Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell
[2012] NSWLEC 129
•04 June 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129 Hearing dates: 20 October 2011 Decision date: 04 June 2012 Jurisdiction: Class 5 Before: Sheahan J Decision: 1. In matters 50359 and 50518 of 2011, the charges against the defendant company are dismissed, by consent, with no order as to costs.
2. In matter 50358 of 2011, Brian Clifford Powell is found guilty, and convicted, of the offence charged in the summons.
3. The defendant Powell is fined a sum of $120,000, and ordered to pay the prosecutor's costs and appropriate investigation expenses, as agreed or assessed.
4. Exhibit P1 is to remain in the Court file, but all other exhibits are returned.
Catchwords: PROSECUTION: Environmental offence - clearing of native vegetation without approval - plea of guilty - no other discounts - section 10 dismissal not appropriate - fine imposed - costs ordered Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Environmental Planning and Assessment Act 1979
National Parks and Wildlife Act 1974
Native Vegetation Act 2003
Protection of the Environment Operations Act 1997
State Environmental Planning Policy No 44 - Koala Habitat ProtectionCases Cited: Blue Mountains City Council v Carlon [2008] NSWLEC 296
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256
Director General, Department of Environment and Climate Change v Mura [2009] NSWLEC 233
Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119
Director General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100
Director-General, Dept of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182
Director-General, Dept of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No.2) [2011] NSWLEC 149
Director General, Department of the Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102
Director General, Department of Environment Climate Change v Vin Heffernan Pty Limited [2010] NSWLEC 200
EPA v Barnes [2006] NSWCCA 246
Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Georgopolous v R [2010] NSWCCA 246
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
R v AB [2011] NSWCCA 229
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60Category: Principal judgment Parties: Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet (Prosecutor)
Brian Clifford Powell (Defendant in matter 50358/11)
Cleo's Unitisation Pty Limited (Defendant in matters 50359 and 50518 of 2011)Representation: Ms P Lenehan, Solicitor (Prosecutor)
Mr S Littlemore, QC with Ms P M Lane, Barrister (Defendants)
Office of Environment and Heritage (Prosecutor)
McGirr James Hall & Associates (Defendants)
File Number(s): 50358, 50359, 50518 of 2011
JUDGMENT
Introduction
These are three related prosecutions brought by the Office of Environment and Heritiage ('OEH') alleging breaches of s 12(1) of the Native Vegetation Act 2003 ('the NV Act'), which provides (with my emphasis) that "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"..
Mr Powell is charged in matter 50358 of 2011, in his capacity as a director, indeed the managing director, of a family company known as Cleo's Unitisation Pty Ltd ('Cleo's'), which is the defendant in the other two matters (matters 50359 and 50518 of 2011), and was first registered on 29 December 1970. Mr Powell, his wife and his daughter are the current directors, and the prosecutor indicated (T24.18) its view that: "He is in fact the company".
Pleas of Not guilty were entered in all three cases on 8 July 2011, but, Mr Powell having entered a plea of Guilty in the present matter on 6 September 2011, the prosecutor has agreed not to proceed with the two against the company, which are to be dismissed by consent, with no order as to costs.
In accordance with s 12(2) of the NV Act and s 126(1) of the Environmental Planning and Assessment Act 1979 the maximum penalty facing Mr Powell is a fine of $1.1M. In sentencing him for the offence with which he has been charged, the Court has been assisted by agreement between the parties on a Statement of Facts ('SAF' - Exhibit P1). I will advert to, but not set out in full in these reasons, the contents of that agreed statement, but it will remain in the court file.
Before the Court, and read without objection, were affidavits from the following:
Stuart Lucas, a Natural Resource Project Officer (Resource Mapping) with the prosecutor ('OEH')
Rodney Sewell, an OEH Compliance Officer
Erwin Budde, an ecologist, and a director of NGH Environmental Pty Ltd, which trades as "NGH Environmental" ('NGH')
Peter Ewin, OEH's Regional Biodiversity Conservation Officer
The Defendant himself, a Company Director and Grazier
Mr Ewin also gave oral evidence and was cross-examined.
Also in evidence (in Exhibit P2) are:
(1) Information Sheet 9 (updated November 2006) entitled "Native Vegetation Management in NSW - Managing invasive native scrub"
and
(2) State Environmental Planning Policy No 44 - Koala Habitat Protection (as it now stands - 'the SEPP')
A Summary of the Facts
As noted in SAF 11, "At all relevant times Mr Powell, as the managing director of the Company, acted on behalf of the Company when carrying out or authorising clearing on the property."
As noted in SAF 12, "From August 2006 to August 2010, the Company employed Mr Craig Tobin as a Manager. Mr Tobin's duties involved managing the cattle stud on the Property. In his role as Manager, Mr Tobin reported to Mr Powell."
Cleo's bought the subject land, "Carraman", a holding of some 1327ha on the north bank of the Murrumbidgee River south east of Narrandera, completing the transfer on 25 January 2001. It carries on there a prize Murray Grey/Angus stud cattle breeding business, keeping 300-400 head on the property at any time. The property is also listed and used for the growing of fodder crops, and is divided into a number of paddocks (see Exhibit P1, attachments A & B).
To the north of Carraman is Bundidgerry Creek, and to the west is Narrandera Flora and Fauna Reserve (known as "the Common"), which SAF7 says "predominantly consists of a River Red Gum floodplain and provides habitat for a range of native animals including koalas, kangaroos, wallabies and echidnas. One part of the Common is a designated koala sanctuary known as the Narrandera Nature Reserve".
The clearing offence charged was allegedly committed between 31 March 2007 and 25 August 2009, but evidence supporting the allegation that an offence may have been committed first came to the attention of an authorised officer of the prosecutor (Mr Sewell) on 7 May 2009. After an initial inspection on 14 May 2009, OEH officers arranged with Mr Powell to attend the property on 15 May 2009.
The native vegetation species agreed to have been cleared is Eucalyptus Camaldulensis ('Red River Gum'), and the clearing allegedly included some large mature examples, along with "some understorey and groundcover" (subs par 2).
Red River Gum is also listed by the Murrumbidgee Catchment Management Authority ('CMA') as an Invasive Native Species ('INS' - sometimes referred to as Invasive Native Scrub).
The clearing was allegedly carried out, and the felled timber stacked for burning, using a bulldozer, and the agreed purpose of all the work complained of was to open up, for cropping and grazing, paddocks at the interface between established timbered areas and established pasture/cropping areas, to extend pasture/cropping areas into some fringe areas of timberland (T42.5-32).
The parties have agreed that the total area on which the charged clearing occurred is 65 ha, but it is not alleged that such an area was totally cleared, as in "razed". The affected 65 ha is spread over 14 irregularly shaped areas or "polygons" clearly identified in the evidence. It is agreed that the vegetation cleared was in "medium condition". A number of the cleared gums were "hollow bearing", a factor of relevance to their habitat value.
The offence against s 12 of the NV Act arises where the clearing is carried out without a relevant consent or property vegetation plan ('PVP'), and SAF 22-24 confirm that:
22. No development consent was issued by Narrandera Shire Council for the removal of any native vegetation on the Property.
23. At all relevant times, there was no CMA property vegetation plan authorising the clearing and no advice was sought by Mr Powell from Murrumbidgee CMA in relation to clearing of native vegetation before clearing was undertaken on the Property.
24. At no time prior to carrying out the clearing did Mr Powell make any inquiries with any relevant authorities, including the Narrandera Shire Council, the Murrumbidgee CMA or the OEH, in relation to whether approval or consent was required to carry out the clearing.
Photographs attached to the SAF (Attachment C) show, as at 15 July 2009, the state of the areas cleared. They were taken by Mr Budde and Kelly Simpson, ecologists from NGH, the consultancy retained by Mr Powell, which prepared a report on the "ecological value of the areas cleared, the likely impacts, and any offset value of remaining vegetation" (SAF 25 and 37). Their report of 21 July 2009 recommended to Mr Powell that he:
(a) enter into discussions with the Catchment Management Authority (CMA)/Department of Environment and Climate Change (DECC) (now OEH) to prepare a property vegetation plan;
(b) make the CMA/DECC aware of the additional clearing undertaken on the Property; and
(c) not carry out any further clearing without the appropriate permits and approvals. (SAF 28)
The SAF also includes a layout of the property (Attachment A). NGH in July 2009 viewed four areas of the property, known as the Common Paddock, the Common River Paddock, the Strip Paddock and Duck Bend Pond (SAF 26). The charge before the Court involves only two of those four areas.
On 25 January 2010, Mr Powell met on site with two OEH officers (Sewell and Jason Price), following reports that further land had been cleared (SAF 29). Mr Powell was very frank with the officers, and he identified for them, several additional/cleared areas (SAF 30). He also acknowledged the presence of koalas on the land, and explained that he took steps during the clearing operations to induce them to move (SAF 31).
