Chief Executive, Office of Environment and Heritage v Wickman

[2020] NSWLEC 23

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chief Executive, Office of Environment and Heritage v Wickman [2020] NSWLEC 23
Hearing dates:	2, 3 and 4 March 2020
Date of orders:	20 March 2020
Decision date:	20 March 2020
Jurisdiction:	Class 5
Before:	Pepper J
Decision:	Notice of motion dismissed. See orders at [78].
Catchwords:	ENVIRONMENTAL OFFENCES: alleged clearing of native vegetation – application to set aside summonses on the grounds that the charges were statute barred – proper construction of phrases “evidence of the alleged offence” that “first came to the attention of an authorised officer” – whether evidence of all of the elements of the offence required to come to the attention of the authorised officer – whether evidence of all of the particulars of the alleged offence required to come to the attention of the authorised officer – whether evidence of the alleged offence the subject of one charge evidence of the alleged offences the subject of the remaining charges – whether possibility of evidence of the charge coming to the attention of the authorised officer sufficient – notices of motion dismissed – summonses filed within time.
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 125(5A) Evidence Act 1995, ss 97(1), 98(1) Native Vegetation Act 2003, ss 12, 42(3),(4) and (5) Protection of the Environment Operations Act 1997, s 190(1) and (4)
Cases Cited:	Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155 Chief Executive of the Office of Environment and Heritage v Turnbull [2017] NSWLEC 141 Chief Executive, Office of Environment and Heritage v Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117; (2015) 209 LGERA 280 Chief Executive, Office of Environment and Heritage v Turnbull (No 3) [2019] NSWLEC 165 Cumberland Council v Younan; Cumberland Council v Oueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145 R v Bell [2002] NSWCCA 2 R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487 Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428 UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107
Texts Cited:	Macquarie Dictionary (on-line ed) Oxford English Dictionary (on-line ed)
Category:	Principal judgment
Parties:	Chief Executive of the Office of Environment and Heritage (Prosecutor)  Scott Wickman (Defendant)
Representation:	Counsel: M Dalla-Pozza (Prosecution) C Ireland (Defendant)   Solicitors: Department of Planning, Industry and Environment (Prosecution) Webb & Boland Lawyers (Defendant)
File Number(s):	2019/89389, 2019/89390, 2019/89391, 2019/89392

Judgment

Mr Wickman Allegedly Clears Native Vegetation on His Property

1. The defendant in criminal proceedings 89389, 89390, 89391 and 89392 of 2019, Mr Scott Wickman, is the subject of four summonses in respect of alleged unlawful clearing of native vegetation on various lots on a property known as “Borgara” in north-western New South Wales.

2. The conduct the subject of the charges took place in various stages between 3 April 2013 and 24 August 2017.

3. By notices of motion filed on 21 August 2019, Mr Wickman seeks to set aside the summonses by reason of them being time barred pursuant to s 42(4) of the now repealed Native Vegetation Act 2003 (“NVA”).

4. In my view, having regard to the proper construction of that provision and the evidence relied upon by Mr Wickman and the prosecutor, the Chief Executive of the Office of Environment and Heritage (“OEH”), none of the charges are time barred, the summonses were filed within time, and the notices of motion must be dismissed.

The Summonses

5. The structure and content of the summonses, all filed on 21 March 2019, are relevantly similar save for the location of the alleged clearing on Borgara, the date of the alleged clearing, and the species of native vegetation alleged to have been cleared.

6. On 2 August 2019 leave was granted to amend each summons in the manner indicated below. The amendment was consented to by Mr Wickman subject to him reserving his right to argue that the charges were time barred.

7. Thus, amended summons 89389 states as follows:

That between about 2 April 2013 3 April 2013 and 6 October 2015, near Walgett in the State of New South Wales, Scott Wickman did clear native vegetation otherwise than in accordance with a development consent granted in accordance with the Native Vegetation Act or a property vegetation plan.

Particulars

Place of offence

Lots 1, 5, 6, 16, 17, 18, 20, 21, 22, 23, 24, 26, 27, 117 and 118 of Deposited Plan 754181 Local Government Area Walgett, Parish of Borgara, County of Leichhardt (“The Northern Area’).

b.   The native vegetation cleared included the following species:

i. Acacia stenophylla (River Cooba);

ii. Alectryon oleifolius subsp. canescens (Bonaree);

iii. Apophyllum anomalum (Warrior Bush);

iv. Atalayah hemiglauca (Whitewood);

v. Alstonia constricta (Bitter Bank);

vi. Capparis mitchelii (Native Orange);

vii. Eucalyptus largiflorens (Black Box);

viii. Eucalyptus coolabah (Coolabah);

ix. Eremophila mitchelii (Budda);

x. Geijera parviflora (Wilga);

xi. Hakea tephrosperma (Hooked Needlewood); and

xii. Sclerolaena bircornis var bicornis (Slender-fruited Saltbush).

c. Manner of breach

The Defendant caused the removal of native vegetation by means of machinery including a bulldozer; and

The Defendant had lawful management and control of the Northern Area.

d. Date on which evidence of the offence first came to the attention of an authorised officer

Evidence of the offence first came to the attention of authorised officer David Minehan on 22 March 2017.

8. Amended summons 89390 alleged clearing during the following date range and in the following locations:

1.    That between about 2 April 2013 3 April 2013 and 27 October 2014, near Walgett in the State of New South Wales, Scott Wickman did clear native vegetation otherwise than in accordance with a development consent granted in accordance with the Native Vegetation Act or a property vegetation plan.

Particulars

Place of offence

Lots 57, 45, 36, 38 and 39 of Deposited Plan 754181 Local Government Area Walgett, Parish of Borgara, County of Leichhardt (“the Central paddocks”).

