Ballina Shire Council v Davfast Pty Limited
[1998] NSWLEC 21
•10/09/1998
Land and Environment Court
of New South Wales
CITATION: BALLINA SHIRE COUNCIL v. DAVFAST PTY LIMITED [1998] NSWLEC 21 PARTIES: BALLINA SHIRE COUNCIL v. DAVFAST PTY LIMITED FILE NUMBER(S): 50083 of 1998 CORAM: Sheahan J KEY ISSUES: :- Development without consent - environmental protection zone - Class 5 - guilty plea - remediation order LEGISLATION CITED: Environmental Planning & Assessment Act 1979 s 76
Ballina Local Environmental Plan 1987
Crimes Act 1900CASES CITED: Badgery-Parker J in Axer Pty Limited v Environmental Protection Authority ("Axer") (60763 of 1992, Court of Appeal, 22 November 1990);
See Environmental Protection Authority v Iron Gates Pty Limited (Sheahan J, 50083 of 1997, 12 June 1998);
Environment Protection Authority v Capdate Pty Limited (Stein J, 50030-1 of 1992, 10 February 1993)DATES OF HEARING: 24 August 1998 DATE OF JUDGMENT:
10/09/1998LEGAL REPRESENTATIVES: Mr G J Bellew, Barrister
Mr D Wilson, Barrister
JUDGMENT:
Introduction
1. Ballina Shire Council(“Council”) has charged Davfast Pty Limited (“the company”) with a breach of the provisions of s 76 of the Environmental Planning & Assessment Act 1979 (“EPAA”).
2. The company is charged that between November 1997 and 15 December 1997, upon land situated off Patch’s Beach Road, Patch’s Beach (“the subject land”), it aided and abetted the carrying out of development , namely cutting down, topping, lopping or otherwise destroying trees, and/or clearing, filling, or otherwise altering the surface level of the land, which are all works for which consent is required to be obtained under the EPAA and for which no development consent has been obtained.
3. A plea of guilty was entered when the summons was returned before the List Judge on 15 May 1998 and the matter was fixed for hearing on the questions of costs and penalty on 24 August 1998. The company adhered to its plea of guilty on the day of the hearing. An offence against s 76 EPAA is one of strict liability . The absence of knowledge that consent was required is no defence, and mens rea does not need to be proven.
4. The maximum penalty for the offence charged is $110,000 (s 126(1) EPAA). The prosecutor seeks the imposition of a serious financial penalty, an order for costs, and an order requiring continued remediation work. The defendant has no relevant prior convictions, and related proceedings, in Class 4 of this Court’s jurisdiction, have been resolved.
5. The Council relies upon the evidence of:
· David Anthony Lindsay Kitson , a relevantly qualified and experienced town planner in its employ.
· David Mark Kelly , a registered surveyor employed by Council.
· John Anthony Barlow , a Soil and Vegetation Officer (Compliance) with the Department of Land & Water Conservation (“DLWC”) based in the North Coast Regional Office at Grafton.
6. The company relies upon the evidence of:
· Paul Nicholls , a Director of the company, duly authorised by its Board to conduct the company’s defence.
· Evan Thomas Elford , a Civil Design Draftsman employed by David Ardill & Associates Pty Limited.
· Colin John Lutton , a registered surveyor.
Relevant Sections of the EPAA
7. Section 76 provides:
“76. Restriction on development
(1) Subject to this Act, where an environmental planning instrument provides that development specified therein may be carried out without the necessity for consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies except in accordance with the provisions of that instrument.
(2) Subject to this Act, where an environmental planning instrument provides that development specified therein may not be carried out except with consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies unless:
(a) that consent has been obtained and is in force under this Act, and
(b) the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted and of that instrument.
(3) Subject to this Act, where an environmental planning instrument provides that development specified therein is prohibited, a person shall not carry out that development on land to which that provision applies.”
8. Section 125 provides:
“(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.
(2) Where any matter or thing is by or under the regulations directed or forbidden to be done, or where the Minister, the Director, a council or any other person is authorised by the regulations to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or
prohibition shall be guilty of an offence against the regulations.
(3) Nothing in subsection (1) or (2) applies in respect of a direction given under this Act by the Minister to a public authority.”
9. Section 126 (3) provides:
“(3) Where a person is guilty of an offence involving the destruction of or damage to a tree or vegetation, the court dealing with the offence may, in addition to or in substitution for any pecuniary penalty imposed or liable to be imposed, direct that person:
(a) to plant new trees and vegetation and maintain those trees and vegetation to a mature growth, and
(b) to provide security for the performance of any obligation imposed under paragraph (a)”.
Background
10. The subject land has a total area of 45.7ha. It was previously lot 28 in Deposited Plan (“DP”) 582149 but now comprises parts of lot 1 and 2 of DP 874687. It is currently the only asset of the company; it has an estimated value of between $500,000 and $600,000; and there are no current borrowings secured against it.
11. Patch’s Beach is situated 10km south of Ballina and the subject land is immediately to the north of Patch’s Beach Village. The subject land has a frontage to the beach and has been owned by the company since 24 November 1988. Its use has been dedicated principally to cane farming, and it apparently produces about 1500 tonnes of cane per annum.
