Director-General, Department of Environment and Climate Change v Hudson

[2009] NSWLEC 4

Reported Decision: (2009) 165 LGERA 256

Land and Environment Court

of New South Wales

CITATION:

Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4

PARTIES:

PROSECUTOR:
Director-General of the Department of Environment and Climate Change

DEFENDANT:
John Ross Hudson

INTERVENOR:
Attorney-General of New South Wales

FILE NUMBER(S):

50014 of 2008 & 50035 of 2008

CORAM:

Lloyd J

KEY ISSUES:

ENVIRONMENTAL OFFENCES :- penalty - clearing 486 hectares of native vegetation - failure to obtain development consent - failure to prepare property vegetation plan - failure to comply with a notice to provide information - deliberate conduct - serious offence - no mitigating factors except no prior convictions

LEGISLATION CITED:

Commonwealth of Australia Constitution Act 1900 s 51(xxxi), s 109
Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A(2)(g)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986 s 257B
Environmental Planning and Assessment Act 1979 s 126
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Land and Environment Court Act 1979 s 63
Native Vegetation Act 2003 (NSW) ss 3, 4, 6(1), 7, 9(2), 11, 12, 19, 20, 21, 22, 36(2), 36(4)
Native Vegetation Regulation 2005 cl 20
Noxious Weeds Act 1993 ss 7(1), 12, 35

CASES CITED:

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v Gordon [2005] NSWLEC 695
Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530
Director-General of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297
Environment Protection Authority v Barnes [2006] NSWCCA 246
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189
Greentree v Minister for the Environment and Heritage (2005) 143 LGERA 1
Latoudis v Casey (1990) 170 CLR 534
Minister for the Environment and Heritage v Greentree (No. 3) (2004) 136 LGERA 89
Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89
Pemble v The Queen (1971) 124 CLR 107

DATES OF HEARING:

1 December 2008 & 2 December 2008

 
DATE OF JUDGMENT: 

11 February 2009

LEGAL REPRESENTATIVES:

PROSECUTOR:
S J Rushton SC and E C Muston (barrister)
SOLICITORS:
Department of Environment and Climate Change

DEFENDANT:
D J Walter (agent)
SOLICITORS:
N/A

INTERVENOR:
E C Muston (barrister)
SOLICITORS:
Crown Solicitor's Office

JUDGMENT:

- 26 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Wednesday, 11 February 2009

LEC Nos. 50014 of 2008 & 50035 of 2008

DIRECTOR GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE v HUDSON [2009] NSWLEC 4

JUDGMENT

1 HIS HONOUR: Mr John Ross Hudson and his wife, Mrs Lynn Hudson, were the owners of a property known as “Yarrol”, in the Moree Plains local government area, about 60 kilometres west of Moree, which they purchased on 15 January 2004. The property has an area of 2,126 hectares and has historically been used for sheep and cattle grazing. Mr Hudson is charged with two offences under the Native Vegetation Act 2003. The first charge is that he authorised the clearing of some 486 hectares of native vegetation otherwise than in accordance with a development consent or a property vegetation plan, contrary to s 12 of the Native Vegetation Act. There is no dispute that the native vegetation cleared included Eucalyptus coolabah (“coolibah”), Casuarina cristata (“belah”) and Acacia stenophylla (“river cooba”). The clearing is said to have occurred between about 9 November 2006 and 5 March 2007.

2 The second charge is against s 36(4) of the Native Vegetation Act in that Mr Hudson, without reasonable excuse, failed to comply with a notice issued under s 36(2) of the Act to the extent that he was capable of complying with it.

3 Despite the fact that these are criminal proceedings, with potentially serious consequences for Mr Hudson, he is represented by an agent authorised by him in writing, Mr D J Walter, who is not a lawyer (as permitted by s 63 of the Land and Environment Court Act 1979). Mr Hudson has pleaded not guilty to each offence, thereby putting the prosecutor to strict proof of each element of the offences, including negativing any possible defence which might be available: Pemble v The Queen (1971) 124 CLR 107.

4 In addition to putting the prosecutor to proof of these matters, Mr Walter expressly relies upon the following defences, as I understand them:

(a) The Native Vegetation Act is either void or unenforceable as being beyond the power of the Parliament, because it effectively amounts to the acquisition on other than just terms of private property held in fee simple by Mr Hudson.

(b) The Native Vegetation Act is either void or unenforceable due to an inconsistency with the Criminal Code Act 1995 (Cth) and is thus “prohibited” by s 109 of the Commonwealth of Australia Constitution Act 1900 .

