Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2)

[2010] NSWLEC 73

Land and Environment Court

of New South Wales

CITATION:

Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73

PARTIES:

PROSECUTOR
Director-General, Department of Environment and Climate Change

DEFENDANT
Walker Corporation Pty Limited

FILE NUMBER(S):

50040 of 2008

CORAM:

Pepper J

KEY ISSUES:

PROSECUTION :- whether native vegetation cleared - whether vegetation native - whether vegetation "regrowth" - meaning of "regrowth" - whether the clearing permitted as "routine agricultural management activities" - whether the clearing a "continuation of existing farming activities" or "sustainable grazing" - whether "native vegetation" includes dead vegetation - whether defendant liable for clearing carried out by independent contractor - whether defendant caused or permitted the clearing by the independent contractor pursuant to s 44 of the Act - whether the defendant vicariously liable for the acts of the independent contractor - defendant guilty

LEGISLATION CITED:

Interpretation Act 1987 s 33
Native Vegetation Act 2003 ss 4, 6, 7, 9, 11, 12, 19, 20, 22, 23, 24, 44 and 46
Noxious Weeds Act 1993
Native Vegetation Regulation 2005
Second Reading Speech to the Native Vegetation Bill (Hansard, 12 November 2003, p 92)

CASES CITED:

CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
Coffs Harbour City Council v Hickey [2004] NSWLEC 531
Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-operative Assurance Co of Australia Limited (1931) 46 CLR 41
Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15
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 Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240
Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1
Harrison v Melhem (2008) 72 NSWLR 380
North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169

TEXTS CITED:

The Macquarie Dictionary (3rd ed), online
Native Vegetation Reform Implementation Group Final Report (2003), NSW Department of Infrastructure, Planning and Natural Resources

DATES OF HEARING:

25-28 May and 9-11 June 2009

 
DATE OF JUDGMENT: 

14 May 2010

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr S Rushton SC with Ms S Callan
SOLICITORS
Department of Environment and Climate Change

DEFENDANT
Mr J Ireland QC with Mr J Maston
SOLICITORS
Colin Biggers Paisley Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

14 May 2010

50040 of 2008 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 2)

JUDGMENT

Contents

Subject Paragraph No

Introduction 1

Summary of Decision 7

Chronological Factual Overview of Events Giving Rise to the Offence 8

Evidence of Mr Edward Hinton 12

ELC Engaged 16

Evidence of Mr Alan Mills 33

Evidence of Mr Dennis Ashton 56

Evidence of Ms Sharne Ridge 60

Evidence of Mr Michael Wood 69

The Statutory Framework for the Offence 77

“Clearing” 80

“Native Vegetation” 81

Liability for the Clearing 82

Defences 85

Elements of the Offence 96

Was There Clearing on the Property? 97

SPOT 5 Imaging and Aerial Photographic Evidence 99

The Property Was Cleared 101

Was the Cleared Vegetation “Native Vegetation”? 106

The Vegetation Comprised Trees and Understorey Plants, Both Living

and Dead 107

The Vegetation Was “Indigenous” 117

The Cleared Vegetation Included One or More of the Seven Species and

Was Not Regrowth 118

Evidence 120

Evidence of Mr Kenneth Turner 122

Evidence of Ms Karen Wilson 145

Evidence of Mr John Palmer 146

Evidence of Dr Andrew Smith 171

The Clements Report 207

The Vegetation Was “Native” 208

The Vegetation Cleared Was Not “Only Regrowth” 222

Onus 223

Meaning of “Regrowth” 227

Was the Clearing Permitted Under Div 3 of the Act? 248

Routine Agricultural Management Activities 250

Continuation of Existing Farming Activities 257

Grazing 258

Is Walker Liable for the Clearing by ELC? 263

Principles of Attribution 268

Liability Under s 44 of the Act 270

The Acts of Mr Fife Were those of Walker 276

Did Walker “Cause or Permit” the Clearing to be Carried by ELC

Pursuant to s 44? 278

Instructions Given to ELC 278

Reliance by Walker on ELC’s Specialist Expertise and Experience 295

Did Walker “Cause” ELC to Carry Out the Clearing? 304

Did Walker “Permit” the Clearing to be Carried Out by ELC? 308

Is Walker Vicariously Liable for the Acts of ELC? 311

Conclusion and Orders 319

Introduction

1 HER HONOUR: This case concerns the unlawful clearing of native vegetation.

2 The defendant, Walker Corporation Pty Ltd (“Walker”) pleads not guilty to an offence contrary to s 12(1) of the Native Vegetation Act 2003 (“the Act”) that through its contractor, Environmental Land Clearing Pty Ltd (“ELC”), it cleared native vegetation as defined in the Act.

3 The summons, filed on 27 June 2008, alleges that the clearing took place between about 1 June 2006 and 6 February 2007 on land at a property owned by Walker near Wilton, New South Wales (being Lot 2 DP 108340 and Lot 2 DP 1076362) (“the property”). The property was situated within the area of the Hawkesbury-Nepean Catchment Management Authority for the purpose of the Native Vegetation Regulation 2005.

4 The area claimed to have been cleared is approximately 23 ha. It is alleged that the clearing took the form of mulching trees, shrubs and groundcover on the property and/or felling trees over and mulching them.

5 It is alleged that the clearing unlawfully included seven species of native vegetation:

(a) Allocasuarina littoralis – Black She-Oak;
(b) Eucalyptus cerebra – Narrow-leaved Ironbark;
(c) Exocarpus cupressiformis – Cherry Ballart, Native Cherry;
(d) Hardenbergia violacea – Purple Coral Pea, False Sarsparilla, Waraburra;
(e) Melaleuca Nodosa – (no common name);
(f) Pimelea linifolia subsp . linifolia – Riceflower;
(g) Pomax umbellata – (no common name)

6 It was an agreed fact that at all material times the property was subject to a weed control order made by the Minister administering the Noxious Weeds Act 1993, that Rubus fruticosus (or blackberry) was a noxious weed for the purpose of that Act.

Summary of Decision

7 I find the defendant guilty of the offence charged. In particular, I find that the defendant caused ELC to carry out the unlawful clearing for the purpose of s 44 of the Act.

Chronological Factual Overview of Events Giving Rise to the Offence

8 The principal background facts were given by Mr Benjamin Fife and Mr Edward Hinton for Walker and Mr Dave Humphreys and Mr Michael Black for ELC. They are, as I have found them, as follows below.

9 On 31 March 2005, Walker purchased the property. At the time, Mr Ben Fife was the officer within Walker principally responsible for the acquisition of the property.

10 Mr Fife negotiated a delayed settlement when the property was initially purchased in March 2005 partly because there had been a discharge onto the land of saline water as a result of previous irrigation work associated with a mine. It was a condition of settlement that the irrigation apparatus be removed from the property.

11 Mr Fife stated that he had visited the property on a number of occasions and saw cattle grazing on the land. The cattle were not generally confined insofar as there were some boundary fences but there were no internal fences. After Walker had acquired the property, Mr Fife had, during his visits to the property, observed cattle agisted on the property. Following the acquisition of the property, Mr Fife arranged with Mr Hinton that the cattle could continue to graze on it.

Evidence of Mr Edward Hinton

12 In an affidavit sworn 10 June 2009, Mr Edward Hinton stated that he had run cattle on the property under agistment arrangements with the owners of it since 1995. He confirmed that a current similar arrangement existed with Walker. This was contained in a licence agreement between him and Walker entered into on 19 August 2004, permitting Mr Hinton to graze up to 50 head of cattle on the property.

13 Mr Hinton also gave evidence of an arrangement with BHP under which saline water from a mine was piped and discharged onto the property. The irrigation equipment was removed around 2004 and there was some dieback of trees near the perimeter of the irrigated area.

14 Further, Mr Hinton gave evidence of a fire that burned the southern part of the property towards the end of 2001 and the start of 2002.

15 Finally, Mr Hinton stated that he saw the results of the clearing by Walker in 2006, in particular a great number of blackberries had been cleared.

ELC Engaged

16 Sometime after its acquisition in 2005, a decision was made by Walker to clear up the property. Mr Fife engaged a contractor, ELC, to undertake the work. There was no formal written contract in relation to the engagement.

17 At ELC, the principle individuals with whom Mr Fife dealt were Mr Michael Black and Mr Dave Humphreys. According to Mr Fife, ELC held itself out as a specialist in environmental land clearing who undertook work of this nature for the government.

18 Mr Humphreys agreed that ELC held itself out as such. Mr Humphreys stated that the nature of ELC’s business at that time was vegetation reduction of all types. However, Mr Humphreys stated that he did not have a strong grounding in knowledge of native vegetation when he commenced employment with ELC in March 2006. Mr Humphreys stated that he did not have any botanical knowledge of Australian trees, in particular native Australian trees.

19 Mr Black stated that ELC initially started a specialist land clearing company and then it diversified into a range of services, predominantly for government contract work. In 2006, however, the nature of the company’s business was still predominantly that of clearing and maintenance.

20 Mr Black further stated that ELC was in the business of clearing land under the guidance of advice from qualified experts, for example, qualified ecologists. Mr Black stated that it was the practice of the company to subcontract any specialised expertise that was required. The rationale for this subcontracting was to “obtain quality assurance”. However, Mr Black conceded that in 2006 the company put itself forward as having both specialist expertise and equipment for the purpose of land clearance.