12. The company was incorporated on 30 June 1988 and it is registered as the proprietor of both lots of the subject land. Its directors are Paul Nicholls of Alstonville, William Keating from the United States of America, and Richard John Sinclair (“John”) Laws of Sydney. Laws has also been the Secretary of the company since 1995.
13. The evidence suggests that the company had “good intentions for the land”. Among the three directors, Nicholls has been primarily responsible for managing the farm; he has visited it at least weekly; and, in the matters here involved, he has been authorised to speak for the company. He was married to Laws’ step-daughter and following the breakdown of their marriage, some four years ago, possible sale of the subject land emerged as part of the rearrangement of family affairs.
14. Although possible sale had been discussed by directors from time to time, Nicholls denies that any formal meeting resolved to sell it. He claims he favoured sale, but Kitson gave evidence that Nicholls told him he wanted to keep it. In any event, it appears that sale was discussed among Nicholls, Keating and the family lawyer, at about Christmas 1996, and a decision in favour of sale was then taken.
15. Nicholls claims that there were no efforts made to sell the property privately and that it was always intended to be auctioned. Between Christmas 1996 and October 1997, nothing was done to arrange the auction and he continued to run a cane farm on the subject land. A marketing exercise commenced late October-early November 1997 in preparation for an auction scheduled for 12 February 1998.
16. There is evidence of some relevant works being done on the subject land in about the middle of 1997, and more works sometime in the November 1997-February 1998 period, and these works, the Court is asked to infer, were at least partly intended to assist the sale of the subject land by improving its marketability.
17. The property did not sell at the 12 February 1998 auction, and development applications were made to Council on 1 July 1998. These applications have not yet been determined, but Nicholls asserts on the company’s behalf that they
“clearly address all relevant issues relating to the effective rehabilitation of the property as previously expressed by the … Council”.
The Ballina LEP
18. Under Ballina Local Environmental Plan 1987 (“the LEP”), gazetted on 27 February 1987, the subject land is zoned 7(f) - environmental protection (coastal lands) zone ( Exhibit C1 ).
19. Clause 2 of the plan sets out its aims and objectives and they include:
· “to encourage the proper management, development and conservation of natural and man made resources”.
· “to promote the social and economic welfare of the community and to provide a better environment”.
· “to recognise and provide for the variety of agricultural, recreational, natural and other land uses which form the rural environment of the Shire of Ballina”.
· “to take account of the physical nature of the environment of the Shire of Ballina so that development is in harmony with scenic and ecological resources”.
· “to encourage further development of tourist and recreational activities within the Shire of Ballina, while minimising its adverse impact on the natural attractions and amenity enjoyed by permanent residents”.
20. The zoning table under cl 9 sets out the following objectives for zone 7(f) :
“A. The primary objectives are -
(a) to protect environmentally sensitive coastal lands; and
(b) to prevent development which would adversely affect or be adversely affected, in both the short and long term, by the coastal processes.
B. The secondary objective is to enable the development of public works and recreation amenities where such development does not have significant detrimental effect on the habitat, landscape or scenic quality of the locality.
C. The exceptions to these objectives are -
(a) to permit the development of public works, outside the parameters outlined in the primary and secondary objectives, only in cases of demonstrated and overriding public need and subject to the impact on the coastal lands being minimised, as much as is reasonably practical; and
(b) development of surf lifesaving, environmental education facilities and like facilities.”
21. Relevantly, the following uses are permissible “only with development consent” -
agriculture, camping grounds, drainage, dwelling-houses, environmental protection works, open space, recreation facilities and roads. Any purpose not included in the list from which these uses have been extracted are prohibited.
22. Clause 23 provides in respect of land within zone 7(f) and other zones that:
“a person shall not …
(a) … cut down, top, lop or otherwise destroy a tree (other than a tree planted for commercial or landscaping purposes); or
(b) clear, fill or otherwise alter the surface level of land,
without the consent of the council”.
23. Clause 32 provides that:
“The Council shall not consent to the carrying out of development within Zone No.7(f) for any purpose except with the concurrence of the Director”, ie the Director of the Department of Urban Affairs and Planning (“DUAP”).
24. Clause 32(2) requires “the Director” to take into consideration in those circumstances where concurrence is sought:
“(a) whether any environmental issues are involved in, or raised by, the proposed development;
(b) if so, whether adequate safeguards and rehabilitation measures have been, or will be, made to protect the environment; and
(c) whether the development complies with the objectives of Zone No.7(f) as set out in the Table to clause 9.”
The relevant “works” done on the subject land
25. Under the LEP, the works complained of in the charge, and some relevant earlier works on the subject land, are all permissible with consent, but neither consent nor departmental concurrence was sought for any of them.
26. In respect of what was referred to in the evidence as the “initial works”, namely those done in about May 1997, ie the cutting of “roads” to two “house pads” which had been cleared for the purpose, no charges were brought but there was in evidence some relevant correspondence.
27. When Council received a complaint in February 1998 about what might usefully be described as “further works”, an inspection identified development without consent. Those “further works” are the subject of the present charge and they include the widening and gravelling of the earlier made roads, some excavation works, the clearing of dunes, and the clearing of vegetation.
28. As there are substantial factual disputes between the parties, the evidence needs to be set out in some detail.
The evidence in detail
29. Kitson is the Council officer responsible for overseeing development within the Shire. He deposes that, in the register of Development Applications, Consents, and Determinations, maintained by the Council, there is no consent or other determination relevant to the work done on the land.
