Catchwords: ENVIRONMENTAL OFFENCES- sentence - clearing of native vegetation - plea of guilty - partly regrowth and buffers permitted to be cleared - mistaken belief of defence that mature trees cleared were a permitted routine agricultural management activity for the construction of rural infrastructure - issues as to number of mature trees cleared, area cleared, what other native vegetation was cleared, defendant's reasons for clearing and extent of environmental harm.
• Legislation Cited: Environmental Planning and Assessment Act 1979 s 126; Native Vegetation Act 2003 ss 3, 6, 7, 9, 11, 12, 18, 19, 21, 22, 38, Part 3 Div 3; Native Vegetation Conservation Act 1997 s 47; Rural Lands Protection Act 1998 s 27, Part 5 Div 3, Part 8 Div 6, Part 11 Divs 2-4, Sch 7 cl 28; Threatened Species Conservation Act 1995 s 4(1), Sch 1 Part 3; Native Vegetation Regulation 2005 cll 13, 16, 20
• Cases Cited: Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129; Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75; Director General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30; Director General, Department of the Environment and Climate Change v Olmwood Pty Ltd (No 2) [2010] NSWLEC 100; Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229; Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4, 165 LGERA 256; Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137, 168 LGERA 121; Director-General, Department of Environment and Climate Change v Taylor [2007] NSWLEC 530; Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119; Director-General, Department of Environment and Climate Change v Wilton [2008] NSWLEC 297; Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Ltd [2010] NSWLEC 200; Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419, 148 LGERA 299
• Category: Sentence
• Parties: Chief Executive of the Office of Environment and Heritage (Prosecutor); John Francis Kennedy (Defendant)
• Representation: COUNSEL: Ms S Callan (Prosecutor); Mr J F Kennedy, in person (Defendant); SOLICITORS: Office of Environment and Heritage (Prosecutor); N/A (Defendant)
• File Number(s): 50577/11

Judgment

1 The defendant, John Francis Kennedy, has pleaded guilty to an offence of clearing native vegetation under s 12 of the Native Vegetation Act 2003 (NV Act) committed on his rural property sometime between June and August 2009, and is now before the Court for sentencing.

2 The property is known as "Greenmount" being Lot 2 DP 700691 and Lots 223 and 224 DP 753831 on Green Valley Road, Bendemeer in the Tamworth region (Property).

3 The prosecutor contends that 44.7 hectares of native vegetation were unlawfully cleared, mostly comprising 2,500 to 4,000 mature trees (established before 1 January 1990) among which was an endangered ecological community.

4 The defendant contends that:

 

(a) much of the native vegetation cleared comprised a little more than 600 mature trees, which at the time he mistakenly believed were permitted to be cleared for the "routine agricultural management activity" (RAMA) of constructing rural infrastructure (sheds, a stockyard and fencing) on the Property within 18 months: ss 11(1)(a) and 22 NV Act, cl 16(1)(a) Native Vegetation Regulation 2005 (NV Regulation);

(b) there was also clearing to create permitted infrastructure buffer distances for existing fences, tracks, dams and firebreaks and for proposed sheds on the Property: cl 20(3) NV Regulation;

(c) otherwise the native vegetation cleared was only non-protected regrowth, as defined in the NV Act (regrown since 1 January 1990), which was permitted to be cleared: ss 9(2)(a) and 19(1) NV Act;

(d) the alleged area of 44.7 hectares should be reduced by 17.62 hectares to about 27 hectares if allowance is made for (b) above as well as for the area of existing farm dams; and

(e) there was no environmental harm.

5 My findings on the main factual issues are as follows, for the reasons given below:

 

(a) The area of the Property unlawfully cleared was 32.48 hectares.

(b) The nature and extent of the native vegetation cleared substantially comprised a little more than 600 mature trees and regrowth (established since 1 January 1990).

(c) The previous state of the Property was that it included areas of much regrowth, scattered bigger timber and extensive fallen dead timber, timber heaps, stumps and bare ground. It had been extensively logged by earlier owners. It was overrun with rabbits and there were many foxes and feral cats, for which the rabbits provided a regular food supply, as well as feral pigs.

(d) The extent of the clearing and the defendant's reasons for clearing were as follows:

(i) a little more than 600 mature trees were felled to construct rural infrastructure (sheds, a stockyard and fencing) within 18 months, which at the time he mistakenly thought was sufficient to make that clearing permissible;

(ii) some native vegetation was also cleared to create permissible buffer distances. This was not contested by the prosecutor except for buffers for firebreaks which I hold were not permissible but which he mistakenly thought were permissible;

(iii) the balance of the native vegetation cleared comprised only non-protected regrowth, which was permissible. The reason is not relevant for s 19(1) NV Act purposes. However, the reason for clearing the non-protected regrowth, as well as for removing a large amount of fallen timber, was to control noxious animals, particularly rabbits which had overrun the Property, as well as foxes and feral cats and pigs;

(iv) in consequence of the clearing, to improve the stock management of the Property.

(e) The extent of the environmental harm caused by the unlawful clearing was moderate.

THE STATUTORY REGIME

6 Section 12 (within Division 1 of Part 3) of the NV Act provides:

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 EPA Act 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.

7 The objects of the NV Act are stated in s 3 to be:

(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.

8 The key concepts of "native vegetation" and "clearing" are relevantly defined in ss 6 and 7 as follows:

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.

Note. See Division 3 of Part 3 for the exclusion of routine agricultural management and other farming activities from constituting the clearing of native vegetation if the landholder can establish that any clearing was carried out for the purpose of those activities.