(c) The Native Vegetation Act is either void or unenforceable because it is inconsistent with the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and is thus “prohibited” by s 109 of the Commonwealth Constitution .

(d) The clearing of native vegetation was permitted because it was necessary to do so as part of the permissible activity of removing a noxious weed, Phyla canascens (“lippia”).

(e) The clearing was approved by Ms Elizabeth Savage (a Catchment officer with the Border Rivers-Gwydir Catchment Management Authority).

(f) Mr and Mrs Hudson owned the property in fee simple, the State has no interest in it, and they were thus entitled to do what they did on the land. The trees were their trees.

5 The Native Vegetation Act creating the principal offences also contains a number of statutory defences. It is convenient to first consider the elements of the offence itself and the evidence relating thereto and to then turn to the defences described in the Act and finally the specific defences raised by Mr Walter.

The first offence

6 The first offence is created by s 12:

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.

7 Section 12(2) states that a person who carries out or authorises the carrying out of clearing in contravention of the section is guilty of an offence and is liable to the maximum penalty provided for under s 126 of the Environmental Planning and Assessment Act 1979. The maximum penalty is currently $1.1 million. Section 12(3) refers to defences to proceedings for an offence against the section, which I consider later in this judgment.

8 I accept the submission of the prosecutor that the charge requires the prosecutor to prove beyond a reasonable doubt the following elements comprising the first offence:

(a) clearing occurred on Yarrol;

(b) the clearing was of “native vegetation” as defined in the Act;

(c) there was no development consent granted under the Act for the clearing;

(d) there was no property vegetation plan authorising the clearing; and

(e) Mr Hudson authorised the clearing.

Has the clearing occurred on Yarrol?

9 “Clearing” is defined in s 7 of the Act as one or more of the following:

(a) cutting down, felling, thinning, logging or removing native vegetation,
(b) killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation.

10 The prosecutor submits that the following evidence establishes beyond a reasonable doubt that clearing occurred on Yarrol between the relevant dates. The evidence was not the subject of any objection on behalf of Mr Hudson and none of the prosecutor’s witnesses were required for cross-examination.

11 There is undisputed evidence that, in the period November 2006 to March 2007, earthmoving contractors, namely Mr Daniel Joseph Keenan of D.I.D Contracting Pty Ltd and Mr Raymond Neil Christensen of Christensen’s Earthmoving Pty Ltd, were engaged by Mr Hudson and used bulldozers and chains to fell or uproot trees located on a large area of land within Yarrol.

12 Mr Keith Angus Emery, a senior natural resource officer employed by the Department of Environment and Climate Change, has prepared a report in which he analyses a number of aerial photographs taken of Yarrol between 1967 and 2007. Mr Emery’s analysis confirms that at some point between 10 October 2005 and 24 June 2007 almost all of the taller woody vegetation present upon an identified portion of Yarrol was pushed over.

13 Mr Neal Foster, a senior natural resource officer employed by the Department of Water and Energy, gave evidence of observations which he made of the vegetation on Yarrol between 1995 and 2007. This evidence includes a number of photographs which show that a significant amount of clearing has been carried out on Yarrol.

14 Mr Daryl Albertson, an environment protection officer employed by the Department of Environment and Climate Change, gave evidence of having by chance observed a yellow coloured bulldozer operating in and around the trees on Yarrol on 9 February 2007.

15 Mr Stephen James Beaman, a compliance investigator employed by the Department of Environment and Climate Change, has identified approximately 486 hectares of native vegetation cleared over four lots within Yarrol based on his own observations and field surveys during a number of site inspections in 2007, including a chartered flight over the property on 11 April 2007 and transecting and vegetation samples taken on 17 May 2007.

16 The evidence thus enables the first question to be answered “yes”. Moreover, the evidence clearly established that the clearing was carried out between the dates in the summons, that is, between 9 November 2006 and 5 March 2007.

Was the vegetation cleared “native vegetation”?

17 “Native vegetation” is defined in s 6(1) of the Act as meaning “any of the following types of indigenous vegetation: (a) trees...”. Sub-section 6(2) states:

(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.

18 Accordingly, it became necessary for the prosecutor to prove beyond a reasonable doubt:

(a) that the vegetation cleared on Yarrol consisted of trees;

(b) the date upon which European settlement commenced; and

(c) that the trees were of species that existed in the State before that date.

19 The evidence proving these facts is as follows. Again, this evidence was not challenged and none of the witnesses were required for cross-examination.

20 Scientific investigations of the cleared area undertaken by Dr Christopher Nadolny, a senior resource officer employed by the Department of Environment and Climate Change and Mr Todd Soderquist, an ecologist employed by the Department of Environment and Climate Change, show that the vegetation cleared from Yarrol consisted of trees of various sizes and ages.

21 Dr Nadolny has concluded that the main species encountered amongst the fallen trees on the cleared area were coolibah, river cooba and belah. Dr Nadolny has also concluded that each of these three tree species existed in the State of New South Wales prior to European settlement.

22 Mr Michael Cornelius Flynn, a historian employed by the Crown Solicitor’s Office of New South Wales, deposes that “European settlement” of what is now the State of New South Wales began with the arrival of the First Fleet in January 1788.

23 This date having been identified, Mrs Karen Wilson, a botanist employed by the National Herbarium of New South Wales, concludes, based upon an analysis of their distribution, ecology and growth features, historical specimens and the writing of early explorers and naturalists, that each of the tree species, namely coolibah, river cooba and belah were present in what is now the State of New South Wales prior to January 1788. Mrs Wilson has further examined a number of vegetation samples collected by Dr Nadolny from the felled vegetation upon Yarrol and has confirmed those samples to be coolibah, river cooba and belah.

24 This evidence satisfies me beyond a reasonable doubt that the vegetation that was cleared on Yarrol was “indigenous” as defined by sub-s 6(2) and comprised trees as required by sub-s 6(1).

Was there a development consent granted in accordance with the Act, or a property vegetation plan?

25 A property vegetation plan is a plan approved by the Minister under Pt 4 of the Act.

26 Mr Beaman’s evidence is that he undertook a search of the records held by the Department of Environment and Climate Change insofar as they relate to consents given under the Act (or its predecessor) and property vegetation plans approved by the Minister.

27 Mr Beaman’s search discloses that no development consent has been given for the clearing of native vegetation on Yarrol and that there was no property vegetation plan in relation to Yarrol.

28 Accordingly, I am satisfied beyond a reasonable doubt that the clearing of native vegetation upon Yarrol was not undertaken in accordance with any development consent or property vegetation plan.

Did Mr Hudson authorise the carrying out of the clearing?

29 The evidence satisfies me beyond a reasonable doubt that Mr Hudson personally authorised the carrying out of the clearing of the native vegetation on Yarrol.

30 As has been noted above, at the relevant time Yarrol was owned by Mr and Mrs Hudson. According to the evidence of earthmoving contractors, Mr Hudson personally instructed them as to the area which they were to clear. These instructions were given orally by reference to a map and, in the case of at least part of the cleared area, by Mr Hudson physically marking out the area with a bulldozer.

31 Mr Hudson himself has admitted to Mr Daryl Albertson, Mr Kevin Humphries and Mr Beaman that he cleared the land on Yarrol but sought to justify this clearing on the basis that it was approved by Ms Elizabeth Savage and otherwise undertaken to control the noxious weed lippia.

Was the clearing permitted under Division 2 or 3 or otherwise excluded by Division 4 of the Act?

32 It is a defence in any proceedings for an offence against s 12 if it is established that the clearing was permitted under Div 2 or 3 or was otherwise excluded from the Act by Div 4: sub-s 12(3).

33 Division 2 is headed “Permitted Clearing”. It permits the clearing of native vegetation that is only regrowth, but not protected regrowth (s 19) and the clearing of native vegetation that comprises only groundcover (s 20).

34 “Groundcover” is defined in s 4 as meaning “any type of herbaceous vegetation”. Herbaceous plants are those that are herblike; that is, non-woody (Macquarie Dictionary). The tree species identified by Dr Nadolny as having been cleared on Yarrol are plainly not herbaceous vegetation, so the exemption in s 20 of the Act does not apply.

35 “Regrowth” is defined in sub-s 9(2) as meaning, relevantly, any native vegetation that has regrown since 1 January 1990. The prosecutor has proved beyond a reasonable doubt that the vegetation cleared at Yarrol was not regrowth as defined; that is, the cleared vegetation had not regrown since 1 January 1990. That evidence, none of which is disputed is as follows.

36 The report prepared by Mr Emery concludes that, between 1967 and 2005, with the exception of a small identified area which would appear to have been cleared between 1977 and 1985, no clearing could be observed to have occurred on the portion of Yarrol that was cleared by Mr Hudson between the relevant dates.

37 Dr Nadolny concludes that most of the coolibah and belah trees felled on the property were established well before 1 January 1990, with many possibly being more than 100 years old. Dr Nadolny also concludes that at least one third of the river cooba species felled were established prior to 1990. That is, two thirds of the river cooba trees felled had grown since 1 January 1990. Dr Nadolny’s conclusions are based upon his examination of aerial photographs, measurements of the trunk diameters at breast height of the felled timber and a dendrochronological analysis of a number of trunk samples taken from the felled trees.

38 The study undertaken by Mr Matthew Brookhouse, a PhD scholar and research fellow, Australian National University, further confirms that the river cooba cross sections collected from stems felled on Yarrol at the relevant period belong to two age cohorts corresponding with germination or regeneration from rootstocks during the periods of 1979-1981 and 1986-1988. The germination or regeneration periods for the coolibah and belah samples predate those estimated for the river cooba sample materials, one being between 1972-74 and the other between 1959-61.

39 Evidence from Mr Terry Picone, who was involved in the management of Yarrol between 1985 and 1998, and Mr George Boland, whose son owned Yarrol between 1998 and January 2004, reveals that neither is aware of clearing having occurred on the relevant parts of Yarrol during the time of their involvement with the property.

40 Accordingly, I find beyond a reasonable doubt that the exemption permitted by Div 2 of the Act does not apply.

Has the clearing been undertaken for routine agricultural management activities?

41 Section 21 states that this Div 3 of the Native Vegetation Act sets out the activities that do not constitute the clearing of native vegetation and accordingly are permitted to be carried out without development consent or a property vegetation plan. Section 22 permits clearing for “routine agricultural management activities”.

42 “Routine agricultural management activities” are defined in sub-s 11(1). The relevant parts of the definition for the present case are the following activities:

(a) the construction, operation and maintenance of rural infrastructure:
(i) including (subject to the regulations) dams, permanent fences, buildings, windmills, bores, air strips (in the Western Division), stockyards, and farm roads, but
(ii) not including rural infrastructure in areas zoned as rural-residential under environmental planning instruments or on small holdings (as defined in the regulations),
(b) the removal of noxious weeds under the Noxious Weeds Act 1993 , ...

43 Sub-section 11(2) enables the making of regulations for or with respect to extending, limiting or varying the activities that are routine agricultural management activities.

44 As to the first part of the definition of “routine agricultural management activities”, cl 20 of the Native Vegetation Regulation 2005 identifies the maximum area which may be cleared in connection with the construction, operation or maintenance of various kinds of rural infrastructure.

45 The undisputed evidence of Mr Beaman is that a portion of the clearing undertaken on Yarrol could have been done for the purpose of the construction and maintenance of the following rural infrastructure: (a) the clearing of permanent boundary fence lines; (b) the clearing of permanent internal fence lines; (c) the clearing and maintenance of farm tracks; and (d) clearing for two farm dams.

46 Mr Beaman thus determined, and I accept, that about 14 hectares of the total cleared area was able to be lawfully cleared for the construction, operation and maintenance of the above-mentioned rural infrastructure. It follows that, apart from the 14 hectares identified by Mr Beaman, I find beyond a reasonable doubt that the balance of the clearing undertaken on Yarrol was not authorised by sub-s (1)(a)(i) of the definition of routine agricultural management activities. Sub-section (1)(a)(ii) is not presently relevant.

47 I now turn to the defence that is expressly raised on behalf of Mr Hudson that the clearing was part of the permissible activity of removing the noxious weed, lippia. As noted above, the removal of noxious weeds under the Noxious Weeds Act 1993 falls within the definition of routine agricultural management activities. Section 22 of the Native Vegetation Act, however, which permits clearing for routine agricultural management activities, also states in sub-s (2), that this section does not authorise any clearing of native vegetation “if it exceeds the minimum extent necessary for carrying out the activity”.

48 The defence that has been raised calls for the determination of the following issues:

(a) is lippia a noxious weed?

(b) was Mr Hudson’s clearing “the removal of noxious weeds” under the Noxious Weeds Act ?

(c) did the clearing exceed “ the minimum extent necessary for the carrying out of that activity ?”

49 According to its long title, the Noxious Weeds Act is an act to provide for the identification, classification and control of noxious weeds. The Minister may, by order published in the Gazette, make a weed control order for a specified plant: sub-s 7(1). A plant that is the subject of a weed control order is a noxious weed for the purposes of the Act. Weed Control Order 20, made on 31 August 2006, declares lippia as a “locally controlled weed” in the Moree Shire. The weed control order expressly provides that in relation to lippia:

The growth and spread of the plant must be controlled according to the measures specified in a management plan published by the local control authority and the plant may not be sold, propagated or knowingly distributed.

50 The Moree Plains Shire Council is “the local control authority”: s 35 of the Noxious Weeds Act.

51 On 16 November 2006, the council published a weed management plan for lippia which provided a range of control measures but which expressly limited mechanical control as follows:

This option if utilised can only be undertaken under the direct written instructions from the Local Control Authority (conditions apply) if timber clearing is involved or through an application to clear approved by the appropriate State Government Department. This option is normally carried out in conjunction with sowing back the infested area to a suitable pasture species.

52 Instructions were not sought by Mr Hudson from the council and no instructions were given by the council under the weed management plan. Neither did Mr Hudson seek the approval of any State government department.

53 The evidence of Mr Michael Kane, the chief weeds officer for the council, clearly establishes beyond any reasonable doubt that lippia was at the relevant time a locally controlled weed in the Shire and was the subject of a weed control order published in the Gazette.

54 Section 12 of the Noxious Weeds Act states:

An occupier (other than a public authority or a local control authority) of land to which a weed control order applies must control noxious weeds on the land as required under the order.

55 The prosecutor accepts that lippia was present upon the area that was cleared and in places the infestation was dense. The prosecutor also accepts that lippia is a noxious weed for the purposes of the Noxious Weeds Act. I find, however, that Mr Hudson’s clearing, was not the removal of noxious weeds under that Act, since it was not carried out as required under the weed control order. Accordingly, I find beyond a reasonable doubt that the removal of the noxious weed, lippia, was not a “routine agricultural management activity” as defined in sub-s 11(1)(b) of the Native Vegetation Act.

56 Moreover, I also find beyond a reasonable doubt that the clearing exceeded “the minimum extent necessary for the carrying out of the activity”, contrary to sub-s 22(2)(a) of the Native Vegetation Act. I have come to this conclusion for the following reasons:

(a) Although lippia has a deep tap root of 50-80 centimetres, according to the document headed “ Researching Management and Control Measures for Lippia ”, Mr Hudson’s contention that the extent of his clearing was necessary to cut tap roots by using a “cutter bar” is contrary to the evidence. One of the contractors employed by Mr Hudson, Mr D J Keenan, has stated that although he brought a “cutter bar” to the property it was not used.

(b) There is no evidence to suggest that the felling of a massive number of mature trees was necessary to cut the tap roots of the lippia.

(c) The document described in (a) above states that only short term control can be achieved by mechanical methods, and that herbicides can be used to reduce it without harming competitive grasses.

(d) Long-term management of lippia is best obtained through an integrated approach, involving herbicides, pasture improvement and grazing management according to Agnote DPI-384, a publication produced by the New South Wales Department of Primary Industries.

(e) Contrary to Mr Walter’s submission on behalf of Mr Hudson, some herbicides could be used effectively to control lippia including: (i) glyphosate plus 2,4-D amine; (ii) glyphosate plus metsulfuron and (iii) glyphosate plus 2,4-D amine plus metsulfuron; provided that they are not applied immediately after rain or if rain is forecast within four days of the proposed application, or within 20 metres of a waterway. If control using glyphosate is needed within this distance, then Roundup Biactive, Nurfarm Weedmaster 360 or similar formulations approved for aquatic uses could be used (again according to the publication headed Agnote DPI-384).

(f) Mr Hudson had been informed by Professor Ralph (Wal) Whalley of the University of New England of other ways of controlling lippia.

A consent?

57 Mr Walter on behalf of Mr Hudson submits that the clearing was approved by Ms Elizabeth Savage, a Catchment officer with the Border Rivers-Gwydir Catchment Management Authority.

58 Ms Savage accepts that she and Mr Hudson had a number of discussions about whether and to what extent Mr Hudson could clear vegetation on Yarrol. Ms Savage contemporaneously recorded the advice she gave on the subject in correspondence sent by her to Mr Hudson. Ms Savage’s letter of 9 December 2004 to Mr Hudson included the following statement: “However, native trees and shrubs of greater than ten years of age must be retained on the land”. In her letter to Mr and Mrs Hudson of 13 February 2006 regarding routine agricultural management activities on Yarrol, Ms Savage states (inter alia): “On all areas, remnant trees ie, trees that have grown prior to 1/1/1990 must be retained”. I reject the submission that Ms Savage authorised the clearing that occurred. The evidence is to the contrary.

Other defences

59 There is nothing to suggest that the Native Vegetation Act is void or unenforceable as being beyond the power of Parliament. Being a state act, it is not bound in the same way as Commonwealth acts could be by s 51(xxxi) of the Commonwealth Constitution, which prohibits the acquisition of property where an acquisition is not made on just terms.

60 There is no inconsistency between the Native Vegetation Act and the Commonwealth Criminal Code within the meaning of s 109 of the Commonwealth Constitution. Although states have no external independence - they could not, for example, execute international treaties - states do have internal independence and are free both to legislate and to exercise judicial power over natural resources within their borders. State authorities created by their specific enabling statutes may enforce environmental protection law and ensure efficient operation of a state mechanism the major purpose of which is to prevent or minimize damage to the environment.

61 There is no inconsistency between the Native Vegetation Act and the Environment Protection and Biodiversity Act 1999 (Cth) within the meaning of s 109 of the Commonwealth Constitution.

62 Although Mr and Mrs Hudson hold the land in fee simple and they regarded the trees as theirs, they nevertheless remain subject to laws passed by the State parliament and which apply to all citizens within the State, including the Native Vegetation Act, which secures the sustainable management and conservation of native vegetation.

Conclusion on the charge under s 12 of the Act

63 The evidence satisfies me beyond a reasonable doubt that the defendant has committed the offence as charged.

The second offence

64 As noted in par [2] above, Mr Hudson is also charged with an offence against s 36(4) of the Native Vegetation Act, that on or about 19 October 2007, without reasonable excuse, he failed to comply with a notice issued under sub-s 36(2) of the Act to the extent that he was capable of complying with it.

65 Again, Mr Hudson’s plea of not guilty has meant that the prosecutor has been put to proof of each element of the offence.

66 Mr Hudson also relies upon the defences which he raised in the prosecution under s 12 of the Act, noted in pars [4](a)-(c) and (f) above. For the reasons stated in pars [59]-[62] above the defences are rejected.

67 Section 36 of the Act relevantly states:

36 Power to obtain information

(1) In this section:

relevant information means information about a possible contravention of this Act.

(2) The Director-General may, by notice in writing served on a person, require the person:


(a) to give to an authorised officer, orally or in writing signed by the person (or, if the person is a corporation, by a competent officer) and within the time and in the manner specified in the notice, any relevant information of which the person has knowledge, or

(b) to produce to an authorised officer, in accordance with the notice, any document containing relevant information.


(3) An authorised officer may inspect a document produced in response to such a notice and may make copies of, or take extracts or notes from, the document.

(4) A person must not, without reasonable excuse:


(a) fail to comply with such a notice to the extent that the person is capable of complying with it, or

(b) in purported compliance with such a notice, give information or an answer to a question, or produce a document, knowing that it is false or misleading in a material particular.

68 The evidence of Mr Jason Robert Bentley and Mr Roberto Antonio Pupo establishes that a notice under s 36 of the Act dated 27 September 2007 was served personally upon Mr Hudson on 9 October 2007. The notice required Mr Hudson to provide specified information and/or documents to Mr Bentley of the Special Investigations Unit by no later than 5:00 pm on 19 October 2007. None of the information and documents sought by the terms of the notice have been received by Mr Bentley, nor has Mr Hudson given any reasonable excuse as to why he has not complied with the notice.

69 I am thus satisfied beyond a reasonable doubt that Mr Hudson has contravened s 36(4) of the Act.

Appropriate penalty

70 Even though the question of whether the offences were proved had not been determined, the parties sensibly agreed to make submissions on the question of the appropriate penalty in the event that the offences were proved. This was an appropriate course since both Mr Hudson and his agent, Mr Walter, are based in Queensland.

71 The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (“Sentencing Procedure Act”). In that Act “sentence” is defined to mean a penalty imposed for “an offence”: sub-s 3(1). As noted in par [7] above, a person who carries out or authorises the carrying out of clearing in contravention of s 12 of the Native Vegetation Act is guilty of “an offence”: sub-s 12(2). The purposes of sentencing are:

(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.

72 Also relevant to the question of penalty are the objects of the Native Vegetation Act which are set out in s 3:

The objects of this Act are:

(a) to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and
(b) to prevent broadscale clearing unless it improves or maintains environmental outcomes, and
(c) to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and
(d) to improve the condition of existing native vegetation, particularly where it has high conservation value, and
(e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation,
in accordance with the principles of ecologically sustainable development.

73 The primary consideration in sentencing is the objective gravity or seriousness of the offence, and matters subjective to the offender must not interfere with the imposition of a penalty that adequately reflects the seriousness of the offence: see authorities cited in Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at 215-216, [108]-[109] per Preston J.

74 The objective gravity or seriousness of the offence is reflected in the maximum penalty. In the present case the maximum penalty is the penalty provided for under s 126 of the Environmental Planning and Assessment Act 1979: sub-s 12(2) Native Vegetation Act. At present, the maximum penalty thus provided is $1.1 million. That applies of course, to a wide range of offences of varying degrees of seriousness. Nevertheless, the fact that such a high penalty is adopted by s 12(2) of the Native Vegetation Act shows the seriousness with which the legislature views offences against that section.

75 The seriousness of an offence is also affected by the extent to which it may have been done deliberately. Offences that are committed deliberately are more serious than offences committed due to inadvertence or error: Bentley v Gordon [2005] NSWLEC 695 at [125]-[126] per Preston J. In the present case the offence is at the upper range of seriousness since it was done deliberately and after the defendant had been expressly told by Ms Savage that native trees must be retained on the land.

76 There is a need in sentencing in cases involving clearing or damage to native vegetation to uphold the system of development control: Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349, 355-356 at [72]-[77]. The system of development control would become somewhat ineffective if persons were to carry out development, including the clearing of native vegetation, without ensuring that a necessary consent had first been obtained: Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at 97 [35].

77 It must also be borne in mind that an offence against s 12 is one of strict liability. There is thus an onus on those who propose to clear native vegetation to ensure that any necessary development consent has been obtained.

78 The reasons for committing an offence can be taken into account in measuring its objective seriousness: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, 366. In the present case Mr Hudson did not give evidence, but it was submitted by Mr Walter on his behalf that the clearing was done to remove the noxious weed, lippia. I do not accept the submission. The evidence, which I have summarised at pars [47]-[56] above, demonstrates that the clearing of the mature trees was not necessary for the removal of lippia. The clearing of some 486 hectares was self-evidently done for the purpose of making more land available for agriculture.

79 It follows that this offence would be regarded as falling within the upper range of seriousness. Moreover, the very extent of the clearing means that the harm caused by the offence was substantial. In particular, it defeats the objectives in pars (a) and (b) of the objects of the Act, noted in par [72] above. Recognition of the harm done, in this case to the community, is one of the purposes of sentencing: s 3A(g) of the Sentencing Procedure Act. Where the harm, loss or damage, caused by an offence is substantial, as is the case here, it is an aggravating factor to be taken into account in determining the appropriate sentence: s 21A(2)(g) of the Sentencing Procedure Act.

80 Individual deterrence is another purpose of sentencing: s 3A(b) of the Sentencing Procedure Act. I am satisfied, since Mr Hudson ignored the advice of Ms Savage and proceeded to do precisely what he was told not to do, that unless he is deterred by a substantial fine then he is likely to re-offend. According to Mr Walter, Mr Hudson believes that, as the owner of the land, he is entitled to put it to use for agricultural purposes, the State has no interest in it, and he has done nothing wrong.

81 General deterrence is also an important consideration: s 3A(b) of the Sentencing Procedure Act. The court should be seen to send a message that provisions designed to further environmental interests of the State will be fully enforced.

82 Apart from the fact that Mr Hudson is not known to have any record of previous convictions, there are no mitigating factors. Nothing is known of Mr Hudson’s personal circumstances. He provided no assistance to the prosecutor in the investigation of the offence. He has not provided any expression of contrition or remorse.

83 The principle of even-handedness requires the court to have regard to the general pattern of sentencing in cases which can be regarded as judicially relevant to the case at hand, recognising of course that each case is determined upon its own necessarily peculiar facts: Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701-703.

84 The court’s attention was not drawn to any case involving a penalty for an offence against s 12 of the Native Vegetation Act. In Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530, I imposed a fine of $30,000 following a plea of guilty to a charge of unlawfully clearing some 30 hectares of native vegetation, contrary to the then s 21(2) of the Native Vegetation Act. In Director-General of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297, Biscoe J imposed a total penalty of $40,000 following a plea of guilty to two charges of unlawfully clearing about 13 hectares of native vegetation, contrary to the same provision.

85 In Minister for Environment and Heritage v Greentree(No. 3) (2004) 136 LGERA 89, Sackville J imposed a penalty of $150,000 on an individual offender and $300,000 on a corporate offender for the unlawful clearing of about 100 hectares within a property in northern New South Wales contrary to s 16(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The area cleared had a significant impact on a declared Ramsar wetland. A declared Ramsar wetland is defined to refer to wetlands designated by the Commonwealth under Art 2 of the Convention on Wetlands of International Importance as Waterfowl Habitat 1971, concluded 2 February 1971, 996 UNTS 245, entered into force 21 December 1975, also known as the Ramsar Convention. The maximum penalty in that case was $550,000 in the case of an individual and $5.5 million in the case of a corporation. The judgment of Sackville J was subsequently affirmed on appeal: Greentree v Minister for the Environment and Heritage (2005) 143 LGERA 1.

86 Although the land cleared by Mr Hudson was not of the same environmental significance as that in the Greentree case, it was precisely the kind of native vegetation that s 12 of the Native Vegetation Act is designed to protect. The extent of the clearing - 486 hectares - is substantial. The penalty should properly reflect the deliberate nature of the offence which was committed despite the express instructions given to Mr Hudson that native trees were not to be cleared. The clearing was carried out as part of the agricultural activities on the land and in that sense the offence was part of a commercial operation - that is, it was motivated by commercial considerations.

87 Mr Hudson no doubt feels a sense of injustice in being unable to use this land as he sees fit. However, the fact that he knew that the native trees were protected but nevertheless proceeded to clear them, means that any sense of injustice is outweighed in the sentencing exercise.

88 The fact that the Parliament has specified a very high maximum penalty for a contravention of s 12, the large area of native vegetation that was cleared, the deliberate nature of the offence, the absence of any contrition or remorse and the need for a penalty to act as both a general deterrent and a specific deterrent, all call for a substantial penalty. I acknowledge, however, that Mr Hudson is a first offender, and I can only hope that he remains a first offender.

89 Mr Hudson must also pay the prosecutor’s costs. An order for costs is made not to punish the offender, but to indemnify the successful party for the expense to which he has been put by reason of the legal proceedings - its function is compensatory: Latoudis v Casey (1990) 170 CLR 534 at 543, 563, 566-567. The amount of the costs is not at present known but is likely to be substantial. The amount of costs can be taken into account as part of the consideration of penalty, and I do so: Environment Protection Authority v Barnes [2006] NSWCCA 246. Nevertheless, the purposes of costs and sentencing should not be confused. The prosecutor should be compensated for the costs to which he or she has been put. It is the penalty that serves as a deterrent to others - not the costs order.

90 In exercising the discretion to fix the amount of any fine, the court is required to consider such information regarding the means of the defendant as is reasonably and practically available to the court for consideration: s 6(a) of the Fines Act 1996. Mr Walter did not put such information before the court, so I assume that Mr Hudson has the capacity to pay any fine. The court is also required to consider such other matters as, in the opinion of the court, are relevant to fixing that amount: s 6(b) of the Fines Act. I have set in pars [70] to [88] above those relevant matters.

91 The maximum penalty of $1.1 million fixed by the legislature applies, of course to the worst case. Although this could not be described as the worst case, it is within the upper range of seriousness. I feel, however, that Mr Hudson has been somewhat misguided as to what he is able to do on his land, and I am prepared to give him the benefit of doubt in that sense and ameliorate the penalty accordingly. I assume that he has now learnt his lesson. Having regard to all of the above factors, a penalty of $400,000 should be imposed for the offence against s 12 of the Act.

92 I now turn to the offence against s 36(4) of the Native Vegetation Act. The maximum penalty for an offence against s 36(4) is $11,000. In the absence of any excuse as to why Mr Hudson did not comply with the notice, I cannot see any mitigating circumstances. The appropriate fine is $8,000 together with an order that Mr Hudson pay the prosecutor’s costs of that proceeding.

Orders

93 For the reasons outlined above I make the following orders:

LEC No. 50014 of 2008

1. The defendant is convicted of the offence against s 12 of the Native Vegetation Act 2003, as charged.

2. The defendant is fined the sum of $400,000.

3. The defendant must pay the prosecutor’s costs in accordance with s 257B of the Criminal Procedure Act 1986.

4. The exhibits may be returned.

LEC No. 50035 of 2008

1. The defendant is convicted of the offence against s 36(4) of the Native Vegetation Act 2003, as charged.

2. The defendant is fined the sum of $8,000.

3. The defendant must pay the prosecutor’s costs in accordance with s 257B of the Criminal Procedure Act 1986.

4. The exhibits may be returned.

I hereby certify that the preceding 93 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

Dated: 11 February 2009