Andrew Donnelly and David Mundine v Tenterfield Shire Council (2 June 1998)

[1998] NSWLEC 7

Land and Environment Court

of New South Wales

CITATION:	BURWOOD COUNCIL v. ANTHONY ROBERT ANDREW & CYNTHIA MARY ANDREW [1998] NSWLEC 7 (10 February 1998) [1998] NSWLEC 39
PARTIES:	BURWOOD COUNCIL v. ANTHONY ROBERT ANDREW & CYNTHIA MARY ANDREW [1998] NSWLEC 7 (10 February 1998)
FILE NUMBER(S):	50095 of 1996
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s76(2) State Environmental Planning Policy No.46 Native Vegetation Conservation Act 1997 Crimes Act 1900
CASES CITED:
DATES OF HEARING:	6 February 1998
DATE OF JUDGMENT:	02/06/1998
LEGAL REPRESENTATIVES:	Mr M Baird, Barrister instr. by Mr M Radcliffe, solicitor Mr J Robson, Barrister Instr. by Mr M Hallet, solicitor

JUDGMENT:

The Defendant has pleaded guilty to a charge of an offence against the Environmental Planning and Assessment Act 1979 in that on or about 11 to 21 June 1996 it cleared native vegetation on part of a rural property situate in Walgett Shire known as “Karuka” without obtaining development consent of the Director General of the Department of Land and Water Conservation as required by State Environmental Planning Policy No. 46 - Protection and Management of Native Vegetation (the State Policy).

Although the Defendant which is a family company had earlier indicated its intention to defend the charge in common with the two principals of the company, Mr and Mrs Lyons (who also were charged) in September of last year the Court was informed that the Defendant now wished to enter a plea of guilty. On that occasion it was indicated that the charges against the principals of the company, Mr and Mrs Lyons, in respect of the same offence would be withdrawn.

The evidence establishes that the clearing of native vegetation on the Defendant's property involved an area of some 180 acres of open woodland country forming part of the overall land holding which comprises some 2,900 hectares. Of that overall land holding some 1,300 hectares in the vicinity of river frontage have not been developed for farming or grazing purposes for proper ecological and environmental reasons. The development of the residue of the property of some 1,100 hectares for farming and grazing use has occurred over the past 20 years or so involving a progressive degree of land clearing.

The evidence establishes that the land cleared in the present case (the 180 hectares) has been cleared in a location adjacent to one of the property’s boundaries and is otherwise surrounded by other cleared land, such clearances having occurred at a time prior to the commencement of controls on land clearing activities.

In addition to changing its plea the Defendant has entered into an agreement with the Prosecutor in respect of the setting aside and maintenance of wildlife corridor/refuges on the property in respect of an area of land in totality two or three times more extensive than the 180 hectares cleared.

That agreement is reflected in the terms of draft consent orders which the parties have submitted to the Court as Exhibit 3. I accept that the Defendant's willingness to enter into these agreements (which contemplate additionally registration of the obligation on the title to the land under the Real Property Act) involves the Defendant in considerable concessions as to the future use and maintenance of the property limiting future development options on the property, and will involve the Defendant in a not inconsiderable expenditure in terms of augmentation of stock proof fencing and the like in respect of the areas set aside as wildlife corridor/refuges.

I accept that this agreement reflects on the Defendant's part a willingness to make some significant form of reparation in favour of environmental considerations pertaining to the property for the land that has been cleared.

The cleared land, as I have earlier said involves an area of some 180 hectares, and according to the evidence led by the Prosecution the predominant species of trees destroyed from the cleared area was the Coolabah tree and the Blackbox tree and to a lesser extent rosewood and belah trees, all of these species being indigenous to New South Wales and relevantly constitute native vegetation in terms of the State Policy.

The Prosecution evidence (which has not been rebutted) estimates an average of 23 trees per hectare and many of these trees are greater than ten years of age and a number of them contain tree hollows (indicating much greater age). The environmental significance of the removal of that type of tree and the magnitude and scale of the removal have been deposed to by Mr Sivertsen in his affidavit which was admitted as Exhibit 6.

That evidence is similar, by dint of its statistical and generalised opinion content, to the evidence that was given by Mr Silversten in a prosecution brought by the Director General last year against Bungle Gully Pty Limited for a similar offence. I would refer to what I said in my reasons for judgment in that case delivered on 8 August 1997 concerning the utility and the weight which I attribute to his opinions. As I said there and repeat here, much of the evidence given by Mr Sivertsen goes to the question of the ecological justification for the State Policy. However, I accept here as I accepted there, his more particular evidence recorded in paragraph 55 of his affidavit that the consequence of the clearing activity in this case would be the destruction of habitat of between 2,800 and 5,600 birds.