30. He first inspected the land on 6 June 1997 and observed that from “a common junction on the western side of the land two roads had been constructed each which led respectively to areas upon the land which had been extensively cleared and levelled. Around both cleared areas I saw a significant number of trees which had been felled and which were native trees, the predominant species of which was a coastal banksia”.
31. What has become known as “the northern road” had been constructed within the 7(f) zone and was approximately 330 metres long. What has become known as “the southern road” had also been constructed within the 7(f) zone and was approximately 180 metres long. The survey prepared by Kelly confirms that the clearing at the end of the northern road was at least 2400 square metres in area and that at the end of the southern road approximately 800 square metres in area. The photographs annexed to Kitson’s affidavit of 22 April 1998 illustrate the work done as it appeared on 25 June 1997. The total area cleared in these “initial works” is estimated at 1.78ha.
32. On 12 June 1997 , Council wrote to the company drawing its attention to the provisions of cl 32 of the LEP, advising the company of the need for consent and for Departmental concurrence, and seeking particulars as to the circumstances of the works done, the contractors involved, etc. Council in that letter also sought a written undertaking that “all further clearing and earthworks” would cease until development consent had been obtained. The company was also asked to show cause why Council should not commence proceedings, and to indicate what rehabilitation measures it proposed to undertake to “stabilise the land and prevent erosion”. The Council also wrote to DLWC and DUAP on the same date in respect of the alleged “unauthorised clearing” of “the land”.
33. Nicholls replied to Council on 22 June 1997 to the following effects:
· For eight years the owners had camped on various parts of it using caravans and tents.
· “last year we had to burn some cane that joined the coastal vegetation which was once all banksia, she-oaks and paper bark. Over the last few years the bitou bush has been encroaching onto our caravan and tent sites. Last year the cane fire got away and got into the bitou bush. It burnt with incredible fury and we were only just able to put the fire out… but you could imagine our concern when we saw the way the bitou bush burned even when it is green. The amount of decomposed dry undergrowth which is a very potential fire hazard is huge”.
· “this year when I took the excavator to the farm to do the drains and various other works I decided to clear an area around the caravan so that if a fire did break out then the caravan and tents would be safe. Our children use this area a lot, especially during the summer months and quite often they are alone.”
· “there has always been four WD tracks in this portion of our land with cleared areas and tracks to the beach. Over the last few years these areas have become
overgrown with the bitou bush. After I cleared this area I seeded it up with couch seed brought from Norco. It is now starting to germinate nicely”.
· “I only cleared the areas that we have always used to camp on over the last eight years to make it safe from fire during the cane fire season and the hot summer months. I felt I was only helping the natural vegetation by eradicating the bitou bush. I had no idea that I needed consent to clear bitou bush on our own land or to make our camping area safe”.
· He had been discussing with Southern Cross University the possibility of some rehabilitation work. “In doing so we hope to find the best possible way to save our very precious parcel of land that is being destroyed by the invasion of the bitou bush”.
34. Kitson produced a 1994 aerial photograph which, he says and the Court agrees, indicates that there were no (developed) tracks in existence on the land (as distinct from on areas to its north and south) prior to the construction of the northern and southern roads referred to above. Kitson made other enquiries as a result of Nicholls’ letter of 22 June 1997; he inspected the property again on 25 June 1997 and took further photographs; and he prepared a memo dated 15 July 1997 which records the following comments, inter alia:
· no caravan was on the site during the inspections.
· it would be difficult to get a caravan to the cleared areas and one would assume that once a caravan was able to be placed there, it would be left there.
· the clearing involved the removal of a significant amount of native vegetation in addition to the removal of bitou bush.
· no grass was observed to be growing in the cleared areas but extensive bitou bush growth was observed.
· the tracks to the cleared areas are significant works with cuts of up to 5 metres high through sand dunes.
· the only evidence of fire on the land was in the heaped piles of dead vegetation on the southern edge of the clearing in the north of the site adjacent to the entry track.
· a Council officer indicates that bitou bush is not highly combustible.
· Council’s fire officer reports no calls for assistance in relation to fires on the property.
· Southern Cross University has put the Nicholls proposal on a list of projects which may or may not be taken up by its students in the coastal management course.
35. It is useful at this point to record the following evidence given by Kitson in his affidavit in reply dated 17 August 1998:
· There is an improved public vehicular track leading from the end of Patch’s Beach Road situated within the village of Patch’s Beach to Patch’s Beach itself. The tracks across the subject site are longer and more difficult to traverse and there is a large frontal dune protecting the beach. He submits that it is unlikely members of the public would use the tracks Nicholls says were in evidence on the land.
· He made enquiries of the Wardell Angling Club who confirmed that Nicholls only allowed the Club to use an area of land immediately adjacent to the village fronting Patch’s Beach Road and no other area over the last few years.
· Enquiries of the relevant Cane Inspector indicate that the north-eastern paddock and the south-eastern paddock were burnt and harvested in July 1996. The paddock lying between those two paddocks was fallow in 1996.
· He inspected the land on 6 and 25 June 1997 and observed that the banksia trees were certainly not dead. They were alive when cleared, as green leaf foliage remained on the branches. The only evidence he observed of any recent burning concerned debris.