OEH officers observed koalas "in abundance" during their investigation (SAF 36). The Narrandera area and River Red Gum are covered by the SEPP, which seeks the proper conservation and management of areas of natural vegetation that provide koala habitat (Clause 3).
Mr Powell subsequently complied, between March and June 2010, with a statutory notice to provide, to the prosecutor, information and/or documents (SAF 32), but appears not to have responded to a further notice, issued on 21 April 2011 (SAF35), which sought a document he has now appended to his affidavit, as read at the hearing, namely a Forest Management Plan.
Mr Ewin attended the property again on 27 January 2011 to "conduct an environmental assessment and report" (SAF 33, and see annexure C to his affidavit).
Mr Powell voluntarily participated in a record of interview ('ROI') on 4 April 2011 (SAF 34).
The summons in this matter was issued on 4 May 2011, and the hearing took place on 20 October 2011.
The Prosecutor's Affidavit and Documentary Evidence
Mr Lucas
Stuart Lucas's area of specialty and expertise is interpreting vegetation and land use change, using aerial photographs and satellite images. He was engaged by Sewell and Ewin, and asked to address in a report, a specific series of questions in respect of the clearing of River Red Gum trees on the subject land.
His report explains his methodology in great detail, acknowledging that the quality of information that can be derived from aerial photographs depends on their scale and quality. He also acknowledges the limitations of the use of satellite images, but interpretation of aerial photography and satellite imagery are the main tools for land resource mapping. Photographs can be viewed in three dimensions, but satellite images in only two. He studied material from 1967, 1977,1988, 1990, 1997, 1998 and 2003. Some 30 pages of maps, photographs and plates are appended to the affidavit.
He observed (p14 of his affidavit) a variation in vegetation patterns on the Powell lands from 2003 to 2007, mainly the disappearance of individual paddock trees. Between 2007 and 2010 "some areas had suffered the complete removal of all tree cover and in others a thinning of it with scattered trees remaining". He also observed (p15) incremental, progressive removal of woody vegetation between 1987 or 1989 and May 2010 across an area of approximately 530ha. Some areas were affected by clearing more than once.
The closest date of imagery to the January 2001 transfer of the title was 19 October 2002, and Mr Lucas identified (p16) approximately 150ha affected by clearing to October 2002, and 380ha after. The results are far from precise, and the debate between counsel focused on table 2 on page 17 of Mr Lucas's affidavit, which should be examined on the understanding that it applies to a total area studied of 118ha, rather than the charged 65ha. The table is reproduced:
| Canopy cover pre disturbance | Cover code | Disturbance (%) | Area (ha) |
| <1-1 canopy space apart | Mid dense | 70-100 | 70 |
| 1 to 2 canopy spaces apart | Very sparse | 70-100 | 3 |
| 2 to 4 canopy spaces apart | Very sparse | 70-100 | 43 |
| 1 to 20 canopy spaces apart | Very sparse | 100 | 2 |
| Total | 118 |
Mr Lucas opined (p17) that the vast majority of the vegetation cleared between 1989 and 2010 was vegetation that was established between 1967 and 1977. Accordingly, the vegetation cleared after 1 December 2005 would be between 33 and 43 years of age. He observed no clearing of large trees that were present on the 1967 photographs. He summarised his conclusions thus (p17):
Photos and images for 24 different dates between 1967 and 2010 were viewed and assessed to answer the request. The main findings were:
between November 1989 and May 2010 total disturbance of woody vegetation on the property was approximately 480 ha. Of this around 100 ha was affected more than once, but this involved additional cumulative thinning/clearing, not clearing of new post 1990 re-established vegetation.
approximately 380ha has been affected by clearing after Oct 2002, the image nearest in time following the change of property ownership. Of this total, 118 ha was confirmed as occurring after 15 May 2006 (post 1 December 2005). Other areas were affected between January 2003 and October 2007, so possibly also after 1 December 2005, but are not considered in the assessment.
All of the confirmed 118 ha post 1 December 2005 cleared areas had woody vegetation present at 1 January 1990, which has existed there until the clearing events.
woody vegetation cleared is assessed as being between 33-43 years of age.
Mr Sewell
Rodney Sewell works out of the Wagga office of the OEH, which has employed him since April 2007. He is an accomplished investigator. Appended to his affidavit are many photographs and field notes, as well as title and ASIC search information.
On 8 May 2009, he was requested to follow up a report OEH had received from a Narrandera Shire Council officer, of land clearing on the subject property. On 14 May 2009, he conducted an initial inspection from the nature reserve, accompanied by Joanne Jennings (aka Lothian). He observed (par 11f) 25 stacks of timber and estimated a removal of approximately 200 trees. There was extensive soil disturbance. He took 69 photographs from three observation points. He then met Mr Tobin (par 13), and (par 14) took a further 24 photographs from a position overlooking the property. He estimated (par 15) approximately 55 stacks of timber were visible.
He then received a call from Mr Powell (par 17), and arranged to meet him at the cattle yards on the property on 15 May.
On 15 May 2009, Mr Powell, who was accompanied by a solicitor friend, Brian Abbott, conducted Sewell and Jennings (par 20) to a "small dam located in the paddock where the clearing had taken place", but he wanted their conversation to remain "off the record". Mr Powell explained that the clearing was done to remove vegetation along fence lines, old irrigation channels, and concrete stops and gates. The paddock had been a flood irrigation paddock, and he was going to improve the water system by putting in one big 100ha centre-pivot, rather than two 40ha pivots. "That is why we cleared a bit extra to the south east".
Mr Sewell explained that there were exemptions for clearing including the removal of regrowth, which is considered to be any tree grown since 1 January 1990. Mr Powell expressed his belief that "at least a majority of what was cleared was regrowth". Mr Sewell explained that fence line clearing is allowed, but the fences must be replaced and there were width restrictions, and that clearing for "continuing agricultural practices" or "to improve irrigation channels" was allowed, but channels needed to be replaced not removed. Mr Powell commented: "With the amount of trees remaining on the property and the number of koalas around I can't see the harm".
It was not convenient for Mr Powell to take Mr Sewell, on that occasion, to inspect the clearing and stacks, but an appointment was made to do so on 21 May (par 20).
On 21 May 2009, Mr Powell gave Sewell and Jennings a marked up Hall Irrigation Riverina map for the pivot, showing the fence lines that had been cleared (Annexure 'K'). Jennings and Sewell (par 26) "proceeded to GPS the cleared areas using the Garmin 76 hand held GPS unit". (The report is Annexure 'L'). They checked two or three stacks chosen randomly and did not identify any exotic species. On 1 June 2009, Sewell produced a map of the property and the nature reserve, showing the 21 May observation points, and another map indicating most but not all of the stacks (See Annexures 'Q' and 'R').
On 22 May 2009, Sewell, Jennings and David Parker returned to the property. Sewell measured the "diameter at breast height" ('DBH') of the trunks of 70 trees in the stacks. Jennings recorded the details (Annexure 'N').
On 19 August 2009, Sewell and Jennings returned to the property, and (par 39) observed that "the stacks of trees had been cleaned up, and no evidence remained of the previous clearing". More stacks were observed (par 40f) back towards the Murrumbidgee River, but they were difficult to see through the close stand of trees. Sewell observed crowns to be brown and dead. He estimated five stacks and took 43 photographs. He also observed and smelt smoke and thought some stacks were being burnt. From the Old Narrandera Rd and a hill overlooking the property he observed three pillars of smoke arising from an area south of the previously cleared area, and took seven more photographs.
On 10 December 2010, Sewell attended meetings with Steven James, of the Special Investigations Unit, one with Erwin Budde, and another with Hugh Dodwell, a former owner of the property (pars 46-48). Dodwell denied having any conversation with Mr Powell about "clearing or the condition of the place" when he owned it.
On 22 January 2011, Sewell assisted Ewin in his conduct of an environmental assessment of Carraman, guided by the "property manager", Bob Black. He took 40 more photographs (Annexure 'V').
On 17 February 2011, James interviewed Mr Tobin in Sewell's presence, and, on 4 April 2011, Sewell attended an interview between James and Powell at 1/26-34 Dunning Avenue, Rosebery, which would appear to be the principal business address of the corporate defendant, Cleo's.
No evidence from Mr James was presented at the hearing of these proceedings.
Mr Budde
Erwin Budde is a zoologist with 12 years professional experience in environmental management, auditing and training. He has been with NGH since 2007, following careers in a private consultancy and the RTA. Although engaged by the defendant, his affidavit was filed and relied upon by the prosecutor.