9 The defendant relies on two matters under s 12(3): the regrowth defence (s 19(1) in Division 2 of Part 3 of the NV Act) and his mistaken belief in the rural infrastructure RAMA defence (s 22(1) in Division 3 of Part 3 and s 11(1)(a) of the NV Act). The onus of proof of establishing a defence under s 12(3) is on the defendant: Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 at [133] - [134] per Preston CJ.

10 As regards the regrowth defence, the NV Act relevantly provides:

9 Meanings of remnant native vegetation and regrowth

...

(2) For the purposes of this Act, regrowth means any native vegetation that has regrown since the earlier of the following dates:

(a) ...1 January 1990 in the case of other land,

...

(4) Regrowth does not include any native vegetation that has regrown following unlawful clearing of remnant native vegetation or following clearing of remnant native vegetation caused by bushfire, flood, drought or other natural cause.

...

Part 3 Clearing native vegetation

...

Division 2 Permitted clearing

18 Application

(1) This Division sets out the clearing of native vegetation that is permitted to be carried out without the authority conferred by a development consent or property vegetation plan.

...

19 Clearing of non-protected regrowth permitted

(1) Clearing of native vegetation that is only regrowth, but not protected regrowth, is permitted.

...

11 The statutory requirements for the regrowth defence are highly specific. In Walker (No 2) at [136] - [144] Preston CJ made five points about the regrowth defence:

136   First, the defence operates with respect to the native vegetation that has been cleared in contravention of s 12. It is that native vegetation that must be established to be "only regrowth".

137   Secondly, that native vegetation must be established to have "regrown" so as to be "regrowth", before it was cleared in contravention of s 12. It is not sufficient for the native vegetation to have "grown" or be "growth"; it must have "regrown" so as to be "regrowth". For native vegetation to regrow, there must be a prior act or event of disturbance that is a cause of the regrowth. At the level of an individual plant of native vegetation, the act could be by humans or nature. For example, the cutting down of a tree by humans or the breaking off of a tree by a storm might result in regrowth from the remnant stump, such as coppice growth. The tree could be said to have regrown following the prior act of cutting down or breaking off. Similarly, above ground vegetative parts of groundcovers which are removed by slashing or mowing might produce new vegetative parts from rhizomes or subterranean stems. The groundcover could be said to have regrown following the prior act of slashing or mowing.

138   At the level of stands or areas of native vegetation, removal of individual plants of native vegetation by human actions or natural causes may result in the germination of seeds and growth of native vegetation in the vacated space. The new native vegetation could be said to have regrown following the prior removal of the former native vegetation in the stand or area.

139   This meaning of regrowth as connoting growth following upon an act or event of disturbance accords with the examples of excluded regrowth given in s 9(4) of the NV Act. That provision excludes certain types of regrowth from being regrowth if the regrowth follows unlawful clearing of remnant native vegetation or follows clearing of remnant native vegetation caused by bushfire, flood, drought or other natural cause. It is the growth of the native vegetation "following" the unlawful clearing or the clearing by natural causes that makes the native vegetation "regrowth".

...

141   Thirdly, not all regrowth of native vegetation will fall within the meaning of "regrowth" for the purposes of s 9. As noted, s 9(4) excludes certain types of regrowth. If the native vegetation that was cleared in contravention of s 12 had regrown following unlawful clearing of remnant native vegetation or following clearing of remnant native vegetation caused by bushfire, flood, drought or other natural cause, that native vegetation will not be regrowth for the purposes of s 9 or s 19 of the NV Act.

142   Fourthly, there is a temporal requirement for regrowth. Regrowth for the purposes of s 9 and s 19 of the NV Act only includes native vegetation that has regrown after the relevant date specified in s 9(2) of the NV Act. In the present proceedings, the relevant date is 1 January 1990. Hence, it must be established in the present proceedings that the native vegetation that was cleared in contravention of s 12 had "regrown" since 1 January 1990.

143   This temporal requirement in s 9(2) is cumulative on the other requirements of regrowth under s 9 of the NV Act. This means that the native vegetation cleared in contravention of s 12 must have "regrown" within the meaning of that word (regrown following an act or event of disturbance), not regrown following unlawful clearing or following clearing by natural clauses [sic] within s 9(4), and regrown since 1 January 1990.

144   Fifthly, the native vegetation cleared in contravention of s 12 must have been "only regrowth" (s 19(1) of the NV Act). This requires each and every plant comprising the native vegetation cleared to be established to be "regrowth" meeting the requirements of s 9. This requirement of being "regrowth" will not be satisfied if some but not all of the vegetation was "regrowth" (others being "growth"), any of the native vegetation had regrown following unlawful clearing or following clearing by natural causes within s 9(4), or some but not all native vegetation had regrown since 1 January 1990.

12 As regards the RAMA defence, Division 3 (ss 21 - 24) of Part 3 of the NV Act relevantly provides:

21 Application

(1) This Division sets out the activities that do not constitute the clearing of native vegetation for the purposes of this Part and, accordingly, are permitted to be carried out without the authority conferred by a development consent or property vegetation plan.

...

22 Routine agriculture management activities

(1) Clearing for routine agricultural management activities is permitted.

(2) This section does not authorise any clearing of native vegetation:

      (a) if it exceeds the minimum extent necessary for carrying out the activity, or...

13 RAMAs are defined in s 11(1) to include the following:

11 Meaning of routine agricultural management activities

(1) For the purposes of this Act, routine agricultural management activities mean any of the following activities on land carried out by or on behalf of the landholder:

      (a) the construction, operation and maintenance of rural infrastructure:

            (i) including (subject to the regulations) dams, permanent fences, buildings...stockyards, and farm roads...

      (c) the control of noxious animals under the Rural Lands Protection Act 1998,

...

(2) The regulations may make provision for or with respect to extending, limiting or varying the activities that are routine agricultural management activities, and subsection (1) is to be construed accordingly.

14 Pursuant to s 11(2), cl 16 of the NV Regulation is expressed to extend (although it seems to me to limit) the s 11(1)(a) RAMA exception for construction of rural infrastructure as follows (the Property is within the area of operations of the Namoi Catchment Management Authority):

16 Obtaining construction timber

(1) The activities that comprise routine agricultural management activities for the purposes of section 11 of the Act are extended to include the clearing of native vegetation on land for use in the construction or maintenance of rural infrastructure on the land within whichever of the following time periods is applicable to the land:

      (a) 18 months after the clearing for land in the area of operations of the...Namoi...Catchment Management Authority,

      ...

(2) This clause authorises clearing of native vegetation only if the clearing:

      (a) will not cause land degradation (including soil erosion, rising water tables, the expression of salinity, mass movement by gravity of soil or rock, stream bank instability, and any process that results in declining water quality), and

      (b) is carried out in conjunction with a restoration program or other arrangements that will ensure the restoration of native vegetation on the cleared land of the same or a similar species as the native vegetation cleared and to the same or a similar extent as existed on the cleared land.

(3) This clause authorises the clearing of native vegetation only if the native vegetation does not comprise:

      (a) a...threatened ecological community, under the Threatened Species Conservation Act 1995...

15 Clause 20(3) of the NV Regulation limits infrastructure buffer distances for s 11(1)(a) RAMA fences and roads or tracks as follows:

20 Infrastructure buffer distances

...

(3) The following activities that comprise a routine agricultural management activity under section 11 (1) (a) (construction, operation and maintenance of rural infrastructure) of the Act are limited in the area of operations of the ...Namoi ...Catchment Management Authority ...so as to permit clearing only within the distances indicated:

      (a) permanent boundary fence-10 metres either side,

      (b) permanent internal fence-10 metres total width of clearing,

      (c) temporary fence-3 metres total width of clearing,

      (d) road or track-6 metres total width of clearing.

Note. Subclauses (1) and (3) only impose distance clearing restrictions on the activities listed and do not limit the kinds of activities that can be carried out under section 11 (1) (a) of the Act in the areas mentioned.

...

16 In a way, clearing infrastructure buffer distances under cl 20(3) may be viewed as a discrete exception in relation to existing fences, roads and tracks.

17 Clause 13 of the NV Regulation is expressed to extend the s 11(1)(c) RAMA exception for the control of noxious animals under the Rural Lands Protection Act as follows:

13 Control of pest animals

The activities that comprise routine agricultural management activities for the purposes of section 11 of the Act are extended to include anything done pursuant to an obligation arising under an eradication order or pest control order under Part 11 of the Rural Lands Protection Act 1998.

18 Clause 13's expressed extension of the s 11(1)(c) RAMA of controlling noxious animals under the Rural Lands Protection Act really only confirms the position under, rather than extends, the operation of s 11(1)(c). There are several pathways for clearing to be permitted under the Rural Lands Protection Act. Each requires positive approval, direction or authorisation. There is no grant of any general permission to take action to manage noxious animals other than in accordance with those pathways. The pathways are as follows: (a) pest control orders under Part 11 Division 2 of the Rural Lands Protection Act; (b) eradication orders under Part 11 Division 3; (c) action of an authorised officer under Part 11 Division 4; (d) compliance with a direction from an authorised officer under Part 11 Division 4; (e) orders made under the former Act pursuant to Sch 7 cl 28; (f) the State Council may order an authority to take specified action under Part 5 Division 3 s 27; and (g) fencing of boundaries of controlled travelling stock reserves under Part 8 Division 6.

NO AUTHORISATION

19 The clearing was not carried out in accordance with a development consent or a property vegetation plan issued under the NV Act: s 12(1) NV Act. The clearing was not authorised or carried out in accordance with an eradication order, a pest control order or a direction from an authorised officer under Part 11 of the Rural Lands Protection Act: cl 13 NV Regulation.

DISCOVERY OF THE CLEARING - AUGUST 2009

20 The offence first came to the attention of Glen Turner, an officer of the prosecutor, on 24 August 2009. The following day he drove to the Property and observed burning windrows or stacks of vegetation and a dozer operating on it. After entering the Property, Mr Turner observed numerous piles of vegetation scattered across the area and stacks of cut logs. He took video footage of what he observed in the area where the dozer had been, and 54 photos of the dozer operating, the cleared vegetation and the stacked logs.

21 On 31 August 2009, Mr Turner and Stephen Beaman attended the Property. Mr Turner counted and measured cut and stacked logs and observed freshly cut stumps. He saw that many of the trees remaining were less desirable for milling or on-farm use (smaller, twisted, or inaccessible). He took 32 photographs of his observations.

22 From his two August 2009 inspections of the Property, Mr Turner counted 601 stacked logs felled on the Property. As the defendant agrees, each log represented one mature tree. In addition, his photos taken on those occasions show at least one large tree felled but not logged: at the hearing the defendant explained, and I accept, that this was earmarked for construction of butcher's blocks on the Property.

AERIAL PHOTOGRAPHS

23 On 10 September 2009, Mr Turner and Mr Beaman were flown by a chartered helicopter over the Property. Mr Turner took approximately 100 photos of the Property and the adjoining land. A copy of an accurately rectified mosaic image of the photos was subsequently used by Paul Spiers, an expert in aerial photography interpretation employed by the prosecutor, in his aerial photograph interpretation.