· Bitou bush was not declared “noxious” until 20 March 1998.
· The brochure for the auction of the subject land asserts “both lots have elevated house sites with SWEEPING ocean and hinterland views”.
· Examination of the photographs establishes the clearing, excavation and upgrading of the tracks by the use of heavy earthmoving equipment “rather than gradual development by use of members of the public”. From his inspection on 6 June 1997 he concluded that the clearing and development of the two roads had been undertaken “recently … prior to June 1997”.
· “My inspections of the subject land further reveal that heavy earthmoving equipment was clearly used”.
· A comparison of the photographs taken on 25 June 1997 and 9 February 1998 indicates the clearing of native vegetation undertaken to widen the road tracks. Vegetation cleared within that time frame can be seen to have been alive as at 25 June 1997. “From my observations it was apparent that extensive work had been carried out in developing the subject access road which involved significant excavation when such roads were developed and when gravelled”.
36. In the middle of 1997 , Council resolved to await advice from DLWC regarding the possible breach of State Environmental Planning Policy 46 (“SEPP 46”) prior to making a decision on whether to prosecute, or seek orders, in relation to breaches of the LEP.
37. DLWC advised in its letter of 17 September 1997 that it had decided not to prosecute. Council then resolved to take no further action in regard to the unauthorised clearing, but requested the company, in a letter of 7 October 1997 , to liaise with Kitson to devise details for work to be undertaken by Nicholls, or on his behalf, to ensure “that the disturbed areas are appropriately rehabilitated as soon as possible”. Council received no response from Nicholls or the company.
38. Kitson received a “complaint” on 9 February 1998 and, on re-inspecting the land, he identified further “development”, including the widening and the laying of the gravel surface on the roads which had previously been cleared and excavated and found “further development had been undertaken of the land including the widening and the laying of the gravel surface on the roads which had been previously cleared and excavated to my knowledge somewhere between January and May 1997. This fresh work involved the further excavation and clearing of sand dunes”. He took photographs on 9 February 1998, which indicate, in comparison with those he took on 25 June 1997, that there had been further excavation and clearing of vegetation, and that the surface level of the land had been altered with, or to accommodate, the further roadworks.
39. On 12 February 1998 , Council faxed a letter to the company, insisting that development consent is required to “construct roads in the 7(f) zone” and/or to “alter the surface of the land” therein. Again particulars were requested, as were undertakings. Proceedings were foreshadowed and rehabilitation measures sought. It was noted that the company had made no contact with Kitson since the letter of 7 October 1997, and that Council would re-consider the matter on 26 February 1998. Nicholls apparently rang Kitson after the letter had arrived by fax. The land was to be auctioned that evening and he was concerned that the letter would impact upon the sale. He again asserted that the tracks were “already there”, and that John Barlow (DLWC) had expressed no objection to the laying of gravel. Kitson spoke to Barlow who informed him he had not given any such approval.
40. On 24 February 1998 , Nicholls wrote to Kitson confirming that he had enquired of DLWC if it was possible to “put down shale on an existing track and they had no problem with this”. Secondly, he advised having engaged an environmental
consultant for lodgment of a development application “for a building application (sic) jointly on each block. In this application we intend to address rehabilitation, erosion, fauna and flora, building sites and all other relevant matters”.
41. Council resolved on 26 February 1998 to prosecute the company for breach of the EPAA and to seek an injunction preventing further unauthorised work and an order to restore the land. Kitson testified that Council took the view that significant clearing, (including the clearing of native vegetation) and roadworks, had occurred on the land on two occasions without consent, and Council noted that the further works were undertaken:
(i) after the Council had informed the owner of the land that consent was required, and
(ii) in an environmentally sensitive coastal sand dune area, with the potential to cause further environmental damage, including wind erosion, subsidence and associated vegetation loss in the long term.
42. Kitson again inspected the land on 26 March 1998 and observed quantities of sand that had fallen from excavated dunes on to the northern road, and a coastal banksia tree which had fallen across the road as a result of dune subsidence. He expressed concern in his affidavit that “no adequate, or indeed any, rehabilitative measures have been put in place”. Kitson’s evidence is corroborated by the affidavit of Kelly, who prepared the survey on which Kitson relied and calculated the areas affected.
43. In Kitson’s second affidavit of 13 May 1998, he confirms that no additional works were carried out between 9 February and 27 April 1998. On the latter date he took further photographs showing “the extent of excavation and removal of
native trees on the southern side of the northern road where it traverses the western-most sand dune. The felled trees shown in these photos are banksias and melaleuchas”.
44. He took further photos on 30 April 1998 and attests that they reveal the potential for further environmental damage without restoration works being undertaken. They show “exposed tree roots resulting from excavation, subsidence of excavations with the potential loss of trees, buried tree trunks and trees with sand and debris pushed up against them”.
45. Barlow is DLWC’s relevant field expert, and he inspected the initial works. He attests to a conversation and joint inspection with Nicholls in late July 1997. Nicholls took him to see works on the neighbouring property and asserted in his evidence that the trees were cleared only because they were smothered by bitou bush. Barlow was not required by the company for cross-examination at the hearing.