Mr Powell contacted him on 14 July 2009, when DECCW had directed Powell to remediate at least some of the area cleared. Mr Powell told Mr Budde he considered the "mass of Red Gum trees" on the Common was a "huge fire hazard" for Carraman - 3 fires had occurred in the five years to 14 July 2009. In a note to Budde later that day, Powell said "I am now preparing my farm with this irrigation area in mind as a buffer to future fires". Powell engaged Budde to inspect the property and prepare a PVP, and Budde visited the property on 15 July 2009, with Kelly Simpson (pars 12-18). The Duck Pond paddock was inspected for the purposes of assessing its value as a potential offset site under a PVP, should one be required.
Mr Budde annexes copies of correspondence and remedial directions from the prosecutor, and a map (similar to the hand drawn map attached to Exhibit P1), setting out the paddock configuration. He believes he was provided with that map by Mr Tobin (par 14). He observed clearing and stacking in the common paddock, common river paddock, and strip paddock, and observed that the dominant species of cleared vegetation appeared to be River Red Gum of various ages, but "included some mature trees with hollows". Notes and photographs were taken.
On 21 July 2009, Budde provided NGH's written advice and recommendations to Mr Powell. The four-page letter he sent on that date is annexed to his affidavit. The report relevantly contains the following (pp2-3):
"Ecological Values of the Vegetation
The cleared vegetation comprised entirely of River Red Gum trees of varying age. Based upon the DBH ... of the cleared trees it is estimated that the majority of trees are less than 30 years old. However, a number of larger remnant mature trees were observed in the cleared timber piles with DBH's ranging from 80-130cm. It was also noted that one of these trees contained a hollow bearing limb. The understorey vegetation within the cleared areas consisted entirely of common exotic pasture species due to past grazing and cropping activities.
Likely Impacts on Ecological Values
The clearing is likely to have the following ecological impacts:
1. Reduction in extent of River Red Gum forest in the locality
2. Loss of habitat for native flora and fauna species
3. Reduction in movement corridors for flora and fauna
...
Overall, the amount of River Red Gum forest cleared from the property is relatively small when compared with adjoining vegetation, representing 6% of this type of native vegetation in the immediate area. This reduction in the extent of River Red Gum forest would not affect the ability of this community to persist into the future.
The clearing has similarly reduced the amount of habitats available to local flora and fauna species. Threatened species which have previously been recorded from within the Narrandera region, and which utilise River Red Gum forest, include:
Southern Bell Frog
Bush Stone-curlew
Plains-wanderer
Black-tailed Godwit
Black-breasted Buzzard
Brolga
Brown Treecreeper
Diamond Firetail
Painted Honeyeater
Black-chinned Honeyeater (eastern subspecies)
Gilbert's Whistler
Hooded Robin
Grey-crowned Babbler (eastern subspecies)
Major Mitchell's Cockatoo
Glossy Black-Cockatoo
Turquoise Parrot
Superb Parrot
Barking Owl
Speckled Warbler
Large-footed Myotis
Koala
With the exception of the Southern Bell Frog, all these species could utilise habitats which would have been available on the property. The koala occurs on the property (Craig Tobin, farm manager, pers comm.) and has been previously observed within areas cleared. A range of other non-threatened species could also occur in the locality.
The clearing is likely to have had only a limited impact on native fauna species for a number of reasons. Firstly, the amount of clearing is relatively small as compared to the amount of similar habitats in the immediate vicinity of the site. Secondly, the threatened species which have been recorded in the locality, and other species likely to utilise the site, are all relatively mobile and would readily move into other areas of suitable habitat in the immediate locality. Thirdly, the area cleared appears not to have provided any habitats or resources which are not found in adjacent vegetation. Whilst some hollow-bearing trees were cleared, numerous other hollow-bearing trees were observed on adjacent land. The site does not appear to have provided any unique values as compared with adjacent land.
Vegetation within the property and adjacent areas comprised entirely of River Red Gum Forest. Within the property the condition of this vegetation was moderate as a result of fragmentation and grazing pressure which has reduced the structural and floristic diversity of the community. Adjacent areas that are not subject to heavy grazing pressure, such as the Duck Bend Pond area and the Narrandera Council Common, contain a more diverse age class of woody vegetation with a number of large remnant trees as well as dense areas of regenerating eucalypts. These areas are also likely to contain a greater diversity of groundcover species due to a lack of past disturbance and could provide habitat for a number of threatened flora species..."
The evidence regarding interpretation of "DBH" suggests that a DBH of more than 50cm indicates a tree age of more than 50 years, 80cm 100 years, and more than 1m 120 years plus.
The report concluded (p4) with the recommendations set out in SAF 28 (and at [48] above).
Mr Ewin
Peter Ewin has been employed in his present position since June 2006, having been with the National Parks and Wildlife Service since March 1991. He is experienced in vegetation assessment. In his affidavit he explained the "offset" system administered by CMAs in clearing situations.
In October 2010, he was asked by the Head of Regional Operations to use the Natural Resources Assessment Tool ('NRAT') to prepare a desktop assessment of the clearing of vegetation on Carraman, to determine:
(i) whether a PVP "could have been issued for the property for additional areas of potential clearing that had been detected in Lucas's report"; and also
(ii) if the proposed conservation PVP for the property "would be sufficient to offset the areas of vegetation that had been identified as being cleared".
For the purpose of his assessment he assumed the presence of only River Red Gums with no hollows.
On 4 February 2011, Ewin was requested to attend to the property with Sewell, to inspect additional areas of potential clearing and provide an expert report expressing an opinion on the type and age of vegetation likely to be present in the area that had been cleared, and the impacts on conservation values as a result of this clearing.
In consequence of these engagements he prepared, and has annexed, two reports - his NRAT assessment, and his vegetation report.
His instructions in respect of the NRAT were to test a number of scenarios (p2 of 33):
Requirements to allow a Clearing Property Vegetation Plan (PVP) for the clearing that occurred in the original 34.5 hectares of clearing that was identified and was under investigation by OEH
Requirements to allow a Clearing PVP for additional areas of native vegetation identified using Aerial Photograph Interpretation (API) by OEH to have been cleared on the property since 2006.
Determine if the Conservation PVP proposed by the landholder of the property is sufficient to offset for the clearing that has occurred on the property.
It was assumed that most of the trees present were up to 43 years of age, but had no hollows due to their small size. A site inspection, in January 2011, confirmed that no trees of smaller size had hollows present, though occasional large trees present did have hollows of sufficient size to provide habitat for fauna. It was not possible to determine definitely whether hollow bearing trees had been cleared in the areas identified.
He explained (p2 of 33) that only the Threatened Species Tool, and not the BioMetric Tool, was run, because of insufficient field data to get an accurate assessment of BioMetric features (which are relevant because a high number of habitat features can reduce the ratio of the offset). He also explained (p3 of 33) that expert experience in this part of NSW showed that the Threatened Species tool was "most likely to come up with the highest offset ratio so this would effectively determine the offset required". The vegetation was assumed to be in "moderate to good" condition.
The original scenario assessed an offset area of 86ha, and the second increased that area to 165ha. Both scenarios "red-flagged" (suggesting that the clearing would not be approved), because the offset area was insufficient to mitigate the impacts of the clearing.
It was subsequently determined that the conservation PVP proposed for the property was approximately 98ha. Ewin opines (p3 of 33) that, given his assessment, "it is unlikely that this offset would have been sufficient for a Clearing PVP to have been approved with an offset of this area".
Ewin notes (at p4 of 33) that River Red Gum is listed as an INS in the Murrumbidgee CMA, and that there is potential that the clearing may have been allowed under an INS PVP, which has different conditions and requires smaller offsets than a conservation PVP.
Ewin's summary of his NRAT report is as follows (at p5 of 33):
"Based on the assessment undertaken in NRAT the following statements can be provided as a summary:
If no hollow trees were cleared, the area of the original investigation (34.5ha) is likely to have not caused a loss of habitat for threatened species that could not be offset.
The proposed Conservation PVP is unlikely to be of sufficient size to mitigate the impacts of the clearing in the area of the original investigation (i.e. a Clearing PVP is unlikely to have been approved with this as the offset).
The area that has been cleared on the property since 2006 would have not been approved under a Clearing PVP as the area of vegetation cleared would have not been considered sustainable for a number of species within the threatened species tool.
River Red Gum is listed as an Invasive Native Species within the Murrumbidgee CMA and approval may have been gained to undertake some management through an INS PVP."
Ewin's second report dealt with additional areas, and he was asked:
(i) to provide opinions on the species/community of cleared vegetation and whether or not they were "native vegetation" under the NV Act;
(ii) to estimate the age of the cleared vegetation, and whether or not it was regrowth within the meaning of the NV Act, and
(iii) to determine the conservation value of the cleared vegetation and the impact/significance of the vegetation cleared at both a local and a landscape level.