PREVIOUS STATE OF PROPERTY

24 The clearing occurred on various locations on the Property. Mr Spiers has provided reports in which he undertakes an analysis of vegetation disturbance on the Property from 1979 to 2009, using photographs and images of the Property. Mr Spiers has marked a map of the Property showing vegetation coverage in 2009 prior to the clearing, and a map showing the vegetation coverage after the clearing. Mr Spiers has calculated that the total area cleared was 44.7 hectares. He expresses the view that the vegetation cleared in 2009 was continuously present from before 1990 (i.e. remnant native vegetation) except for a section towards the centre of the Property which was disturbed between 1986 and 1993. However, the weight of the evidence referred to below persuades me that, apart from the mature trees, the vegetation cleared was not present before 1990 (i.e. it was regrowth) and that substantial areas were bare of any tree cover.

25 The Property was owned by Mr I H Smith from 1932 to 1946. The evidence of his son, Kevin Smith, which I accept, was that during his father's ownership the Property was ringbarked over its entire area. Mr Kevin Smith owned the Property from 1984 to 1988 when he sold it to Mr Calderwood. At the time of sale he had cleared much of the Property.

26 The Property was owned by Phil and Cary Roberts from 1989 to about 2000. Mr Roberts' evidence, which I accept, is that when they purchased the Property from Mr Calderwood it had been recently logged for some years; that during their ownership, apart from clearing small areas of dead and fallen timber, no other timber clearing or poisoning was carried out; and that during their ownership regrowth came back very rapidly.

27 Between about 2000 and around the end of 2005, the Property was owned by Ute Elvira Blickling and managed by her then husband Rolf Blickling. He describes the vegetation on the Property during this period (2000 to 2005) as being very, very dense, with a lot of trees that were between 10 and 20 meters high, and including various types of eucalypts. Mr Blickling's evidence is that he did not cut down or clear, or direct or permit to be cut down or cleared, any vegetation on the Property and he is not aware of any clearing of trees having occurred on the Property during this time.

28 It is common ground that some of the vegetation on the Property prior to the end of 2005 was dense and included trees that were between 10 and 20 meters high and included various types of eucalypts. Mr Blickling's evidence is that the areas of the Property that were the subject of the defendant's clearing in 2009 were covered with moderate to dense vegetation. The weight of other evidence persuades me that this is not accurate.

29 The defendant purchased the Property towards the end of 2005 from Mrs Blickling. His evidence, which I accept and which is largely corroborated by a good number of witnesses called in his case, as to the state of the Property prior to the clearing, and his evidence as to the process of clearing, included the following:

 

(a) the Property had been logged over many years;

(b) stumps, tree heads, timber stacks and thick small regrowth were in abundance;

(c) there was a huge volume of flammable material creating a potential fire risk;

(d) some bigger timber remained along several watercourses and in an area of rocky hill country towards the rear of the Property. Even these areas had been logged and had stumps and tree heads throughout;

(e) the Property had been stocked heavily with sheep and was very bare. Over the next few years he applied fertiliser and grass seeds regularly. He removed the sheep and ran only cattle;

(f) he took steps to eliminate feral game and rabbits;

(g) in June 2009 he engaged his brother, Bernard Kennedy, to bulldoze and burn the regrowth, as the rabbit infestation and resultant land damage would become out of control without immediate action, as well as dead fallen timber and old heaps;

(h) there was some useful timber for farm use which he intended to use for sheds and yards; and

(i) the regrowth and dead timber (not mature trees) were burnt over eight weeks. This would not have been possible with bigger timber as it would need to be stacked for many months to allow it to dry sufficiently to burn.

30 In June/July 2009 about 3,500 rabbits, 18 feral pigs and a large number of feral cats and foxes were shot on the Property. The infestation of cats and foxes was due to the number of rabbits providing a regular food source.

31 In summary, the clearing of native vegetation was as I have found above at [5(d)]. Since the clearing of the regrowth was permitted under s 19(1) of the NV Act, it is unnecessary to consider whether it would also have been permitted as a RAMA for the control of noxious animals under s 11(1)(c).

JUNE 2009 TO AUGUST 2009 - OUTLINE OF OFFENCE

32 At the direction of the defendant, clearing of native vegetation was carried out on the Property between June and August 2009. The clearing was physically carried out by the defendant's brother using a bulldozer, chainsaw and a log loader. The clearing was carried out consistently with the defendant's verbal instructions.

33 The defendant agrees that some of the overstorey of the vegetation that was cleared comprised large native trees. Native groundcover, mid-storey shrubs and juvenile eucalypts were also cleared.

34 Christopher Nadolny, an expert ecologist employed by the prosecutor, assessed the vegetation that was cleared and provided a report. Dr Nadolny concluded, and I accept, that the overstorey of the vegetation that was cleared comprised large native trees, namely Angophora floribunda (common name: Rough-barked Apple) and nine species of eucalypts (common names: Western New England Blackbutt, Blakely's Red Gum, New England Stringybark, Bendemeer White Gum, Silver-topped Stringybark, Red Stringybark, Moonbi Apple Box, Yellow Box and Ribbon Gum). Dr Nadolny also concluded that aside from trees, there was clearing of groundcover which was predominantly native, as well as scattered native shrubs and juvenile eucalypts.

35 In Dr Nadolny's view, which I accept, the cleared woodland appeared to comprise four distinct communities:

 

(a) Eucalyptus blakelyi - eucalyptus melliodora grassy woodland or "White Box Yellow Box Blakely's Red Gum Woodland", listed as an endangered ecological community (EEC) in Sch 1 Part 3 of the Threatened Species Conservation Act 1995 (TSC Act). This comprised a substantial proportion of the vegetation cleared on lower slopes at the eastern part of the Property (6-10 hectares);

(b) Eucalyptus blakelyi - angorophora floribunda grassy woodland or "White Box Yellow Box Blakely's Red Gum Woodland";

(c) Eucalyptus viminalis tall woodland and scattered trees, similar to the Ribbon Gum-Mountain Gum-Snow Gum Grassy Forest/Woodland of the New England Tableland Bioregion. About 1 - 2 hectares of this community was cleared; and

(d) Eucalyptus elliptica - Eucalyptus malacoxylon woodland. About 2 hectares of this community was cleared.