46. During Barlow’s inspections on 23 and 28 July 1997 , he noticed vegetation in horizontal windrows and stacks with roots above the ground. He noted also machinery tracks on the sand in, around and amongst, the vegetation. The trunks of various species displayed evidence that machinery may have been used to remove them from their upright positions. His affidavit lists the species he identified and includes a plotting survey generally indicative of land cleared, which he estimated to be 1.78ha. He initiated a Departmental investigation of the clearing constituting a possible breach of SEPP 46, but eventually wrote to the Council indicating that a prosecution would not be pursued as the area cleared appeared to be slightly less than 2ha.
47. Nicholls told Barlow he did not realise he had to have any consent or authority to do the works complained of. During their conversations, Nicholls admitted to Barlow that he himself had done the clearing work in May 1997, using an excavator that he owns for farm purposes. Barlow took some photographs, but he denies Nicholls’ allegation that Barlow told him that he had no problem with Nicholls “putting gravel on existing tracks to stop them eroding anymore”. Barlow denies giving Nicholls any verbal advice on any matter other than to the effect that DLWC had decided not to prosecute (for the “initial works”). In his further affidavit of 17 August 1998, Barlow swore that even if such a conversation had occurred, which he denied, he had no authority, nor did DLWC, to approve the laying of gravel on the tracks.
48. Barlow visited the land again on 4 March 1998 and observed the gravelling works. “At no stage did I approve, condone or permit the laying of shale, gravel, or any rock material on such tracks and it is not within the jurisdiction of the DLWC to permit or consent to such activity”.
49. On behalf of the company, Nicholls swore two affidavits and gave oral evidence.
50. He insists that there were 4 WD vehicles crossing the land before the initial works and claims that he used to have to “pull people out” by 4 WD vehicle.
51. Specifically he makes the following additional relevant claims:
times in order to gain access to the significant stretch of coastal beach adjoining it. Nicholls has observed people gaining access, not only by foot, but by 4 WD vehicles on a regular basis.(a) The adjoining township of Patch’s Beach consists of approximately 25 residential and holiday homes. The local population is boosted significantly during holiday times, particularly the Christmas/New Year period. Members of the public, including the local residents, traverse the land in peak holiday
(b) Members of his own family have used the property for camping from time to time. It has been common for a caravan to be brought onto the land by 4 WD vehicles used in conjunction with the cane farming operations.
(c) In addition, the company has permitted the members of Wardell Angling Club to have access to the land for the purposes of its activities, including recreational, angling, meetings and open days.
(d) Sugar cane grown on the subject land is harvested over a two year cycle. “The process of growth of the cane is such that ‘trash’ is deposited under the leaves and periodically the harvest is burned for the purposes of eradicating that trash”. When the cane has burned - as recently as 1997 there was extensive burning of it - the adjoining bitou bush has also burned and Nicholls has been responsible for controlling those fires.
(e) He testifies that for some years he has noticed bitou bush on land adjacent to the cane, and, when he visited the land in early 1997, he noticed that the bitou bush had grown to such an extent that it was smothering a number of coastal banskia trees on the land. Some of those trees had been killed. Being concerned at the spread of bitou bush from the point of view of future cane burning, he decided to clear the bush.
52. He originally stated that he thought bitou bush was a noxious weed at the relevant time, but he acknowledged in cross-examination the evidence to the contrary and agreed that it was not. In any event, he has been clearing it on the land since 1988 as he is aware of his responsibilities “to keep the land free of such weeds at all times”.
53. In paragraph 10 of his affidavit of 15 June 1998 he says as follows:
“In or about June 1997 I cleared an area of less than two (2) hectares on the land. In doing so, I removed the Bitou Bush which was growing that [sic] area and which had smothered and killed a number of coastal Banksia trees. In the course of removing the Bitou Bush I cleared a total of approximately twenty (20) coastal Banksia trees which varied in height from three (3) metres to six (6) metres. All of those trees were dead at the time I cleared them from the area and once cleared, the trees along with the Bush were stockpiled and burned. At the time of carrying out this work, I was motivated by nothing more than a desire to comply with what I understood to be my obligation to keep the property free of noxious weeds, including Bitou Bush. In addition, I was conscious of the potential fire hazard which was created by the growth of the Bitou Bush adjacent to the sugar cane which was subject to regular burning”.
54. The prosecutor asserts that the company’s culpability is heightened by the contents of the paragraph I have just quoted. In any event, photographs showing bitou bush are annexed to his affidavit - the date of the photographs is unknown but it is contended that they show areas in which bush was growing in early 1997.
55. After the clearing works, Nicholls planted “cooch” grass in the cleared areas.
56. Nicholls’ affidavit also refers to his conversations with Southern Cross University regarding rehabilitation works. As he had not received any contact from the University following his conversation with Alison Speet, “the rehabilitation of the cleared area has been limited to the planting of the cooch grass …”.
57. In paragraph 17 and 18 of his affidavit of 15 June he says:
“17. In the period December 1997-January 1998, members of the local community as well as holiday makers traversed the land in order to gain access to Patch’s Beach by means of two tracks. The first was a track
extending from the north of the land to the Beach, of a width equivalent to that of an average four wheel drive vehicle (approximately 3 metres) and of a length of approximately 350 metres. The second extended from behind the sugar cane plantation to the beach and was of a similar width to the first and of a length of approximately 100 metres.