He set out his methodology in detail, and then opined (at pp 4f of 19) that "native vegetation" had been cleared from the relevant areas, but that, due to site variations (i.e. flooding frequency, rainfall, etc), it is not possible to determine from modelling the DBH growth rate in centimetres per year for River Red Gum. However, on the basis of modelled growth rates, trees with a DBH of 20cm would be at least 20 years old, and all trees with a DBH of greater than 20cm would have been alive before 1 January 1990. The trees in the uncleared areas varied in DBH. Some areas were dominated by trees with a DBH between 5 and 20cm, while others had a DBH significantly higher (up to 80cm, with the occasional tree greater than 1m). He opined (at pp5-6 of 19) that, due to site variations, it is not possible to determine the exact age of the trees present, but trees with a DBH greater than 50, are likely to be at least 50 years of age and those with a DBH of 80, at least 100 years of age, and with a DBH greater than 1m, 120 years of age. "These are minimum ages and therefore the trees may be considerably older than this".
He continued (at p6 of 19):
"Based on the observations of the native vegetation remaining in areas adjacent to the cleared areas on the Property it is my opinion that it is highly likely at least some of the areas cleared contained native vegetation that was not 'regrowth' as defined by the NV Act."
On conservation value at a local scale, Ewin concluded (on p6 of 19) that the native vegetation cleared from the subject area was in medium condition, and:
Contained native vegetation typical of Inland Riverine Forests;
Contained trees of varying age classes, including mature aged trees and recruitment trees, which contained habitat features, including hollows which are important for a range of native fauna species;
Possessed native ground cover species though due to grazing and recent flooding the extent of coverage was not able to be determined.
He then observed (on p6 of 19) "that the cleared areas of Property adjoin large areas of vegetated land, particularly to the south (Murrumbidgee River) and west. These habitat interconnections would provide for genetic exchange and dispersal of flora and fauna to and from the subject area".
He further opined (at pp 6-7 of 19):
(a) that the property provides a suitable habitat for a number of threatened fauna species such as Koala, Barking Owl, Superb Parrot, and possibly also the Squirrel Glider, and
(b) that the clearing "caused significant consequences to the conservation values of the site, the maintenance of habitats surrounding the site, and for the survival of the flora and fauna species that use these habitats...".
Ewin went on to express the opinion (at pp7-8 of 19) that the conservation value of the cleared native vegetation at a landscape scale was "medium", and that the clearing was:
"likely to have caused moderate to low impacts on vegetation and fauna habitats at this scale... In terms of landscape configuration and connectivity, the cleared area on the subject area was part of a relatively large remnant of riverine vegetation and was connected at the eastern edge of a large area of vegetated land as it adjoins the Narrandera Common to the west. The subject area forms part of agricultural land which has been subject to previous clearing activities."
The conclusion of the second report (at p8 of 19) was as follows:
"It is highly probable that native vegetation that was not regrowth has been cleared from the areas identified by Stuart Lucas using API on the Property. The clearing of this vegetation contributes to the cumulative fragmentation of a margin of Inland Riverine Forest which is of local conservation value and provides connective value along this section of the Murrumbidgee River floodplain. The clearing will have caused local impacts on individual native flora and fauna, including threatened species.
The loss of hollow-bearing trees and the clearing of native vegetation are recognised and well documented threats to a variety of threatened species known to occur in the region, and for which the site provided potential habitat, including the Koala, Barking Owl and Superb Parrot."
The Native Vegetation Information Sheet
During his oral evidence, to which I will return, Ewin was asked about SEPP 44, and also the Native Vegetation Information Sheet (both in Exhibit P2). I have already referred to the relevance of the SEPP (see [21] above), but I need now to summarize the regime described in the NV Information Sheet. The text of the document uses the word "scrub", rather than "species", but the schedule contains the list of relevant "species".
Under the NV Act, clearing of INS classified as remnant vegetation requires approval except if it has regrown since 1 January 1990.
INS is defined as comprising a plant species that invades vegetation communities where it has not been known previously, or regenerates densely following natural or artificial disturbance, and the invasion and/or dense regeneration of the species results in a change of the structure and/or composition of the vegetation community, and the species is within its natural geographic range or distribution.
INS can cause both environmental and production problems. Dense stands of it reduce habitat and can lead to increased potential for soil erosion, changes to soil surface hydrology, and a change in biodiversity as a result of reduced ground cover. These effects are aggravated by grazing. INS can result in reduced pasture production, difficulties in mustering livestock, and increased problems with feral animals.
On the other hand, INS species are native to New South Wales, and provide habitat for some native plants and animals, and connections for the movement of wildlife across the landscape. Under the regime in the fact sheet, the New South Wales government is responsible for the "sustainable and equitable management of native vegetation, balancing the need to maintain production with protection of the environment".
There are over 40 native plant species listed as INS in New South Wales including River Red Gum, but the listed species do not always behave invasively in every situation. CMA officers will confirm whether a listed species is behaving invasively in a particular area, and, once confirmed, INS can be assessed for clearing.
In making that assessment, CMAs use the "PVP Developer". The assessment process is called the "INS Tool", which was revised in 2006, and it sets out "treatments" that allow landholders to clear INS to restore open woodlands and native grasslands. Offsets are not required when using the INS Tool. After assessing, on-site, a clearing proposal using the INS Tool, a PVP is prepared by the landholder and the CMA.
The "treatments" available within the Tool include burning, and various categories of clearing, with various gradations of disturbance to groundcover, which are described in the document. Readers are informed that they can treat up to 80% of the INS on their property, retaining areas in a pattern to match their landscape conditions, but it is preferred that INS be retained in patches and clumps across the property, or as separate buffers between treated areas, rather than as a single large block.
The fact sheet continues:
"There are limits on the amount of clearing that can be undertaken using each treatment method at any one time. The limits are based on the risk of soil and groundcover disturbance in each option. The local CMA can provide information on how this relates to your clearing proposal."
The INS Species Database lists the maximum diameter of trees that can be cleared for each species. Larger trees provide greater habitat for animals, particularly in hollows, and CMAs can vary the diameter at which tree species must be retained by above or below 5cm to reflect environmental conditions and tree growth on a landholder's property. "Trees of INS species larger than the specified diameter cannot be removed regardless of where they are located or which treatment method is used".
Mr Ewin's Oral Evidence
Ewin was the only deponent required for cross-examination, and he also gave brief evidence in chief, clarifying some of the contents of his affidavit.
He affirmed that some timber species can be both native vegetation and INS, yet not behave invasively in every situation. River Red Gums are the only species in SEPP 44 likely to be found on Carraman, and they come up in dense stands after flooding, inhibiting both agriculture and biodiversity values (T16.28 - 30).They provide the major food source for koalas in Narrandera Shire.
He testified that there had been major flooding in the area in 1992 and 2010, and that a lot of River Red Gums on the subject property are "regrowth" (T16.49 - 50, and T21.45 - 22.25), but not as dense as Mr Powell suggests in his affidavit (T18.46 - 19.4). It is "highly likely", "probable or highly probable", that the cleared timber included some hollow-bearing non-regrowth (T24, and SAF). In view of the long history of disturbance on the Murrumbidgee Flood Plain since the mid-nineteenth century, the Carraman area was no "pristine forest in any sense of the word" (T18.19).
An INS PVP does not require an offset, but Ewin opined that it was possible, but unlikely, that a PVP would have been approved for the 65 ha affected by clearing in this case (see T11 - 14, 19 - 20, and 29 - 30). He knew of none in the Murrumbidgee CMA.
The cleared trees were in "medium or moderate condition" (T21.19 - 23). Wildlife corridors were not removed, so "connectivity" remained, although he did not accept the description of it as "good" (T25.7 - 30). He accepted much of Mr Budde's evidence, and relied on Mr Lucas's.
During cross-examination he had agreed with Mr Littlemore that his desktop assessment was a "totally artificial exercise" (T15.39 - 40), but during re-examination by Ms Lenehan he gave the following evidence regarding assessment tools (T29.33 - 40):
"[It] ... would be the decision of the CMA to decide whether a species that is listed on INS, would be assessed using the INS tool or the clearing tool because Red Gum is a native species listed as native vegetation that also has the condition of being an INS species but that would be a decision made once the assessment - once the property was visited. It's not an assumption to make that, because it's Red Gum present that is it automatically would be dealt with as an INS assessment. That is my understanding of the process."
The Defendant Powell
Brian Powell's affidavit gave the Court some of his personal history and circumstances. He is aged 66, and worked in textiles and industrial chemistry before commencing with his wife, an active-wear clothing company, making and selling swimwear and sports clothes.