36 The defendant denied that White Box (an EEC) was present on the Property. Given Dr Nadolny's expertise and the fact that he was not cross-examined, I prefer Dr Nadolny's evidence on this point.

37 Dr Nadolny assessed the number of mature trees cleared as being between 2500 and 4000. As discussed below at [62], I find that a little more than 600 were cleared.

38 Dr Nadolny addressed the environmental harm caused by the clearing, which is dealt with below at [49] - [58].

REMEDIAL DIRECTIONS

39 In 2005 the defendant was issued with a remedial direction by the relevant government Department at that time under s 47 of the now repealed Native Vegetation Conservation Act 1997 in relation to other land.

40 In relation to the Property, in November and December 2009 the relevant government Department sent the defendant copies of a draft remedial direction under s 38 of the NV Act. On 4 January 2010 the defendant replied in writing submitting that the draft remedial direction was not reasonable and appropriate for a number of reasons (including that a significant area of the Property subject to the direction was cleared prior to his ownership). On 7 May 2010 the Department issued a final remedial direction under s 38 of the NV Act to the defendant. It required the defendant to carry out specified remedial works on the Property for 15 years including the construction of fencing around the boundary of a specified remediation area, the removal of all stock from the remediation area by 25 June 2010, the destruction of all exotic and non-native plant species and commercial crops, the keeping of specified records, and the provision of works reports and monitoring reports. There was partial compliance including removal of stock. Following representations by the defendant, an amended remedial direction was issued on 3 July 2012. The substantial cost of compliance and the negation of the stock grazing benefit to the defendant are relevant considerations on sentence.

OBJECTIVE GRAVITY OF THE OFFENCE

41 In determining the objective gravity of the offence, the circumstances of the offence to which the Court should have regard include: the nature of the offence; the maximum penalty for the offence; the harm caused to the environment by the commission of the offence; the state of mind of the defendant for committing the offence; the defendant's reasons for committing the offence; the foreseeable risk of harm to the environment by the commission of the offence; the practical measures which could have been taken to avoid the harm to the environment; and the defendant's control over the causes of the harm to the environment.

Nature of the offence

42 The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision, contravention of which constitutes the offence, and its place in the statutory scheme. A consideration is the degree to which the offender's conduct offends against the legislative objects of the NV Act, which are set out above at [7]. One of the principal means by which these objects are achieved is by the prohibition on clearing native vegetation without consent from the regulatory authority. The regulatory system created by the NV Act in conjunction with the Environmental Planning and Assessment Act 1979 depends on persons, first, taking steps to ascertain when consent is required to clear native vegetation; secondly, making application in the appropriate form and manner (including environmental impact assessment) and obtaining any consent so required before undertaking the clearing; and, thirdly, complying with the terms and conditions of the consent in undertaking the clearing. The statutory provisions requiring prior environmental impact assessment and consent are linchpins of the NV Act.

43 There is a need to uphold the integrity of the regulatory system relating to native vegetation. Offences which undermine the integrity of the regulatory system are objectively serious. Use of the criminal law ensures the credibility of the regulatory system.

44 The clearing by the defendant, without first having applied for and obtained a development consent or a property vegetation plan under the NV Act, offended s 12(1) of the NV Act and hindered the attainment of the objects of that Act.

Maximum penalty

45 The maximum penalty prescribed by Parliament for this offence is $1,100,000 (10,000 penalty units): s 12(2) of the NV Act which refers to s 126(1) of the Environmental Planning and Assessment Act. This high maximum penalty reflects the seriousness with which Parliament views the offence of clearing native vegetation without the proper authorisation.

Harm to the environment

46 The concept of harm is not confined to actual harm. The potential risk of harm should also be taken into account. The concept of harm is also not confined to measurable harm, but can include a broader notion of harm to quality of life. Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant. The concept of harm is broad and incorporates harm in a number of forms. In Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419, 148 LGERA 299 at [147] Preston CJ said:

Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously.

47 I find below at [63] that the total area unlawfully cleared in this case was 32.48 hectares. While the area cleared is of some significance, this is not determinative of the objective seriousness of the offence. Rather, it is the level of environmental harm caused by the clearing which must be evaluated.

48 There is a dispute in the evidence as to the environmental harm caused by the unlawful clearing. The prosecutor relies on the assessment of harm contained in the expert report of Dr Nadolny. The defendant relies in part on the expert evidence of Stephen Cotter, an environmental scientist/ecologist.

Dr Nadolny's view about environmental harm

49 Dr Nadolny inspected the Property on 26 August 2009 (that is, shortly after the clearing) and then on 4 May 2011. He also conducted surveys of vegetation on 20 April and 4 May 2011 in plots adjacent to the Property that were cleared, and had regard to satellite images of the Property.

50 In his view, the loss of native vegetation resulting from the clearing is significant at a district scale, with significant loss of native animals and birds on the Property. But at a larger (state-wide) scale, the impact of the clearing, on its own, is likely to be of less significance, except that it represents a pattern of clearing which is putting pressure on a range of threatened animals, particularly woodland birds.

51 Dr Nadolny estimates that 2500 to 4000 trees were felled. He concludes that many were of a moderate size (30-40 cm diameter at breast height) that may have been in the 30 to 50 year age group. However, a significant number of much larger trees, including many over 60 cm diameter at breast height and likely to be well over 100 years old, have also been felled.

52 Dr Nadolny observes that stringybark forest appears to have previously covered much of the upper slopes of the Property. He notes that stringybark forest is not considered threatened, but that which was cleared appeared to have generally comprised native vegetation that was in good condition prior to the clearing, having regard to the analysis undertaken of a nearby plot which contained a total of 53 native species. This is significantly greater than a mean species richness of 32 plants for 42 similar-sized plots in similar forest dominated by stringybark in the Guyra region. He also notes that the cleared area contained a large area of relatively intact grassy woodland. He concludes that the loss of that area of woodland is likely to be significant at a district scale.

53 As noted above at [35] - [36], Dr Nadolny concludes, and I have accepted, that the felled woodlands comprised four distinct communities, including an EEC. Dr Nadolny observes that this ecological community is considered threatened because it typically occurs in country that is well suited to agricultural development and consequently has been severely affected by clearing, fragmentation, and invasion by weeds. Protection of the grassy understorey within this ecological community is considered as important as protection of the overstorey. He also notes that a considerable area appears to have been cleared, having regard to the species of trees identified in the stacks of felled trees on the Property.

54 In terms of impact on fauna, Dr Nadolny considers that the destruction of habitat and food resources as a result of the clearing is likely to have had a severe impact on local populations of many species because territorial birds and animals that are displaced by a sudden loss of food and habitat have little prospect of establishing territories in adjacent areas, which are generally already fully occupied. He notes that the chances of them breeding successfully are reduced and that migratory species and those that forage over a wide area are also affected. Dr Nadolny uses population density estimates regarding birds on tableland woodlands/open forest to roughly estimate that over 42 hectares of cleared area, the total expected loss is 714 birds, and he observes that the number of reptiles displaced is likely to have been higher. Dr Nadolny considers that the clearing impaired an important habitat linkage between Flaggy Range in the west and treed hills east of the New England Highway. He then assesses the impact of the clearing on particular threatened species.

55 Dr Nadolny observes that the clearing and subsequent burning of some of the vegetation would have generated significant quantities of greenhouse gases and other pollutants.

56 Dr Nadolny considers that the disturbance associated with the clearing has enabled the colonisation of many species of weeds some of which have potential to become the dominant groundcover species in the area and to persist indefinitely, preventing the re-establishment of native grasses. In his view, systematic control of these species will be required.

57 He notes that the clearing and pasture development could also potentially add to the risk of eucalypt dieback in the locality, and whilst the impact of this incident, on its own, is likely to be relatively insignificant, it represents part of a pattern of unregulated clearing and agricultural development that appears to be widespread in the district.

58 Dr Nadolny recommends remediation of the cleared area, but expresses the view that even if remediation of the site is successfully undertaken, re-establishment of native vegetation comparable to that which was cleared would be expected to take many decades. In particular, some of the trees cleared contained hollows or were reaching an age when hollows that were useful for hollow-dwelling fauna were just starting to form.

Mr Cotter's view about environmental harm

59 Mr Cotter inspected the Property on 6 February 2012. He details his observations of the areas on the Property which have been marked with polygon references as polygon 165, polygon 155 and 160, and polygon 127. He points out, and I accept, that a substantial belt of native vegetation is retained on the Property. He concludes that the vegetation cleared from polygon 165 was regrowth. I accept that that is so, at least substantially. Mr Cotter asserts, on the basis of his observations, that "It is not obvious that there has been any loss of habitat value of 'Greenmount' due to clearance of vegetation", and that "there is no indication that environmental damage has occurred on 'Greenmount' through the loss of some areas of over-storey vegetation".

Conclusions as to environmental harm

60 Although I accept much of Dr Nadolny's analysis and conclude that there was environmental harm, in my view, the environmental harm was much less than Dr Nadolny estimates for the following reasons.

61 First, prior to the clearing, the Property included areas of much regrowth (as defined), scattered bigger timber, and much fallen dead timber and timber heaps, stumps and bare ground. It had been extensively logged by earlier owners prior to 1990 and this appears to have been the reason for the regrowth thereafter: see above at [25] - [26]. There is no suggestion in the evidence that that logging was unlawful or that the regrowth followed clearing of remnant native vegetation caused by bushfire, flood, drought or other natural cause such as to be excluded from the concept of "regrowth" under s 9(4) of the NV Act. The Property was overrun with rabbits and had problems with foxes, feral cats and pigs. The previous state of the Property does not mitigate the defendant's unlawful conduct but it is the starting point from which to measure the extent of the environmental damage which that conduct caused.

62 Secondly, I do not accept Dr Nadolny's estimate that 2,500 to 4,000 native mature trees (i.e. established before 1 January 1990) were felled. I accept the defendant's evidence that a little more than 600 were felled, which represented all that was required for the purpose of construction of rural infrastructure. Dr Nadolny's estimate is theoretical, being based on a comparison with the number of trees on the adjoining stock route. That area is Crown land and has not been subject to normal agricultural activities, and hence has a far higher proportion of trees per hectare than the Property. The Property had been extensively logged under earlier ownerships. Only 601 logs were counted on behalf of the prosecutor in August 2009, shortly after the clearing. Each log equates to a mature tree. At least one (and no more than a few) more felled mature tree photographed at that time had not been logged: the defendant explained and I accept that this was earmarked for butcher's blocks on the Property. There was no visible evidence at that time of any more native trees having been felled. I do not accept the prosecutor's submission that they must have been burned. I accept the defendant's evidence that recently felled trees of that maturity were too green to be burned until months after August 2009.