18. The two tracks on the land had developed over a period of 10 years as a consequence of being used by members of the public to gain access to the beach. In my observations over that time, that use had been on foot, as well as by motor bike and four wheel drive vehicle and for the reasons previously set out, was at its highest during the Christmas holiday period. As a consequence of vehicles traversing the tracks from time to time some vegetation on the land was destroyed. In my observations, this vegetation would then re-grow during those other times of the year when the land was not used as a regular means of access to the beach, such as the winter months.”
58. In paragraph 19 he deposes that, in about February 1998, he noticed that the tracks had become quite prominent and well worn as a result of the immediately preceding holiday period usage, and he denies Kitson’s assertion that there had been any clearing or excavation on either of those tracks at any time prior to February 1998, in particular during the first half of 1997. He was specifically questioned about paragraph 19. He denied working on the tracks, but said only that Gibson was employed to gravel them in November 1997. He again denied doing work on the roads despite his letter of 22 June 1997.
59. Nicholls testifies that he cleared his plan with Barlow (which is denied), and he saw no need to approach the Council, but proceeded to engage earth moving contractors to apply shale to each of the two tracks to “prevent further erosion of the immediate area”. He claims that he “specified that the only work to be carried out was the application of the gravel on the two pre-existing tracks”, and “instructed the contractor that under no circumstances was any vegetation on the property to be destroyed in the course of, or as a result of, the application of gravel to the surface of the tracks. At the conclusion of the work being carried
out, the surface of that part of the land to which the gravel had been applied had been altered approximately 3-4 cm”. (The Council observes in its evidence that the photographs indicate a far greater alteration).
60. Nicholls says that prior to the application of the gravel the tracks had become wider and deeper as their use had increased. This had in turn resulted in erosion and movement of the sandy surface. Since the application of the gravel, there has been little or no further such erosion or movement.
61. The company has made development applications seeking consent to the construction of a single residence on each lot. The company engaged Peter Parker Environment Consultants Pty Limited to assess the impact on flora and fauna, and David Ardill and Associates Pty Ltd to prepare all other aspects of the application. It is intended that the development application address in detail all the rehabilitation issues.
62. In paragraph 27 of his affidavit Nicholls specifically denies the assertion by Kitson that the roads had been cleared and excavated somewhere between January and May 1997. Nicholls denies any work was carried out at that time and says that the only work in relation to the tracks was that carried out in early 1998. He denies that they were at any time widened and says that the work was restricted to the application of gravel. The only living vegetation removed in the course of that work was a quantity of bitou bush, but dead trees smothered by that bush were also removed.
63. He annexed to his affidavit a letter dated 12 February 1998 from Council to L J Hooker drawing the auctioneer’s attention to the “recent unauthorised works”. The agent is urged to inform persons whose interest might be affected and any prospective purchasers in regard to the Council’s then current consideration of
what further action to be taken. Nicholls said he heard the auctioneer read the contents of the Council’s letter to those present and the land was subsequently not sold at the auction.
64. Annexed to his affidavit is a “Noxious Weeds Guide”, dated 1997, the original of which was the subject of some cross-examination.
65. Elford is a principal of the firm David Ardill & Associates Pty Limited, retained by the company to seek development approval(s) from Council. He wrote to the Council on 19 May 1998 seeking “an indication as to any particular concern/issues required to be addressed in submitting a DA”. Council replied on 2 June specifying the unauthorised clearing of native vegetation and earthworks, by then subject of litigation in this Court. Apart from attention to the LEP, the NSW Coast Policy and addressing the question of any alternatives for the siting of the dwellings outside the 7(f) zone, the Council indicated to Elford that a development application would need to be accompanied by a restoration plan prepared by a person with suitable environmental qualifications. The letter goes on to list 5 matters that would need to be addressed in terms of such a plan.
66. In paragraphs 9 and 10 of his affidavit of 12 June 1998 Elford says:
“9. In my professional opinion, the application of shale or gravel to pre-existing sand tracks or roadways would retard erosion from both wind and water. It is common practice to ensure that the sand sub-base is shaped and trimmed so that any deposited road base material is placed in accordance with normal construction standards, particularly in relation to grades and cross falls.
10. I am of the further opinion that cut and fill batters at the sides of the access tracks should be trimmed to enable a stable slope to be achieved which would limit erosion. Further, the use or application of grass seed impregnated spray mulch on any reshaped batters would also greatly assist the revegetation process.”
67. Elford believes that the DAs lodged 1 July 1998 address all the concerns indicated by the Council. Copies of the DAs are annexed to Nicholls’ affidavit of 17 August 1998 and a separate application is made in respect of each lot. He too believes that they clearly address all relevant issues relating to the effective rehabilitation of the property. Attached to the proposal is an environmental management programme (“EMP”) prepared by Peter Parker . The EMP refers to a flora and fauna assessment conducted on 18 February and 12 June 1998, in which the vegetation was mapped and its floristics described. The assessment dated June 1998 is also annexed to the application.
68. “The central theme of the EMP is to repair a site that has been considerably degraded by the infestation of bitou bush …”, Nicholls says, and the major aim of the EMP is “to provide a re-afforestation and management direction for the site. This plan contains planting, maintenance and monitoring strategies. It is achievable with the resources available at the farm and the commitment of management”.