He has had a lifetime involvement in surf lifesaving, has been involved in many rescues, and his company has sponsored the North Bondi Surf Lifesaving Club to the tune of $30,000-$50,000 per annum, even in difficult economic times.
He, from an early age, developed "a love of the land and came to understand the value of the conservation and management of trees, the integration of flora and fauna and the importance of the management of swamp and wetland areas".
By 1992, his wife and he were able to afford to buy about 100ha in Beaudesert in Queensland. The property was badly run down and he fenced off areas to exclude livestock and planted between 4,000-5,000 Australian Native trees. He also fenced off areas of bushland to enable the native vegetation to regenerate, and has pursued an interest in beef cattle breeding ever since. At the end of 1993, he and his wife purchased a larger farm in the Beaudesert area (607ha). He operated both holdings in the same way.
In 1995, they sold up at Beaudesert and moved to the Riverina Area. Cleo's purchased a property known as 'Yamba' on Leeton Road, Narrandera, a run-down property of 445ha, and started improving it. Mr Powell planted approximately 5,000 River Red Gum and Blue Gum trees in areas fenced off outside those reached by centre-pivot irrigation systems. They watered their trees during the severe drought of the late 1990s. He participated in implementing the Murrumbidgee Irrigation Environment Plan, which envisaged large plantings of native vegetation, until he sold 'Yamba' in 2005.
In 2000 - 1, Cleo's purchased Carraman, and Mr Powell has conducted extensive research into the property's history, and its aboriginal heritage. The property has been grazed and cropped since it was first taken up in the 1830s. It is located in what is now described as the pre-European Plain, and the Narrungdera people maintained it by clearing it by firestick burning. Powell believes "that vast tracts of the property would have been almost denuded, or totally denuded, of the indigenous species as a result of firestick burning prior to and after European settlement".
The dominant River Red Gum rapidly regenerates after flooding. The history of flooding in the district indicates that the Murrumbidgee floods most of Carraman, which has meant a problem with regrowth of River Red Gum. Mr Powell believes that successive owners have undertaken a major control programme to maintain a large proportion of the property as open grazing paddocks, and that the regrowth on Carraman, at the time his company purchased it, was the result of the major flood event in early 1992.
Immediately prior to the purchase completed in 2001, a Forest Management Plan was prepared by State Forests New South Wales for what are known as the Bundidjarie Farms, which cover an area of 2,512ha, including Carraman (1,327ha). Timber on those farms had been commercially harvested till 1988. This document was sought from Mr Powell by the prosecutor's second Notice to Produce, to which he did not respond, but it is now annexed to his affidavit (as Annexure BCP2). The plan notes (at p5):
"Regeneration on the open paddocks of 'Bundidjarie Station' resulted from flooding in the mid 1980's. This regeneration was not cleared and now forms a patchy, often poor quality forest cover in these paddocks.
The forested areas along the Murrumbidgee River, Bundidgerry Creek and Duck Bend Billabong were relatively untouched until the late 1970's when the harvesting of commercially valuable timber [occurred]. This logging was not regulated and tended to remove the best quality trees, potentially down-grading the quality of the remaining stands."
The plan continues (at p7):
"During the early to mid 1900's, 'Bundidjarie Farms' was maintained as a relatively clear plain, the exception being adjacent to the watercourses, particularly the Murrumbidgee River."
The plan's proposals for future management (p15, s 2.1.1) state the following objectives:
"(a) To maintain an actively growing commercial timber stand to compliment on farm income from agricultural enterprises.
(b) To provide for grazing within the commercially productive forest area, where it is compatible with other management objectives.
(c) To maintain a selected area of the property under forest cover in order to:
Satisfy the requirements of the Native Vegetation Conservation Act, 1997, in view of sustainable logging exemptions.
Provide a 'trade-off' in obtaining permission to clear and return to agricultural other non-commercial forest stands.
Conserve hydrological and soil values.
Maintain a diversity of habitat suitable for the maintenance of viable flora and fauna populations.
Satisfy community and other requirements for the management of native vegetation.
(d) To supply high quality sawlogs from managed forest areas, commensurate to the sustainable productive capacity of the area.
(e) To maintain any significant or rare ecological, historical, floral, faunal or other scientific or cultural values occurring within the area.
(f) To ensure residues from past and future sawlog harvesting operations are fully utilised, within the constraints of fauna habitat requirements.
(g) To maximise net financial returns from 'Bundidjarie Farms', from both forest harvesting and agricultural enterprises, to the greatest extent possible within the constraints of other management objectives.
(h) In light of all of the above, to return non-commercial stands of post 1970 regeneration back into productive agricultural land."
Section 2.1.2 of the Forest Management Plan is headed "Management Strategy", and provides:
"The basic strategy for the management of commercially productive forest areas on 'Bundidjarie Farms' is to maintain and enhance the values of the existing natural resource, whilst, at the same time provide for the harvesting of high quality sawlogs and the continued multiple use of the property."
Section 2.3 deals with environmental protection plans, and the "General Prescriptions" in par 2.3.1 are as follows:
"Environmental values on 'Bundidjarie Farms' should be identified and adequate prescriptions applied to ensure their protection. These constraints should be identified in Harvest Plans for all operations.
In particular, areas adjacent to waterbodies should be managed to enhance fauna habitat values."
Section 2.3.2 provides for planning surveys for threatened species to be conducted prior to any timber harvesting. Among the threatened species of particular significance are the Superb Parrot, and the Koala, both of which had been identified on the property during surveys conducted in the preparation of the report.
Mr Powell deposes (in par 18) that "there are hundreds of koalas that live in the trees around the property", and notes that the Narrandera Common is partly koala sanctuary. He has not seen "any decrease in the number of koalas since the clearing took place".
When the company took possession of the property in January 2001, Mr Powell considered the condition of Carraman station to be "extremely run-down" - fences were non-existent and there were significant areas where River Red Gum regrowth proliferated. Subsequently, between 2001 and 2010, Carraman was badly affected by serious drought. In those years the company spent approximately $450,000 on the purchase of fodder to keep the cattle alive.
During the drought, relevant State Departments pressed him to ensure the efficient use of water and he committed to building a centre-pivot system. More recently, the Murrumbidgee CMA has encouraged him to install a second centre-pivot system on Carraman, partly funded by the government, in return for the company's surrender of some of its water entitlements. Some clearing was necessitated, and Mr Powell was led to believe that essential clearing work associated with the system enjoyed government approval.
Carraman was flooded, to the extent of approximately 95%, in the December 2010 flood, and all the company's cattle had to be moved. Most of the fences were damaged or destroyed, and the flood endured for 4-6 weeks, following which "widespread regrowth of Red River Gum occurred in the cultivated and open paddocks". Mr Powell annexes photographs to indicate the scale of the regrowth following the flood event.
He deposes (in par 22) that, in the period the subject of the charge, he was generally aware of the provisions of the NV Act, although he had never read it. Since May 2009, he has become familiar with what he understands to be the important provisions, and has "read Fact Sheets from the relevant Department". He does not identify which sheets or which Department, but he understood from that research that clearing of native vegetation would be exempt when it was for the purpose of removal of regrowth, or necessary for routine agricultural management activities. He says he did not know that regrowth was limited to trees or suckers post January 1990, and did not appreciate the requirement for lodging a development application. He had only a basic understanding of what was involved in a PVP.
Mr Powell asserts (pars 23ff) that he was frank and cooperative with the officers who called on him on 15 May 2009, and he acknowledges that Sewell requested the company to agree not to push over any further vegetation, or burn any more stacks, until he could return to take measurements, which he did on 21 May for "several days".
Mr Powell deposes (par 25) to attending an interview at Rosebery on 26 August 2009. He notes (in par 26) that it was attended also by Jason Price and Rod Sewell from the Department, and by Brian Abbott and Erwin Budde, and his affidavit continues as follows:
"27. At the meeting, I stated that I was anxious to co-operate with the officers from DECC and wanted to resolve the problems which they had with the clearing that had taken place. I accordingly agreed, after considerable discussion, that an agreed area in the south-western corner of Area 01 of 15-20 acres I thought should be fenced off to exclude livestock by 31 March 2010 and thereby permit the native vegetation to be remediated. The reduction in the size of the centre pivot system had a substantial financial impact on the Company as costs had already been incurred but we were reducing the size of the centre-pivot area by 20%, while the cost remained the same as for the original plan - approximately $270,000.
28. At the conclusion of the meeting, Jason Price raised an issue in relation to clearing on land in area the subject of this charge. He said words to the effect of 'If you take the issue of any possible illegal land clearing in the area south of Area 01 up with the Catchment Management Authority and the CMA is satisfied then no further action will be taken'. Rod Sewell indicated his agreement.