I mention his evidence, as I did in that case, as an indication that the offence in this case does involve not insignificant environmental consequences. However as I have earlier mentioned the agreement by the Defendant to create and maintain the aforesaid wildlife corridor/refuges must be seen as a considerable environmental reparation of whatever environmental losses and detriments that have been incurred by dint of the clearing of the 180 hectares of open woodland area in this case.

Defence Counsel has made a powerful plea supported by considerable and detailed argument that in the circumstances of this case the Court should not impose any further pecuniary penalty on the Defendant. I add that the draft consent orders contemplate the Defendant paying in an agreed sum the Prosecutor's costs in these proceedings.

No submission has been advanced on behalf of the Defendant that I should exercise in its favour the discretion conferred by section 556A of the Crimes Act 1900 and not record a conviction, but the Defence submission comes very close to that position. The submission draws attention to the position of the principals of the Defendant company, Mr and Mrs Lyons, and I take into account in favour of the Defendant all that has been said on their behalf, recognising the reality that they are unmistakably identified with the Defendant company particularly so in their local community, and although the Defendant company is a separate legal entity their identification with it, is inevitable and obvious.

In the Bungle Gully case in my reasons for judgment to which reference might usefully be made, I drew attention to a number of factors which led me to conclude that the offence committed in that case should be seen as involving a serious matter. At page 7 I referred to four particular factors, each of which to one degree or another has application in the present case. Those factors were:

“…
(i) the large extent of the clearing undertaken;
(ii) the environmental consequences of that clearing;
(iii) the obvious public and ecological significance of the SEPP 46; and
(iv) the public interest in promoting obedience the requirements of SEPP 46.”

It is true as Defence Counsel has pointed out that there are differences in the facts of the two cases. In the earlier case the area cleared was 275 hectares compared with 180 here and the land cleared in the earlier case involved riverfront land which could, following the clearing, be put to arable purpose which again, is a point of distinction in the present case, where the cleared land will be available for grazing.

I also said in the Bungle Gully case that there was justification for the sentence there imposed to reflect the deterrent principle, not only as it applied to the Defendant but in its wider aspects as operating to educate the whole community of the necessity to heed and obey the requirements of the State Policy. That sentencing principle also applies to the present case.

In this respect I note the recent repeal of the State Policy by the enactment, and coming into force of the Native Vegetation Conservation Act 1997, an Act which commenced on 1 January 1998. I do not propose to examine in any detail the provisions of that Act other than to say that it would appear to implement a statutory regime of control of land clearing, similar to that operating under the State Policy, although I accept the Defence submission that the regime embodied in a public Act of the State is likely to experience greater community awareness and acceptance and to involve less community disquiet and confusion than did the pioneering State Policy, although it is possible to see the Act and the regime it implements as but a logical development of the foundation provided by the State Policy when it first came into force in 1995.

I accept Defence Counsel's submission that for the farming community the State Policy was not only generally perceived as an unwelcome intrusion upon farming activity, but also brought in its wake a certain amount of confusion and doubt (concerning the scope of activities controlled thereby).

I will not repeat all of the matters in mitigation that have been advanced on behalf of the Defendant. I have been considerably assisted by the written outline of the defence submission and I accept the defence submission that in terms of sentence and consistent sentencing policy the present case must be viewed as deserving of a lesser penalty than was imposed in the Bungle Gully case.

In that case I imposed a penalty of $20,000 reflecting what I said to be a 50 per cent reduction component on account of mitigating factors there relied on and particularly having a regard to the Defendant's willingness to agree to certain remediation or environmental reparation in respect to that land.

Of course it is not necessary to compare the two cases point by point, other than to demonstrate the important matter of consistent sentencing approach and policy that the Court must adopt when considering similar offences. Much of what I said in that case in terms of general principle, appears to me to be relevant to the present case, and for the reasons given I so apply the earlier reasons for judgment.

However, as I said I accept that the factors of mitigation that have been raised in the present case on behalf of the present Defendant, lead me to the conclusion that by way of comparison a far less severe sentence is called for in the present case than was justified in that case.

I am sympathetic to the principals of the Defendant company and I am aware of their good standing in the community and accept that this prosecution hanging over their heads has caused them no small amount of distress. I accept of course as well in this case the considerable environmental reparation involved in the agreements that they have entered into in relation to the creation of the wildlife refuge/corridors, but I have been ultimately unable to accept the defence submission that no penalty or only a nominal penalty is justified in the present case.

Having regard to the nature of the offence, and a proper appreciation of its environmental consequences and giving the Defendant the considerable benefit of the mitigating circumstances that have been raised on its behalf, and having regard to the fact that the maximum penalty for the offence is $100,000, I have come to the view that a lenient penalty is justified and in the circumstances of the case and I propose to impose a penalty of $10,000 and, by consent, allow 18 months for payment.

In other respects I make the orders in accordance with the draft Consent Orders (Exhibit 3). A copy of the Court’s Orders is annexed.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 8 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD.