Department of Environment and Climate Change v Olmwood Pty Ltd - [2010] NSWLEC 15

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15

PARTIES: PROSECUTOR
Department of Environment and Climate Change
DEFENDANT
Olmwood Pty Limited

FILE NUMBER(S): 50041 of 2008

CORAM: Pain J

KEY ISSUES:
PROSECUTION :- whether native vegetation cleared - whether vegetation regrowth within meaning of Native Vegetation Act 2003 - whether defendant has onus of proving on balance of probabilities that vegetation regrowth - impact of sandmining on vegetation on property - whether aerial photographs and SPOT5 image analysis proved continuity of vegetation cover
DEVELOPMENT CONSENT :- whether development consent granted for clearing native vegetation - whether consent lapsed - whether survey work relied on for physical commencement in breach of condition of consent - whether development consent granted on land zoned for possible coastal acquisition land - absence of Minister's consent for clearing native vegetation
PROSECUTION :- whether defendant caused or permitted clearing to be carried out - whether defendant landholder discharged onus of proof it bears under s 44 of the Native Vegetation Act 2003

LEGISLATION CITED: Clean Waters Act 1970 (repealed)
Environmental Planning and Assessment Act 1979 s 76, 76A, 76B, 79C, 80, 80A, 95
Greater Taree Local Environmental Plan 1995
Interpretation Act 1987 s 6, 7, 21
National Parks and Wildlife Act 1974 s 98, Pt 8A, 159A
Native Vegetation Act 2003 s 5, 6, 7, 9, 10, 12, 13, 18, 19, 36, 44
Native Vegetation Conservation Act 1997 s 12, 14, 21 (repealed)
Mining Act 1973
Rivers & Foreshores Improvement Act 1948 Pt 3A (repealed)
State Environmental Planning Policy No. 26 – Littoral Rainforest
State Environmental Planning Policy No 46 - Protection and Management of Native Vegetation Sch 3 (repealed)
Occupational Health and Safety Act 1985 (Vic)
Protection of the Environment Operations Act 1997 s 144
Threatened Species Act 1997 Sch 1
Water Management Act 2000

CASES CITED: Abbott v State of Western Australia (2005) 152 A Crim R 186
Alphacell Ltd v Woodward [1972] AC 724
Blacktown City Council v Pace (2002) 121 LGERA 432
Broad v Parish (1941) 64 CLR 588
Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85
Biwazu Pty Ltd v Cessnock City Council [2004] NSWLEC 411
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243
Coffs Harbour City Council v Hickey [2004] NSWLEC 531
Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Detala Pty Ltd v Byron Shire Council (2002) 133 LGERA 1
Director of Public Prosecutions v United Telecasters Sydney Limited (1990) 168 CLR 594
Director-General of the Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242
Director-General of the Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256
Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232
Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22
Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1
GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647
Garrett v Freeman [2007] NSWLEC 389
Green v Kogarah Municipal Council (2001) 115 LGERA 231
Hanwood Pastoral Co Pty Limited v Director-General, Department of Natural Resources (2005) 144 LGERA 139
Hardt v Environment Protection Authority (2007) 156 LGERA 337
Hughes v R (1983) 49 ALR 110
Hunter Development & Brokerage Pty Limited v Cessnock City Council (2005) 149 LGERA 460
Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277
Majury v Sunbeam Corporation Ltd [1974] 1 NSWLR 659
Miller v Minister of Pensions [1947] 2 All ER 372
Miller v Williams (1990) 53 SASR 82
R v Adams (1935) 53 CLR 563
R v Carr-Briant (1943) 41 LGR 183
R v Hunt [1987] AC 352
R v Jasper (2003) 139 A Crim R 329
R v Lonie [1999] NSWCCA 319
Sheldrake v Director of Public Prosecutions [2004] All ER(D) 169 (Oct)
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
The Corporation of the City of Adelaide v The Australasian Performing Right Association Ltd (1928) 40 CLR 481
Vines v Djordjevitch (1959) 91 CLR 512
Vitality Care Pty Ltd v Director-General, Department of Natural Resources (2006) 151 LGERA 15
Wollongong City Council v Ensile Pty Ltd (2008) 71 NSWLR 563
Woolmington v Director of Public Prosecutions [1935] AC 462
Young v Warringah Shire Council (2001) 117 LGERA 62

TEXTS CITED: The Macquarie Dictionary, 3rd ed (The Macquarie Library Pty Ltd, 2001)
The New Shorter Oxford Dictionary (Clarendon Press, 1993)

DATES OF HEARING: 3 August 2009
4 August 2009
5 August 2009
6 August 2009
7 August 2009
10 August 2009
11 August 2009
12 August 2009

DATE OF JUDGMENT:
9 February 2010

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr S Rushton SC with Mr E Muston
SOLICITOR
Department of Environment and Climate Change
DEFENDANT
Mr J Ireland QC with Ms P Lane
SOLICITOR
McGirr James Hall & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

9 February 2010

50041 of 2008 Department of Environment and Climate Change v Olmwood Pty Limited
JUDGMENT

1 Her Honour: The Defendant Olmwood Pty Limited is charged with the offence that it cleared native vegetation contrary to s 12(1) of the Native Vegetation Act 2003 (the NV Act) between about 1 December 2006 and 31 December 2006 on or near a property near Old Bar, being Lot 1 DP594864 (the property). The Defendant has owned the property since January 2005. The Defendant has pleaded not guilty.

2 The clearing is alleged to have taken place over an area of approximately 10 hectares. The alleged clearing was undertaken by a contractor, V & S Flemming Pty Limited (V & S Flemming), using machinery including an excavator. The alleged clearing is of nine species of native vegetation.

Relevant provisions of the Native Vegetation Act 2003

3 The offence is under Pt 3 Div 1 s 12(1) of the NV Act. The NV Act Pt 2, Key concepts, contains the following relevant provisions:

6 Meaning of native vegetation

(1) For the purposes of this Act, native vegetation means any of the following types of indigenous vegetation:

(a) trees (including any sapling or shrub, or any scrub),

(b) understorey plants,

(c) groundcover (being any type of herbaceous vegetation),

(d) plants occurring in a wetland.

(2) Vegetation is

indigenous

if it is of a species of vegetation, or if it comprises species of vegetation, that existed in the State before European settlement.

…

(a) cutting down, felling, thinning, logging or removing native vegetation;

(b) killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation.

9 Meanings of remnant native vegetation and regrowth

(1) For the purposes of this Act, remnant native vegetation means any native vegetation other than regrowth.

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

(a) 1 January 1983 in the case of land in the Western Division and 1 January 1990 in the case of other land,

…

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

10 Meaning of protected regrowth

(1) For the purposes of this Act, protected regrowth means any native vegetation that is regrowth and that is identified as protected regrowth for the purposes of this Act in:

(a) a property vegetation plan, or

(b) an environmental planning instrument, or

(c) a natural resource management plan of a kind prescribed by the regulations, or

(d) an interim protection order under this section.

4 Part 3 is headed “Clearing Native Vegetation”. Division 1 of Pt 3, “Control of clearing”, commences with s 12. It provides:

12 Clearing requiring approval

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

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

(b) a property vegetation plan.

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

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

5 Section 13 of the NV Act requires that all development consents for the clearing of native vegetation issued under Pt 4 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) which are required by the NV Act must be issued by the Minister.

6 Division 2 of Pt 3, “Permitted clearing”, includes s 18 and s 19:

18 Application
(1) This Division sets out the clearing of native vegetation that is permitted to be carried out without the authority conferred by a development consent or property vegetation plan.
(2) This Division does not permit clearing without an approval or other authority required by another Act or in contravention of another Act.

19 Clearing of non-protected regrowth permitted

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

(2) This section is subject to any exclusion in a property vegetation plan.

Elements of the offence

7 According to the Prosecutor, the elements of the offence under s 12(1) require the Prosecutor to prove beyond reasonable doubt the following:

8 In terms of the scheme of the NV Act set out above in par 3 – 6, a summary related to the circumstances of this case is that clearing of native vegetation is prohibited under s 12 and native vegetation is broadly defined in s 6(1) and (2). Section 9(2)(a) states that, for the purposes of the NV Act, regrowth means any native vegetation that has regrown since 1 January 1990. Regrowth does not include, inter alia, any native vegetation that has regrown since an unlawful clearing event (s 9(4)). Section 10 defines protected regrowth as that identified in certain instruments.

9 A fundamental matter that arises from the evidence and submissions of both parties is how the offence provision in s 12(1) interacts with s 12(3), which states that it is a defence if the clearing was permitted by Div 2, 3 or 4. Section 19 of Div 2 identifies that clearing of non-protected regrowth (undefined but by inference meaning regrowth which is not protected regrowth pursuant to s 10) is permitted.

10 For completeness I note that Div 3 of Pt 3 specifies permitted activities that do not constitute the clearing of native vegetation such as routine agricultural management activities. I have not set these out as they are not relevant to these proceedings. None of the categories of clearing of native vegetation excluded from the operation of the Act in Div 4 apply. Further, the property the subject of the present charge does not fall within the exclusion of certain land from the operation of the NV Act in s 5.

11 If the terms of s 12(1) alone are considered and the Prosecutor is successful in establishing that no development consent granted in accordance with the Act or property vegetation plan permitted clearing of native vegetation, then the operation of s 12(3) will need to be considered. The Prosecutor does not identify, as an element of the offence, that it must prove that the cleared vegetation is not regrowth as defined in s 9(2)(a). The Defendant argues that the Prosecutor does have the onus of proving that cleared vegetation was not regrowth. The Prosecutor submits that is a defence which the Defendant must prove.

Evidence

12 The evidence is set out in relation to the elements of the offence (a) (that clearing occurred) and (b) (that native vegetation was cleared), identified by the Prosecutor. In order to consider these elements it is also necessary to consider whether the vegetation cleared was regrowth as defined in the NV Act. Several plans of the property and its surrounds are in evidence. The western and eastern boundaries of the property lie parallel to Old Bar Beach. At the irregularly shaped northern boundary, the property adjoins George Street and Lewis Street. Both are referred to in the evidence.

(a) eyewitness evidence of the clearing

Mr Flemming

13 Ivan Flemming, director of V&S Flemming Pty Ltd (VSF), gave oral evidence. VSF conducts a business of earthmoving and golf course construction. In 2006 the company had three employees. Mr Flemming stated that he came to know Bart Elias, a representative of the Defendant, through Great White Shark Enterprises, a company which designed golf courses. Mr Elias worked for Medallist which was associated with Great White Shark Enterprises through Macquarie Bank.

14 Mr Flemming first went on the property in 2003 to discuss the problems for the construction of a golf course. He understood the property was then owned by Medallist, an arm of Macquarie Bank. The discussion in 2003 included the subject property and other land to the west. Two issues were a wet area on land adjoining the subject property and the exposure of sand due to sand mining on the Defendant’s property. There was discussion about whether the sand residue after sand mining was problematic for further development as the possibility for hot sand (meaning radioactive) arose. He saw evidence of sand mining in 2003, including a large steel cable that would have been used in heavy industry. He also saw some minor structural implements left on the property and a couple of old car bodies. There were also mounds of sand that had been pushed up and left and properly regenerated on the southern side of the property.

(i) 2005 work on the property

15 Mr Elias spoke to Mr Flemming in about January 2005 and said there was a requirement to do a survey of the property and there was a need to clear the property along the boundaries to facilitate the process. In 2005 Mr Flemming mulched the boundaries of the property, maybe extended the road through the middle of it and then later on that year he extended the cleared areas by increasing their width. When he mulched the boundaries the first time the width cleared was about 15m. This was increased to about 30m to 35m later in the year. Mr Elias provided the instructions to do so. He assumed the job was for pegging out the golf course. Mr Elias told him to work along the boundary and increase access through the middle. No mulcher was used in 2005.

16 Mr Flemming did not see a survey that was carried out in January or February 2005. There was no boundary fence in 2005. He established the line for the boundary by lining up with the side boundaries for the previous blocks and carried these along on the western side. He was told the distances approximately so he could do a rough estimate. An invoice dated 1 February 2005 to the Defendant, marked to the attention of Mr Elias, was tendered and was paid. The work in January 2005 included work on the road under the power line. Mr Flemming understood this was to make it easier for the survey team to get on to the property. There were taller trees on the property above the understorey on the eastern side. None of these were removed as, he assumes, they were not in line with the boundary.

17 A second invoice dated July 2005 to the Defendant was for work carried out from 28 July to 1 August 2005. Mr Flemming agreed the invoice should have been dated August 2005. Charges totalling 30 hours of work amounted to $7,200 plus GST.

18 No hours are provided in the February invoice for $8,400. He stated that very similar amounts of time were spent clearing on each occasion. In July 2005 his task was to observe the survey pegs and tidy that area up and also to increase the cleared area in places where this needed to be done. Much of the survey work had been done between January 2005 and July 2005 and there were survey pegs present in July 2005. He increased the width of the middle section to tidy it up and ensure access. Mr Flemming saw rubbish dumped at the Lewis Street end, the northern end of the property, being rubble and bricks, concrete and building rubbish. An excavator with a mulcher attachment was used which mulches the vegetation from the top down.

(ii) December 2006

19 Employees of Mr Flemming’s company VSF carried out work at the property in December 2006. This work involved pushing up existing vegetation into windrows which were then mulched using a dozer and an excavator both owned by VSF. Patrick Burke of Green Waste Australia Pty Limited (Green Waste) also worked on the property to grind the vegetation using an excavator and grinder. Mr Flemming stated that prior to the work being carried out the vegetation on the property was scrubby regrowth including some weeds. There were trees on the eastern side of the property. Mr Flemming asked Green Waste to grind vegetation on the property which then billed Mr Flemming $41,800 including GST. Mr Flemming billed the Defendant for this amount, plus the excavation work which he carried out ($81,884.00 in total).

20 This work was carried out between 1 December 2006 and 18 December 2006. Mr Elias asked him to estimate the cost of mulching the vegetation and he provided an oral quotation. He had been to the property twice previously in 2005 and he used that recollection to provide the figures for the quotation. The December 2006 work was more costly as more time was spent. He undertook work across the property not just along the boundary areas and the centre strip. The task he believed he was undertaking on behalf of the Defendant was to mulch most of the vegetation on the property, probably for future development as a golf course. He used two excavators, a grinder and a dozer. He was there from 1 to 12 December, and then from 16 to 18 December. He pushed the vegetation to the middle of the block from either side so that there was a stockpile down the middle at which point Mr Burke from Green Waste took over and mulched that particular stockpile or windrow down the middle of the block.

21 The machinery used removed groundcover by pushing it with a dozer blade. Mr Flemming agreed that a photograph of the subject property which was exhibit 1 had a large number of trees within the boundary of the property on the eastern side and that was how it looked at the completion of work in December 2006.

22 A photograph of the western side taken in December 2006 (exhibit 2) also represented that area at the completion of work. There are no mature trees present as that area was more grass-like. Another photograph taken from the western boundary looking north (exhibit 3) which was taken at the completion of clearing in December 2006 shows a small group of tall trees. These were left, according to Mr Flemming, because mature trees are a good thing to be left on the sides of a golf course. He agreed that his purpose in clearing was not to take down any larger advanced trees.

23 Mr Flemming came across rubbish in December 2006 on the property which he had seen in 2005. Once the vegetation was cleared in December 2006 the rubbish was progressively exposed. There was most rubbish at the Lewis Street entry to the property. He found bricks, concrete, builder’s rubbish. He levelled it out and pushed some sand over it for the time being. He did not arrange for its removal. He considered that part of his task was to tidy up the rubbish.

24 Since the work in December 2006 Mr Flemming has had a discussion with Bob Harrison, a representative of Medallist, but not spoken to anyone else about the golf course development. In re-examination he was asked about who paid the invoice dated 1 February 2005. He stated it was Bart Elias.

Council officers

Ms Robin

25 Rosemary Robin, a ranger with the Greater Taree City Council (the Council) since November 2004, swore an affidavit on 9 April 2008.

(i) visit on 5 December 2006

26 Ms Robin attests to inspecting two blocks of land on George Street in Old Bar on 5 December 2006 at approximately 4.30pm. Ms Robin observed, from the blocks she was inspecting, the subject property and saw that it was covered in scrubby trees and small bushes ranging in height from 5m to 15m. The bushes were quite thick and would have been difficult to walk through. A small two wheeled track led from George Street into the property and continued around to a corner towards the east of the property. She did not observe any rubbish or other material dumped on the property.

(ii) visit on 13 December 2006

27 Ms Robin observed the property again on 13 December 2006 after she attended a property on Lewis Street. She drove about half way down Lewis Street and observed clearing on the property. As she continued driving to the end of Lewis Street she observed a small low loader and a semi prime mover parked on Lewis Street Road Reserve. Ms Robin observed the property being cleared. There were small piles of mulched vegetation on the property and she observed one bulldozer, two excavators and a mulcher. One of the excavators was in operation close to the road. It was ripping down vegetation and pushing it over. V&S Flemming Pty Ltd was marked on the sign along with a telephone number.

28 Looking south from the end of Lewis Street into the property Ms Robin observed windrows of trees approximately 4m high in places that had been pushed up and appeared to stretch down to the southern end of the property. The other pieces of machinery were 500m to 1km away from where Ms Robin was standing. She heard the mulcher in operation and saw that the second excavator was pulling a windrow of felled vegetation up to the mulcher and feeding it in. Ms Robin took a series of photographs, annexed to her affidavit. She also telephoned the Council to obtain the name of the owners of the property.

29 At this time Ms Robin attests to being approached by the operator of the excavator who asked why she was taking photographs. Ms Robin identified herself as a ranger and asked the person if there was approval to clear the area and who he was working for. No answer was provided. Ms Robin then telephoned Scott Priestley of the Department of Environment and Climate Change (DECC) who instructed Ms Robin to take photographs and record any information including the vehicle registration numbers. Ms Robin gave the telephone to the person operating the excavator so he could speak with Mr Priestley.

30 Under cross-examination, Ms Robin explained that the reason for her visit to George Street on 5 December 2006 was for the purpose of investigating an overgrown block of land. On that day the road she observed leading into the property was a very rough roadway. There was no gate into the property. She did not go onto the property but went to the entrance in order to turn her vehicle around. Because the bush was thick she had a limited view of the property. She did not recall seeing lantana or other weeds in the bushes. On the second visit on 13 December 2006 Ms Robin stated that driving down Lewis Street she immediately saw that land had been cleared since her observation on 5 December 2006 because previously she had been unable to see from George Street past a gateway at the end of Lewis Street because of the thickness of the bush. When she arrived at the end of Lewis Street she observed a gate and that a mesh security fence had been erected. The machines she observed were seen through this fencing. She stated that she was at the end of Lewis Street for between 30 minutes and 45 minutes. During this period the two excavators did not move locations. Ms Robin confirmed that the two excavators were operating. The one closest to the road was pulling down vegetation and piling the cut material while the other was feeding material for mulching. Ms Robin agreed the photographs of the excavator which was said to be pulling down vegetation did not show any vegetation being knocked down but did show vegetation being dragged horizontally.

31 After this visit she did not produce any official report and her observations were not recorded in her official notebook because she had left it behind. Ms Robin did type up her notes which were made on a piece of paper when she returned to her office. These notes and photographs were used by Ms Robin in the preparation of her affidavit and the marking up of a diagram annexed to her affidavit. Ms Robin stated that as at December 2006 she had regularly patrolled the area because littering often occurred at the end of Lewis Street. She had previously observed palm tree fronds and other foliage dumped on the side of the road but stated that this green waste was not observed during December 2006.

Mr Paget

32 Andrew Paget, officer for the Hunter-Central Rivers Catchment Management Authority, affirmed two affidavits dated 7 April 2008 and 12 November 2008 which were read for the Prosecutor. At all times relevant to the prosecution Mr Paget was employed as a natural environment planner with the Council. This role included investigating complaints about the clearing of vegetation and clarifying the distribution of endangered ecological communities (EECs).

(i) July 2005

33 Mr Paget attested to visiting the property on 1 July 2005 after receiving a telephone call from Rosalee Burns, a local resident, about clearing occurring at the south end of Lewis Street. Mr Paget observed at the property a truck and trailer with a machine loaded onto it and an operator preparing to depart the property. Mr Paget also observed that three parallel tracks of vegetation had been cleared and each appeared to be the full length of the property. The track along the western boundary fence appeared to be 30-40m wide, the middle track under power lines was about 25-30m wide and the eastern track following an underground Telstra telephone line was about 20-25m wide. Mr Paget walked approximately two-thirds of the way down the property. He did not observe any rubbish dumped on the property. He saw freshly mulched vegetation on each of the tracks.

34 Mr Paget also observed littoral rainforest, an EEC, on part of the property. The littoral rainforest area was dominated by cupaniopsis anarcardiodes (tuckeroo) and a range of rainforest understorey species including acronynchia wilcoxiana and smilax australis. This vegetation varied in height from 4-8m and some of the plants were at least 10-15 years old. Mr Paget states that he identified the littoral rainforest by the dominant canopy species of tuckeroo present. Annexed to his affidavit was an aerial photograph of the subject property with the area of littoral rainforest and the three tracks as observed by Mr Paget in July 2005 marked. The width of the tracks is not identified and appears as a thin strip on the eastern and western boundaries and down the central track. The part of the property identified by Mr Paget as littoral rainforest was previously mapped by Council vegetation mapping as “coastal complex”, which is known to be a mix of vegetation types including littoral rainforest. On returning to the Council’s office on 1 July 2005 Mr Paget told a strategic planner at the Council that he had observed littoral rainforest at the property which had not been mapped under State Environmental Planning Policy No. 26 - Littoral Rainforest.

35 Mr Paget attests that the dominant vegetation on the property as observed on 1 July 2005 was mature banksia integrifolia over 10m tall and extensive thickets of large 6-7m tall leptospermum laevigatum with trunks of 400mm at ground level, a photograph of the latter was annexed to his affidavit. He stated that this photograph showed vegetation which was typical across the central and western parts of the property. The eastern half of the property had more banksia integrifolia and littoral rainforest species. Mr Paget’s memorandum which he produced on returning from the property is annexed to his affidavit.

(ii) August 2005

36 At the end of July or in early August 2005 Mr Paget returned to the property to inspect and map the extent of the littoral rainforest on the property and in the surrounding area. Mr Paget created an electronic record based on his on-site observation and interpretation of recent aerial photography. Mr Paget attests it was possible to recognise parts of the property dominated by littoral rainforest canopy species due to their different foliage texture, density and colour in comparison to the surrounding vegetation.

(iii) December 2006

37 Mr Paget visited the property again on 14 December 2006 with Tanya Cross, a Council planner. Mr Paget observed that a large area of the property had been completely cleared of vegetation, and that approximately three machines were in operation on the property. Mr Paget states that the property was covered in a thick layer (100-200mm deep) of shredded vegetation. This included large leptospermum laevigatum stumps and branches up to 400mm in diameter and large banksia integrifolia trunks and branches 400-500mm diameter. Mr Paget had a clear view of several cut stumps which were adjacent to the road. Three photographs taken by Mr Paget during the December 2006 visit were annexed to his affidavit.

38 In his second affidavit sworn 12 November 2008 Mr Paget attests to searching the relevant database maintained by DECC which contains a record of all property vegetation plans (PVPs) and development consents granted under Pt 3 and Pt 4 of the NV Act. No PVP or development consent under the NV Act for clearing was found in respect of the property when Mr Paget conducted his search on 7 April 2008.

39 In cross-examination Mr Paget confirmed that two of the tracks (the central and eastern) observed in July 2005 followed existing services. He formed the view in his memorandum produced after the inspection in July 2005 that these central and eastern clearings were on previously cleared land based on the presence of the services. In cross-examination Mr Paget stated his belief that any clearing that had occurred on the eastern boundary and in the middle section of the property to install the services had been expanded and that this required Council’s consent due to the property being zoned 7(f2) Environmental Protection Coastal Lands Acquisition Zone. Mr Paget gave evidence under cross-examination that the memorandum was sent to Bruce Byatt the manager of development control or the Council. Mr Byatt’s response that the clearing did not require development or any other consent was tendered (exhibit 11).

40 In relation to the aerial photograph which Mr Paget marked up after his visit to the property on 1 July 2005, in cross-examination Mr Paget stated that the photograph was of better quality when viewed on screen and it was this image which he used to mark out the area of tracks and littoral rainforest. The photograph he assumed was taken no earlier than 2003. He emphasised that the marking was intended to be preliminary before he went back to properly inspect the area of littoral rainforest later in July or early August. A map produced after this later visit was not in evidence but he stated it continues to be held by the Council.

Ms Cross

41 Tanya Cross, natural environment planner with the Council, swore an affidavit on 8 April 2008. Ms Cross inspected the property on 14 December 2006 with Mr Paget in response to a public complaint received by Ms Cross that day concerning clearing at the property. Ms Cross did not enter the property and observed the property from the end of Lewis Street. She observed windrows of vegetation at the northern end of around 1.64m in height and comprising of shrubs and small trees including coastal tea tree and coastal banksia. Ms Cross also observed a large pile of mulched vegetation approximately 2m high. Ms Cross saw a yellow dozer and a yellow excavator in operation and a large white tip truck which was stationary next to the mulch. Mr Paget and Ms Cross did not speak to anyone. Mr Paget took photographs.

42 On 20 April 2007 Ms Cross undertook an aerial inspection of the coastal zone in the Council local government area for the purposes of mapping noxious weed infestations. She flew over the property and took four photographs which she annexed to her affidavit. Ms Cross states that the photographs showed the subject property had been recently cleared, that the property showed soil disturbance and had a vegetation structure different to the vegetation to the east of the subject property.

43 In cross-examination Ms Cross stated that in making her aerial observations she assumed that the eastern property boundary was a line of trees adjacent to the more dense forest formation on the east. She did not see a fence. She stated that she noticed that the eastern side of the property showed better regeneration than the western side as it was a lot denser and that this was reflected in the photographs.

DECC/DNR officers

Mr Piercy

44 Noel Piercy, a forestry officer since January 2000 with DECC and its predecessor the Department of Natural Resources (DNR), affirmed an affidavit on 16 April 2008.

(i) 1 July 2005

45 Mr Piercy attended the property on 1 July 2005 after receiving a telephone call from a member of the public stating that a large area of the property had been cleared. He entered the property and observed some vegetation had been recently cleared. He observed freshly sawn off stumps of vegetation at ground level, some up to around 20cm in diameter. Three strips of vegetation on the property had been cleared and mulched. One of the strips ran the entire length of the western boundary fenceline and was approximately 25-30m in width. Another strip of approximately 20-25m in width ran the entire length of the power line easement in the centre of the property and the third strip of the same width ran along the entire length of the eastern boundary. Mr Piercy did not observe any machines or people present. He attests to walking down the western boundary and then along the cleared area underneath the power lines. He followed a small track to the eastern boundary and observed the third strip of cleared vegetation. Mr Piercy states that the remaining vegetation at the time was dominated by but not limited to mature banksia, leptospermum and acacia and was up to 4-6m in height. It was extremely dense with little weed invasion. No rubbish or debris dumped on the property was observed.

(ii) December 2006

46 Mr Piercy attended the property again on 18 December 2006 at the request of Mr Priestley, a DNR compliance officer. From the end of Lewis Street, he observed that the property had been completely cleared apart from a small number of isolated banksia species towards the eastern boundary. He believed that the clearing extended to the southern boundary based on his knowledge of the property from his visit in 2005. The property had recently been cleared because there was no evidence yet of regeneration. All the vegetation debris appeared to have been removed. Mr Piercy saw three machines on the property, being two trucks and a bulldozer. One of the trucks had a mulching machine attached to it. A bobcat was operating. He saw four men in work gear on the property. He was told by one of the men that he did not have permission to be on the property.

47 Under cross-examination Mr Piercy stated that he did not keep a record of his visit to the property in July 2005 but stated that he had a fairly good recollection of that visit. He stated that at that time there was no new fence surrounding the property. He was on the property for approximately 15 minutes and viewed enough of the cleared area to consider that there was potentially a breach of the NV Act. He knew that clearing along boundaries could be acceptable under the NV Act and he went to the property to see if the clearing reported was in the bounds of that Act. After his visit he passed the complaint on to the DNR’s compliance unit by speaking to Mr Priestley in the Newcastle office. Mr Piercy agreed that there was no record of this conversation. Mr Piercy could not recall seeing tall banksia trees during this visit in 2005 because he was focussed on the cleared areas.

48 In relation to his visit to the property in December 2006, Mr Piercy stated that only one machine was operating being the bobcat in the centre of the property. It appeared to be moving other pieces of machinery. No clearing or spreading operations were occurring at the time. He did not see any piles of mulch. Mr Piercy recalled observing isolated banksia trees in the east of the property.

Mr Priestley

49 Scott Priestley, a senior forestry practices officer at DECC, affirmed an affidavit on 23 June 2008. Mr Priestley was telephoned by Ms Robin on 13 December 2006 and was told about the clearing of land observed by Ms Robin. Mr Priestley spoke to the contractor by telephone. He identified himself as Simon and stated that he should speak to a person named Kirk whose telephone number was provided. Mr Priestley telephoned Kirk following his conversation with Ms Robin. Mr Priestley asked him about the clearing work which Kirk described as clearing up the block including tea tree scrub. He stated that the work had started the week prior and involved a mulcher, an excavator and a dozer. Kirk told Mr Priestley that the property was owned by a person named Bart and a telephone number was provided. After Mr Priestley telephoned Bart and left a message, Bart Elias telephoned Mr Priestley at 4.00pm on 13 December 2006. Mr Priestley recalled Mr Elias stating as follows:

Just tidying up the site. It was previously unfenced and people dumping gardening refuse, cars which was costing us $80,000 to clean up the mess. So 2-3 months ago put up a fence and got some people in to clean up the site and remove the rubbish. It hasn’t been cleared, just tidied up.

50 Mr Elias further stated the property had been cleared over the last seven years and the clearing had been recognised by the Department of Planning and the Council. He stated that the property was part of the Council’s urban planning strategy and that he had a flora and fauna report recording that there was nothing important on the property.

51 Mr Priestley told Mr Elias that he understood that there was native vegetation of high conservation value on the property which was part of the coastal corridor. Mr Elias stated that a contractor from northern NSW, Vince Flemming, and his son were undertaking the work on instruction from himself. They had a verbal contract to clear 6-8m around the boundary and a series of trails. Mr Elias stated he did not know the NV Act in detail but knew what it required. He stated that the work had started one week ago. He also stated that there was a residential rezoning of the property underway called Precinct 3. He had not been on the property. He stated that the previous owner of the property had progressively cleared over the years and part of the property had been sand mined. He confirmed that the property was owned by the Defendant and stated that he was the site manager and representative of the company. A land and property information title search conducted by Mr Priestley in January 2007 confirmed the Defendant owned the property.

52 On 18 December 2006 Mr Priestley received a letter from Mr Elias which was annexed to Mr Priestley’s affidavit. This letter attached a Strategy Plan taken from the Greater Taree Conservation and Development Strategy November 2005. Mr Elias stated in his letter that the plan indicated the property was part of a proposed urban or village expansion. Mr Elias stated that since 2001 the Council had been working with land owners in the area on the Precinct 3 residential rezoning plan. Also attached was a local environmental study, including a flora and fauna study, prepared by Terra Consulting at the instruction of the Council in July 2004. Mr Elias stated this showed that the property was degraded and of little conservation significance. Mr Elias stated that the property had been progressively cleared over the previous six to seven years and the majority of vegetation was regrowth.

53 On 17 May 2007 Mr Priestley obtained an authorisation to enter onto the property pursuant to the NV Act. Mr Priestley attests to inspecting the property on 22 May 2007 with Robert Gibson, another DECC officer. Photographs were taken and annexed to Mr Priestley’s affidavit along with a map marking where the photographs were taken from. At the time Mr Priestley observed Mr Gibson collecting samples of plants on and off the property.

54 Mr Priestley interviewed Mr Elias on 2 August 2007. A transcript of the interview was annexed to Mr Priestley’s affidavit. During this interview Mr Elias stated as follows:

Basically I authorised V&S Flemming to clean up the site…I instructed him to clean up the site as it was continually being used as a local rubbish tip. My instructions were to clean up the site.

55 In response to the Mr Priestley’s question as to what he meant by cleaning up the property, Mr Elias stated as follows:

To remove all the rubbish and basically clean it up to the point that it would deter other people from dumping rubbish there.

56 Mr Elias said he went to the property before and after the December 2006 clearing. When asked whether he was happy with the work VSF did at the property, Mr Elias stated that he thought it was fine, was happy with how it came up and that it achieved the result of stopping people dumping rubbish on the property.

57 Mr Priestley’s affidavit annexed, inter alia, a title search of the property showing the Defendant as the owner, a transfer of the property to Macquarie Bank Ltd from Central Lakes Equities Pty Ltd dated 15 August 2004, a transfer of the property from Macquarie Bank Ltd to the Defendant dated 10 January 2005 and minutes of the Precinct 3 Old Bar Rezoning Group meetings of 8 November 2006 and 6 December 2006.

58 Mr Priestley gave oral evidence. Under cross-examination, he stated that he first visited the property in about 2004 or 2005 in response to a report of clearing by a council officer. Mr Priestley did not investigate the matter at the time or make a record of the visit because he believed it was not a matter that he could investigate as a breach of the NVC Act. It appeared to be exempt clearing which did not require any permission. He had visited the property with DNR officer, Mr Piercy. He recalled clearing had occurred down the western boundary of the property and underneath an electricity easement. There was no clearing on the eastern boundary. He did not then observe an area used for sand mining and no fence around the boundary had been constructed at that stage. Mr Priestley did not recall the clearing being done in relation to any survey work. He stated that the width of the clearing on the western boundary was less than six metres.

59 At the time Mr Priestley spoke to Mr Elias for the first time in December 2006, Mr Priestley did not realise that he had been on the property before. Mr Priestley’s statement to Mr Elias that he believed the property was of high conservation value was based on a map he obtained from DECC’s geographic information system after he had received the telephone call from Rosemary Robin.

Local residents

Mr Burns

60 Denis Burns, a resident of the Old Bar area, gave oral evidence. Mr Burns owned and resided in a property in Lewis Street from November 2003 to March 2008. Prior to November 2003 he lived on another property at Old Bar. Mr Burns stated that he walked through the subject property from time to time and described it as fairly dense vegetation with birdlife and animals on it. In 2005 and early 2006 the vegetation on the property extended up to 3m in height. He did not recall ever seeing rubbish dumped on the property but occasionally there was rubbish dumped at the southern end of Lewis Street. Mr Burns took aerial photographs in March 2004 of the Old Bar area including of the subject property. These photographs were tendered. In December 2006 Mr Burns became aware of clearing activity on the subject property after being awoken by some trucks. Mr Burns and his wife observed from outside their home some low loader trucks, a number of bulldozers, bobcats and other earthmoving equipment. Trees were being knocked down using the blade of a bulldozer. Mr Burns stated that this activity went on for at least seven days, possibly up to ten. He described the clearing as extensive. It appeared all vegetation on the property had been razed to the ground. In cross-examination Mr Burns stated that it was very upsetting to see the vegetation destroyed. He stated that upwards of 98 per cent of the trees on the property were knocked down with approximately 20 remaining in total.

61 Mr Burns recalled a wire fence with hessian covering being erected in 2005 at the northern end of the subject property. The fence was a couple of metres high and the hessian was present when the clearing activity occurred in 2006. Clearing associated with the fence on the northern end of the property was observed by Mr Burns. Mr Burns did not observe strips of clearing down the western and eastern boundaries of the property. He stated that once the fence went up at the northern end of the property he did not go onto the property again. Mr Burns recalled having walked down the central track of the property, roughly underneath the power line, prior to the fence being erected. Mostly he would walk on the track but sometimes would walk in the vegetation. However this was not possible at all places due to the thickness of the vegetation. Prior to the fence being erected Mr Burns observed motorcycle tracks on the property which he walked along occasionally. He stated that he had gone on to the property more than ten times. Sometimes he had entered the property and exited on to the beach but mostly he walked up and down the centre of the property. Mr Burns recalled seeing low scrub and taller trees which both formed part of the layered canopies of vegetation on the property. Mr Burns was aware that the property had been used for sand mining in the 1980s but did not see any evidence of mining on his visits. He could not recall seeing any dead trees.

Ms Bale

62 Elizabeth Bale, a resident of George Street, Old Bar, gave oral evidence. She has lived on George Street since about 2000 and walked through the subject property regularly. Ms Bale recalled clearing on the property along the property boundaries that extended an existing narrow pathway. She also recalled a couple of tracks crossing the property from east to west. Ms Bale described the vegetation on this property after the first clearing but before the December 2006 clearing as being underbrush, native grasses and bigger trees including banksia and casuarina. There was also wattle and smaller species of trees underneath larger trees and plenty of different species of birds. The tallest trees were approximately the height of a telegraph pole. Ms Bale did not observe any rubbish or waste on the property.

63 Ms Bale recalled the property being fenced off in early to mid 2006 which prevented her going on the property. The wire fence varied in height from four to six feet.

64 Ms Bale became aware of clearing on the property approximately six to nine months after the fence was erected. In December 2006 she observed from the veranda of her home tractors and a mulcher which were removing trees and shrubs. The clearing occurred over about a week. After the clearing ceased, Ms Bale observed at least 20 piles of mulch on the property which were later spread over the property.

65 Under cross-examination Ms Bale stated that she mostly walked on the western boundary of the property which was unfenced prior to 2006. On parts of the path there was thick scrub but a track had been formed by walkers which sometimes crossed on to the property to the west. This part of the property was mostly grassland and was usually too wet to walk on. She agreed that the erection of the fence could have been in the middle of 2005 and that it could have commenced with the clearing of a fence line along the western boundary. Ms Bale did not know whether the clearing and fencing occurred on the eastern boundary. The western boundary was preferable for walking because there were fewer high trees and it was more sun exposed. She did not recall ever walking down the central track of the property.

Mr Hardie

66 Ronald Hardie, resident of George Street, Old Bar, also gave oral evidence. Mr Hardie has lived there for approximately 14 years. He stated that he walked through the subject property at least every two or three weeks along a track that started at the end of George Street and ran north to south. In 2005 and early 2006 Mr Hardie observed that the property was covered in vegetation including lots of native plants and paperbark trees. This vegetation was very dense and the canopy had a height of 12-15 feet. At this time Mr Hardie was aware that there was a section of cleared vegetation at the northern end of the property and also on the western boundary which Mr Hardie believed was for bushfire protection. The western boundary clearing was approximately 40 feet wide. There was also a narrow clearing along the eastern fence. Mr Hardie recalled a cyclone fence being erected at the end of George Street along the western boundary and along Lewis Street.

67 Mr Hardie became aware of clearing in December 2006 after he heard machinery operating on the property from his house. He observed from the end of George Street that the machinery was knocking down all trees on the property with the exception of three or four. He saw mulching equipment on the property which was mulching up the cleared vegetation and creating large piles. Mr Hardie did not ever see rubbish dumped on the property. He did see bricks and dirt dumped along the path on which he used to walk before the clearing took place and the fence was erected.

68 Under cross-examination, Mr Hardie stated that he walked on the property in either the morning or late afternoon. The fence erected in 2005 across the northern boundary of the property did not have a gate and so prevented Mr Hardie from accessing the property. When he did have access to the property it would take him approximately 10 to 15 minutes to walk the length of the central track and return to George Street. He did not recall the overhead power lines because of the thickness of the canopy. Since the clearing in 2006 he has observed a telegraph pole and lines on the property. Mr Hardie stated that the vegetation he observed from the central track prior to the clearing included a couple of taller trees above the vegetation understorey which were not adjacent to the track. Prior to the fencing and clearing Mr Hardie walked once to the eastern side of the property and once to the western side of the property. In relation to the clearing on the western fence lines prior to 2006, Mr Hardie had assumed that it was undertaken to create a fire break and stated that it was approximately a 20 foot area. On the northern boundary the area cleared was approximately a 40 foot area. He did not observe further clearing on the eastern boundary or on the central track prior to 2006. Mr Hardie stopped walking on the property after the fence was erected. After the fence was erected he noticed approximately 20 to 50 goats on the property.

69 In relation to the December 2006 clearing, Mr Hardie observed through the fence at the end of George Street a large yellow Caterpillar machine which was present for several days. He observed the machine almost daily when it was present and observed that other machines were ripping up vegetation which was then mulched and later spread over the property. He stated that he did not directly observe any large trees being pushed over but he did observe vegetation being torn out of the ground.

70 Mr Hardie did not recall seeing any evidence of prior sand mining of the property and did not recall seeing any abandoned machinery or cars on the property.

(b) expert evidence of date of European settlement and existence of native vegetation

71 Michael Flynn, historian with the NSW Crown Solicitor’s Office, affirmed an affidavit on 7 July 2009. Mr Flynn was retained by the Prosecutor to provide an opinion based on his historical expertise of European settlement in NSW as to the date of European settlement. Mr Flynn attests that his research indicates settlement by Europeans in NSW began with the arrival of the First Fleet in January 1788.

72 Karen Wilson, scientific officer with DECC, affirmed an affidavit on 17 October 2008. Ms Wilson is a botanist and was retained by the Prosecutor to provide an opinion as to whether the species banksia integrifolia and leptospermum laevigatum were present in NSW before January 1788 (the time of European settlement). Reviewing the species’ respective distribution, ecology and evidence from early herbarium specimens, drawings and publications, Ms Wilson concludes in a report annexed to her affidavit that banksia integrifolia and leptospermum laevigatum both existed as native species in NSW before January 1788.

(c) history of land use, ownership

73 Susan Ivens, company director, swore an affidavit on 23 June 2008. Ms Ivens’ late husband, John Ivens, was a director of the company Red Safety Coaches Pty Ltd which owned the subject property until it was transferred in November 1980 to Central Lakes Equities Pty Ltd. John Ivens was a director of both companies and so retained possession of the property. When Mr Ivens died in April 1991, Ms Ivens inherited Central Lakes Equities and all its assets including the property. Ms Ivens attests to having some knowledge of the property and inspected it on occasion though not regularly or frequently. The property was sold to Macquarie Bank on 15 August 2003.

74 During the early 1980s the property was sand mined by Rutile and Zircon Mines (Newcastle) Limited (RZM). Since this sand mining ceased there has been no other major work done to it or activities undertaken on the property. The following relevant documents were attached to Ms Ivens’ affidavit:

75 When Ms Ivens had control of the subject property, gates were erected at the Lewis Street entrance to prevent access to the property. There were problems with fires, people dumping waste and people driving cars along the power line easement. In the late 1990s and early 2000s an environmental study of the property was undertaken and conversations were had with Council and private developers about potential rezoning and development of the property.

76 In cross-examination Ms Ivens stated that the negotiations with the mining company led to a lease being obtained in 1977 which applied to 5.16 ha of the property, as shown in a map attached to the letter of 14 August 1977. The letter of 5 October 1979 included an operations plan but Ms Ivens was unable to recall whether mining occurred pursuant to that plan and on the commencement date identified in the letter. She generally recalled the mining ceased as the letter of 28 April 1981 stated that mining operations had concluded.

77 A letter dated 17 February 1986 from the mining company to Central Lake Equities and an associated gazette were also tendered by the Defendant (exhibit 9). The Gazette of 8 November 1985 indicated that the application for renewal of the mining lease had been refused.

78 Also tendered was a letter dated 4 July 1984 from the mining company to Red Safety Coaches referring to the expiry of the mining lease. The letter also referred to rehabilitation of the property after mining. Ms Ivens recalled soil was to be returned from where it had been removed without the minerals which had been extracted in the mining process. To rehabilitate the property the soil mounds were to be spread out and plants added to stabilise the soil. The mining company was to undertake this process and Ms Ivens could not recall whether and when this occurred other than some planting of a low ground cover bush.

(d) expert evidence that native vegetation cleared and age of vegetation

Mr Gibson

79 Robert Gibson, regional biodiversity conservation officer with DECC, affirmed an affidavit on 7 October 2008. Prior to April 2008 Mr Gibson was a native vegetation compliance officer with DNR and DECC with responsibilities including investigating alleged breaches of the NV Act.

80 In January 2007 Mr Gibson attended the subject property again at the request of Mr Priestley and took photographs from outside the property boundary. Using a handheld global positioning system, Mr Gibson established two waypoints alongside the existing fence at the north eastern corner of the property. He recorded his GPS positioning and took photographs of the property.

81 Mr Gibson visited the property again on 22 May 2007 to assist Mr Priestley in conducting a study of at least two vegetation quadrats on the property. Prior to the inspection he familiarised himself with existing vegetation and threatened species information for the property using Council and National Parks and Wildlife Service data. Mr Gibson observed at the property that the vegetation had changed since his visit in January 2007. Shrubs appeared to have regrown from rootstock and stumps and seedlings had germinated. The vegetation on the property appeared to comprise a dense, low shrub layer. Scattered piles of vegetation were still visible above the vegetation layer.

82 The quadrats were of 10m x 10m dimension. Mr Gibson established quadrat 1 to the southwest of the north-east corner of the property. He conducted a vegetation survey within that quadrat which involved collecting information about the structure of the vegetation, the soils, the cover and the abundance of each plant species in the quadrat. This information was recorded in a form annexed to his affidavit. This also included a description of the substrate and hydrology and characteristics of the environmental stratification unit. He also estimated the total crown cover, non-vascular cover, plant height range and abundance of the plant species on the property in order to describe the vegetation structure and cover and abundance of each species identified on the property. Quadrat 1 included nine plants that he was unable to identity on site. In Mr Gibson’s opinion the vegetation in quadrat 1 was regenerating following a relatively recent clearing event.

83 Mr Gibson sought to establish another quadrat in uncleared vegetation of 10m x 10m but there was no such area on the property. Quadrat 2 was set up south of quadrat 1. Floristic and structural data was taken in the same manner as quadrat 2. Samples of seven unidentified plants were collected. Quadrat 3 was set up to the north east of quadrat 2 beyond the boundary of the subject property in remnant woody vegetation. The same information was collected from quadrat 3. Samples of ten unidentified plants were collected. Mr Gibson subsequently identified the samples taken from the property. They were included on a complete list of all species of vegetation Mr Gibson identified in each of the three quadrats and elsewhere on the property (annexed to his affidavit). Using Geographic Information Software and the GPS data, Mr Gibson produced a marked up SPOT5 satellite image on 30 July 2008 (annexure B) showing the property boundaries, the three vegetation quadrats (two within the property, one outside) and the location where photographs were taken by Mr Gibson.

84 Mr Gibson observed that most of the property sat along the crest of a sand dune. The eastern slope of the dune dropped away into a narrow swale. The vegetation in this swale in Mr Gibson’s opinion included littoral rainforest as well as mature banksia integrifolia. There were regenerating banksia integrifolia plants across all of the property. The western side of the property dropped away into a wetland which was primarily located in adjacent landholdings. The wetland had been extensively cleared.

85 Mr Gibson stated that quadrat 3 was representative of the vegetation cleared from the eastern part of the property where the landform was a sheltered swale. The vegetation samples in quadrats 1 and 2 were representative of the coastal heath vegetation that occurred in the central and western part of the property that grew in a more exposed position on the coastal sand dune system.

86 Mr Gibson stated that in his opinion the three quadrats contained plants that met the definition of native vegetation. All species recorded except one in quadrat 2 and two in quadrat 3 are native to NSW. In Mr Gibson’s opinion, the vegetation on the property was regenerating following a clearing event which took place shortly before January 2007 and the vegetation cleared included native vegetation.

Oral evidence

87 Mr Gibson was cross-examined. At the time he took photographs in January 2007 outside the property he did not analyse any plants on the property but did a rough identification of some of the species that were there. He observed large species of banksia integrifolia which appeared as standing trees running along the eastern boundary of the property. He could not recall seeing any melaleuca quinquenervia, allocasuarina littoralis or corymbia intermedia. He recalled seeing some shrubs and trees along the western boundary. He did not observe in any detail the northwest corner of the property.

88 Prior to the investigation undertaken on the property on 22 May 2007, Mr Gibson accessed the Greater Taree City Council Vegetation Layout at his office in Newcastle for the purposes of familiarising himself with existing vegetation and threatened species information for the property. This is a polygon which divides the area of the Council into various vegetation units including cleared land and categories of native vegetation. He stated he did not know the provenance of the polygon and that it was not consistent with the position of the landscape that he had observed on his subsequent visit to the property. This polygon was not in evidence.

89 On visiting the property in May 2007, Mr Gibson stated that there had been a change in the appearance of the vegetation on the property since his visit in January which he attributed to either growth from seed germination or regrowth from rootstock. He stated that his assessment of the vegetation could not distinguish between particular plants which had germinated from seed banks within a quadrat and those which had germinated from seeds sourced from outside the quadrat. Rootstock is a more important factor in assessing what vegetation was present before a clearing event because it is residue of a plant that has re-sprouted after the clearing. He made mental observations of the seeds but did not necessarily write down whether the plant observed was from a germinating seed or rootstock. He stated that he was relying on Mr Priestley’s photographs of the quadrats and his own memory of observations in addition to his own written documentation in forming his conclusions. The source of either seeds or rootstock could, according to Mr Gibson, be inferred from the height of the plants based on differences in the speed of growth.

90 At the time Mr Gibson discussed the study to be undertaken with Mr Priestley the plan was to establish at least two vegetation quadrats on the subject property, one in a cleared area and one in uncleared vegetation. Mr Gibson had seen the property at this stage having taken photographs in January and knew the basic layout including the existence of remaining large trees particularly on the eastern side of the property. In re-examination Mr Gibson explained that a quadrat in uncleared vegetation on the property was not established because he was unable to find an area of uncleared land on the property large enough to accommodate a 10m x 10m quadrat.

91 In concluding that the eastern part of the subject property included elements of littoral rainforest, Mr Gibson explained that in a dune system certain species that have a wider tolerance than others will be found and these may occur across the dune system. The more sensitive species are more particular to certain environmental parts of the dune system. Mr Gibson recognised that in concluding that there was littoral rainforest present prior to clearing entailed an implication an EEC had been affected by the clearing. He stated that he did not carry out numerical classification in determining the presence of littoral rainforest because the purpose of his visit was to ascertain the vegetation on the property was native, and not to do an analysis of the vegetation typing. His conclusion of littoral rainforest on the eastern part of the property in his affidavit was based on the presence of re-sprouting tuckeroos, which are a component of the EEC. The presence of this species is included in the NSW Scientific Committee determination which lists EECs in Sch 1 of the Threatened Species Act 1997. The trees on the property that remained were coastal heath types and not littoral rainforest types.

92 Mr Gibson stated that there were no tree species as distinct from ground cover or other plants in the quadrats. He recalled rosewood in the eastern part of the property beyond the quadrat but did not record this in writing.

93 Mr Gibson stated that he did not conduct any research as to the history of the usage of the property and was unaware when he conducted his study that the property had been used for sand mining in the 1980s. He agreed that this would have been useful to know because he would have understood that this process requires the removal of vegetation. He had not previously examined land using quadrat techniques which had been subject to sand mining but agreed that commonsense suggests that the removal of vegetation as a consequence of sand mining is likely to affect the composition of a vegetation community for many years.

94 Mr Gibson considered that he was able to reliably state that part of the property was littoral rainforest in the past based on his observation of tuckeroos of approximately 50cm in height re-sprouting from roots although this fact was not recorded in writing. Mr Gibson did not consider that the tuckeroo stems that he observed were present before the clearing in 2006 because he considered that apart from the trees left remaining, the area where they were observed had been fully cleared. This was consistent with his other observation of banksia resprouting from rootstock. Prior to the clearing event in December 2006 that area where the tuckeroos were observed appeared to have a full cover of woody vegetation, relying on a SPOT5 image pre-dating December 2006 (annexure B). Mr Gibson stated in his affidavit that this SPOT5 image was obtained from DECC’s central server. No other information about its provenance was provided.

95 In relation to the SPOT5 image, Mr Gibson agreed that the height of vegetation could not be discerned from the image or vegetation type but the image does provide a guide as to the pattern and extent of vegetation. This can be used to compare with changes that have occurred after clearing. The SPOT5 image could be used to conclude with some certainty the presence of woody vegetation from the size of canopies because this provides some information about the size of trees or shrubs.

96 Mr Gibson agreed that the existence of tuckeroo is not indicative itself of a littoral rainforest. The plant species in littoral rainforest are predominantly rainforest species but can include banksias as well, for example. Mr Gibson agreed that the difference between littoral rainforest and sclerophyll forest is the domination of the canopy by rainforest species in littoral rainforest. Mr Gibson considered that the SPOT5 image showed a dark green canopy of rainforest species on the eastern part of the property which, with his observations of tuckeroo, led to his conclusion of littoral rainforest on the property.

97 Mr Gibson was shown a Council document titled “Constraints Map – Vegetation Old Bar Wallabi Point Development Strategy 2000” dated February 2001 (annexed to Mr Priestley’s affidavit). Mr Gibson stated that this map, which showed no littoral rainforest on the subject property, was contrary to the Council’s polygon which he examined prior to visiting the property referred to at par 88 which depicted the property as containing coastal complex including some littoral rainforest.

98 In relation to the two quadrats on the property examined, Mr Gibson stated that there were scatters of mulch within the quadrats and larger piles of mulch beyond the quadrats. Mr Gibson recognised the possibility that mulch may have been spread since the clearing and then germinated in the quadrat but he stated that the species he observed in each quadrat were consistent with what would grow on a sand dune and so he had no cause to question whether they may have come off other parts of the property. Mr Gibson stated that nothing which he did in his examination of the two quadrats allowed him to form a view as to the age of the plants which were present prior to the clearing. He did however observe a Banksia lignotuber which suggested the plant had been there for a number of years. In re-examination he identified a number of other species of native vegetation he saw growing from rootstock.

Mr Palmer

99 John Palmer, resource information officer with DECC, affirmed two affidavits dated 30 October 2008 and 5 August 2009. In his first affidavit Mr Palmer states that he was asked by Mr Priestly of DECC to provide an assessment of historical clearing at the property in order to ascertain whether the area comprised regrowth vegetation (within the meaning of the NV Act) by interpreting aerial photographs. Mr Palmer has specialist knowledge in relation to aerial photograph interpretation and visual interpretation of satellite images.

(i) aerial photography

100 Mr Palmer was provided with a number of aerial photographs held by the Council and Taree Lands Office ranging in date from 1965 to 2002. Mr Palmer relied on three dimensional views of a selection of the aerial photographs. Three dimensional viewing is facilitated through the use of a mirror stereoscope with a three times magnification binocular eyepiece. Two aerial photographs taken in the same period with a 60 percent forward overlap are required for three dimensional viewing. Mr Palmer stated that three dimensional viewing makes features of the vegetation and general landscape more obvious and can enable different stratum levels of vegetation to be separately identified. Ground features and human activities can be more readily identified. The photographs of the property viewed by Mr Palmer were not taken at regular intervals. Up to 11 years passed without a photograph (between 1965 and 1976) and between such periods regrowth or regeneration could, under favourable growing conditions, mask clearing events. The chance of clearing events being masked is reduced as the time between photographs is reduced.

101 The key factors of colour, texture, pattern and shape which Mr Palmer relied upon in interpreting the aerial photographs are set out in his affidavit. Mr Palmer also sets out characteristics of vegetation which can be identified using three dimensional viewing of aerial photographs referring to trees and shrubs and their height over 1m. The detail of how this can be done is stated in pars 31-34 of his affidavit. In aerial photographs, woody vegetation which has been recently cleared can show associated soil disturbance which shows up as a white bleached colour on black and white aerial photographs or a white or pale cream coloured bleach on coloured aerial photographs. Short term stacking of felled timber into linear windrows for disposal can be observed on aerial photographs as small, dark, linear pencil-shaped masses with a rough texture. Mr Palmer attests to being able to structurally classify vegetation present at the location as either open shrubland, woodland and open forest based on the types of and distances between plants.

102 Mr Palmer provided an opinion in relation to a number of aerial photographs. These commenced at intervals as identified in his written evidence from 1965 up to 2002. The most relevant photographs and his analysis are summarised as follows:

31 August 1983

8 June 1984

26 March 1986

September 1989

31 March 1991

8 February 1997

15 September 2002

(ii) SPOT5 images

103 Mr Palmer also analysed SPOT5 satellite imagery for dates in 2005 and 2006 in order to determine if there were any detectable changes in the woody vegetation (see par 132-136 for evidence in relation to the source and explanation of SPOT5 imagery). Mr Palmer stated that on a SPOT5 image a pixel represents a 2.5m x 2.5m square of land which means that objects smaller than that size cannot be seen with any clarity. A pixel takes its colour from the object with the dominant colour in the pixel area. Contiguous areas of clearing greater than 2.5m x 2.5m are made visible. Soil disturbance shows up as bright pink coloured bleaching in SPOT5 images. Mr Palmer viewed the SPOT5 imagery using a computer program after the images were orthorectified and a cadastral layer imposed (see par 133 and 136).

30 April 2005

30 May 2006

(iii) conclusion

104 Mr Palmer concludes in his affidavit that the area east of the central tracks is woody vegetation that has been undisturbed since at least 1965 up until at least May 2006. West of the central tracks the majority of woody vegetation has been present in his opinion since at least March 1986. An area of 1.4 ha towards the north west of the property contains both regrowth and woody vegetation that is not regrowth (having existed prior to 1990). The areas of regrowth and older vegetation cannot be visually separated.

105 In his second affidavit, Mr Palmer provides an opinion in relation to a SPOT5 image dated 6 May 2008 (annexure A to his affidavit). In his opinion the subject property shows signs typical of vegetation removal and subsequent soil disturbance in two distinct areas, one in the north-west corner and the other larger area encompassing the majority of the lower three quarters of the property (identified as areas of pale pink on the image). The access tracks are now difficult to separately identify. In his opinion there are remaining areas of woody vegetation on the eastern and western boundaries of the property both approximately 20-30m in width. The eastern strip appears to have a more open structure than vegetation outside the property on its eastern side. The western strip of vegetation appears different from the vegetation identified there in the 2006 SPOT5 image but Mr Palmer states that he cannot say whether this is due to a real structural change, possible climatic factors or a lack of depth of field with SPOT5 imagery.

106 Also in his second affidavit Mr Palmer states that he has had access to a colour version of the two 1983 black and white photographs referred to in his first affidavit. He states that having reviewed the colour version he continues to hold the view as expressed in the earlier affidavit. He adds that the colour photographs further show what is in his opinion woody vegetation structure in the south-east of the subject property which is a mix of open forest and woodland with a dense shrub understorey.

346 Neither of the parties before me raised the application of s 44(b) in terms of whether the actions of Mr Elias can be attributed to the Defendant company and I was not referred to any of the cases to which Biscoe J refers in Issa (No 5). On the assumption that it is necessary to make a finding of attribution of Mr Elias’ conduct to the Defendant in relation to s 44(b) I adopt the reasoning of Biscoe J which caused him to conclude in that case that the actions of a director were attributable to a corporate defendant for the purposes of s 44(b). Mr Elias is not a director of the company but the evidence relied on by the Prosecutor suggests that he was authorised to represent the company in relation to the work undertaken by Mr Flemming. The Defendant has not tendered any evidence to suggest the contrary. The Defendant was invoiced for work on the property by Mr Flemming and Mr Elias arranged for the payment. The clearing was undertaken for the purposes of the company as shown in the evidence of Mr Elias in the record of interview and the Defendant’s answer to the Notice to Provide Information.

(ii) whether Defendant caused or permitted clearing

347 As noted at [12] of Issa (No 5), Biscoe J did not need to consider the distinction between “cause” and “permit” in s 44(b). The Defendant accepts that it has the onus of establishing on the balance of probabilities that the clearing was, firstly, carried out by another person and, secondly, that the landholder did not cause or permit the other person to carry out the clearing. In relation to the identity of the landholder of the land on which native vegetation has been cleared, there is no dispute that the Defendant is the landholder as defined in s 44, being the owner in lawful occupation and with lawful management and control of the land. Mr Elias’ role in the company is identified in the evidence of Mr Priestley. The evidence establishes that Mr Elias was acting on behalf of the landholder when he contacted Mr Flemming to ask him to do work on the land. There is no dispute that the clearing that did occur was undertaken by VSF, an independent contractor, so that s 44(a) applies.

348 As discussed earlier at par 229, Millerv Minister of Pensions at 373-74 states that proof on the balance of probabilities requires a reasonable degree of probability or something being more probable than not. The cases cited by the Prosecutor at par 335 (Abbott, Hughes, Sheldrake and Carr-Briant) confirm that whether the onus of proof is discharged must be assessed on the whole of the evidence.

349 In relation to s 44(b) the Defendant has to prove on the balance of probabilities that Mr Elias did not cause or permit VSF to carry out the clearing of native vegetation that occurred. The Defendant argues (at par 339) that the principles of vicarious liability as identified in Multiplex must apply to the consideration of s 44. No specific authority to that effect was relied on. The Defendant’s submissions, summarised above in par 338-340, emphasised the findings in Multiplex in relation to cause and permit in order to submit that I must determine whether there was control by the Defendant of the actions of VSF, an independent contractor, to enable a conclusion that the actions of VSF were caused by the Defendant.

350 In Multiplex Lloyd J firstly considered whether the defendant caused and/or permitted pollution under the offence created in s 16(1) of the Clean Waters Act 1970 (now repealed) at [236]-[273]. Section 16(1) stated that “a person shall not pollute waters”. A sub-contractor caused, in the course of extraction operations, a section of pipe to fall into water. The pipe contained oil which resulted in water pollution. Section 16(2) specified when a person was deemed to pollute waters including by causing or permitting matter to be placed in specified locations. His Honour considered the construction of the terms “cause” and “permit” at [235]-[273]. His Honour dealt separately with vicarious liability from [274].