63 Thirdly, Dr Nadolny assumed that over 42 hectares had been cleared. In fact, Mr Spiers' estimate was 44.7 hectares. I find that 32.48 hectares were unlawfully cleared. This is a reduction of 12.22 hectares from Mr Spiers' estimate and represents partial acceptance of the defendant's estimate of 17.62 hectares for permissible buffer distances under cl 20(3) of the NV Regulation. As the only item in the defendant's itemised estimate of 17.62 hectares that the prosecutor disputed was a 5.4 hectares buffer for firebreaks, I accept the balance of 12.22 hectares. I do not allow the 5.4 hectares buffer for firebreaks because firebreaks are not provided for in cl 20(3) in the Namoi Catchment Management Authority region where the Property is located. This is perhaps curious since cl 20(1)(c) does permit buffer clearing for firebreaks in the Western Division. I accept, however, that the defendant was genuinely and reasonably concerned that there should be buffers for firebreaks.

64 Fourthly, I accept the evidence for the defendant that, consequential upon the clearing of regrowth and previously fallen timber, the noxious animals have been virtually eradicated. To that extent, there has been an offsetting environmental benefit.

65 Fifthly, a substantial belt of native vegetation through the Property remains intact as a corridor to adjoining timbered areas.

66 Sixthly, the defendant contends that the substantial number of foxes and feral cats prior to the clearing meant that native fauna had been wiped out on the Property. I accept that their numbers had been at least greatly reduced for this reason.

67 Having regard to these considerations, I conclude that the environmental harm caused by the unlawful clearing was moderate.

68 The remedial direction and amended remedial direction issued to the defendant should result, in due course, in remediation of the environmental damage that he has caused at his cost.

State of mind

69 The offence against s 12(1) of the NV Act is a strict liability offence; mens rea is not an element of the offence. Nevertheless, the state of mind of an offender at the time of the offence can have the effect of increasing the seriousness of the offence. A strict liability offence that is committed intentionally, recklessly or negligently will be objectively more serious than one not so committed. A large measure of premeditation will make an offence more serious than if it is committed on the spur of the moment.

70 The defendant was the owner of the Property and gave verbal instructions to his brother to undertake the clearing. To that extent the clearing was premediated, and in that sense intended.

71 The prosecutor submits that the defendant was at least reckless having regard to the following evidence:

 

(a) he was aware that native vegetation legislation applied (noting the remedial direction issued to him in 2005 in respect of other land);

(b) he was familiar with the exclusions/exceptions under the NV Act, such as those relating to RAMAs, regrowth and timber for farm use; and

(c) he did not seek consent to undertake the clearing, and apparently made no inquiries nor sought advice about the clearing he proposed.

72 I characterise the defendant's conduct as negligent rather than reckless. This is a case where the defendant genuinely believed that the clearing came within statutory defences or exceptions and was partly correct. The defendant had the regrowth, RAMA and buffer exceptions or defences to the prohibition in s 12(1) of the NV Act clearly in mind when he directed his brother to undertake the clearing. He mistakenly believed the clearing of the trees fell within the RAMA exception for construction of rural infrastructure within 18 months. Corroboration is provided by evidence of a quote dated 15 June 2009 which the defendant obtained for new sheds and a sheep yard with all materials to be supplied by him. However, notwithstanding his awareness of the prohibition in relation to clearing native vegetation, he undertook no steps to obtain the requisite consent or property vegetation plan under the NV Act, and he did not seek guidance about the clearing he proposed and/or whether his understanding of the exceptions was correct.

73 Notwithstanding that the defendant cleared the mature trees for the purpose of constructing rural infrastructure within 18 months, in my view, as the prosecutor submits, he was mistaken as to the availability of the RAMA defence of construction of rural infrastructure for at least two reasons. First, there was no compliance with cl 16(2)(b) of the NV Regulation that the clearing is carried out in conjunction with a restoration program or other arrangements that will ensure the restoration of native vegetation on the cleared land etc. There was no such program or other arrangements. Secondly, the native vegetation cleared included an EEC and, to that extent, was not permitted: cl 16(3)(a) NV Regulation, s 4(1) and Sch 1 Part 3 TSC Act.

74 The prosecutor submits that the defendant was reckless in not obtaining an assessment prior to clearing as to the most effective way of removing pest animals with minimal impact on the environment. However, there is no evidence as to what such an assessment would have disclosed. The prosecutor submits that even on the most generous view of the evidence of feral rabbits and pigs on the Property, the alleged clearing of 44.7 hectares was well in excess of that which would have been reasonable in the circumstances. I do not accept the submission. I have found that the clearing was about 32 hectares. The clearing of the regrowth was necessary in order to control noxious animals, comprising rabbits, foxes and feral pigs and cats, on the Property. Rabbit infestation and resultant land damage was out of control without action including land clearing.

Reasons for committing the offence

75 The criminality involved in the commission of offences is to be measured not only by the seriousness of what occurred but also by reference to the reasons for its occurrence. Clearing of vegetation from agricultural land is commonly for commercial gain, such as to increase grazing productivity, often with the expectation of an increase in capital value: Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137, 168 LGERA 121 at [11] - [12].

76 I find that the defendant's reasons for clearing were as set out above at [5(d)]. They included the commercial object of improvement of stock management, which is an aggravating circumstance. However, that appears to have been negated to a substantial degree by the remedial direction in relation to the Property.

Foreseeability of risk of harm

77 Having regard to the nature and extent of the clearing, and the native vegetation cleared, a reasonable person would foresee the risk of harm caused or likely to be caused to the environment by the commission of the offence.

Practical measures to prevent risk of harm

78 The defendant could and should have refrained from clearing the native vegetation on the Property unless and until the required consent or plan had been obtained authorising the clearing.

Control over causes

79 The clearing only occurred because the defendant directed it to occur. He had full control over the causes of the harm to the environment.

Conclusion on objective seriousness

80 Having regard to each of the factors addressed above, I accept the prosecutor's submission that the offence committed by the defendant was of moderate objective gravity.

SUBJECTIVE CIRCUMSTANCES OF THE DEFENDANT

81 Within the limits set by the objective gravity of the offence, the Court may take into account the favourable factors personal to the offender. The defendant's erroneous understanding of the rural infrastructure RAMA defence has been addressed above at [73].

Lack of prior criminality

82 The defendant does not have any prior convictions for any environmental offences.

Remedial direction and amended remedial direction

83 In May 2010, the defendant was issued a remedial direction under s 38 of the NV Act in relation to the Property by the Director-General of the relevant Department. There was partial compliance and the defendant kept stock off the relevant areas but had difficulty erecting the fencing as directed. I do not regard this as significant given that on 3 July 2012 an amended remedial direction was issued.

Plea of Guilty

84 An offender is generally entitled to a discount for the utilitarian value of a plea of guilty to a maximum of 25 per cent. A plea of guilty at the earliest opportunity generally has a higher utilitarian benefit and should attract a higher discount than a later plea of guilty.

85 In the present case the plea of guilty was not entered at the first opportunity but nevertheless has had a utilitarian benefit. The proceedings were commenced on 5 July 2011. The defendant made submissions to the prosecutor on 12 July 2011. At the first mention of the matter on 19 August 2011, the matter was adjourned to allow the prosecutor to consider and respond to the defendant's submissions. The prosecutor responded on 31 August 2011, and served five further affidavits completing its brief. At the second mention on 2 September 2011, the matter was adjourned to allow the defendant time to brief a solicitor and obtain legal advice. The defendant failed to appear at the third mention on 30 September 2011, and at the fourth mention on 7 October 2011 the matter was adjourned again to allow the defendant to obtain advice from counsel. A plea of not guilty was entered at the fifth mention on 21 October 2011. However, this was changed to a plea of guilty at the sixth mention on 9 December 2011.

86 The utilitarian value of a plea is reduced by the extent to which an offender unsuccessfully contests issues of fact at the sentencing hearing. Here the defendant put the prosecutor to proof as to the number of mature trees felled and was successful. He put the prosecutor to proof as to the area unlawfully cleared and was partially successful. He put the prosecutor to proof of the extent of environmental harm and was partially successful.

87 I propose to allow a discount of 20 per cent for the utilitarian value of the plea of guilty.

Remorse

88 A plea of guilty alone will rarely be sufficient to establish that an offender is remorseful of his actions. Here, there is little by way of evidence that the defendant is remorseful. Indeed, it is apparent from his affidavit that he believes he made an unfortunate mistake about the permissibility of the use of timber, and that otherwise he does not consider he has done anything wrong.

Cooperation and assistance to law enforcement authorities

89 The Court should take into account an offender's cooperation with and assistance to law enforcement authorities. In this case, it appears that the defendant supplied information as requested and discussed the matter with investigators.

DETERRENCE

90 The sentence of the Court is a public denunciation of the conduct of an offender. The sentence must ensure that an offender is held accountable for his or her actions and is adequately punished. It must deter the offender from committing similar offences in the future. It also needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed.

91 The defendant was the subject of a remedial direction under the now repealed Native Vegetation Conservation Act in 2005 in relation to other land, and yet he undertook the clearing the subject of this prosecution in 2009. The penalty imposed ought be sufficient to act as a specific deterrent upon him to ensure he does not, again, clear native vegetation without the requisite authority/consent or a proper appreciation for the exceptions/defences in relation to clearing native vegetation. The penalty imposed ought also be sufficient to act as a general deterrent upon property owners in New South Wales from clearing native vegetation without making appropriate enquiries and obtaining necessary authorisation.

CONSISTENCY IN SENTENCING

92 A relevant consideration in sentencing is the ascertainment of a general pattern of sentencing for offences such as the offence under consideration. The task of a sentencing court is to pursue the ideal of even-handedness in the manner of sentencing.

93 I have considered the following comparable cases, in all of which fines were imposed: Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4, 165 LGERA 256; Director-General, Department of Environment and Climate Change v Taylor [2007] NSWLEC 530; Director-General, Department of Environment and Climate Change v Wilton [2008] NSWLEC 297; Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137, 168 LGERA 121 at [77] - [93]; Director General, Department of the Environment and Climate Change v Olmwood Pty Ltd (No 2) [2010] NSWLEC 100; Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Ltd [2010] NSWLEC 200; Director General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30; Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119; Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75; Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129. The circumstances in these cases were so diverse and generally so different from the present case that it is difficult to identify a pattern of sentencing into which the present case readily slots.

PAYMENT OF THE PROSECUTOR'S COSTS

94 The prosecutor seeks an order that the defendant pay its costs of the proceedings. The prosecutor says that its costs total $36,600. The defendant has not yet agreed on the quantum of the prosecutor's costs. The amount of costs can be taken into account as part of the consideration of penalty. However, in the absence of any evidence as to the means of the defendant to pay whatever fine might be imposed, I do not give significant weight to the fact that he will also be ordered to pay the prosecutor's costs.

FINE

95 In my opinion, synthesising the various considerations, the appropriate penalty is a fine of $50,000, which I reduce for the plea of guilty by 20 per cent to $40,000.

ORDERS

96 The orders of the Court are as follows:

(1) The defendant is convicted of the offence under s 12 of the Native Vegetation Act 2003 as charged.

(2) The defendant is fined the sum of $40,000.

(3) The defendant is to pay the prosecutor's costs as assessed or agreed.

(4) The exhibits may be returned.

Decision last updated: 20 July 2012