21 Both Mr Black and Mr Humphreys stated that as at 2006, ELC had a range of specialised equipment for land clearing. It had a New Holland TV 140 tractor and a tremme mulcher tractor, the latter of which was known as a “mega-mulcher”. The mega-mulcher converted ground vegetation to mulch. It also allowed trees up to 30 mm width to be felled and then mulched. Both tractors had the capacity to mulch and remove trees, however, the mega-mulcher had the capacity to deal with larger trees and more difficult terrain. The tractors had large rotating drums on the front with multi-directional teeth which could be lifted up and down to mulch fallen timber, timber on the ground and standing timber. The standing timber was mulched by the mulch head being brought up to the base of the tree with the drum rotating at high speed. The rotation of the drum cut a chunk out of the tree which then caused it to fall. The drum then carried forward, mulched the stump to ground level and then the tractor turned around, and mulched down the length of the tree turning it into mulch and debris.

22 In June 2006, Mr Humphreys stated that he received a telephone call from Mr Michael Black, the managing director of ELC, to meet Mr Ben Fife to arrange a site visit at the property.

23 Mr Black stated that a request had come from Mr Fife to do some clearing work on a property that Walker had recently acquired. Mr Fife stated that Walker had bought the site at a reduced rate due to “illegal dumping of water on site” which had caused some contamination.

24 This accorded with Mr Humphrey’s observations that it appeared that water had been deposited on the land over several years.

25 Mr Humphreys subsequently met Mr Fife and another representative from Walker, Mr Anthony Lansborough, and drove to the property. Mr Lansborough did not give evidence.

26 Mr Fife gave Mr Humphreys an overview of what Walker wanted to occur and told Mr Humphreys that he was generally seeking “to tidy up” the property. That is to say, the work involved keeping the undergrowth at bay, clearing and spraying the blackberries, removing car bodies, maintaining existing tracks, maintaining existing fence lines and maintaining dams. Mr Humphreys recalled Mr Fife being specifically concerned about the clearing of blackberries which were “everywhere”.

27 Mr Fife told Mr Humphreys that he would “like to tidy up the site and that it was a long term project subject to rezoning in the future”. In relation to ‘tidying up the site’, Mr Humphreys said that Mr Fife was initially “keen to reduce the tree line by 50 m or so around the whole site and remove several clumps of large trees that were in the middle of the site”.

28 Mr Fife stated that this discussion did not specifically include the subject of what vegetation should be removed, other than the blackberries, but that it did include “small regrowth”. According to Mr Fife’s evidence, he understood the word “regrowth” to mean “small trees that look like they’ve grown relatively recently”.

29 Because Mr Fife did not explain to Mr Black what clearing Walker wanted, this information was relayed from Mr Humphreys to Mr Black. Mr Humphreys told Mr Black that Walker wanted some clearing around the perimeters of certain sections of the property. The objective was to create a totally cleared 50 m buffer around these areas.

30 Mr Fife stated in his oral evidence that he was not asked by anyone at ELC for any information concerning the zoning of the property when it initially undertook the work. However, at the time he gave the initial instructions to Mr Humphreys, Mr Fife agreed that he had not taken any steps to satisfy himself what could be lawfully removed. Simply, Mr Fife had driven around the property with Mr Humphreys and indicated to him from the vehicle the areas he wanted cleared.

31 Mr Fife also stated in evidence that during his conversations with Mr Black, Mr Black had asked Mr Fife whether or not there were any existing approvals for work proposed to be undertaken and he had indicated to Mr Black that there were not.

32 The main workers on site undertaking the clearing were Mr Alan Mills, Mr Trevor Crisps, Mr Andrew Elliott and Mr Ben Black (the son of Mr Michael Black). It was Mr Humphreys who gave the instructions as to what areas had to be cleared to the workers. These instructions were in turn, Mr Humphreys stated, given to him by Mr Fife. Mr Fife instructed him as to the particular areas to be cleared. What vegetation was cleared, however, was not the subject of detailed instruction by Mr Fife to Mr Humphreys.

Evidence of Mr Alan Mills

33 Mr Alan Mills, a plant operator employed by ELC operated the mega-mulcher and New Holland tractor. He stated that he met Mr Humphreys on site and Mr Humphreys told him on a drive around of the area to engage in “underscrubbing” of the property but not “clearing”. Mr Mills understood Mr Humphreys’ reference to “underscrubbing” to be “generally just like regrowth, lantana, stuff like that”. He confirmed that this included small trees. It was Mr Mills’ understanding that “regrowth” was growth present in an area that had been cleared before, this included trees of approximately three or four feet high and blackberries. Mr Mills stated that the underscrubbing was done by the mega-mulcher.

34 Mr Mills confirmed that Mr Humphreys’ instructions to him were that no tall trees were to be felled and that he was “just taking the low stuff out”. Mr Mills indicated that he mulched small trees, or “scrub”, and trees that he thought were dead on the property. Mr Mills stated that as far as he was aware there was no felling of large trees, rather the work performed consisted of underscrubbing from the margin of the property into the edge of the forest. Mr Mills also gave evidence of having seen cattle on the property in the areas where he was working.

35 Mr Mills stated that when he had run out of work in an area, he would ring Mr Humphreys who would come to the property and show Mr Mills the next section to be cleared. He did not make any decisions himself in relation to what areas on the property were to be cleared.

36 Mr Humphreys supervised the clearing by attending the property two or three times a week to see how it was progressing. Mr Humphreys believed his role to be to exercise some “thought and control” about the methods of clearing that were to be employed. Mr Humphreys stated that while he did not operate the machines, he managed the workers who did. Mr Humphreys stated that he used his common sense in directing the men to do the work on the property. This common sense extended to the realisation that large trees were not to be cleared. Thus ELC did not carry out the 50 m clearance as requested by Walker in respect of the large canopy trees. Rather the 50 m clearing was an “underscrubbing” exercise only.

37 According to Mr Humphreys, the machinery that ELC used for this work were the mulching tractors. Mr Fife was aware of the machinery used. On one occasion during a visit to the property he observed an articulated tractor with a roller on the front driving towards small vegetation and mulching it.

38 Mr Humphreys stated that the standing trees that were felled wouldn’t have been any more than 200 mm and were generally on the fringe of the cleared areas characterised predominantly by lots of scrubby bush and timber lying on the ground. The taller trees were maintained and left.

39 Mr Humphreys said that the tractors and mega-mulcher were, however, used to grind up fallen trees, including a number of dead trees he recalled seeing on the ground.

40 Mr Humphreys stated that he had observed that the property had been used for cattle grazing and that the property was used by cattle.

41 Mr Black was not present generally on the property while the work was being carried out. Mr Black stated that he visited the site on two occasions and saw clearing taking place. Mr Black described the activity as not “bulk clearing”, but rather “maintenance” work. Mr Black stated that in one instance he observed clearing that had taken place 20 or 30 m around and leading up to a dam on the property. He noted the removal of groundcover vegetation.

42 Mr Humphreys gave evidence that Mr Fife attended the site only a couple of times between August and November 2006. On each occasion though it was Mr Humphreys’ understanding that Mr Fife was satisfied as to the process of the works.

43 The evidence discloses that work commenced on the property in about late July 2006. First, the blackberry bushes were slashed and cleared and in August 2006 ELC removed and mulched small bushes and small saplings in the areas instructed to be cleared. This initial clearing inadvertently encroached upon a riparian zone. The zone was a watercourse with no water flowing through it.

44 Mr Humphreys confirmed that ELC had carried out the mulching of trees in the riparian zone. At the time, the significance of the riparian zone and the need to keep a vegetation buffer at the edge of the watercourse was not known or appreciated by ELC. Subsequently, logs were placed as a protective measure around the watercourse by ELC to keep vehicles away from it.

45 In or about early August 2006, subsequent to a request by Walker to engage in further clearing, Mr Humphreys expressed his concerns to Mr Michael Black about the extent of the clearing requested by Walker. He told Mr Black that he was uncertain as to the scope of the work and that he “just wanted him to confirm to me that what we were doing was ok in the areas where we were working and he said he talk to Mr Fife about it and get back to me”. Mr Black subsequently ‘got back’ to Mr Humphreys and told him that “everything was ok because of the zoning of the land and its uses, use for agriculture and the intended further use for agriculture and that what we were doing was ok”.

46 In the meantime, Mr Humphreys arranged, with Mr Fife’s authorisation, for an ecologist to inspect the site and provide advice on the clearing. Mr Black stated that he told Mr Fife that he needed to obtain this report in order to confirm whether ELC could proceed with the work as requested.

47 As a consequence, ELC commissioned Ms Elizabeth Ashby of Keystone Ecological Pty Ltd to conduct a site assessment to determine what vegetation was present and to provide advice as to what conservation measures should be undertaken at the property. The Keystone report was provided to ELC on or about 16 August 2006 (“the 2006 Keystone report”).

48 Mr Black stated that the step of engaging Ms Ashby of Keystone was prompted by a concern about the extent of the work to be carried out on the site. The report was commissioned by ELC with Walker’s approval and the fee for the report was initially paid by ELC and then passed onto Walker.

49 The 2006 Keystone report was first sent to Mr Black and Mr Humphreys at ELC. Mr Humphreys stated that within a couple of weeks of receiving the 2006 Keystone report he wrote a brief summary of the report for Mr Fife and emailed it to him on 27 September 2006. This evidence was confirmed by Mr Black. Mr Fife gave evidence that he recalls the 2006 Keystone report being emailed to him from “somebody” at ELC.

50 The email attaching the report asked Mr Fife to review the attached advice. No advice or response was ever received from anyone within Walker.

51 The emailed report to Walker was almost a virtual copy of the 2006 Keystone report, absent any headings to indicate it was authored by Keystone.

52 Mr Humphreys stated that some areas of the property were in fact not cleared because of the advice received from Keystone. However, he conceded that prior to the 2006 report, it was “actually just a matter of luck that we went for what we went for, after her report it was what was considered as regrowth”.

53 Notwithstanding receipt of the 2006 Keystone report, given a reassurance from Mr Fife to Mr Black that ELC could proceed, ELC recommenced clearing in or about October 2006.

54 At about this time a significant storm event occurred causing broken branches and trees to fall onto the property, particularly over the area to the south of the riparian zone.

55 The work halted temporarily but in December 2006, Mr Fife gave further instructions to Mr Humphreys to continue clearing. That month ELC continued to work on the property, including mulching and under scrubbing until January 2007, when it ceased.

Evidence of Mr Dennis Ashton

56 In his affidavit sworn 12 September 2008, Mr Dennis Ashton of the Sydney Catchment Authority (“SCA”) states that on 10 January 2007 he received a report of smoke in the Wilton area. Upon further investigation, he observed from the SCA boundary, tractors which appeared to be “pulverising” vegetation in the southern area of the property. The tractors had tritters fitted. Mr Ashton observed this activity for approximately five minutes. Mr Ashton subsequently informed Ms Jennie Whyte of the then Department of Natural Resources (now DECC) of the clearing on 11 January 2007.

57 On 23 January 2007, Mr Ashton inspected the property again from the SCA boundary and took photographs and a GPS reading of what he observed as clearing. In addition to the machinery present and working on the property Mr Ashton observed that the cleared area had increased in size since his last visit on 10 January 2007. Subsequently, Mr Ashton marked on an aerial photograph where the clearing had been observed by him on the property.

58 During oral evidence Mr Ashton said that he had observed cattle running on the property. Mr Ashton was also aware that prior to January 2007 there had been a reticulation system on the property for salt water used in mining operations.

59 Mr Ashton further recalled that in Christmas 2001 a fire had come through the general area where the property was located. He stated that the fire burnt a little bit to the south of the property.

Evidence of Ms Sharne Ridge

60 On 30 January 2007, Ms Sharne Ridge, a compliance officer with the Natural Resources Project Office of DECC was allocated responsibility for investigating a report of clearing on the property.

61 On 2 February 2007, Ms Ridge discovered that the property was zoned rural 1(a) and that the relevant council, Wollondilly Shire Council (“the Council”), had no record of any development consents issued for clearing on the property.

62 Ms Ridge visited the site on two occasions. The first, on 6 February 2007, to the southern area of the property, where she was accompanied by Mr Michael Wood, Mr Rod Hailstone and Mr Ken Turner. The second, on 7 March 2008, to the northern area of the property, where she was accompanied by Mr Hailstone and Mr Turner.

63 On both occasions Ms Ridge drove through the property observing recently cleared areas, photographing her observations and recording GPS coordinates of where the cleared areas were located.

64 She also assisted Mr Ken Turner, an ecologist, by recording the diameter at breast height (“DBH”) of particular species of vegetation identified and measured by Mr Turner. Mr Ken Turner, whose evidence is discussed in greater detail below (at [122]-[144]), accompanied Ms Ridge during the inspection on 6 February 2007. He was of the opinion that the areas he inspected had been recently cleared. In this regard, he noted recent topsoil disturbance caused by the mechanical clearing of tree, shrub and groundcover plants. This was evidenced by large areas of exposed mineral soil, tracks of large rubber tyres, woodchips and shredded bark, felled and partly trittered tree trunks and stumps and flayed and shredded grass and sedge trussocks.

65 Ms Ridge mapped the information she had collected concerning the location of the clearing and created shapefiles containing polygons representing the cleared areas she had observed. The criteria for the creation of a polygon of a cleared area was the presence of mulch on the ground and the absence of grasses, fallen logs, shrubs, and vegetation lower than about 2 m. Ms Ridge stated that she had additionally observed as a common feature in the cleared areas, an absence of carpet format leaf litter and an overlay of chipped material on the ground.

66 Ms Ridge used an aerial photograph of the property dated 9 April 2006, which did not show any subsequent clearing of vegetation to compare her observations and data of the cleared areas obtained on her site visits to the uncleared areas visible on the aerial photograph.

67 Further, Ms Ridge overlaid some of the shapefiles she had created onto part of a SPOT 5 image dated 17 September 2006, to demonstrate the extent of the clearing that she had observed. Ms Ridge excised areas to allow for permitted routine agricultural management activities and because the property is located within the area of operations of the Hawkesbury-Nepean Catchment Management Authority, she allowed a distance of 10 m from the edge of cleared areas as a “buffer distance” as specified by the Native Vegetation Regulation. She reduced the size of the polygons in the shapefiles accordingly, thereby ensuring that her mapping of the cleared areas within the northern and southern subject areas took into account this buffer. It was these completed shapefiles that delineated and identified the areas cleared by ELC in the southern and northern parts of the property.

68 In cross examination Ms Ridge agreed that the property was currently being grazed and had cattle upon it. Ms Ridge stated that it was her impression that the cattle that she had seen had freedom of access into the southern parts of the property. That is to say, there were no fences inhibiting the cattle moving to that part of the property.

Evidence of Mr Michael Wood

69 Mr Michael Wood is a compliance officer employed by DECC. In his affidavit affirmed 9 October 2008, he states that he visited the property on 6 February 2007. He accompanied Mr Turner, Mr Hailstone and Ms Ridge. The visit lasted most of the day.

70 Based on his observations of the site inspection, Mr Wood described the cleared areas on the property as having low to moderate tree cover with a dense layer of vegetation debris on the ground. He noticed the soil had been disturbed in the cleared areas and there were some stumps from recently cleared trees at ground level. This was contrasted with the uncleared areas the vegetation of which was characterised by him as having a dense mixed species understorey with few signs of disturbance. The overstorey was dominated by eucalypt species. He conceded that there were number of large standing trees in the cleared areas.

71 Mr Wood assisted Mr Turner with the sampling and measuring of vegetation in various sample plots (linear areas of land usually between 50 – 100 m in length and 20-50 m in width). He also recorded several GPS coordinates at various locations on the property where he observed signs of disturbance.

72 Mr Wood provided the photographs he took and GPS information he obtained to Ms Ridge.

73 In February 2007, Keystone issued a second report (“the 2007 Keystone report”) on the likely impact of the proposed clearing on the property by Walker. It concluded that a significant impact was not likely to occur. By this stage, however, clearing activity on the property had ceased.

74 On 18 June 2007, DECC served Walker with a notice to provide information and documents under s 36 of the Act.

75 On 18 December 2007, DECC again served ELC with a notice to provide information and documents under s 36 of the Act.

76 On 27 June 2008, DECC commenced the prosecution against Walker.

The Statutory Framework for the Offence

77 The objects of the Act are described in s 3 as follows:

3 Objects of Act

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.

78 The offence of unlawful clearing of native vegetation is set out in s 12 of the Act. It provides that:

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.

79 It was conceded by the defendant that there was neither a development consent approved permitting the clearing (s 12(1)(a)) nor was there a property vegetation plan (“PVP”) authorising the clearing (s 12(1)(b)).

“Clearing”

80 The term “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.

“Native Vegetation”

81 The term “native vegetation” is defined in s 6 of the Act relevantly to mean:

(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.

Liability for the Clearing

82 The prosecutor submits that Walker is liable for the clearing carried out by ELC on several bases, including pursuant to s 44 of the Act.

83 Section 44 of the Act provides that a landholder is taken to have carried out the clearing unless it is established the clearing was carried out by another person and the landholder did not cause or permit that person to carry out the clearing:

44 Evidentiary provision

In any criminal or civil proceedings, the landholder of any land on which native vegetation is cleared is taken to have carried out the clearing unless it is established that:

(a) the clearing was carried out by another person, and
(b) the landholder did not cause or permit the other person to carry out the clearing.

This section does not prevent proceedings being taken against the person who actually carried out the clearing.

84 The term “landholder” is defined in s 4(1) of the Act to mean:

a person who owns land or who, whether by reason of ownership or otherwise, is in lawful occupation, or has lawful management or control, of land.

Defences

85 Section 12(3) of the Act provides that it is a defence if the defendant can establish that the clearing was permitted under Div 2 or 3 of the Act or was otherwise excluded from the Act by Div 4.

86 Division 2 concerns “Permitted clearing”. Sections 18 and 19 provide the following:

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.

87 The clearing of native vegetation is therefore permitted if it is “only regrowth”, but not if it is protected regrowth (which was not in issue).

88 The term “regrowth” is relevantly defined in s 9(2) and (4) as meaning:

(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,
(b) the date specified in a property vegetation plan for the purposes of this definition (in exceptional circumstances being a date based on existing rotational farming practices).

…

(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.

89 Thus for present purposes, “regrowth” means any native vegetation that has regrown since 1 January 1990, but does not include any native vegetation that has regrown following unlawful clearing of remnant native vegetation or following the clearing of remnant native vegetation caused by bush fire, flood, drought or other natural causes.

90 The term “groundcover” is defined in s 4 to mean “any type of herbaceous vegetation”.

91 Section 21 states that Div 3 sets out the activities that do not constitute the clearing of native vegetation and are therefore permitted to be carried out without either development consent or a PVP.

92 In this regard, s 22 provides that:

22 Routine agriculture management activities

(1) Clearing for routine agricultural management activities is permitted.

(2) This section does not authorise any clearing of native vegetation:

(a) if it exceeds the minimum extent necessary for carrying out the activity, or
(b) if it is done for a work, building or structure before the grant of any statutory approval or other authority required for the work, building or structure.

93 The term “routine agricultural management activities” is relevantly defined in s 11 as:

11 Meaning of routine agricultural management activities

(1) For the purposes of this Act, routine agricultural management activities mean any of the following activities on land carried out by or on behalf of the landholder:

…

(b) the removal of noxious weeds under the Noxious Weeds Act 1993 ,
(c) the control of noxious animals under the Rural Lands Protection Act 1998 ,
(d) the collection of firewood (except for commercial purposes),…

(2) The regulations may make provision for or with respect to extending, limiting or varying the activities that are routine agricultural management activities, and subsection (1) is to be construed accordingly.

94 Further activities that do not constitute the clearing of native vegetation for the purpose of Pt 3 of the Act and which are accordingly permitted to be carried out without a development consent or PVP include “existing farming activities” (s 23) and “sustainable grazing” (s 24).

95 These terms are defined respectively as follows:

23 Continuation of existing farming activities

(1) The continuation of existing cultivation, grazing or rotational farming practices is permitted if it does not involve the clearing of:

(a) remnant native vegetation, and
(b) in the case of the Western Division—native vegetation comprising trees not less than 3 metres high of any of the following species: Eucalyptus camaldulensis (river red gum), Casuarina cristata (belah), Casuarina pauper (belah) or Callitris glaucophylla (white cypress pine).

(2) In this section, existing means existing at the commencement of this Act.

24 Sustainable grazing

Sustainable grazing that is not likely to result in the substantial long-term decline in the structure and composition of native vegetation is permitted.

Elements of the Offence

96 The offence requires the prosecution to prove beyond reasonable doubt the following contested elements:

(a) that “clearing”, as defined in the Act, occurred on the property;

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

(c) that the clearing was not permitted; and

(d) that Walker is liable for the unlawful clearing carried out by ELC.

Was There Clearing on the Property?

97 The prosecution relied on the evidence of several eyewitnesses to the clearing and the instructions given by Walker to ELC to clear. They were as follows:

(a) Mr David Humphreys;

(b) Mr Michael Black;

(c) Mr Alan Mills;

(d) Mr Benjamin Fife;

(e) Mr Dennis Ashton; and

(f) Mr Michael Wood.

98 To this may be added the evidence of Mr John Palmer, Mr Ken Turner and Ms Sharne Ridge.

SPOT 5 Imaging and Aerial Photographic Evidence

99 In addition to the eyewitness evidence, the prosecution relied on satellite and aerial photography to demonstrate that clearing had taken place on the property. The following evidence was put forward by the prosecution to prove this imagery:

(a) an affidavit of Mr Damian Carroll, a senior manager of Spot Imaging Services Pty Ltd (“SIS”), affirmed 18 September 2008. Mr Carroll described how the SPOT 5 images dated 6 February 2005 and 17 September 2006 were obtained by SIS and supplied to the Department of Infrastructure, Planning and Natural Resources (“DIPNR”);

(b) an affidavit of Mr Michael Peters, Processing Manager with Geoimage Pty Ltd (“Geoimage”), affirmed 14 October 2008. Mr Peters described the process by which the SPOT 5 satellite could be programmed to capture imagery on demand. SPOT 5 imagery is acquired by SIS and supplied in raw form to DIPNR. The raw image is then supplied by DIPNR to Geoimage, together with GPS and other positional information to be processed by orthorectification. Geoimage orthorectified the two SPOT 5 images dated 6 February 2005 and 17 September 2006. Mr Peters confirmed that both images had been properly orthorectified;

(c) affidavits of Mr Michael Dwyer, employed by the New South Wales Department of Water and Energy as Team Leader, Spacial Services, Environmental Evaluation & Performance Branch, Water Management Division, affirmed 16 September 2008 and 27 May 2009. Mr Dwyer attested to the use of high-resolution image acquisition from satellites such as the SPOT 5 system to identify and confirm clearing activities. He stated that using these images it is possible to detect changes in larger individual trees or clumps of trees;

(d) affidavits of Mr Hugh Gould, employed by the Department of Lands as a Supervisor of Aircraft Operations, two affirmed on 13 October 2008 and one affirmed on 27 May 2009, together with exhibits. Mr Gould supervised the operation of the aircraft captured aerial imagery with an ADS 40 digital camera. Mr Gould stated that the image identified as ‘Wollongong_50cm.ecw’ was an aerial photo of the Wollongong area. The photo was an aggregated image built up by photos taken from a number of flights on different occasions which then results in one merged image. Mr Gould stated that the ‘Wollongong_50cm.ecw’ image was comprised of photos taken from flights completed on or about 2 April 2008. Thus the date of the image was around 2 April 2008;

(e) an affidavit of Mr Alan Garside, Product Manager of Spatial Data Services at Land and Property Information in the Department of Lands, sworn 24 September 2008, together with exhibit. Mr Garside extracted cadastral information for the two lots comprising the property; and

(f) an affidavit of Mr Jeremy Black, Manager, Spatial Products and Services for DECC, affirmed 26 May 2009. Mr Black supplied the image ‘Wollongong_50cm.ecw’ from ADS40 ECW images to the Department of Water and Energy on or about 19 December 2008.

100 The creation and provision of neither the SPOT 5 satellite images nor the aerial photography was challenged by the defendant. I therefore accept their provenance and accuracy.

The Property Was Cleared

101 While I accept that prior to the work undertaken by ELC in July 2006, there was some disturbance of the vegetation on the property in the form of fire, grazing, logging and dieback caused by the salt water irrigation contamination this disturbance was, I find, minor. The evidence of the witnesses referred to above demonstrates beyond reasonable doubt, in my view, that the activities that were undertaken on the property by ELC during the charge period constituted “clearing” as that term is defined under the Act.

102 The work undertaken by ELC included the removal of blackberries, the mulching of smaller standing trees and the underscrubbing of bush and understorey. This undeniably constituted vegetation that was “cut down”, “thinned” or “removed”. While the defendant submitted that, and both Mr Fife and Mr Black described, the work undertaken by ELC as merely “underscrubbing”, the fact remains that vegetation was ‘cleared’ during this process.

103 This finding is supported not only by the evidence of those who engaged either directly or indirectly in the clearing, such as Mr Humphreys or Mr Mills, but also on the observations of Mr Ashton and Mr Fife and by the photographic evidence of Ms Ridge, Mr Ashton, Mr Wood and Mr Turner. The photographs and observations provided by them revealed mulched, chipped and shredded material in cleared areas, stumps, visible evidence of recent topsoil disturbance consistent with the mechanical clearing of trees, shrubs and groundcover plants that far exceeded the earlier historical disturbances that occurred on the property.

104 The eyewitness evidence was confirmed by the aerial photography and SPOT 5 images, which I have found are accurate and reliable, and the interpretation of that evidence by Mr Palmer, a qualified and experienced expert in this regard.

105 I therefore find beyond reasonable doubt that vegetation was cleared on the property.

Was the Cleared Vegetation “Native Vegetation”?

106 Having regard to the definition of “native vegetation” in s 6 of the Act, it is incumbent on the prosecutor to prove beyond reasonable doubt that:

(a) the vegetation cleared on the property consisted of either trees, understorey plants, groundcover or plants occurring in a wetland;

(b) the date on which European settlement commenced;

(c) that the vegetation cleared was of a species that existed in the State before that date; and

(d) one or more of the seven species identified by the prosecutor as having been cleared by the defendant was located within the relevantly identified cleared areas.

The Vegetation Comprised Trees and Understorey Plants, Both Living and Dead

107 It is not in dispute that the seven species cleared by ELC during the charge period comprise either “trees” or “understorey plants” within the meaning of s 6(1)(a) and (b) of the Act. The evidence of Mr Turner, discussed below (at [122]-[144]) which was not challenged by the defendant in this regard, proves this to the requisite standard. I am therefore satisfied beyond reasonable doubt that the trees and plants cleared constituted vegetation for the purpose of determining whether or not it was “native vegetation”.

108 However, the defendant submitted that to the extent that dead trees and plants were removed or mulched, this did not constitute vegetation for the purposes of the Act. Simultaneously, the defendant also emphasised the great number of dead trees that were cleared by ELC and submitted that the failure of the prosecution’s expert witnesses to count the number of dead trees in the plots sampled called into question the reliability of the methodology of comparing cleared and uncleared plots in order to infer whether native vegetation was cleared from the particular areas.

109 While the term “native vegetation” is defined in s 6 of the Act, the term “vegetation” is not. The word “dead”, however, appears in ss 20 (the permitted clearing of groundcover in certain circumstances) and 46 (the regulation of collection of timber for commercial firewood) of the Act. The defendant seized upon the presence of the qualifier in each section to argue that where the word “vegetation” appears stripped of such a qualifier, it did not include dead vegetation. Thus “vegetation” in s 6 meant living vegetation.

110 The defendant referred to various dictionary definitions of the term “vegetation”. The Macquarie Dictionary (3^rd ed and online) defines “vegetation” as “plants collectively; the plant life of a particular region considered as a whole”. Thus the term “vegetation”, the defendant argued, refers to living, and not dead, plant life.

111 However, when ss 6 (which defines “native vegetation” to include “groundcover”) and 20 (which permits the clearing of certain groundcover where, amongst other things, not less than 10% of the area is covered with “vegetation (whether dead or alive)”) are read together, this arguably means that the term “native vegetation”, and thus “vegetation” for the purpose of s 12 because it comprises “groundcover”, includes both dead and living matter.

112 More persuasively, in my view, a definition of the term “vegetation” which includes both dead and living vegetation achieves greater harmony with an expansive statutory conceptualisation of “native vegetation” which includes the entire plant community from groundcover up.

113 Such an interpretation is also consistent with the objects of the Act in s 3 given, for example, the contribution of native vegetation of high conservation value having regard to biodiversity, or the prevention of salinity or land degradation (s 3(c)). The assumption in the defendant’s contention is that dead vegetation is of limited conservation value and to clear it falls outside the ambit of the legislation. This is not necessarily the case. Dead vegetation has the capacity to retain soil, it provides nutrients as it decomposes and can often play an integral role in the conservation and preservation of threatened habitat and species.

114 Accordingly, I therefore reject the restrictive construction of the term “vegetation” posited by the defendant and find that it includes, for the purposes of s 6, both living and dead plant matter.

115 Ultimately, however, the issue is of marginal significance because on an evidential basis, while I accept that the defendant cleared some vegetation that was dead, the extent of this clearing remains, in my opinion, unquantified.

116 I also do not consider that by omitting to count the number of dead trees in the sampling carried out by Mr Turner, this undermined the integrity of the analysis undertaken by him. As discussed below, both Mr Turner and Mr Palmer were questioned as to the likelihood of significant loss of vegetation on the property due to dieback caused by salinity thereby accounting for a loss of vegetation evident both in aerial photography and on the ground and they both discounted it. For the reasons given below I accept their evidence in this regard.

The Vegetation Was “Indigenous”

117 It was accepted by the defendant that the seven species were “indigenous” within the meaning of that term contained in s 6(2) of the Act. That is to say, the seven identified species were species that existed in the State of New South Wales before European settlement in January 1788 (as to the former fact, this was proved beyond reasonable doubt by the unchallenged affidavit evidence, in this regard at least, of Ms Karen Wilson, affirmed 17 October 2008; as to the latter fact, this was proved beyond reasonable doubt by the unchallenged affidavit evidence of historian Mr Michael Flynn, affirmed 12 May 2009).

The Cleared Vegetation Included One or More of the Seven Species and Was Not Regrowth

118 The remaining issue is whether or not it has been established that the vegetation cleared on the property, included any of the seven species of native vegetation identified by the prosecutor.

119 While discussing this issue it is also convenient to deal with the question of whether, assuming the vegetation was “native”, it constituted “regrowth” as that term is defined in the Act.

Evidence

120 In relation to both issues, the prosecution principally relied on Mr Kenneth Turner, a terrestrial ecologist employed by DECC, Ms Karen Wilson, a botanist employed by DECC and Mr John Palmer, a resource information officer with DECC.

121 The defendant, relied on the evidence of Dr Andrew Smith, an ecologist, who was assisted in the collection of data by Mr Tony Rodd and Ms Jane Rodd from Anne Clements & Associates Pty Limited, who, together with Dr AnneMarie Clements, produced a report dated 28 May 2009 (“the Clements report”).

Evidence of Mr Kenneth Turner

122 Mr Turner, affirmed three affidavits in the proceedings (23 June 2008, 24 September 2008 and 9 June 2009).

123 In the first affidavit, Mr Turner was requested to answer the following question in respect of the clearing on the property:

1. Native vegetation – Determine and provide description of species/community of cleared vegetation and give your opinion as to whether or not the species cleared were “native vegetation” within the meaning of the Native Vegetation Act 2003.

(a) What vegetation was cleared, in particular:

whether that vegetation consisted of trees/understorey/groundcover,
what species there were, and
whether those species are “native vegetation” as defined by the Native Vegetation Act 2003.

124 In providing his opinions, Mr Turner relied on aerial photographs of the property dated 30 September 1998; SPOT 5 imagery dated 6 February 2005; field inspections undertaken by him on 6 February 2007 and 7 March 2007; field data on vegetation collected by Ms Ridge and Mr Hailstone on 7 March 2007 and various literature, including the Flora of New South Wales series for plant identification by G Harden (ed).

125 During his first field inspection he examined recently cleared areas, clearing debris and adjacent uncleared vegetation. He noted the features of both cleared and uncleared areas, including plant species present and vegetation structures. He also searched for evidence of recent and past disturbance including logging and fire. He recorded the features of each cleared and uncleared area and took photos.

126 More specifically, Mr Turner himself both measured and supervised the measurement of various features of vegetation composition and structure within four separate randomly chosen plots in cleared areas and three separately randomly chosen plots of areas of adjacent uncleared vegetation. From these he made observations on the vegetation on the property, including plants in uncleared areas and plants retained, regenerating and/or growing from seed in cleared areas.

127 During his second inspection, Mr Turner observed widespread regeneration of native vegetation from surviving structures in recently cleared areas. Importantly, his interpretation of available satellite imagery and aerial photography covering the property “indicated that cleared areas previously contained vegetation patterns that were continuous with and essentially identical to those in adjacent (still-uncleared) areas.”

128 From his inspections Mr Turner was able to conclude that:

(a) widespread clearing had occurred on the property of trees, understorey plants and groundcover vegetation; and

(b) the seven species identified by the prosecutor had been cleared from the property.

129 In his second affidavit, Mr Turner was asked to provide a response to the following questions:

3. Determine the conservation value of the vegetation and the impact significance of the vegetation clearing.
(i) at a local scale
(ii) at the landscape scale

4. Whether remediation of the cleared areas is required/viable and, if so, what works would be necessary for such remediation and over what period remediation would need to be carried out.

130 While the provision of this evidence is not relevant to the question of whether the defendant is guilty of the offence charged, in the course of providing his answers Mr Turner opined that in his view the cleared vegetation was of a mature age.

131 In his third affidavit, Mr Turner was asked to consider the report of Dr Andrew Smith, commissioned on behalf of Walker, insofar as it related to the opinions that he had initially expressed in his first affidavit. Mr Turner did not resile from his earlier expressed views and further opined that, first, he disagreed with Dr Smith’s assertion that the southern part of the property had been subject to a bushfire in February 2002 “which would have substantially altered the structure and floristic composition of the site relative to the unburnt areas” thereby explaining the loss of vegetation evident on that part of the property. It was Mr Turner’s view that such an assertion was not valid and was inconsistent with accepted scientific knowledge of the fire ecology of Australian eucalypt forest and woodland vegetation. In his opinion, the fire did not cause a substantial change to vegetation structure and composition in that area compared to other areas of open forest on the property. He noted that, moreover, several of the seven species the subject of the charge were known to survive and resprout from buds following fire.

132 Second, he noted that many of the criticisms that Dr Smith had made concerning his own plot data and methodology were equally applicable to Dr Smith’s analysis and that neither could be regarded as more valid that the other.

133 Third, in relation to the criticism that the data Mr Turner had collected from the seven plots did not include measurements of dead trees, Mr Turner responded that in his view, dead trees were not relevant to the general clearing patterns associated with the cleared areas identified by Ms Ridge. In any event, Mr Turner denied having observed the volume of dead tress that Dr Smith describes. Importantly, in answer to Dr Smith’s assertion that a large component of trees removed by ELC could have been dead, it was Mr Turner’s opinion that even if his data had included dead trees in the proportions suggested by Dr Smith, this would have made minimal difference to his conclusion as to the age of the vegetation cleared.

134 Fourth, Mr Turner defended the model he used to conclude that the vegetation cleared was mature uneven-aged forest. He stated that the tree growth model employed by Dr Smith was misleading and resulted in interpretations erring on the side of over-prediction of growth rates.

135 Fifth, in relation to Dr Smith’s statement that saline water contaminating most of the site had killed many of the native woodland trees and that the majority of the remaining trees were in poor condition and were likely to die off in time, Mr Turner noted that while this may have been the case with the pre-existing cleared pastures, the same conclusion could not be drawn in relation to trees in adjacent areas of forest that had been subjected to clearing by ELC. Moreover, the saline affected area to which Dr Smith was referring was unclear and could not, in any event, have affected all of the southern cleared area given that this would have required an uphill flow of contaminated water. Mr Turner also criticised the conclusions drawn by Dr Smith about the faster than average growth rates of “salt-tolerant” trees on the basis that the term was being misused by him because the data he employed was from Western Australia and Queensland and not New South Wales, and that the conclusions he drew were inconsistent with some of the literature.

136 Sixth, while Mr Turner agreed with Dr Smith’s opinion that historically the property’s forest (including the cleared areas) were cleared or heavily thinned of tree cover, the same could not be said of the native groundcover. That is to say, Mr Turner did not believe that there had been any past systematic thinning or clearing of regenerating understorey trees.

137 Mr Turner was cross examined at length. Mr Turner conceded that his conclusions as to the age of the cleared vegetation were not clearly stated and that he did no more than express a generalised opinion as to the likely, rather than actual, age of the cleared vegetation. In so doing, Mr Turner stated that in giving a general indication of the age of the vegetation he had relied on his past experience with respect to the diversity of groundcover plants he had observed during his inspections on the property.

138 Mr Turner stated that he was able to give an indicative age of the material that had been shredded in the cleared plots based on the height of the vegetation in the immediately adjacent uncleared areas which was similar in its composition and in its past disturbance. Mr Turner conceded, however, that he was not able to indicate what the age was of any of the stumps that had observed had been trittered.

139 In terms of growth rate as a determinant of age, Mr Turner stated that based on Dr Smith’s own modelling, the trees on the uncleared plots examined by him were of a greater age than the estimate given to the same trees by Dr Smith.

140 It was put to Mr Turner that he had misidentified the identification of Eucalyptus crebra with that of Eucalyptus paniculata. In response, Mr Turner stated that he had rechecked the specimen of the species of Eucalyptus crebra that he had collected and a bud of the specimen he collected matches the description of Eucalyptus crebra and not Eucaluptus paniculata. I accept Mr Turner’s explanation and find that no misidentification has occurred.

141 Mr Turner accepted that fire frequency has a profound effect on the composition and structure of any shrub layer of a forest. Mr Turner also accepted that there were signs of past fire throughout the areas of the property that he inspected. In particular, there was evidence of a more recent fire in the southern area of the property. However, based on what he had observed, he was nevertheless of the view that the disturbance histories of the recently cleared areas, including disturbance caused by fire, were unlikely to be significantly different to immediately adjacent areas.

142 Mr Turner conceded that he had not made any analysis of the changes in the forest structure on the property in the period between 1984 and 2006 by reference to aerial photographs covering that period.

143 Finally, Mr Turner agreed that he had been aware of a history of grazing cattle on the property prior to 2006 and stated that when he inspected the property both in February and March 2007 he had seen cattle on the property.

144 Overall, I found Mr Turner’s evidence to be careful, considered and reliable.

Evidence of Ms Karen Wilson

145 Ms Karen Wilson is a botanist employed by DECC. In addition to stating that the seven species of vegetation the subject of the summons were present in Australia before 26 January 1788, she was cross examined as to the dispersion and longevity of the seven species identified by the prosecutor as having been cleared on the property. Her evidence was that:

(a) in relation to Allocasuarina littoralis , Ms Wilson indicated that the individual plants would last at least 30 years if not longer, although she conceded that she was not a forestry specialist. She agreed that the species was a prolific re-seeder, including after fire, and that it retained seeds for an indefinite number of years. In relation to grazing, she expressed the view that it was not a species that stock would regularly feed on, and moreover, that it had a poor salinity tolerance;

(b) in relation to Exocarpus cupressifomis , that the species was not found in a wide range of communities but that the distribution was fairly wide in eastern Australia. It was not present in rainforests and she was unsure whether or not it was present in poorly drained areas. Ms Wilson agreed that in most communities its occurrence was sporadic consisting of widely scattered colonies. She agreed that the plant’s response to fire would be that the above ground stems would probably be killed. In her experience, the species was not observable in saline areas. The growth form of the plant was generally from shrubs to small trees;
(c) in relation to Eucalyptus crebra , it was Ms Wilson’s experience that this species was commonly found on heavier and deeper soils in the Sydney region. It was also found in grassy woodlands and dry sclerophyll forests and thus it was, in her view, relatively widespread. Ms Wilson expected that it would be found in rain shadow areas and that it would be confined to open forest woodlands rather than low open forest. The plant was a tree 10 to 30 m high and individuals could last more than 100 years;

(d) in relation to Hardenbergia violacea , Ms Wilson described this plant as a very small scrambling plant with runners of up to about 1 m or more. Ms Wilson had never observed this species in saline areas. It was low growing and scrambled over the ground. It could climb up other plants. The plant was widespread from shrub heaps to tall forests. Its lifespan was no more than 5 to 20 years. Ms Wilson agreed that sand dune conditions would be the shortest lived environment for a plant of this type. Ms Wilson indicated that in her experience the plant was a coloniser of disturbed sites. She had not, however, observed it after fire;

(e) in relation to the species Melaleuca nodosa, that this was a species which was restricted to coastal and sub-coastal zones in New South Wales. The plant often formed an understorey to eucalyptus or taller melaleuca species. The height of a plant was that of a tall shrub. Ms Wilson was unsure what the salinity tolerance of this species was;

(f) with respect to Pimelia linifolia , that this was an erect prostrate or occasionally clump forming shrub which grew to about one and a half metres in height. It was a light loving soft wooded shrub of the open forest, although it could be found in evening heath communities and woodland. The plant was found mostly on lighter soils such as sandstone, dune sands and generally in well drained areas. Its longevity was quite short lived, approximately 5 to 10 years at the most; and

(g) in relation to Pomax umbellate , Ms Wilson agreed that this was a small perennial sub-herb growing to about 40 cm high. Its preferred habitat was dry sclerophyll forests where there was a reasonable amount of light. It was a short lived plant of no more than three to five years.

Evidence of Mr John Palmer

146 Mr John Palmer is employed by DECC as a Natural Resource Information Officer. His principal duties involve assessing natural resource information using aerial photographs and remote imagery.

147 In his first affidavit affirmed 15 October 2008, Mr Palmer stated that in June 2007 he was requested by DECC to prepare a report establishing:

(a) the age of the vegetation community on the property using aerial imagery;

(b) the location of areas where vegetation was present prior to 1990 using aerial photographs closest in time to 2007 and 1990;

(c) if any changes or disturbances had occurred within the vegetation community of the property and if so when; and

(d) the forest structure both prior to and post clearing by the defendant.

148 In providing the report, Mr Palmer accessed photographs dated 12 May 1984; 25 September 1990; 5 January 1994; 14 October 1998; 22 February 2002; 2 December 2005 and 9 April 2006. Mr Palmer also had recourse to the shapefiles of the property boundary provided to him by Ms Ridge and SPOT 5 satellite images dated 6 February 2005 and 17 September 2006.

149 In relation to the 1984 aerial photography, Mr Palmer noted that the property’s vegetation consisted of a mix of open forest and woodland, both with varying densities of woody understorey. In Mr Palmer’s opinion the vegetation in Lot 2 DP 108340 was generally younger than that in Lot 2 DP 1076362.

150 In relation to the 1990 aerial photography, Mr Palmer noted that there were more open structures in that photograph compared to the 1984 photograph, which might be explained by grazing, drier than normal conditions, scale differences in the photography or a combination of all these factors. It was his opinion, however, that no wholesale clearing of woody vegetation had taken place between 1984 to 1990.

151 In relation to the 1994 aerial photograph, a comparison between it and the 1990 photograph established the same vegetation pattern except for the clearing for the freeway that bisected Lot 2 DP 1076362 in the 1994 photograph. The area west of the freeway appeared to have a more open structure than that evident in 1990. This could have been caused by grazing or unusually dry climatic conditions over an extended period.

152 In relation to the 1998 aerial photograph, Mr Palmer stated that the woody vegetation remained the same as that at 1984 through to 1998. No disturbance was evident, with vegetation continuing to mature and infill more open areas.

153 In relation to the 2002 aerial photograph, Mr Palmer opined that the vegetation pattern remained the same as that which he had observed in 1998. Discrete areas of Lot 2 DP 108340 that had previously been part of an overall woodland structure now resembled an open forest by virtue of their age and lack of disturbance.

154 This latter opinion was confirmed by the 6 February 2005 SPOT 5 image and the 2005 and 2006 aerial photographs. However, the 2006 SPOT 5 image clearly showed a pattern that was consistent with soil disturbance following vegetation clearing. In Mr Palmer’s opinion the vegetation that had disappeared in the 2006 image was either closed or sparse shrubland. Comparing the April 2006 aerial photograph and the September 2006 SPOT 5 image, it was his view that clearing had occurred in the intervening period. The vegetation cleared was mostly understorey to the dominant woodland canopy structure which, along with emergent trees appeared to have been retained and not cleared.

155 The conclusions Mr Palmer reached from a comparison of the aerial imagery were as follows:

(a) that all the wooded vegetation present on the September 2006 SPOT 5 image predated the 1984 aerial photography;

(b) that wooded vegetation was present prior to 1 January 1990 within both lots;

(c) that clearing of the closed shrubland occurred between April 2006 and September 2006. The overstorey species and emergent trees, however, appeared to have been retained; and

(d) that additional areas of clearing identified during site inspection did not appear as areas of clearing on the September 2006 SPOT 5 image.

156 In his second affidavit affirmed 25 May 2009, Mr Palmer used the 17 September 2006 SPOT 5 image and compared it with a Digital Airborne Image of the property taken between 30 March and 2 April 2008, to provide an opinion on whether there was any evidence of clearing between the time that those two images had been taken. Mr Palmer concluded that woody vegetation cover had been reduced by thinning in the period between September 2006 and either late March or early April 2008.

157 In his third affidavit affirmed 22 May 2009, Mr Palmer considered the report of Dr Smith dated 28 May 2009, insofar as it related to aerial photographic interpretation. In this affidavit Mr Palmer:

(a) clarified his conclusions in relation to vegetation changes on the property between 1984 and 2007 and stated that while there were identifiable changes, they were short-term and as at September 2006 the vegetation community and its pattern that had been present in 1984 was the same;

(b) stated that it was not possible to determine that the closed shrubland in 1984 or 1990 was blackberry;

(c) agreed that seasonal differences in the sun’s alignment could cause longer southern facing shadows in winter months and that these shadows could obscure the presence or absence of understorey; and

(d) agreed that there was benefit in ‘ground truthing’ to verify and confirm the interpretation of aerial photographs, but qualified this by stating that this is only the case if the features being checked are still present at the time of inspection.

158 Mr Palmer disagreed with the following conclusions drawn by Dr Smith in his report:

(a) first, that the aerial photograph interpretation showed the occurrence of widespread dieback of mature trees in the forests and woodlands on the property following the disposal of saline mine water. This is because if gaps in the canopy were present, they were present at a landscape level and not just at a property level. There was no overriding consistency in terms of when the photographs were taken to infer that growth or foliage loss was due to one factor;

(b) second, that while there was a rapid spread of shrubs along the forest interface between 1990 and 2002, it was not possible to form a view on the basis of aerial photograph interpretation alone as to whether the spreading shrubs were a consequence of the flow of saline water;

(c) third, that the areas that resembled either closed or sparse shrubland as of April 2006, had developed slowly from scattered shrubs or a very low shrub layer as evident in the September 1990 aerial photography;

(d) fourth, that he did not see any evidence that the alleged cleared areas had been subjected to varied and substantial disturbances over long periods which altered the structure of the forest prior to April 2006. The only impact on the area that he observed was the possibility of grazing;

(e) fifth, that the aerial photograph interpretation showed that there was a lack of physical disturbance from before 1984 until at least September 2006 in the southern area of the property;

(f) sixth, any increases or reductions in relative canopy size between different aerial photography dates in the southern area of the property were due to an increase or reduction in foliage cover due to climatic factors, rather than the introduction of secondary post-1990 regrowth. This was consistent with a lack of disturbance in woody vegetation which would not have been affected by saline water disposal;

(g) seventh, there was evidence of closed or sparse understorey shrub cover in the now cleared areas as at 1984; and

(h) eighth, that isolated patches of woody vegetation were not materially affected by saline waste water disposal between 1990 and 2002. This was because the saline water disposal did not directly drain into the area containing all but the northern-most patches of vegetation on the property for gravitational reasons. Accordingly, in his opinion, the aerial photography from 1990 to 2002 did not show evidence of dieback due to saline water contamination;

159 In cross-examination, Mr Palmer agreed that the age of the vegetation community could not be specified by him with any greater precision than “pre 1984”. Moreover, Mr Palmer agreed that it was “simply not possible” from the study of the aerial photographs to make any “confident prediction” about the age of the understorey or groundcover.

160 Mr Palmer conceded that he had not been to the property and that he had not “ground truthed” what he had observed in the aerial photographs by walking over the site. This was so notwithstanding that it was an important process of the verification, particularly if the likely causes of a disturbance were being evaluated.

161 Mr Palmer agreed that comparing the 1990 aerial photograph and the 1984 aerial photograph, the former showed a recession of wooded area in the riparian area on the property.

162 Mr Palmer conceded that he did not have any information about the agricultural history of the land other than his awareness of the disposal of saline water over many years.

163 Having been shown an aerial photo of the site dated February 2002 Mr Palmer agreed that he could see evidence of a fire in the south western portion of the property.

164 Mr Palmer agreed that a forest which has a shrub layer which is accessible to cattle contains the potential for disturbance to that shrub layer. However, Mr Palmer did not agree that drought could qualify as a disturbance.

165 In relation to the impact of drought, Mr Palmer stated that he considered it in the context of looking at the overall age and time that the photographic images were taken in order to determine if there were changes and what would have caused these changes. However, Mr Palmer agreed that he did not evaluate from records the rainfall experience of this layer and that in order to consider the impact of drought this ought to have been done.

166 Mr Palmer conceded that he did not make any evaluation of the age of any of the plants that were less than 2 m in height. Moreover, the closed shrubland on the interface between the pastures and the woody vegetation had developed post 1990, and therefore, was regrowth.

167 Whilst not agreeing that it was evidence of dieback, Mr Palmer agreed that comparing the September 1990 and January 1984 photographs there was evidence of a reduction of the vegetation structure and that clearing could be observed as having occurred on the eastern side of the woodland on the property between 1984 and 1990.

168 In terms of the density of vegetation Mr Palmer did not agree that there had been a decrease in this regard observable from the aerial photographs from 1984 to 1994. Rather, in Mr Palmer’s opinion there had been an increase or thickening of the vegetation. Mr Palmer stated that insofar as he could observe from 1988 to 2002 it appeared that the density of the vegetation was constant.

169 However, Mr Palmer agreed that it was possible to see a changing pattern in the density of the vegetation between 1984 and 2005.

170 Overall, and particularly having regard to his capacity to make both concessions, I found Mr Palmer’s evidence to be considered, compelling and reliable. This is to be contrasted with the evidence of Dr Smith on behalf of the defendant.

Evidence of Dr Andrew Smith

171 Dr Smith states in his report dated 28 May 2009, that he was provided with copies of the affidavits of Mr Palmer, Mr Turner and Ms Ridge and he “was asked to visit the site which is the subject of clearing allegations and to make my own investigations, observations and comments on the methodologies and conclusions expressed in these affidavits.”

172 The methodology Dr Smith employed to prepare his report was to undertake a preliminary site inspection of the property on 13 January 2009. He subsequently ordered and interpreted aerial photographs of the property, including the same aerial photographs the subject of Mr Palmer’s evidence. On 23 and 24 April 2009, he “ground truthed” his aerial photograph interpretation by inspecting and measuring the floristics and structure of the native vegetation of the property in nine 20 m x 20 m survey plots. These included five cleared and four uncleared plots. Surveys were undertaken with the assistance of Mr Tony Rodd and Ms Jane Rodd.

173 On each survey plot the diameter of retained living trees was measured at ground level and at DBH. Where a stump was found its diameter at ground level was recorded. This diameter was then converted to DBH using a corrective factor of 0.7 derived from a sample of more than 120 trees. The size and number of dead trees, dead stumps and fallen logs was also recorded. The pattern of tree size distribution recorded in uncleared survey plots was used to extrapolate the forest age and clearing and disturbance history of the property. Shrubs were not counted individually but were recorded as a visually estimated percentage of foliage protective cover for each species on each plot.

174 In his report, Dr Smith referred to and quoted from, the 2007 Keystone report, in particular, the statement that “given the sites grazing disturbance history and the length and severity of drought since that time [1990] the understorey is likely to date from post 1990 and so classified is ‘non-protected regrowth’”. He also noted that the 2007 Keystone report stated that blackberry infestations were widespread across the site and recommended that these be underscrubbed and removed by the use of tree mulchers.

175 Dr Smith was present in Court when Mr Humphreys and Mr Mills gave evidence. In his view “the oral evidence of Mr Humphreys in these proceedings appears to me to be consistent with an attempt by ELC to limit clearing to exempt regrowth, dead trees, stumps and ground logs as specified by Keystone Ecological.”

176 In his report Dr Smith expressed a number of conclusions. First, that the areas identified by Mr Palmer as having been cleared of shrubs between April and September 2006, were not supported by any data as to the age, extent or floristic composition of the vegetation.

177 Second, that the areas identified by Ms Ridge in which clearing was alleged to have taken place were similarly not supported by data.

178 Moreover, any clearing was confined to the removal of understorey shrubs and small regenerating trees, or underscrubbing, and did not include emergent living mature tree cover, which in Dr Smith’s opinion had been left “wholly intact”.

179 Third, that the seven species the subject of the charge were all native species but that he did not accept that all of them were present on the cleared areas of the property. In particular, Pimelia linifolia, Pomax umbellate and Hardenbergia violacea were all sufficiently small sub-shrubs or groundcovers that may not have been affected by mulching equipment and may have remained present. Further, Eucalyptus crebra, Eucalyptus cupressiformis and Melaleuca nodosa were sufficiently rare or uncommon on the property that they had a high likelihood of having been naturally absent from cleared areas. In Dr Smith’s opinion, only Allocasuarina littoralis was widespread within the cleared and uncleared areas of the property.