The native vegetation cleared included:

i. Acacia salicina (Cooba);

ii. Acacia victoriae subsp. arida (Pricky Wattle);

iii. Eucalyptus largiflorens (Black Box);

iv. Eucalyptus coolabah (Coolabah);

v. Maireana aphylla (Cotton Bush);

vi. Sclerolaena birchii (Galvanised Burr); and

vii. Tribulus sp.

Manner of breach

The Defendant caused the removal of native vegetation by means of machinery including a bulldozer; and

The Defendant had lawful management and control of the Central Paddocks.

Date on which evidence of the offence first came to the attention of an authorised officer

Evidence of the offence first came to the attention of authorised officer David Minehan on 22 March 2017.

9. Amended summons 89391 is in these terms:

1.    That between about 8 February 2015 9 February 2015 and 24 August 2017, near Walgett in the State of New South Wales, Scott Wickman did clear native vegetation otherwise than in accordance with a development consent granted in accordance with the Native Vegetation Act or a property vegetation plan.

Particulars

a. Place of offence

Lots 56, 44, 35, 40, 34 and 41 of Deposited Plan 754181 Local Government Area Walgett, Parish of Borgara, County of Leichhardt (“the Central Area”).

b. The native vegetation cleared included:

i. Acacia victoriae subsp. arida (Pricky Wattle);

ii. Atalayah hemigauca (Whitewood);

iii. Casuarina cristata (Belah);

iv. Enchylaena tomentosa (Ruby Saltbush);

v. Eucalyptus largiflorens (Black Box);

vi. Eucalyptus coolabah (Coolabah);

vii. Marsilea drummondi (Common Nardoo);

viii. Pratia concolor (Poison Pratia);

ix. Sclerolaena birchii (Galvanised Burr);

x. Sclerolaena muricata var. muricata (Black Rolypoly); and

xi. Sclerolaena muricata var. semiglabra (Black Rolypoly).

c. Manner of breach

The Defendant caused the removal of native vegetation by means of machinery including a bulldozer; and

The Defendant had lawful management and control of the Central Area.

d. Date on which evidence of the offence first came to the attention of an authorised officer

Evidence of the offence first came to the attention of authorised officer David Minehan on 22 March 2017.

10. Lastly, amended summons 89392 states:

1.    That between about 7 March 2011 3 April 2013 and 27 October 2014, near Walgett in the State of New South Wales, Scott Wickman did clear native vegetation otherwise than in accordance with a development consent granted in accordance with the Native Vegetation Act or a property vegetation plan.

Particulars

a. Place of offence

Lots 10, 12 and 15 of Deposited Plan 754269, Local Government Area Walgett, Parish of Warren Downs, County of Leichhardt, and Lots 30 and 43 of Deposited Plan 754181 Local Government Area Walgett, Parish of Boraga, County of Leichhardt (“the Southern Area”).

b. The native vegetation cleared included:

i. Eucalyptus largiflorens (Black Box);

ii. Eucalyptus coolabah (Coolabah);

iii. Eucalyptus populnea (Bimbil Box);

iv. Capparis mitchelii (Native Orange);

v. Maireana aphylla (Cotton Bush);

vi. Sclerolaena bircornis var bicornis (Slender-fruited Saltbush);

vii. Sclerolaena birchii (Galvanised Burr);

viii. Sclerolaena muricata var. muricata (Black Rolypoly); and

ix. Sclerolaena muricata var. semiglabra (Black Rolypoly).    

c. Manner of breach

The Defendant caused the removal of native vegetation by means of machinery including a bulldozer; and

The Defendant had lawful management and control of the Southern Area.

d. Date on which evidence of the offence first came to the attention of an authorised officer

Evidence of the offence first came to the attention of authorised officer David Minehan on 22 March 2017.

11. As is apparent, for each summons the date upon which evidence of the alleged offence came to the attention of the authorised officer, Mr David Minehan, is claimed to be 22 March 2017.

12. There is no doubt that as an alternative to bringing four separate charges against Mr Wickman, OEH could have brought a single continuing charge of unlawful clearing of native vegetation. Had it done so, it is unlikely that any argument as to the limitation period contained in s 42 of the NVA would have arisen, because in such circumstances the limitation period is calculated from the date on which the offence was completed, namely, 24 August 2017, which is well within the two year time limit (Chief Executive, Office of Environment and Heritage v Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117; (2015) 209 LGERA 280 at [43]-[54]). However, as is its right, OEH exercised its prosecutorial discretion to pursue the four separate charges.

13. The above matter is mentioned only insofar as Mr Wickman’s counsel, Mr Clifford Ireland, seemed to submit that there was some unfairness in the manner in which Mr Wickman was charged and that this was relevant to the proper construction of s 42(4) of the NVA. In my view, any suggestion as to unfairness in the exercise by OEH of its prosecutorial discretion is to be categorically rejected. In any event, even if there was unfairness, this would have no bearing on the issues required for determination in the applications to set aside the summonses on the ground that they were statute barred. This is not a case where the Court retains a discretion to grant the relief sought by Mr Wickman.

The Offence of Unlawful Clearing Under the NVA

14. Section 12 of the NVA creates the offence of unlawful clearing of native vegetation:

12   Clearing requiring approval

(1)  Native vegetation must not be cleared except in accordance with:

(a)  a development consent granted in accordance with this Act, or

(b)  a property vegetation plan.

(2)  A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act.

(3)  It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4.

15. Section 42(3) provides that proceedings for an offence under s 12 must be commenced within two years from the date upon which the offence is alleged to have been committed:

42   Proceedings for offences

(3)  Proceedings for an offence under this Act or the regulations may be commenced within, but not later than, 2 years after the date on which the offence is alleged to have been committed.

16. It is plain from the summonses that proceedings were not commenced within the two year limitation period.

17. However, s 42(4) provides for an exception to the time period stipulated in s 42(3):

(4)  However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer.

18. If sub-section (4) is relied upon, then sub-section (5) is engaged:

(5)  If subsection (4) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of an authorised officer is the date specified in the information or application, unless the contrary is established.

19. The onus of establishing “the contrary”, that is, that the date upon which evidence first came to the attention of an authorised officer is other than that stipulated in the summonses, is on the defendant to be proven on the balance of probabilities (Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428 at [84] and [104] per Ward JA and Chief Executive, Office of Environment and Heritage v Turnbull (No 3) [2019] NSWLEC 165 at [55] per Pain J).

20. The correct interpretation afforded to s 42(4) is discussed in detail further below.

The Evidence That Came to the Authorised Officer’s Attention

21. The largely uncontested factual background giving rise to the applications was contained in affidavits relied upon by OEH (no affidavit evidence was filed by Mr Wickman) from:

1. Mr Minehan, sworn 11 June and 29 July 2019. He is the Team Leader in the investigations team at the New South Wales Natural Resource Regulator. It was accepted by the parties that Mr Minehan was an “authorised officer” for the purpose of the commencement of the prosecutions against Mr Wickman. Whether or not he was the authorised officer, however, was a matter in dispute;

2. Mr James Turner, affirmed 6 August 2019. Mr Turner is a Program Officer within the Regulatory Capability and Assurance (Technical Services) unit of what was formerly OEH. Mr Turner is responsible for the capture and quality control of aerial photo interpretation and conversion into spatial data, which includes vegetation mapping and land use programs. He is tasked with identifying and extracting imagery from the then OEH library and supplying it to compliance officers to assist them in their investigations. All requests for images were handled by Mr Turner during the relevant period; and

3. Mr Arthur Snook, affirmed 30 July 2019. Mr Snook is a Senior Compliance Officer within the Biodiversity and Conservation Division of the Department. Orginally, Mr Wickman objected to any reliance by OEH on Mr Snook’s affidavit because he was unavailable for cross-examination due to illness. Although Mr Wickman later abandoned his objection, during the voir dire I expressed the tentative opinion that I would have upheld the objection given that these were criminal proceedings and in light of the potential importance of the evidence to the relief sought by Mr Wickman. However, because Mr Wickman was rendered unavailable through no fault of OEH’s, I would have also been inclined, upon the provision of more detailed medical evidence explaining why he could not attend by way of telephone (see generally UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107), to adjourn the motion part-heard until such time as he was medically fit to give evidence.

22. Mr Wickman relied upon the following evidence:

1. various aerial imagery of Borgara and a neighbouring property known as “Deenderrah”, ranging in dates from 1988 to 2017. This included a large (1:60000) aerial photograph of Borgara and Deenderrah showing the cadastral boundaries of the various lots comprising both properties;

2. Notices to Provide Information and/or Records issued to Mr Wickman dated 23 February and 7 November 2018 and to Ms Sarah Wickman dated 23 February 2018 (to which the Court was not taken and the relevance of which remains opaque); and

3. an affidavit of Mr Paul Spiers, affirmed 18 March 2019, attaching an expert report authored by him (“the Spiers report”). Mr Spiers is an expert employed by OEH, whose expertise includes the assessment of breaches of the NVA using aerial photo interpretation and satellite imagery. Having analysed the aerial photographs and satellite imagery provided to him, he concluded that between the image dates of 7 March 2011 to 30 September 2017, on the lots on Borgara that his attention was directed to in his letters of instruction, approximately 1,323 ha of clearing had taken place, including the removal of trees, shrubs, and groundcover. In his opinion, the trees removed from the areas of interest had been observed to be continually present since 1988 and the clearing had been followed by cultivation and a change in land use from grazing to cropping. The lots to which Mr Spiers had regard to included the lots the subject of the four charges.

23. Table 6 of the Spiers report set out the following:

Table 6 Summary of Lots cleared for intervals between the images.

Period of clearing	Lots affected	Polygon numbers	Ha
1	7/3/2011 to 20/11/2012	DP754269/10, 12	1	139
2	20/11/2012 to 2/04/2013	DP754269/10, 12, 15	2 to 10	137
3	2/4/2013 to 27/10/2014	DP754269/10, 12, 15 DP745181/1, 5, 6, 16, 17, 18, 20, 21, 22, 23, 24, 30, 34, 35, 36, 38, 39, 40,43, 45, 57, 117, 118	11 to 34	386
4	27/10/2014 to 6/10/2015	DP745181/1, 5, 6, 17, 18, 20, 26, 27	39 to 43	70
5	8/2/2015 to 6/10/2015	DP745181/43, 44, 56	44	83
6	6/10/2015 to 13/4/2016	DP745181/43, 44, 56	45	99
7	13/2/2016 to 13/4/2016	DP745181/34, 35, 43 44	46	79
8	13/4/2016 to 21/8/2016	DP745181/35,40	47	48
9	21/8/2016 to 29/12/2016	DP745181/40, 41	48	79
10	9/3/2017 to 30/9/2017	DP745181/34, 41, 43	49	203
Total Ha cleared	1323

The 2014 Clearing on Borgara

24. Mr Minehan deposed to the following salient facts. First, that it was his usual practice that if he became aware of any suspected clearing of vegetation he would report it to the “Enviro Line” as soon as possible by sending an email detailing the alleged clearing to [email protected]. Enviro Line is a contact point for people to report environmental issues and pollution in the State. It is run by the NSW Environment Protection Agency.

25. Second, that he was aware of the time limitations for commencing proceedings for a breach of the NVA.

26. Third, that on 13 August 2014, “whilst reviewing imagery in relation to an unrelated matter [the Deenherrah property] I identified what appears to be largescale clearing on the following two blocks north of Carinda. Lots 10 & 12 of DP 754269 on Borgara Station” (“the 2014 clearing”). The area involved was approximately 270 ha and the land was owned by “Jean and Paul Wickham”, which was purchased on 2 February 2002. The imagery being used to identify the change in appearance of the land was dated “8/3/2008 to 2/4/2013”.

24. Fourth, that on 19 August 2014 Mr Minehan (as recorded in a Call Detail Report) created an Incident Detail Report which was sent to “Clearing House – OEH – North West” for action. The Incident Detail Report recorded the following information:

Incident Description

Report emailed to info@enviornment on 13/8/14 at 3:53pm for database entry: Whilst reviewing imagery in relation to an unrelated matter OEH officer identified what appears to be largescale clearing on the following two blocks north of Carinda: Lots 10 & 12 of DP 754269 on Borgara Station

Inquiries indicated that the land is owned by Jean and Paul WICKHAM [sic] of Walgett and appears to have been purchased (settled) 2/12/2012. Area involved: approximately 270 hectares. Imagery being used that identified the change in appearance is 8/3/2008 to 2/4/2013. (email attached)

28. It is unclear whether or not investigation of the 2014 clearing was formally allocated to Mr Minehan as the authorised officer responsible for the investigation. According to Mr Minehan’s strident oral evidence the investigation was never formally allocated to anyone, and moreover, that it was certainly not allocated to him (T40:26-41:08). Mr Snook deposed to the contrary, but he was not subject to cross-examination to test the discrepancy. In the absence of any questions directed to Mr Snook on this topic, I am inclined to accept the evidence of Mr Minehan on this issue.

29. In the result, it does not matter because Mr Minehan was an authorised officer for the purpose of s 42(4) of the NVA (the provision refers to “an authorised officer” and not “the authorised officer”) and the only authorised officer who dealt with the 2014 clearing on Borgara. Mr Snooks’s unchallenged evidence is clear, namely, that he did not review the file relating to the 2014 clearing, and furthermore, that having reviewed the relevant documentation for the purposes of his affidavit, there were only two incidents of clearing being reported on Borgara: one on 19 August 2014 (mistakenly stated to be “29 August 2014” in his affidavit); and the other on 23 March 2017.

30. In his second affidavit (sworn 29 July 2019), Mr Minehan confirmed that he was viewing the images attached to his 2014 email report to the Enviro Line in the context of investigating the clearing on Deenderrah (together with another property, Brewon Station). He deposed in that affidavit that he could only access imagery that was two years or older and that anything less than two years old he would need to specifically request from Mr Turner.

31. Mr Minehan also stated that he was examining the images to identify clearing in specific areas on Deenderrah and Brewon. He was using the swipe function between the two images “when the clearing on Borgora [sic] caught my eye.” And that because he was “mindful of my duties as an authorised officer, I made the 2014 Clearing Report.”

32. In his affidavit, Mr Turner deposed that, after reviewing his records, he:

1. did not locate any records of imagery being supplied to an authorised officer in relation to Borgara in either 2014, 2015, 2016 or 2017 (that is, presumably, prior to 21 March 2017);

2. was not requested to provide, and did not provide, any imagery in relation to the clearing of native vegetation on Borgara in either 2014, 2015, or 2016 “prior to 21 March 2017”;

3. was, by contrast, requested to provide imagery in relation to Deenderrah in 2014, 2015, 2016 and 2017; and

4. that with all images supplied, using ArcGIS/ArcMap software the user can zoom in to a specific area and view shapefiles of other spatial information, which can include a property boundary or area of interest.

33. In cross-examination, Mr Turner confirmed that in every case if an investigator required imagery “they would have to go through me” (T64:39).

34. Mr Turner also indicated that in relation to the images provided in respect of the Deenderrah investigation in June 2015, the ArcGIS/ArcMap software would have permitted the viewer to zoom into a property or location (T96:48-50) and that you could zoom out and have a wider view, and therefore, see a larger area (T97:19).

35. The investigation into the clearing on Borgara was subsequently closed on 21 October 2015, with the Incident Detail Report stating the following:

Outcomes No Entries
Linked Items Ref No 07096-2014	Case Name HARRIS Peter and Jane_“Deendeerah”_Bogewong Rd_CARINDA	Status Finalised	Type Other [Child]
Time and Costs No Entries
Activities No Entries
Consolidated Log
Date By 21/10/2015 DEC 10:08 AM minehad 21/10/2015 DEC 10:08 AM minehad 21/10/2015 DEC 10:07 AM minehad 21/10/2015 DEC 9:59 AM minehad 21/10/2015 DEC 09:59 AM minehad 21/10/2015 DEC 09:26 AM minehad 21/10/2015 DEC 09:13 AM minehad 17/09/2014 DEC 12:18 PM snooka 19/08/2014 DEC 01:23 PM MACIEJEWSKIB 19/08/2014 DEC 01:23 PM MACIEJEWSKIB	Details Occurred: 21 Oct 2015 10:08 Incident Closed- Insufficient evidence. David Minehan closed Incident- Insufficient evidence. Priority changed from [0] to Low [301] David Minehan used a template to add attachment: Risk assessed by Minehan Confirmed by David Minehan. Occurred: 21 Oct 2015 09:14 Based on the advice obtained from the ‘Deendeerah’ investigation which resulted in it being suspended after committing significant resources, the site in this matter is nearby Deendeerah and strikingly similar from aerial imagery (which is how both Deendeerah and this were detected) regarding veg cover and geography. The matter has never been assigned based on this issue. Finalising matter as it appears that Codes of Practise and RAMAs would not be able to be eliminated thus making this matter not a viable investigation. Linked item 07096-2014. Arthur Snook changed work unit of Incident to OEH North West - Compliance and allocated to Arthur Snook. Allocated to Clearing House- OEH- North West for action. Barbara Maciejewski sent Call C12288-2014 to Clearing House- OEH- North West.	Type Running Log System System System System Running Log System System System System	Category System Assessment

36. In other words, as Mr Minehan deposed, the only action taken in respect of the 2014 clearing was to allocate the investigation to the North West Office on 17 September 2014, to conduct a risk assessment which resulted in a rating of “low” on 21 October 2015, and ultimately to close the investigation file that same day. It was Mr Minehan’s firm belief that no further investigation of the 2014 clearing was undertaken by anyone else at OEH.

37. Significantly, in cross-examination Mr Minehan revealed that the reason why no further action was taken in respect of the 2014 clearing on Borgara was because of resource constraints. In short, the North West Office had “between three and 400 cases which is an impossible workload” (T39:02). Because resources were being focused on the investigation into the adjacent property, namely, Deenderrah, it was determined to close the investigation into the 2014 clearing on Borgara (T36:15 – 40:18). The more Mr Minehan was cross-examined on this topic, the more emphatic and convincing his evidence became.

38. In addition, the decision to close the investigation into the 2014 clearing on 21 October 2015 was arrived at after consideration of the initial report made on 13 August 2014 (as set out in the Call Detail Report and the Incident Detail Report) and nothing more, as the following exchange revealed (T42:10-26):

Q.    I suggest to you that what occurred on 21 October 2015 when you made a decision to close the Borgara incident file was that you did turn your mind to the extent of clearing at Borgara at that time. That’s true, isn’t it?

A.    I turned my mind to the report I, I would say. From my, the information I have in front of me, it’s the report that I made the decision on. I haven’t investigated the matter.

Q.    You’re seriously suggesting that roughly 16 months after your initial report of 13 August 2014, in your decision of 21 October 2015 that you made to close the file, all you looked at was your original report?

A.    I believe so. I actually, I do remember first discovering this case. Deenderrah took about eight months of my time, pretty well full time, and I was planning to spend 18 months more on it until the decision was made by the executive. I recall finding clearing to the, to the south west. When I was first asked to provide an affidavit I actually knew the, the exact land they were talking about. I didn’t remember it was Borgara but I knew exactly because I remember actually finding it while I was doing the matter I was focused on.

39. Accordingly, the only investigation conducted into the 2014 clearing was that as recorded by Mr Minehan in his report to the Enviro Line on 13 August 2014. It was also Mr Minehan’s evidence that the only imagery he looked at in relation to the 2014 clearing was the imagery referred to in the Enviro Line email. Had he viewed any further imagery and detected any clearing he would have emailed details of it to the Enviro Line “as was my practice”.

40. Notwithstanding thorough cross-examination to the effect that when examining the aerial imagery during the course of investigating the Deenderrah case he “would have also been exposed to aerial photographs showing Borgara as well” (T42:35, 44:33-46 and 45:22-46), Mr Minehan’s evidence rose no higher than the mere possibility of such exposure (T42:37, 44:46 and 45:25).

41. I found Mr Minehan to be a convincing witness in all respects.

42. Significantly, while it was accepted that Mr Minehan had the technical capacity to enlarge the Deenderrah imagery in a manner that might have permitted him to view the adjacent Borgara property and any clearing on it, at no point was it put to Mr Minehan in cross-examination that he in fact did so; that he in fact saw the Borgara property; or that he did in fact see clearing on the Borgara property during the Deenderrah investigation. In my view, the failure to ask Mr Minehan these essential questions means that even if I were to find, which I do not in light of his oral testimony, that he was exposed to aerial photographs of Borgara and/or any clearing on it during the Deenderrah investigation, there is no evidence that he actively examined the aerial photographs of Borgara at that time or saw any clearing on it.

43. Put another way, I accept that the only images of potential land clearing that Mr Minehan saw were those referred to by him in his email report to the Enviro Line on 13 August 2014, that is, the 8 March 2008 and 2 April 2013 aerial images. There is no doubt that these images show clearing of vegetation on Borgara as at 2 April 2013.

44. I also accept that his report to the Enviro Line and the subsequent risk assessment of the incident as “low” was the extent of his investigation into the 2014 clearing and the extent of his knowledge of that clearing.

The 2017 Clearing on Borgara

45. On 22 March 2017, another authorised officer, Mr Stephen Naven, sent Mr Minehan an email identifying alleged clearing that had occurred on Borgara after June 2015. The email attached images taken in 2013 and 2017 purportedly demonstrating that clearing had taken place (“the 2017 clearing”).

46. In response, Mr Minehan sent an email to the Enviro Line on the same day reporting “490 ha of Recent (after June 2015)” clearing and OEH opened up a “regulatory activity” (that is, an investigation into the 2017 clearing).

Issues Arising From the Proper Construction of s 42(4) of the NVA

47. The gravamen of the applications is the proper construction of s 42(4) of the NVA. In particular, in the circumstances of this case:

1. the meaning of the word “evidence” in that provision; and

2. the meaning of “the alleged offence”.

48. The principles of statutory construction are well known and are not repeated here (see, for example, the authorities referred to in Cumberland Council v Younan; Cumberland Council v Oueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145 at [71] and [72] per Robson J, where relevantly identical legislation was construed):

71 In resolving the meaning of s 127(5A), the ordinary approach to statutory interpretation applies. The now well-accepted approach was recently considered in Hunter Quarries Pty Ltd v AlexandraMexonas Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178, where Payne JA, with whom Basten and Gleeson JJA, Sackville AJA, and Simpson AJA agreed, said at [57]:

The relevant principles of statutory construction were not controversial. The parties referred to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], where the plurality emphasised that construction must begin with a consideration of the text itself and while the language employed is the surest guide, its meaning may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. The importance of context, including the general purpose and policy of the provision has subsequently been emphasised by the High Court: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [41]; Federal Commissioner of Taxation v Consolidated Media Holding Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [14] and [25]-[39].

72   However, the importance of context does not detract from the centrality of the text and the principle that each word should be given work to do: Project Blue SkyIncv Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (‘Project Blue Sky’) at 381-382. Where the clear words of a statute demand a particular outcome, the fact that the outcome may appear inconvenient will not, in itself, be determinative.

49. Not only must none of the words in s 42(4) of the NVA be construed in isolation, s 42(4) must be interpreted within the broader context of s 42 and of the Act.

50. Ultimately, neither party cavilled with the proposition that the word “evidence” contained in s 42(4) of the NVA did not import technical considerations of admissibility pursuant to the Evidence Act 1995 (T116:04 and 159:47-160:09). Rather, the meaning of the word is that of its ordinary everyday usage, namely, “grounds for belief; facts or observations adduced in support of a conclusion or statement; the available body of information indicating whether an opinion or proposition is true or valid” (Oxford English Dictionary, on-line ed), or “ground for belief; that which tends to prove or disprove something; proof” (Macquarie Dictionary, on-line ed).

51. What is apparent from both definitions is the concept of ‘belief’. That is, the facts and circumstances giving rise to a belief (in the present context) that the alleged offence has been committed.

52. However, this does not mean that the assessment of the belief is subjective, as OEH claimed. In my opinion, whether or not there was evidence that “first came to the attention of an authorised officer” is wholly objectively determined. Were it otherwise, as Mr Wickman observed, it would be possible to circumvent the time limitation contained in s 42(4) of the NVA by claiming that, in the opinion of an authorised officer, the evidence did not come to their attention. I do not accept that the objective intention of Parliament in enacting the exception contained in s 42(4) of the NVA to the limitation period set out in s 42(3) of that Act was to permit time to be extended in this manner. The reasoning in Rummery (at [101]-[107]), Turnbull (No 3) (at [55]-[56]) and Younan (at [78]) is consistent with this conclusion.

53. It is convenient at this juncture to note that in Younan the relevant provision was s 127(5A) of the then Environmental Planning and Assessment Act 1979 (“EPAA”), which stated that (emphasis added):

127   Proceedings for offences

(5A)     However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer within the meaning of Division 2C of Part 6.

54. With respect to the composite phrase “the alleged offence”, OEH submitted that evidence of all of the elements of the offence as charged had to have come to the attention of an authorised officer for the time period in s 42(4) of the NVA to be enlivened.

55. Thus, in the present case, evidence of the following elements was required (see Chief Executive of the Office of Environment and Heritage v Turnbull [2017] NSWLEC 141 at [15]):

1. clearing having occurred on Borgara;

2. the clearing was of “native vegetation” as defined in the NVA;

3. the clearing was not carried out in accordance with a development consent granted in accordance with, or a property vegetation plan approved under, the NVA; and

4. Mr Wickman was legally responsible for the carrying out of the clearing.

56. Accordingly, Mr Minehan had to have “evidence” of all of the elements described above for time to commence pursuant to s 42(4) of the Act. This included the identity of the person responsible for the clearing, whether the vegetation cleared was in fact “native vegetation”, and whether the clearing being carried out lacked the necessary approval under the NVA.

57. OEH further contended that an authorised officer had to become aware of evidence of all of the particulars of the offence as charged. In my view, this proposition must be rejected. If a prosecutor must only prove the elements of an offence, and not all of the particulars, beyond reasonable doubt for criminal liability to attach, then it follows that an authorised officer need not have evidence come to her, his or their attention of each and every particular of the offence for time to run under s 42(4) of the NVA.

58. Mr Wickman submitted that it was sufficient for the purposes of s 42(4) for Mr Minehan to have become aware of only the essential elements of the offence, namely, that there was clearing of vegetation on land. That is, knowledge that the vegetation was “native vegetation”, Mr Wickman’s connection to the land or to the clearing, or that there was an absence of approval to clear the land, was not necessary. Consequently, when evidence of the 2014 clearing came to Mr Minehan’s attention on 13 August of that year, time commenced to run under s 42(4) of the NVA, expiring on 13 August 2016. The result is that all of the summonses filed in March 2019 are out of time.

59. In Younan Robson J construed s 127(5A) of the EPAA in the following way (at [78]):

78 I find that “evidence of the alleged offence” on its face means evidence capable of indicating that an offence has been committed. In this circumstance, it would be insufficient merely to have evidence that construction works had commenced. An investigation officer would also need to have evidence brought to his or her attention capable of showing that a construction certificate had not been obtained. However once evidence of both of these elements is brought to his or her attention, and assuming the time limit provided s 127(5) has expired, the time limit provided by s 127(5A) is engaged. As I have explained, and in light of the prosecutor’s concession, this threshold has been satisfied in the present case.

60. In the present case, Mr Wickman did not seek to argue that Robson J was plainly wrong. In such circumstances, and although dealing with an offence under the EPAA, because of the relevantly identical nature of the statutory language, I am all but compelled to adopt his Honour’s interpretation of the composite phrase “evidence of the alleged offence”.

61. This means that time will begin to run when an authorised officer first has evidence, to borrow from Robson J, capable of indicating that the offence of clearing native vegetation without either development consent or a PVP has been committed. Accordingly, it will be insufficient for an authorised officer to have evidence that vegetation has been cleared on a property. To engage s 42(4) of the NVA an authorised officer will also require evidence of an absence of approval as specified in s 12 of the NVA and that the vegetation cleared was “native vegetation” as that term is defined in s 6 of the Act.

60. I agree with Robson J that such a construction “appears a sensible operation of the section in the context of the statute” (at [79]), which in this case is the NVA. As his Honour went on to observe (at [80]-[82]):

80 In this regard, it is to be observed that a two-year time limit ordinarily applies from the time at which the offence is committed. Where s 127(5) applies, the two-year period includes the time it takes a council or prosecuting authority to conduct its investigations (including identifying the defendant) and prepare the matter for trial. Having regard to the ordinary position, one would expect that when the exception provided for by s 127(5A) applies, the investigation and preparation is also to be completed within the two-year period. Such investigation would include any attempt to identify the persons responsible for the alleged offence.

81 The extension of time provided by s 127(5A) operates to extend the time in which a prosecutor is able to bring proceedings where the actual commission of the offence, as opposed to the identity of the offender, does not come to the attention of the prosecutor’s attention until sometime later.

82 It does not permit the prosecutor from holding off investigating the offence, thereby failing to discover the identity of the person responsible and extending the period of time in which it is able to commence the proceedings. It would be unusual if s 127(5A) did have this effect given that the intention of the time limit included in s 127(5) is presumably to encourage prosecuting authorities to bring proceedings for a breach of the EPA Act as quickly as possible and create certainty in that regard.

63. To the extent that Mr Wickman relied upon the Court’s decision in Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155 (at [66]-[68]), that case does not assist him. First, the statutory language in Somerville was materially different because “evidence of the alleged offence” in s 190(1)(b) of the Protection of the Environment Operations Act 1997 (“POEOA”) was defined in s 190(4) to mean “evidence of any act or omission constituting the offence”. On any view, this suggests a lowering of the evidential threshold to engage the time limit contained in s 190(1)(b) of the POEOA. Second, in that case the Court held that, in any event, the circumstantial evidence of preparatory acts carried out prior to the commission of the alleged offences by Mr Somerville (that came to the relevant authorised officer’s attention) was insufficient, having regard to the elements of the particular offences with which Mr Somerville was charged, to enliven the time period in that provision.

64. Mr Wickman submitted that when the “links in the evidential chain” were examined, it was on 13 August 2014 that evidence of the alleged offences first came to the attention of Mr Minehan. These links included, in particular, the clearing on Lots 10 and 12 on Borgara, the clearing on Deenderrah, and the Spiers report.

65. In this regard, Mr Wickman sought to rely upon the Spiers report to argue that between 7 March 2011 and 30 September 2017, there was evidence of clearing on Borgara that came to the attention of Mr Minehan. Specifically, since March 2011 clearing had been carried out on Lots 10 and 12, and since November 2012 clearing had taken place on Lot 15 on Bogara. Moreover, according to Mr Spiers, the vegetation cleared was likely to have been “native vegetation” for the purpose of s 12 of the NVA.

66. The argument may be readily debunked. First, in respect of the clearing on Borgara on Lots 10 and 12 reported on 13 August 2014, that investigation was closed on 21 October 2015. There is nothing arising out of the investigation that would indicate that evidence came to the attention of an authorised officer that the vegetation that had been cleared was “native vegetation” for the purpose of the Act, or that the clearing had been carried out absent the required statutory approval. Put another way, there was no evidence of any alleged offence of the clearing of native vegetation contrary to s 12 of the NVA on Borgara as at 13 August 2014.

67. Second, evidence of the clearing on the adjacent property, namely, Deenderrah, is not the subject of any of the summonses. That is, it is not evidence of any of “the alleged offences” charged.

68. Third, as is tolerably clear by the date of its drafting, the Spiers report was not evidence that came to the attention of Mr Minehan at the relevant time for the purpose of s 42(4) of the NVA.

69. Fourth, the fact that clearing had occurred on Deenderrah was, in my view, irrelevant. To reiterate, it was not “evidence of the alleged offence”. The suggestion that aerial imagery of the clearing on Deenderrah could be “evidence” of clearing on Borgara was, at best, speculative in nature, and at worst, having regard to the oral evidence of Mr Minehan and Mr Turner, completely untenable.

70. As the Court of Criminal Appeal observed in Rummery (at [104]-[107] per Ward JA. See also Turnbull (No 3) at [56]):

104   Insofar as ground 5 of the grounds of appeal is put forward as a basis for setting aside the conviction because of an argument that "at least part of the charge may be statute barred", the material sought to be relied upon by Mr Rummery does not establish that the date specified in the summons (as to when evidence of the clearing first came to the attention of an authorised officer) was incorrect. That is an issue on which Mr Rummery bears the onus.

105   What is put forward by Mr Rummery is largely speculation, namely his belief that authorised officers in the OEH were able to have access to the electronic data in a usable form without the need for the rectification process described briefly by Mr Beaman and elaborated upon by Mr Fox and must have had access to that information in order to justify the cost of a charter flight over his property.

106   There is a logical explanation provided by Mr Roberts and Mr Beaman in their respective affidavits as to the course of events. That evidence does not support a conclusion that evidence of the unlawful clearing that was the subject of the charge (i.e., the clearing after 13 August 2008) had come to their attention before they were able to view (from the air) the state of the property on 12 November 2009 and compare that to the hard copy satellite image of what was there on 13 August 2008. (Mere possession of the hard copy satellite image that was taken up with them onto the flight would not have been sufficient to cause them to be aware of post 13 August 2008 clearing.)

107   Simply having the ability to access electronic data by way of a computer program (as Mr Rummery contends would have been open to the OEH officers on the basis that it is something to which he himself is readily able to have access through a particular government website) is not sufficient. What would need to be shown is that in some way evidence of unlawful clearing had actually come to an authorised officer's attention. That could only be done by someone accessing or viewing data from which the possibility of such clearing became apparent. If that were not the case, then the evident purpose of sub-s (5) (namely, to provide a time frame in which proceedings can be commenced where the actual date of clearing is not known) would be frustrated simply by the availability of access to search engines or tools such as those to which Mr Rummery referred in his submissions.

71. While it is true that the clearing of vegetation on Lots 10 and 12 on Borgara in 2014 occurred on the same lots referred to in summons 89392 of 2019, this is irrelevant for three reasons. First, as OEH stated, the 270 ha the subject of the 2014 clearing was excised from summons 89392 (compare annexures D and E of Mr Minehan’s first affidavit). In other words, the clearing on Lots 10 and 12 the subject of summons 89392 is clearing that has occurred since 13 April 2013 on the lots referred to in the particulars of that charge, including the clearing on Lots 10 and 12. Second, even if this finding is wrong, for the reasons given above concerning the proper construction of s 42(4) of the NVA, “evidence of the alleged offence” charged in summons 89392 did not come to the attention of Mr Minehan until 22 March 2017, not 13 August 2014. Third, in any event, evidence of the alleged clearing of native vegetation on Lots 30 and 43 did not come to the attention of Mr Minehan by 13 August 2014. The close geographic proximity of, for example, Lot 30 to Lot 12 on Borgara is not, without more, evidence of clearing on Lot 12 (or Lots 30 and 43).

72. In the alternative, Mr Wickman contended that the information that came to Mr Minehan’s attention on 13 August 2014 was either:

1. evidence of a course of conduct, and as such evidence of each alleged offence; or

2. evidence of an alleged criminal transaction or enterprise, and as such evidence of each alleged offence; or

3. evidence of a tendency that Mr Wickman had to carry out unlawful clearing of native vegetation on Borgara within the meaning of s 97 of the Evidence Act, and as such evidence of each alleged offence; or

4. “similar fact” evidence within the meaning of s 98 of the Evidence Act, insofar as it was an event that represents coincidence evidence of the clearing in the different charge periods, and therefore evidence of each alleged offence.

73. Various cases were relied upon by Mr Wickman in support of these alternative contentions (in particular, R v Bell [2002] NSWCCA 2 and R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487).

74. Sections 97(1) and 98(1) of the Evidence Act provide as follows:

97   The tendency rule

(1)     Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—

(a)     the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b)     the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

…

98   The coincidence rule

(1)     Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless—

(a)     the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b)     the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

75. Dismissing each alternative contention in turn:

1. as at 13 August 2014, there was no evidence of a course of conduct that would satisfy s 42(4) of the NVA. Mr Wickman’s reliance on Mr Spiers’s report for this purpose is misconceived. If nothing else, Mr Spiers is not an authorised officer and, in any event, his evidence did not come to the attention of anyone until around 18 March 2019 (the date that his affidavit was affirmed);

2. there is no evidence that any authorised officer within OEH treated the clearing on Borgara as part of a single criminal transaction or enterprise. Again, Mr Wickman’s reliance on the expert report of Mr Spiers is misplaced. Furthermore, because Mr Wickman is charged with having breached s 12 of the NVA by having lawful management and control of the property, it cannot be said that he was the same person who carried out the alleged clearing of native vegetation to cause it to form part of the one criminal transaction. And even if there was evidence of a single criminal enterprise, this cannot be conflated with “evidence of the alleged offence” as described in s 42(4) of the NVA for the reasons given earlier in the judgment;

3. as can be seen from the provisions quoted above, ss 97 and 98 of the Evidence Act deal with the admissibility of evidence. However, as Mr Wickman correctly conceded in oral argument (see above at [50]), the word “evidence” in s 42(4) of the NVA does not refer to admissibility, but rather denotes its every day common usage. Accordingly, these provisions cannot inform the proper construction of “evidence of the alleged offence” in that provision. Consideration of the admissibility of evidence, which is what ss 97 and 98 of the Evidence Act are directed to, is irrelevant to any consideration of when time begins to run for the purpose of s 42(4). By way of illustration, an authorised officer is likely to receive “evidence” for the purpose of s 42(4), such as an anonymous third party disclosure. There can be no serious suggestion that the time limitation provided for in s 42(4) of the NVA would not be engaged in this example simply because the hearsay disclosure was likely to be otherwise inadmissible in any criminal proceeding pursuant to the Evidence Act.

Conclusion and Orders

76. The logical corollary of Mr Wickman’s submissions would result in the absurd scenario whereby clearing that occurred two years earlier on a different part of a property, but that was not the subject of prosecution, would render a defendant immune from any charges relating to further clearing on the same property. On no view could this have been the objective intention of Parliament in enacting s 42(4) of the NVA.

77. Properly construed, I am therefore not satisfied on the material before the Court in this application that Mr Wickman has discharged his onus of proving that the proceedings the subject of the summonses were commenced out of time.

78. The notices of motion must therefore be dismissed. The exhibits are to be returned. The matters are listed for further directions before the List Judge on 27 March 2020.

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Decision last updated: 20 March 2020