69. The EMP proposes three categories of planting. The plantings proposed are site specific and are as follows:
“1. dune plantings, comprising coastal wattle Acacia sophorae, goat’s foot ipomea, Ipomoea brasiliensis and pig-face, Carpobrotus glaucescens. These plantings will also be utilised on banks and batters where they will be combined with brush matting;
2. hind-dune and littoral rainforest plantings, comprising coast banksia, tuckeroo, Cupaniopsis anarcardioides, beach alectryon, Alectryon coriaceus, white kamala, Mallotus discolor, and beach acronychia, Aronychia imperforata; and
3. wetland plantings comprising broad-leaved paperbark, Melaleuca quinquenervia, and swamp oak, Casaurina glauca.”
70. Parker’s flora and fauna assessment says as follows in the “Summary”:
No threatened plant or vertebrate species is expected to utilise the area proposed for development due to the depauperate nature of habitats”.“The majority of the site supported the noxious weed bitou bush with occasional emergent coast banksia trees. In many cases, bitou bush had entwined the upper-most limbs of the coast banksia and banksia die back was evident. Small areas of the site supported vegetation dominated by the littoral rainforest species tuckeroo and the wetland species broad-leaved paperbark and swamp-she-oak.
71. At page 9 of the study paragraph 2.3.1 says as follows:
“The depauperate vegetation recorded at the site was largely a result of the invasion by the noxious species bitou bush. The impact of bitou bush has been recognised by the land owner and a bitou bush management program was commenced in early 1998. This program was comprised of the following components:
· slashing the bitou where accessible; and
· pulling the bitou out of the banksia trees using a tractor”.
72. Nicholls testified that the company intends to carry out the restoration programme detailed in the development applications. He acknowledges that the EMP does not deal with the works done on the tracks on the house sites and he acknowledges also the significance of the environmental sensitivity captured by the 7(f) zoning. He acknowledges further in his oral evidence that he had done some work in June 1997. He used and owned his own equipment but the gravelling was done by a contractor and he though completed in about November 1997. He denied that any vegetation removed was alive at the time.
73. Lutton is a surveyor of relevant qualifications and experience. He had driven and walked along both the northern and southern roads prior to the application of gravel. He believed they are now more stable and not prone to shifting. “Prior to
this both roads were soft sand and required the use of a four wheel drive motor vehicle. After the application of gravel a four wheel drive was no longer needed to drive along the roads. In my opinion the application of gravel did not appreciably change the surface level or gradient of the roads”.
74. Bacon is a real estate agent employed by L J Hooker of Ballina. He deposes that he was optimistic that a sale would be secured at the auction arranged for 12 February 1998. He received the Council’s letter of 12 February 1998 and subsequent to consulting with his principals, it was resolved that the contents of the letter be read out. He confirms that the property did not sell at the auction.
75. On 30 July 1998 the Council sought further particulars from David Ardill & Associates regarding the development applications. The letter concerns mainly the EMP which Council regards as “not sufficiently detailed”. Council will require a more comprehensive plan which explicitly identifies the extent of remediation proposed across the whole of the site. The letter refers to the extensive additional clearing conducted since the 1.78ha was measured and the Council believes the EMP does not accurately assess the impact of that more recent clearing. The EMP should be updated to recognise the onus on the owner of the land to stop bitou bush now declared a W3 noxious weed from spreading.
Consideration and findings regarding the evidence
76. Whereas the Council contends that there have been three lots of work done to the land - works done in May-June 1997, November-December 1997, and approximately February 1998 - the defendant contends there are only two. Nonetheless, the June 1997 events are not the subject of this prosecution and the only works charged are those which occurred in November and December 1997,
some of which work may not have been completed until early 1998. There is no evidence of a separate group of tasks and I am satisfied beyond reasonable doubt that Gibson was engaged for portions of the relevant work in late 1997.
77. The Council contends that the works the subject of the charge were obviously made necessary in order to facilitate the gravelling operation which the company contracted to Gibson. A comparison of the relevant photographs in evidence indicates the width and camber of the roadway both before and after that gravelling work was done. Council further contends that as the defendant did not require any of the prosecutor’s witnesses for cross-examination, there can be no real contest that in laying the gravel significant further earthwork was required to prepare the existing “tracks”.
78. The defendant asserts that those tracks were already in existence before the “initial works” and that in the “further works” they were not widened. The defendant further asserts that any trees that were removed were dead, having been effectively smothered by bitou bush which the company genuinely believed to be “noxious”. The defendant contends that the two relevant tracks had developed over a 10 year period and that the works charged involved, in essence, merely the application of gravel to them, in respect of which the company gave specific and conservative instructions, and Lutton confirms only a minor variation in land surface. The defendant further contends that, as the gravelling work has stabilised the land, far from environmental detriment, the company has achieved the retardation of erosion.
79. I reject the submission that these tracks developed to provide an unofficial vehicular access to the beach and I find beyond reasonable doubt that they were in fact constructed to provide access to the proposed homesites.
80. The evidence clearly discloses that the work carried out went far beyond the clearing of bitou bush, noxious weeds, etc. for any valid reason such as fire mitigation. Indeed, the relevant works went far beyond the rehabilitation or even consolidation of the initial works.