29. I contacted the Murrumbidgee Catchment Management Authority ('CMA') and in September 2009 an inspection was made of Carraman by Peter Weare (an officer with the CMA), Peter Beale (Leeton Catchment officer) and an officer from the Wagga Catchment Office. It was proposed to me that a Property Vegetation Plan ('PVP') for the property as a whole should be prepared along the lines of the hand-drawn plan a copy of which is annexed to this Affidavit and marked BCP 6. The proposal was that the land coloured red on the plan be permanently managed as conservation areas for the preservation and enhancement of native flora and fauna. The land coloured red included the environmentally significant Duck Bend Billabong. My understanding from the meeting was that the PVP discussed with the CMA was a Conservation PVP and that we would need to have further discussions concerning any development under a Development PVP. It was my belief that the PVP agreement in principle with the officers of the CMA would satisfy the undertaking made by Jason Price and Rod Sewell in the meeting at Rosebery on 26 August 2009.
30. The Company was served with a draft Remedial Direction Notice from DECC, a copy of which is annexed hereto and marked BCP 7. In compliance with the notice, livestock were removed from the specified area in December 2009 and the Company engaged a contractor to erect the agreed fence."
Mr Powell then gives evidence about being contacted by Sewell, towards the end of 2009, to arrange a further inspection, which took place on 25 January 2010. Mr Powell then says:
"31. ... I told them that I wished to cooperate with their work; that I realised we may have gone about the clearing the wrong way, but we now knew better. I agreed to take them to four areas we had cleared - the first of which was very minor and the second where a line of trees had been cleared to construct an internal fence. At the third area, I told the officers that we had cleared 60 to 80 trees, adding, to the best of my recollection, that the number included some 5-10 mature trees, but was mainly re-growth.
32. In the fourth area, I told the officers that we had cleared 40 or 50 trees to enable us to plough the land for cropping, which I said I had believed to be routine agricultural maintenance. We had tried to crop the land with those trees in place, but the plough was repeatedly damaged, at very significant cost to repair. To the best of my recollection, I told the officers that the 40 or 50 trees included a couple of mature trees and the rest was mainly re-growth."
In respect of his voluntary agreement to a record of interview, Mr Powell says (par 34) that he participated "notwithstanding legal advice" that he should not do so, and that he answered all questions to the best of his ability.
Copies of some remediation documents dated September/October 2009 are also attached to the affidavit (Annexure BCP7).
In presenting Mr Powell's affidavit, Mr Littlemore (T36 - 7) pointed to him as a "good citizen", with a "good record" of restoring and foresting "rundown properties". He drew the Court's attention to the history of flooding, fire, and clearing on Carraman, and said that the continued presence of koalas on the land since the offence indicated that "habitat is obviously still functioning as it would be wished to function". He said that Mr Powell sought to "co-operate at all times with the investigation by the prosecutor," and that such cooperation and the "early plea of guilty" established the defendant's contrition.
The prosecutor did not require Mr Powell for cross-examination, and Mr Littlemore decided not to call him to supplement his affidavit evidence.
The Principles
The legislature has established a comprehensive regulatory system to achieve a series of statutory environmental objects. Environmental offences undermine the integrity of that system, and jeopardise the achievement of those objects. By setting a maximum penalty of $1.1M, the legislature has indicated its serious denunciation of the sort of conduct alleged on the part of the defendant in the present case, and its intention that citizens and corporations should be deterred from such conduct.
The statutory provisions and general principles governing the imposition of sentences on environmental offenders, including those in breach of the NV Act, are well established; they are often stated in judgments of the court, and they are set out in the submissions before the Court in the present case. I do not see the need to set them out again in full.
I adopt for the purpose of sentencing in this matter the principles outlined in the judgment of the Chief Judge in Director-General, Dept of Environment and Climate Change v Rae [2009] NSWLEC 137, 168 LGERA 121 ("Rae"), and the summary of relevant principles given by Pepper J in Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119 ("Walker No 4"), at [20]-[34]. See also my own decision in Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No.2) [2011] NSWLEC 149 (Graymarshall), and that of Pain J in Director General,Department of the Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102.
Relevant statutory provisions are ss 3A and 21A of the Crimes (Sentencing Procedure) Act1999 ('CSP Act'), which replicate some of the usual considerations listed in other provisions such as s 241 of the Protection of the Environment Operations Act 1997 (see Environment Protection Aurthority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89, per Craig J), and s 194(1) of the National Parks and Wildlife Act 1974.
Section 3A articulates the purposes of sentencing, which relevantly include, in the context of this case, (a) adequate punishment, (b) specific and general deterrence, (e) making the defendant accountable for his/her/its actions, (f) denunciation of criminal conduct, and (g) recognition of harm caused to the community. Section 21A and associated sections list various aggravating and mitigating factors to be considered.
Sentencing requires the "instinctive synthesis" of all the relevant objective and subjective circumstances surrounding the commission of the offence, and the offender, and the imposition of a "proportionate" penalty.
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 warns sentencing courts to be careful when aggravation is alleged, beyond the charge as laid. The court must sentence only for the particular offence. Absence of a claimed mitigating factor also does not amount to an aggravating factor.
As was noted in Rae (at [42] - [43]), a strict liability offence, which was premeditated, or committed intentionally, negligently or recklessly, is objectively more serious than one which is not.
Central to this Court's assessment of the gravity of any environmental offence is the extent of environmental harm caused, actual or potential, direct or indirect, Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299, at [145]-[149].
Prosecution Submissions
The prosecutor relies upon the principles in Rae, and pars (a), (b), (e), (f) and (g) of s 3A, and put particular emphasis on general deterrence.
The prosecutor submits that the clearing of native vegetation is invariably undertaken "for the purpose of commercial gain" (par 7), in the sense of doing it to increase "density, yield or profits, with the expectation of a concomitant increase in the capital value of the land" (Rae at [11]). Very high maximum penalties fixed by the parliament are intended to act as a deterrent, namely "a countervailing disincentive to the economic incentives to clear native vegetation illegally" (Rae at [13]).
As indicated by the SAF, there was no development consent or PVP, and the defendant did not seek advice from the Murrumbidgee CMA before undertaking the clearing. Nor did he make any enquiries of any other relevant authorities such as Narrandera Shire Council or the prosecutor. While River Red Gums are listed as an INS, the defendant cleared vegetation which had never been assessed as INS by Murrumbidgee CMA, he never sought PVP approval, and, as some of the cleared timber existed prior to 1 January 1990, it was not all regrowth.
The Common provides habitat for a range of fauna including koalas, kangaroos, wallabies and echidnas. The designated koala sanctuary on the Common is known as the Narrandera Nature Reserve, and is environmentally sensitive land to which SEPP 44 applies to protect potential and core koala habitat. River Red Gum is a feed tree species (see SEPP 44); it is listed in schedule 5 of the Narrandera LEP 1991 as a tree which needs to be protected. (SEPP 44 prevails over the LEP, but the defendant admits that the NV Act is paramount - T58.25).
Whereas Rae involved an area 215ha, this case involves only 65ha. Although no other case is directly comparable in terms of area cleared, Director-General, Dept of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 (Calman) involved the same species, a similar riparian location (Tocumwal), and more than 21ha.
The prosecutor says (par 23), and I accept, that it is the level of environmental harm caused, rather than the actual area cleared, that must be considered in assessing the objective seriousness of the offence. It is not entirely clear, from reading Calman, how severely the affected area was cleared in that case.
Ms Lenehan relies on both Ewin and Budde on the question of environmental harm in the present matter. A number of the trees cleared were hollow-bearing (SAF 14), so the clearing constituted a loss of habitat, and connectivity, and so a risk to fauna.
The prosecutor's written submissions go on to deal with "state of mind", and reasons for committing the offence. Clearly a farmer/grazier in Mr Powell's position - even though the enterprise in not his main occupation - would be motivated to clear land, in order to make it more productive and profitable. In his affidavit (at par 10) he declares that productive grazing was his objective in buying the property. The native vegetation he cleared was a real impediment to the development and exploitation of Carraman. Rae would suggest that this is an aggravating feature which increases the objective seriousness of his offence. Although Mr Powell admits to general awareness of the NV Act, he did not check whether and what approvals might be required.
On the question of the foreseeability of environmental harm, the prosecutor draws attention to the defendant's asserted sensitivity about koalas, suggesting that he was conscious of environmental harm (as in loss of food source and habitat) potentially arising from the clearing operation.
On practical measures to prevent risk of harm, the prosecutor relies only on the failure to check the need for authorisation, and failure to further research the NV Act. Use of the bulldozer could perhaps be seen as indicating a desire not to be terribly selective about the trees to leave behind.
The defendant had full control over the causes of the harm, and the prosecutor says that he cleared his land systematically over a number of years, his objectives for the cleared land being so firm that he used a bulldozer (T42.31 - 39).
Ms Lenehan concludes that the Court should find "lower end of medium" environmental harm (T48.16 - 17), and an offence of moderate objective gravity.
On subjective circumstances, the prosecutor acknowledges that the defendant does not have any prior convictions for environmental offences, but the prosecutor cannot identify any evidence of contrition or remorse. The plea of guilty, regardless of its timing, is not sufficient. (See T46, and Georgopolous v R [2010] NSWCCA 246 (at [49])).
At par 54 of her submissions, Ms Lenehan, for the prosecutor, says:
"Contrition and remorse are readily shown by an offender taking actions. Actions underlying genuine contrition and remorse may take at least four (4) forms: Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 (10 July 2006) at [203]-[215]. These forms include:
(i) the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence is the clearest indication of contrition and remorse.
(ii) voluntarily reporting the commission of the offence and any concomitant environmental harm to relevant authorities indicates a genuine desire to act responsibly. Environmental regulation depends upon the integrity of persons making full disclosure. Voluntarily reporting breaches should therefore be acknowledged as a mitigating circumstance by the courts in sentencing.
(iii) the taking of action to address the causes of the offence by indicating a genuine desire to act responsibly: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 700-701.
(iv) the personal appearance of the defendant in court and their personal evidence outlining their genuine regret and stating future plans to avoid repetition of such offences is an indication of genuine contrition."
She notes that there has been no attempt to plant any replacement vegetation, although Mr Powell has been to the CMA to negotiate a PVP.
On the question of the defendant's assistance to the authorities, the prosecutor points out (pars 56 - 61):
(1) During the May 2009 visits the defendant did not identify (all) the areas now the subject of the charge.
(2) He subsequently engaged NGH, but did not follow its recommendations, including to hold discussions with the CMA, to disclose the clearing, and to investigate obtaining a PVP.
(3) The draft remedial direction of 6 July 2009 affected an area in the north-west corner of the property which is not the subject of these proceedings. As at 21 July 2009, OEH was aware only of a small area of clearing. That area, and the area discussed at a meeting on 26 August 2009, are not the subject of these proceedings, but clearly there was less than full disclosure during 2009.
(4) It was only during the inspection of the property in January 2010, and the subsequent work by Lucas, that the full extent of the clearing operation became clear to the prosecutor.
(5) The prosecutor concedes that the defendant participated voluntarily in the ROI, and agreed upon the SAF, but complains about Mr Powell's failure to produce the forest management plan until the hearing, having relied on it in his ROI - the commencement of proceedings is no excuse for not complying with the notice (T44).
Ms Lenehan specifically sought (in par 68) an order that the defendant pay the prosecutor's costs of these proceedings, but (T1 and 49) not of the two matters to be dismissed. As at the date of hearing she had informed the defence that costs were claimed in the sum of $42,000 for the present matter, but she had not yet advised of the amount the prosecutor claimed for investigation expenses (T49.3 - 15). The amount of costs is not agreed by the defence (T57.3), and an order for costs is resisted. There was no response to the foreshadowed claim for investigation expenses.
Defence submissions
The defence acknowledges that the Government has promulgated guidelines designed to strike an appropriate balance between maintaining agricultural production and protecting the environment (T50.42 - 3).
Mr Powell estimates the number of mature trees cleared, or caused to be cleared, at between 100 and 150, but the prosecutor has not established the number actually cleared, nor how many of them were mature or hollow-bearing. The trees cleared were in only "medium or moderate" condition, because of pre-existing fragmentation and grazing pressure. Most were less than 30 years old. Substantial adjoining vegetation subsists. The viability of the River Red Gum community is not threatened, nor are native fauna, which retain appropriate habitat elsewhere on the property. There will be limited impact on fauna and its mobility. The only fauna really affected by the loss of this habitat is the Southern Bell Frog (per Budde), and Mr Littlemore submitted (T60.43 - 5) that there was "nothing inconsistent" about using a bulldozer to clear timber at the same time as being "an enthusiast about the welfare of Koalas".
Because of the agreement on an area affected of 65ha, the Court should ignore Mr Lucas's estimates. Not all clearing in the relevant period was unlawful. Dead trees and regrowth up to 20 years old may be cleared legally. The landowner did not ignore recommendations and warnings.
On subjective circumstances, the defendant relies on his good record, and his meritorious participation in the community, especially surf lifesaving. Carraman was "run down" when he bought it, and regrowth was a significant nuisance to his cattle operation. Historically, the property has comprised large open areas denuded of trees, having been cleared by aboriginal firestick burning. Mr Powell has also been proactive in taking measures for efficient water use. The government supported one such activity, which included necessary clearing, and the defence submissions say "Mr Powell formed the belief that government involvement in the project validated the tree clearing it necessitated". He believed he could clear regrowth and other vegetation in the course of routine agricultural management. He now does not dispute (1) that he caused trees to be cleared that did not satisfy the definition of regrowth, and (2) that he was in error in assuming that the approved installation of the centre-pivot system entitled him to clear trees generally, without having a development approval.
Mr Littlemore submits that his client "at all times cooperated with the prosecutor's investigation of the offence". He identified trees to the officers, and waived his right to silence. He willingly provided documents, and made concessions - he admitted he may have gone about his clearing the wrong way. He entered a plea of guilty, once he had received counsel's advice, "at an early stage". He has cooperated also with the court process. He agreed at the meeting on 26 August 2009 to fence off an area to allow native vegetation to regenerate and to reduce the area covered by the centre-pivot system by 10ha. He complied with the draft remedial direction. He took the prosecutor's officers to four sites on 25 January 2010, complied with a Notice to Produce, and participated in the official interview, despite advice that he should exercise his right to silence.
Mr Littlemore further submits that none of the statutory aggravating factors (eg, in s 21A(2)) are established by the evidence, and that the Court should be cautious in adopting the comment in Rae that clearing is invariably undertaken for the purpose of commercial gain. Commercial gain could equally be said to be the motivation for any usual agricultural activity. Just as assault is invariably an offence involving violence, it would be erroneous to consider the very nature of the offence as a factor aggravating its seriousness. As noted in the concluding words of s 21A(2), "the court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence". Commercial gain will always be an element of the offence of clearing land for the purpose of improving its agricultural utility (T53.18 - 54.11), and is not an aggravating factor.
Mr Littlemore put the following as mitigating factors which the Court must take into account (subs pp5-6), drawn from s 21A(3):
(a) The damage caused by the offence was not substantial, (and harm was not intended (T55.33));
(b) the offence was not part of a planned criminal activity;
(c) the offender does not have any record of previous convictions;
(d) the offender is a person of good character;
(e) the offender is unlikely to re-offend;
(f) the offender has good prospects of rehabilitation (and is negotiating a PVP for Duck Bend Billabong (T56.1 - 3));
(g) the offender has shown remorse by cooperating with the investigation at all times;
(h) the offender entered his plea at the first opportunity after the essential particulars of the charge had been negotiated.
Mr Littlemore also added to that list (T54.24 - 30) that the offence is "stale". Also, there was no clear-felling or razing, and little or no harm to the environment, and, what harm there was, was not of a lasting or significant local consequence, having regard to the immediate environment in which the clearing took place, notably the adjoining common and its large stand of protected, uncleared vegetation. There remain major vegetated areas within the boundaries of the property unaffected by the matter charged. The species cleared is quite prolific and will regenerate. The unaffected vegetation is sufficiently robust to accommodate the clearing that occurred, and the fauna that use the land for habitat have not been significantly affected. The cleared specimens were in only "medium" condition - the farm was "already fragmented" and grazing had reduced its diversity.
Mr Littlemore says that "specific deterrence" has already been achieved by the prosecution of Mr Powell, and that "general deterrence" is "this somewhat sanguine objective". Mr Powell has already sustained "reputational damage", and this is not an appropriate case to impose a substantial fine for the purpose of general deterrence.
Mr Littlemore helpfully appended to his submissions, summaries of relevant sentences, including Graymarshall, Rae, Calman, Walker (No 4), and other cases. Not surprisingly, he submitted that those sentences most relevant and comparable for present purposes were those in Calman, Director General, Department of Environment and Climate Change v Mura [2009] NSWLEC 233, and Director General, Department of Environment Climate Change v Vin Heffernan Pty Limitrd [2010] NSWLEC 200, which would suggest a fine in the order of "$20,000 to $30,000", rather than Graymarshall (a fine of $200,000), Walker No 4 ($200,000), Rae ($160,000 after discount), Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; 165 LGERA 256 ($400,000), or Director General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100 (Olmwood No 2) ($100,000). The Court generally ordered costs against the convicted defendant in such cases.
Although costs orders are compensatory rather than punitive (Latoudis v Casey [1990] HCA 59 (1990) 170 CLR 534), they should be seen as an element of the overall penalty imposed, and can affect the amount of a fine (see Calman, and EPA v Barnes [2006] NSWCCA 246).
The defendant's written submissions acknowledge that it is usual for this Court to order costs, but in oral argument, despite appearing to accept (at T57.14) that a costs order might be "inevitable", Mr Littlemore made a submission that any costs order must specify the precise amount, in accordance with s 215(3) of the Criminal Procedure Act 1986 ('CP Act'), as this is a summary prosecution. In any event, he did not accept the quoted amount of $42,000 as the amount to be ordered.
Finally, Mr Littlemore submitted that the Court should exercise its discretion to find the offence proven, but record no conviction (CSP Act s 10). He submitted that it was not mandatory for the Court to classify the offence as "trivial" in order to invoke the discretion, which could involve also the imposition of a good behaviour bond. Every sentencing decision must be individualised, and give appropriate consideration to mitigating circumstances, and the principles that govern s 10. Community protection does not require that Mr Powell be convicted (p8) - "the court is dealing with a mature, intelligent farmer well motivated towards environmental protection who has surely learned his lesson".
Consideration
Despite the flourish Mr Littlemore added to the defendant's story, the simple fact is that his illegal clearing continued after departmental contact in May 2009, and despite (1) Budde's recommendations of 21 July 2009, (2) the comments in the Forest Management Plan, and (3) Sewell's specific request.
In May 2009, Mr Powell was frank, but not completely open, about the extent of clearing. He then did some research, but continued to clear, and then cleaned up the evidence. Even so, he admits to clearing of between 100 and 150 mature trees of a protected species - an exact number need not be proven: Olmwood No 2, Walker No 4.
The submissions made about his claimed cooperation with the authorities are seriously overstated, and the submission questioning the legality of this Court's customary class 5 costs orders is plainly wrong. In respect of cooperation, I accept the prosecutor's submission ([135] above). In respect of costs, s 170 of the CP Act makes clear that the part of that Act in which s 215 falls does not apply in this Court. Costs in these proceedings are governed by Ch 4 Part 5 Div 4, ss 257A - G; costs may and will be ordered pursuant to s 257B, and may be quantified pursuant to s 257G.
I have carefully considered the s 10 submission, against the factors listed in s 10(3), and the principles laid down in leading authorities on the exercise of the discretion. I reject Mr Littlemore's criticism of Biscoe J's sentencing remarks in Blue Mountains City Council v Carlon [2008] NSWLEC 296 ("Carlon"), in which his Honour convicted the defendant and made a costs order, but imposed no monetary penalty. His Honour discussed and applied the principles concerning a dismissal under s 10 (at pars [67] - [74]), before invoking s 10A instead. The comments which Mr Littlemore questioned occurred in pars [70] - [71] of his Honour's remarks (citations omitted):
"70 This is a strict liability offence in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence ... It is unusual in the case of strict liability offences for a defendant to receive the benefit of s 10, even if the defendant genuinely believed that it was lawfully entitled to undertake the prohibited activity. The reason for imposing a penalty even where such a belief is held, has been expressed in various ways to similar effect: to invoke the deterrent purpose of educating the offender and the community in the law's proscriptions so that the law will come to be known and obeyed; to ensure that persons take proper steps to ascertain the lawfulness of their proposed conduct; to give effect to the system of planning controls. ...
71 In the context of strict liability pollution of the environment offences, it has been said that it is a rare case when a dismissal under s 10 is seen as appropriate ..."
His Honour referred to the remarks of Spigelman CJ in Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 (at [165] - [169]), regarding the "rare" application of the old "s 556A" discretion, which is now in s 10, in environmental and occupational health and safety cases. After reviewing some English authorities, the Chief Justice said (at [178] and [184]):
"178 It is, in my opinion, relevant to the exercise of the discretion under s10 of the Sentencing Act, in the context of a strict liability offence, to consider what the applicant for the benefit of s10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeat offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight.
...
184. The circumstances, particularly the unblemished record of the Appellant and the small size of the discharge indicate that this is an appropriate case for the exercise of the discretion. Consideration of what the Master could have done to avert the discharge supports this conclusion."
In this case I accept that the defendant has an "unblemished record", but I do not accept that his infraction of the law was "small". Biscoe J was in a similar position in Carlon, and said (at [72] - [74]):
"72 The prosecutor opposes an order under s 10(1)(b), essentially because the offence was not of a trivial nature and the defendant failed to take the steps of asking Mrs Tzannes whether there was a council consent to clearing work and, if so, asking to see it. While conceding that the offence was not of a trivial nature, the defendant points out that that is not necessarily dispositive of its application. The defendant submits (in terms of s 10(2)) that in all the circumstances the Court should be satisfied that it is inexpedient to inflict any punishment (other than nominal punishment) or that it is expedient to release the defendant on a good behaviour bond.
73 It is necessary to take into account all the criteria in s 10(3). The defendant is an honest person of unblemished character who has spent his life in voluntary and hazardous community service. He is a first offender. He is 39 years of age. There is nothing about his health or mental condition which is of relevance. Although the offence is not of a trivial nature, there are extenuating circumstances in which the offence was committed and other circumstances to which I think it is proper to have regard. First, he genuinely and not irrationally believed from what Mrs Tzannes told him that she had obtained any necessary council approval for the clearing work: see [53] - [54] above. Secondly, he carried out the work, in which he was inexperienced, not as part of a business but reluctantly at the request of Mrs Tzannes because of a family connection. Thirdly, the mitigating factors referred to at [58] above. Fourthly, although there was environmental harm, the site appears to be revegetating satisfactorily and the harm was not, of course, in the category of harm that may kill the earth such as in an oil spill. Fifthly, the offence is at the low end of criminality. Sixthly, his limited means: see [59] - [61] above.
74 On the other hand, the defendant knew that the council officers had not expressly approved clearing of trees and vegetation or the use of a bulldozer to clean up. In those circumstances it would have been prudent for the defendant to have checked, or to have requested Ms Tzannes to check, with the council whether the council approved the cleaning up being done by use of a bulldozer, which would necessitate clearance of trees and vegetation. As the defendant failed to do so, in my opinion considerations of general deterrence make it appropriate, in the circumstances of this case, to record a conviction in order to educate contractors and others who carry out development to take prudent steps to ensure that necessary approvals have been obtained."
I respectfully agree with both Spigelman CJ and Biscoe J, and I reject the defence submission that s 10 is appropriate in this case.
Penalty
The cases where modest penalties were imposed, such as Calman, involved "reasonably substantial" environmental harm, but remediation was undertaken in some, and the Court found low culpability in all. Those mitigating features are not present in this case, and the appropriate fine should be between that imposed in Olmwood No 2 ($100,000), and those in Rae, Walker No 4, and Graymarshall ($200,000).
While I am prepared to accept that specific deterrence from further offending may not be necessary, appropriate denunciation and punishment is called for, and so is general deterrence to others.
I accept that Mr Powell is entitled to the full 25% discount for the utilitarian value of his plea of guilty. It was not entered at the earliest opportunity, but I do not quibble with Mr Littlemore's submission he was entitled to see the whole of the prosecutor's evidence, and to obtain counsel's advice, before pleading to the charge. See R v AB [2001] NSWCCA 229, at [2], and [30] - [33].
However, on the evidence, he is not entitled to any further discounts.
He has pleaded guilty to an offence, which I agree is one of moderate objective gravity on a scale on which the maximum fine is $1.1M, and which resulted in harm at the "lower end of medium" (see [131] above). He had full control of the offending operation, and full power to avoid unacceptable harm. He has no prior record, but has shown no real remorse or contrition, and made no attempt at remediation. Contrary to his counsel's submissions (at [139] above), he actually did ignore relevant advice. He eventually provided some assistance to the prosecutor, but it would appear that he did so only when he came to accept the inevitability of prosecution and likely punishment.
I have concluded that a fine of $160,000 is appropriate, discounted by 25% on account of his guilty plea.
Orders
The orders of the Court will, therefore, be:
1. In matters 50359 and 50518 of 2011, the charges against the defendant company are dismissed, by consent, with no order as to costs.
2. In matter 50358 of 2011, Brian Clifford Powell is found guilty, and convicted, of the offence charged in the summons.
3. The defendant Powell is fined a sum of $120,000, and ordered to pay the prosecutor's costs and appropriate investigation expenses, as agreed or assessed.
4. Exhibit P1 is to remain in the Court file, but all other exhibits are returned.
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Decision last updated: 04 June 2012
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