Cause

351 Section 44 imposes an onus on the Defendant to show that it did not cause another person to commit an offence. Whether the Defendant through the instructions of Mr Elias caused Mr Flemming to clear native vegetation must be considered. Lloyd J in Multiplex had to determine whether the corporate defendant committed an offence against s 16(1) of the Clean Waters Act for the acts of an independent contractor which gave rise to water pollution by virtue of the deeming provision in s 16(2).

352 Lloyd J considered “cause” at [236]–[240] and at [245]-[257] referring to Alphacell and its application in Majury v Sunbeam Corporation Ltd [1974] 1 NSWLR 659. Majury considered a previous version of s 16 of the Clean Waters Act providing that “A person shall not cause any waters to be polluted”. McClellan CJ at CL applied Alphacell to hold that the defendant had caused the pollution of water. In Multiplex Lloyd J held that “caused” can have several meanings depending on the statutory context. As summarised in the Defendant’s submissions (par 340), a person causes a result where he or she intends to secure a particular outcome and does an act to bring about that result. A defendant must engage in a positive act to cause something to occur and this act need not be an immediate cause. Where a third party is involved the Court must consider whether the actions of the third party were an ordinary occurrence or something extraordinary.

353 After considering Alphacell and Majury, Lloyd J held in Multiplex at [262] that in relation to the deeming provision in s 16(2) of the Clean Waters Act:

…the concept of causing extends liability in a common sense way to the natural consequences of what the defendant may have done or omitted to do. This includes liability for the ordinary or natural consequences of the defendant’s conduct, but not for extraordinary consequences or other contributing causes which exclude any operation of the defendant as a causative factor.

354 Section 44(b) of the NV Act is premised on s 44(a) applying, namely that a third person other than the landholder has carried out clearing. Multiplex, Majury and Alphacell were considering strict liability offences for water pollution. Those cases emphasise that it is necessary to consider the meaning of cause in its particular statutory context. The Defendant’s submissions emphasised that whether there was control exercised by a defendant over the actions of a third party was relevant to determining cause, relying on Multiplex. This submission was bound up with the Defendant’s submission that principles of vicarious liability are relevant to the consideration of cause and permit in s 44(b). Section 44(b) provides a statutory basis of landholder liability arising from the acts of a third party, such as an independent contractor, separate from the common law principles of vicarious liability. The issue of control in determining whether a principal is vicariously liable for the acts of a contractor is not the same in relation to determining whether the landholder causes clearing through the actions of a third party, in this case an independent contractor. As noted already, in Multiplex Lloyd J considered vicarious liability separately from the meaning of “cause” and “permit” in the Clean Waters Act.

355 The offence in s 12 of the NV Act is a strict liability offence in a statute directed to the preservation of native vegetation. The findings of Lloyd J summarised at par 351-352 are appropriate to apply in the context of s 44(b) of the NV Act. To cause clearing in s 44(b) does not require the exercise of particular control over the third party whose actions result in the clearing event to the extent that would be necessary to establish vicarious liability for the actions of an independent contractor. Where the clearing by a third party arises as a natural consequence of the landholder’s conduct that landholder can be said to have caused the clearing. It is necessary to apply these principles to the facts in this case.

Permits

356 Whether the Defendant permitted the clearing is also relevant given Mr Flemming was employed to work on the property by Mr Elias acting on behalf of the Defendant. “Permit” has been considered in a number of criminal cases in varying statutory contexts. A common starting point in a number of cases is The Corporation of the City of Adelaide v The Australasian Performing Right Association Ltd (1928) 40 CLR 481. In R v Jasper (2003) 139 A Crim R 329 Mason P (Dowd and Adams JJ concurring) held at [32] - [34:]

32 There are many statements in cases discussing the knowledge element implicit in the word "permits". Thus, in Adelaide City Corporation v Australasian Performing Right Association Ltd [1928] HCA 10; (1928) 40 CLR 481, Knox CJ said at 487 (emphasis added):

... indifference or omission is `permission' within the plain meaning of that word where the party charged (1) knows or has reason to anticipate or suspect

that the particular act is to be or is likely to be done

, (2) has the power to prevent it, (3) makes default in some duty of control or interference arising under the circumstances of the case, and (4) thereby failed to prevent it. This statement of the legal position was not challenged in argument before this Court.

33 Knowledge is more than suspicion and, to that extent, the passage just quoted needs to be adjusted in a criminal context. But the reasoning remains authoritative as regards the object of the knowledge and the recognition that (for the law) the future can be "known". Knowledge of something likely to be done in the future may suffice, at least if that knowledge rises to the level of "shutting one's eyes to the obvious" (Souter at 407-8, Thomas at 69, Lyver v State of Victoria [1983] 2 VR 475 at 478, Douglas-Brown v Commissioner of Police (1995) 13 WAR 441 at 446). This extends to the obvious in the future as well as the obvious in the (continuous) present.

34 Similarly, in Chappell v A Ross & Sons Pty Ltd [1969] VR 376 Winneke CJ and Smith J said (at 382, emphasis added):

We think that in accordance with the natural use of language it ["permitting"] involves not only a right or capacity on the part of the permittor to prevent the contravention, but also a state of mind amounting to consent to, or acquiescence in, the contravention. And consent or acquiescence must include an element of knowledge or foresight. Actual knowledge that the contravention is being

or will be committed

would plainly be sufficient.

Likewise, we think a belief that a contravention is highly likely or probable would suffice

. The weight of judicial authority, in our opinion, supports this view. For these reasons, `permission', in our opinion, cannot be equated with a careless or negligent failure to prevent a contravention.

These remarks were supported by citation of authority and were made in the context of a crime of permitting another person to drive in a manner contrary to the Motor Car Act 1958 (Vic).

357 That case was cited with approval in Hardt v Environment Protection Authority (2007) 156 LGERA 337. In Hardt the Court of Criminal Appeal was considering s 144 of the Protection of the Environment Operations Act 1997 which states that a person permitting use of land as a waste facility is guilty of an offence. At [26] Giles JA (Grove and Harrison JJ concurring) held that:

…“Permits” plainly has a mental element. Permitting something requires awareness of it and failure to exercise a right or power to prevent it: R v Jasper [2003] NSWCCA 186; (2003) 139 A Crim R 329 at [22]-[34]. In that case Mason P cited at [32] from the judgment of Knox CJ in Adelaide Corporation v Australasian Performing Rights Association Ltd (1928) 40 CLR 481 at 487 …

358 In Multiplex (2000), Lloyd J held at [258]-[259] and [263] that permit means “to intentionally allow” after considering Broad v Parish (1941) 64 CLR 588, Miller v Williams (1990) 53 SASR 82, R v Lonie [1999] NSWCCA 319 and Adelaide Corporation. In Hardt (2007) Giles JA said of Multiplex at [30]:

In Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1 one question was whether the developer had polluted waters by permitting the pollutant to be placed in a position where it fell or was likely to fall into the waters. A sub-subcontractor to the developer had damaged a pipeline whereby oil was discharged. “Permits” was given by Lloyd J the meaning of “intentionally allows”, and it was held that the evidence did not suffice for a finding that the developer permitted the pollution. In the authorities said to give this meaning to “permits”, one did so expressly (Broad v Parish [1941] HCA 25; (1941) 64 CLR 588 at 595 per Starke J), but the others were concerned with the awareness necessary before the defendant permitted something. In Miller v Williams (1990) 53 SASR 82, for example, there was an extensive discussion at 87-92 of the need for actual knowledge of what is happening or about to happen or possibly of something less than actual knowledge. “Intentionally allows” does not carry that the defendant acted or failed to act with the intention that the particular result should come about, and the phrase is perhaps misleading. “Intentionally” really means with knowledge, and the phrase refers to the awareness required in permitting something.

359 The criteria referred to in Adelaide Corporation continue as foundation findings on the meaning of permit, as recognised by Mason P in R v Jasper and Giles JA in Hardt. Knowledge that something that is a contravention is likely to be done in the future can be permitting it to be done. That is a potentially wider definition of permit than to intentionally allow as applied in Multiplex. Carelessness or negligence in failing to prevent an act giving rise to a contravention is not permitting it to occur. It is necessary to apply these principles to the facts of this case.

What instructions were given to Mr Flemming by Mr Elias?

360 The landholder’s relevant conduct in this case are the instructions given by Mr Elias on behalf of the Defendant to Mr Flemming. The onus is not on the Prosecutor to positively prove that there was a particular instruction to VSF to clear particular native vegetation but on the Defendant to demonstrate that what Mr Flemming/VSF did was not caused or permitted by Mr Elias on behalf of the Defendant. There is no evidence that Mr Elias gave explicit instructions to clear any particular native vegetation on the property, a fact emphasised in the Defendant‘s submissions.

361 Mr Flemming’s oral evidence is that he was asked by Mr Elias by telephone to provide an estimate of the cost of mulching the vegetation on the property. He provided a verbal estimate of $73,000 plus GST. He was told verbally to go ahead by Mr Elias. Mr Flemming and employees of his company, VSF, worked across the site with machinery pushing the groundcover with a dozer blade into windrows which were then mulched. He also said that he came across rubbish when the vegetation was being cleared and it was progressively exposed, particularly at the northern end. He levelled out the rubbish and pushed sand over it as he considered part of his task was to tidy up rubbish. The work he had VSF undertake on the property was consistent with the instructions which he received according to his evidence. The invoice rendered to the Defendant for the work in December 2006 specified the cost (not including GST) of an excavator and dozer of $35,000 and the cost of Green Waste Australia of $38,000 and a dozer for $1440. This amount was paid by the Defendant.

362 The Defendant in its written submissions stated that the Defendant’s instructions through Mr Elias were consistent with a direction to clean up rubbish and clear regrowth and mulch. I am not aware that the exact words “clear regrowth and mulch” appear in the evidence of Mr Elias. In his record of interview with Mr Priestley (summarised in par 54-56), Mr Elias stated that he asked for the land to be cleaned up. During the record of interview with Mr Priestley he stated that clearing up included the clear up of regrowth but it is not clear that he said that to Mr Flemming. In the conversation with Mr Priestley on 13 December 2006 Mr Elias said “I am having the site cleared up for insurance reasons … I asked him to clear 6-8m around boundary and a series of trails”.

363 In the written response to the Notice to Provide Information sent by the Prosecutor (exhibited to Mr Priestley’s affidavit and referred to at par 333) the Defendant stated that instructions were given to clean up the site and remove any weeds, lantana and rubbish dumped on the site.

364 The oral evidence of Mr Flemming of the instructions given by Mr Elias varies from that stated by Mr Elias to Mr Priestley in the record of interview and as identified in the answers to the Notice to Provide Information sent to the Defendant from DECC dated 17 September 2007. No concern was raised by Mr Elias about the work undertaken by Mr Flemming in the interview between Mr Elias and Mr Priestley conducted on 2 August 2007. In his answers Mr Elias stated that the only instructions given were verbally by telephone from him to Mr Flemming.

365 The behaviour of VSF gives rise to a clear inference that the work undertaken by Mr Flemming was in accordance with the instructions received by telephone from Mr Elias that he mulch the vegetation on the property and clean up rubbish. There is no suggestion in Mr Flemming’s evidence that he was asked to clear 6-8m around the boundaries and a series of tracks as Mr Elias told Mr Priestley on 13 December 2006. The work he undertook was over the whole property not just along the trails. Part of the work required Green Waste Australia to do mulching work to the value of $38,000 which the Defendant paid. Mr Flemming caused a large volume of vegetation on the property to be mulched in December 2006, as he believed Mr Elias had requested him to do and for which he gave a quote to Mr Elias. Mr Elias paid for that work on behalf of the Defendant. There is no evidence that Mr Elias expressed any concern to VSF about the work undertaken. In the record of interview with Mr Priestley Mr Elias said he was happy with the work undertaken by VSF. I accept that the instructions given by Mr Elias to Mr Flemming are those identified in Mr Flemming’s oral evidence that he mulch the vegetation on the property and remove rubbish.

366 In relation to the instructions given by Mr Elias to Mr Flemming, the Defendant relied on Hickey as supporting its submission that there was no control over the work carried out by Mr Flemming and no instructions were given to Mr Flemming to clear native vegetation by Mr Elias. That case was a prosecution for the removal of trees in breach of a tree preservation order (TPO), constituting an offence under the EP&A Act. The defendant landholder engaged a contractor to carry out work such as cleaning up weeds, lantana and regrowth vegetation on the land. As a result of the work being carried out trees the subject of the TPO were knocked over. Whether the landholder was vicariously liable for the actions of the contractor in knocking down the trees was in issue. Lloyd J held that the landholder did not instruct the contractor as to how the work should be done and relied on the contractor’s expertise in requesting him to do the work. There was no control exercised by the landholder as to the manner of work and the landholder was held not to be vicariously liable. There was no direction to do the act that comprised the offence, or to do some act which necessarily led to the offence.

was not considering s 44 of the NV Act which does not impose liability on the landholder on the basis of vicarious liability. The facts also differ materially from those in this matter. The instructions I have held were given to Mr Flemming inevitably led to the clearing of native vegetation. Hickey does not provide any assistance to the Defendant in this matter.

Whether clearing permitted or caused by the Defendant

368 By virtue of his instructions to Mr Flemming, Mr Elias on behalf of the Defendant caused VSF to carry out the clearing of native vegetation on the property. That clearing occurred was a natural consequence of the instructions given by Mr Elias to Mr Flemming. The clearing was not an extraordinary consequence resulting from those instructions but inevitable. The act of mulching the vegetation authorised by Mr Elias on the property did necessarily lead to the offence with which the Defendant is charged. But for Mr Elias’ request to Mr Flemming to do work on the property, the work resulting in the clearing of the land would not have been carried out. It is impossible to mulch vegetation without clearing it. Whether or not Mr Elias intended that native vegetation be cleared is irrelevant to the determination of whether the landholder caused the clearing, the offence being one of strict liability.

369 As s 44 refers to whether “it is established that…(b) the landholder did not cause or permit the other person to carry out the clearing” (emphasis added), it is unnecessary to find that the Defendant also permitted the clearing for a finding that s 44 applies. For completeness, I consider that on the basis of Adelaide Corporation as applied in Hardt and R v Jasper this was not established by the evidence. There is no evidence that Mr Elias had any awareness that native vegetation would be cleared in breach of the NV Act. The evidence suggests that if anything he was careless about the consequences of the mulching and clearing of rubbish he employed Mr Flemming to do on behalf of the Defendant. That does not give rise to a finding that he permitted the clearing in the sense that he had a belief that a contravention was highly likely or probable.

370 The Defendant submitted that the Prosecutor must identify particular acts which it alleges constitute the offence charged. The Defendant argued that there is no evidence that Mr Elias explicitly authorised the clearing of particular vegetation at a particular place at a particular time, which submission is correct on the evidence before me. The Prosecutor has particularised its case on the basis that clearing of native vegetation being identified species took place between certain dates over the whole property. The Prosecutor’s case is not based on identifying particular trees or shrubs that were cleared because the nature of the alleged offence concerns widespread clearing across a 10ha site. The level of specificity the Defendant argues is necessary to establish the offence is unnecessary given the circumstances of the clearing undertaken in December 2006. The offence is sufficiently particularised in these circumstances.

371 The Defendant has not established on the balance of probabilities that the clearing undertaken by Mr Flemming was not caused by the Defendant. Accordingly under s 44 the Defendant is taken to have carried out the clearing which gives rise to an offence under s 12(2) of the NV Act as there has otherwise been clearing in breach of s 12(1) of the NV Act.

372 The Prosecutor also argued that the Defendant was vicariously liable for the actions of VSF and, separately, that VSF acted as the heart and mind of the Defendant. I do not need to consider these bases of liability given my conclusion that s 44 of the NV Act applies.

Conclusion on guilt

373 The Prosecutor has established beyond reasonable doubt all the essential elements of the offence under s 12(1) of the NV Act with which the Defendant is charged. The Defendant is convicted of the offence charged in the summons.

Citations

Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15

Most Recent Citation

Cases Citing This Decision

14

Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210

Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2025] NSWLEC 48

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 7) [2022] NSWLEC 153

Cases Cited

32

Statutory Material Cited

15

Adelaide Corporation v Australasian Performing Right Association Ltd [1928] HCA 10

R v Lonie [1999] NSWCCA 319

Cited Sections

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CITATION:	Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15
PARTIES:	PROSECUTOR Department of Environment and Climate Change DEFENDANT Olmwood Pty Limited
FILE NUMBER(S):	50041 of 2008
CORAM:	Pain J
KEY ISSUES:	PROSECUTION :- whether native vegetation cleared - whether vegetation regrowth within meaning of Native Vegetation Act 2003 - whether defendant has onus of proving on balance of probabilities that vegetation regrowth - impact of sandmining on vegetation on property - whether aerial photographs and SPOT5 image analysis proved continuity of vegetation cover DEVELOPMENT CONSENT :- whether development consent granted for clearing native vegetation - whether consent lapsed - whether survey work relied on for physical commencement in breach of condition of consent - whether development consent granted on land zoned for possible coastal acquisition land - absence of Minister's consent for clearing native vegetation PROSECUTION :- whether defendant caused or permitted clearing to be carried out - whether defendant landholder discharged onus of proof it bears under s 44 of the Native Vegetation Act 2003
LEGISLATION CITED:	Clean Waters Act 1970 (repealed) Environmental Planning and Assessment Act 1979 s 76, 76A, 76B, 79C, 80, 80A, 95 Greater Taree Local Environmental Plan 1995 Interpretation Act 1987 s 6, 7, 21 National Parks and Wildlife Act 1974 s 98, Pt 8A, 159A Native Vegetation Act 2003 s 5, 6, 7, 9, 10, 12, 13, 18, 19, 36, 44 Native Vegetation Conservation Act 1997 s 12, 14, 21 (repealed) Mining Act 1973 Rivers & Foreshores Improvement Act 1948 Pt 3A (repealed) State Environmental Planning Policy No. 26 – Littoral Rainforest State Environmental Planning Policy No 46 - Protection and Management of Native Vegetation Sch 3 (repealed) Occupational Health and Safety Act 1985 (Vic) Protection of the Environment Operations Act 1997 s 144 Threatened Species Act 1997 Sch 1 Water Management Act 2000
CASES CITED:	Abbott v State of Western Australia (2005) 152 A Crim R 186 Alphacell Ltd v Woodward [1972] AC 724 Blacktown City Council v Pace (2002) 121 LGERA 432 Broad v Parish (1941) 64 CLR 588 Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85 Biwazu Pty Ltd v Cessnock City Council [2004] NSWLEC 411 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243 Coffs Harbour City Council v Hickey [2004] NSWLEC 531 Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Detala Pty Ltd v Byron Shire Council (2002) 133 LGERA 1 Director of Public Prosecutions v United Telecasters Sydney Limited (1990) 168 CLR 594 Director-General of the Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242 Director-General of the Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256 Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232 Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 Garrett v Freeman [2007] NSWLEC 389 Green v Kogarah Municipal Council (2001) 115 LGERA 231 Hanwood Pastoral Co Pty Limited v Director-General, Department of Natural Resources (2005) 144 LGERA 139 Hardt v Environment Protection Authority (2007) 156 LGERA 337 Hughes v R (1983) 49 ALR 110 Hunter Development & Brokerage Pty Limited v Cessnock City Council (2005) 149 LGERA 460 Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 Majury v Sunbeam Corporation Ltd [1974] 1 NSWLR 659 Miller v Minister of Pensions [1947] 2 All ER 372 Miller v Williams (1990) 53 SASR 82 R v Adams (1935) 53 CLR 563 R v Carr-Briant (1943) 41 LGR 183 R v Hunt [1987] AC 352 R v Jasper (2003) 139 A Crim R 329 R v Lonie [1999] NSWCCA 319 Sheldrake v Director of Public Prosecutions [2004] All ER(D) 169 (Oct) Tesco Supermarkets Ltd v Nattrass [1972] AC 153 The Corporation of the City of Adelaide v The Australasian Performing Right Association Ltd (1928) 40 CLR 481 Vines v Djordjevitch (1959) 91 CLR 512 Vitality Care Pty Ltd v Director-General, Department of Natural Resources (2006) 151 LGERA 15 Wollongong City Council v Ensile Pty Ltd (2008) 71 NSWLR 563 Woolmington v Director of Public Prosecutions [1935] AC 462 Young v Warringah Shire Council (2001) 117 LGERA 62
TEXTS CITED:	The Macquarie Dictionary, 3rd ed (The Macquarie Library Pty Ltd, 2001) The New Shorter Oxford Dictionary (Clarendon Press, 1993)
DATES OF HEARING:	3 August 2009 4 August 2009 5 August 2009 6 August 2009 7 August 2009 10 August 2009 11 August 2009 12 August 2009
DATE OF JUDGMENT:	9 February 2010
LEGAL REPRESENTATIVES:	PROSECUTOR Mr S Rushton SC with Mr E Muston SOLICITOR Department of Environment and Climate Change DEFENDANT Mr J Ireland QC with Ms P Lane SOLICITOR McGirr James Hall & Associates