81. The defendant admits knowing the significance of the 7(f) zoning and, after the first warning from the Council, the company knew that it required a development consent for works such as it carried out. The company failed to seek such a consent and carried out the works without it. The evidence clearly establishes that the company’s desire was to improve the sale prospects of the land. The subject land is in an environmentally sensitive area, specifically identified and advertised as such, and the company’s actions were neither accidental nor uninformed. As the land is of high value and unencumbered there can be no question that the company’s failure to obtain development consent is explained by impecuniosity.
82. The company committed the offence while on notice that the earlier works which had been discovered may have led to some litigious consequences and the company was clearly on notice that development consent was required. I do not accept the company’s version of events that Nicholls sought and obtained some form of “clearance” from the DLWC thereby negating the need for a Council approval. The original letter of warning from Council indicates quite clearly that it is not the DLWC whose director needs to be consulted in respect of such proposals.
83. As neither Council’s consent nor the Department’s concurrence were sought, and as there is absolutely no evidence to suggest that the company proceeded with any degree of confidence that such consent or concurrence would be forthcoming, if sought, I am satisfied beyond reasonable doubt that the offence charged has been committed.
84. I am also satisfied beyond reasonable doubt that any trees that were felled as part of the works charged, were in fact alive at the time.
85. The defendant agrees that it is a serious matter to undertake these works without development consent but asks the Court to note that no environmental harm has been done. The amount and types of environmental harm are key indicators of gravity of the offence, but the factual circumstances of the defendant’s behaviour are also relevant. There is no expert evidence before the Court, beyond the photographs and records of inspection, to indicate the extent of environmental harm, but the facts disclose that substantial roadworks and the clearing of native vegetation have taken place, without consent, in an area acknowledged as environmentally sensitive.
Conclusion and Orders
86. I am satisfied beyond reasonable doubt that the elements of the offence legislated by s 76 have been proven and that the defendant should be convicted of the offence charged in the summons.
87. I am further satisfied that this is not a case for the application of s 556A of the Crimes Act 1900, and, in determining the appropriate monetary penalty, I have taken the following additional matters into account:
· The defendant takes no issue with the assertion of strict liability. The company has never resiled from what is alleged - it makes no suggestion of mistake, and entered a plea of guilty to the charge at an early date, as evidence of contrition.
· Having been convicted, the defendant will also be liable for the costs of the prosecutor, and the expense of complying with any order made by the Court to
undertake an appropriate remediation programme. The company says that these factors should also be considered in setting the monetary penalty to be imposed.
· General deterrence of the community must be considered in determining the appropriate penalty to be imposed in cases such as this. There is widespread public interest in the enforcement of environmental and planning legislation. See Badgery-Parker J in Axer Pty Limited v Environmental Protection Authority (“ Axer ”) (60763 of 1992, Court of Appeal, 22 November 1990).
· The Court must have regard to the objective gravity of the offence and all other relevant factors such as the amount of environmental harm caused.
· The direct actions and decisions of people in authority in corporations charged with environmental offences are relevant to penalty. See Environmental Protection Authority v Iron Gates Pty Limited (Sheahan J, 50083 of 1997, 12 June 1998). The actions of the defendant’s responsible director were quite deliberate in this case and should be considered when determining the appropriate penalty. As Badgery-Parker J observed in Axer when reviewing Environment Protection Authority v Capdate Pty Limited (Stein J, 50030-1 of 1992, 10 February 1993):
“The finding that the polluting conduct was deliberate elevated the offence in that case to a major level of gravity”.
· The prosecutor asks the Court to impose a fine up to the maximum amount of $110,000, but the Court must take into account that the early plea of guilty has saved the prosecutor substantial effort and cost. As a result the penalty should be reduced.
88. Having considered all these matters, the Court has determined that an appropriate fine to impose in this case is $30,000 .
89. The Court has also determined that it is appropriate that the defendant be ordered to pay the just and reasonable costs of the prosecutor.
90. The Council also seeks a remediation order , pursuant to s 126 EPAA, for works such as are detailed in Section 3.0, paragraphs 3.0-3.7, of the EMP. The defendant says that it took immediate steps towards rehabilitation of the subject land by consulting the University and planting the grass. In essence, its management programme began before these proceedings were commenced, and the company wishes to be now left to negotiate the details of that programme with Council, as the building work proposed in its development applications might impinge upon any remediation works required.
91. I consider that the remediation order I propose to make in this matter should be subject to the outcome of the Council’s consideration of the development applications, but the work should be done within a reasonable period of time of such an order being made by the Court. I would be content to allow a period of six months for compliance with such order, unless development consent be granted beforehand.
92. In addition, of course, any such rehabilitation and remediation works must be carried out to Council’s satisfaction, and the Court notes in this regard that the Council has expressed in its letter of 30 July 1998 some reservations in respect of the EMP already submitted. In the circumstances, I think it is premature to proceed to final orders in this matter, and I propose to grant leave to the parties to explore possible agreement upon an appropriate form of order for the Court to make in respect of the remediation programme.
93. With this in view, and to ensure that the matter is disposed of with some expedition, I stand the matter over for mention before me on Friday 6 November at 9.30am for the making of final orders along the lines discussed in the conclusion to this judgment.
94. In the meantime, the Local Environmental Plan ( Exhibit C1 ) may be returned to the prosecutor.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 30 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.
Associate:
Dated: 9 October 1998
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