180 Fourth, by the use of aerial photograph interpretation to identify changes in vegetation cover and structure over time, Dr Smith examined the location and extent of changes in shrub vegetation in the alleged cleared areas identified by Mr Palmer and Ms Ridge between 1984 and 2006 and concluded that:

275 It is to the application of these principles to which I now turn.

The Acts of Mr Fife Were those of Walker

276 In the present case, the only person identified by the defendant involved in the management of the property was Mr Fife. I am satisfied on the evidence that it was Mr Fife who was delegated the task of clearing the property. For present purposes, therefore, his actions were those of the defendant. For example, it was Mr Fife’s evidence that he was the officer within Walker who, as Land Bank Manager, was principally responsible for the acquisition of the property. He reported to Mr Lang Walker, a director of the defendant, and in his absence, Mr David Ryan, the Chief Financial Officer. Mr Fife took steps to implement the decision conveyed by Mr Walker to him to “tidy up” the property by contracting this work to ELC. Mr Fife was the person with whom ELC dealt at Walker for the purpose of carrying out this task. It was Mr Fife who gave the instructions to Mr Humphreys and Mr Black as to what areas were to be cleared.

277 Accordingly, I am satisfied beyond reasonable doubt that, notwithstanding that Mr Fife was not a director of Walker, his acts were those of the defendant.

Did Walker “Cause or Permit” the Clearing to be Carried Out by ELC Pursuant to s 44?

Instructions Given to ELC

278 The question of whether Walker ‘caused’ or ‘permitted’ the clearing carried out by ELC gives rise to an examination of the instructions given to ELC by Mr Fife. As I have found them, they are as follows below.

279 According to Mr Humphreys, Mr Fife instructed him to “tidy up the site”. Mr Humphreys further states that he was told by Mr Fife to clear certain areas “back by 50 metres” in order to create a buffer or perimeter around the sections identified by Mr Fife to be cleared:

Q. Doing the best you can what did he say to you and what did you say to him?
A. We spoke generally about the site, how it had been bought fairly cheaply by the corporation due to some contaminated land issues within the site, something to do with his words “illegal dumping of water on the site” which had run off into the river. He then spoke about how he would like to tidy up the site and that it was a long term project subject to rezoning in the future.

Q. Did he explain to you what he meant by tidying up the site?
A. At that stage he was keen to reduce the tree outline by 50 metres or so around the whole site and remove several clumps of large trees that were in the middle of the site.

…

Q. You issued instructions and you said a moment ago you had an understanding that was what had to be cleared. Would you tell the court how you came to that understanding?
A. From my conversation with Mr Fife that that’s what he wanted done.

Q. What did Mr Fife say to you and what did you say to him?
A. Once again he told me that he wanted the area cleared back by 50 metres.

280 By “long term project” Mr Humphreys understood this to mean that there would be further clearing work in the future:

Q. Did he say anything on that day that indicated that there might be further work following that?
A. Yes he indicated that this would probably be the first years work and that they would look at continuing similar work on an annual basis.

Q. Doing the best you can what did he say about that?
A. Pretty much that it was going to be a 15 year project and that hopefully land zoning would change in that period of time and I understood that their company was involved in building housing estates and such like so that was my assumption, he was making the area larger for that purpose.

281 While Mr Fife instructed Mr Humphreys as to the areas of land to be cleared and their location, he did not, however, instruct him with any particular specificity as to what vegetation the clearing was to include. That was left to Mr Humphreys.

282 Rather, Mr Fife instructed Mr Humphreys to “keeping the undergrowth at bay”. By “undergrowth”, Mr Fife meant “small regrowth” or “small trees that looked like they’ve grown relatively recently”. However, other than direct ELC to clear the “small regrowth”, Mr Fife did not elaborate on what “small regrowth” meant to anyone at ELC and it was left to Mr Humphreys to instruct those who performed the clearing what was to be cleared:

Q. Doing the best you can will you tell her Honour what you said to Mr Humphreys and what, if anything, he said to you?
A. We were seeking to tidy up the block. We drove around the perimeter of the vegetation. We discussed keeping the undergrowth at bay, cleaning up the blackberry. Spraying the blackberry. Removing car bodies. Maintaining existing tracks. Maintaining existing fence lines. Maintaining dams and their perimeter.

Q. Did your discussion include the subject of what vegetation should be removed?
A. I don't recall what was specifically said but it would have been something to the effect of small undergrowth.

Q. Some what, sorry?
A. Small regrowth.

Q. Did you, as you recall it, articulate to Mr Humphries what you meant by small regrowth?
A. No.

283 The areas to be cleared were identified by Mr Fife to Mr Humphreys by the two of them driving around the property with Mr Fife identifying various locations from the vehicle.

284 Mr Fife attended the site a couple of times after the clearing had commenced, in August and November 2006 and that on each occasion Mr Fife expressed his satisfaction with the progress of the works. On one such occasion Mr Fife observed the mulching of vegetation:

Q. Did you actually observe yourself when you went to the site after work commenced, the work actually being carried out?
A. Yes.

Q. Do you recall now what sort of machinery was being used?
A. It looked very similar to an articulated tractor with a roll on the front.

Q. Tell her Honour what you observed it doing?
A. The vehicle would drive towards small vegetation and mulch it.

285 This observation was consistent with the conversation that Mr Fife and Mr Humphreys had had prior to the commencement of the work as to what type of machinery would be used.

286 At no point in time did anyone ever express to Mr Humphreys that what was occurring on the property was not, as Mr Fife understood it, what Walker wanted.

287 Almost no instructions were given by Mr Humphreys to the machine operators engaged in the clearing as to what vegetation was permitted to be cleared. As a consequence small trees (no “more than 200 mm”, according to Mr Humphreys) and regrown trees (“three foot, four foot up from the ground”, according to Mr Mills) were felled, but “higher trees and larger trees were maintained”. These were the subject of explicit preservation by Mr Humphreys.

288 Mr Humphreys’ evidence, both in relation to the instructions given to him by Mr Fife and generally, was not the subject of challenge. Having no reason not to do so, I accept it as an accurate account of his interaction with Mr Fife. It also consistent with the evidence given by Mr Mills and Mr Black in this regard.

289 According to Mr Black, who did not obtain instructions personally from Mr Fife but to whom Mr Fife’s directions were relayed through Mr Humphreys, ELC was engaged by Walker to do “maintenance” rather than “clearing”. However, Mr Black conceded that in some locations ELC had engaged in “clearing”, which excluded the removal of “healthy living trees” but included the removal of “groundcover” or “regrowth type vegetation”, which was “growth that has occurred after disturbance…of any size. Regrowth could be a two metre diameter tree”.

290 Although the basis for the commissioning of the 2006 Keystone report remains unclear, what is apparent is that pursuant to a further request by Walker to clear additional areas of the property, Mr Humphreys became sufficiently concerned about his instructions that he perceived the need to obtain an expert’s assessment of the area. Although Ms Ashby was engaged by ELC and it was ELC who initially obtained the report prior to forwarding it to Walker, Mr Fife approved the commissioning of the 2006 Keystone report. It was Walker who ultimately paid the cost of obtaining the report.

291 The report was received by the defendant as an attachment to an email from Mr Humphreys to Mr Fife on 27 September 2006. Although the attachment was effectively a ‘cut and paste’ reproduction of the report, the attachment noted a number of matters which, as the prosecutor submits and I accept, should have caused the defendant significant concern. At the very least they should have elicited a specific response from Walker. These matters were that:

(a) pursuant to the Act young regrowth dating from January 1990 or later could be cleared without further permission or regard to the Act, unless it was within “vulnerable land” or was in a protected riparian zone;

(b) the vegetation must have been first cleared legally and intentionally, and clearing of vegetation through a fire or storm did “not count”;

(c) Walker could seek a “Clearing Property Vegetation Plan” from the Catchment Management Authority to determine what was and was not regrowth under the Act or, alternatively, determine it privately;

(d) if Walker established the history of the vegetation on the property then ELC would know if the Act applied. Specifically, if there was non-protected regrowth on site (that is to say, dating from post 1 January 1990), then clearing could be carried out without further permission;

(e) to establish whether there was “non-protected regrowth” on the property which could be cleared without further permission, ELC needed to access historical aerial photography and map the extent of the vegetation. If such mapping established some areas to be “non-protected regrowth” then those areas could be cleared without further permission;

(f) if the vegetation predated 1990, then permission to clear it had to be obtained from DECC by completing an application for a licence under s 91 of the Threatened Species Conservation Act 1995. However, this was a notoriously difficult process and one that Walker “should avoid”;

(g) ELC needed to get an “expert’s assessment” in order to “continue to remove the post 1990 vegetation”. This was necessary in order to “protect both” ELC and Walker;

(h) obtaining an “expert assessment” was not “an onerous job and in fact our ecologist has already visited Wilton at our cost and will give us the assessment at your cost, and we can carry on removing the post 1990 vegetation”;

(i) if such an assessment was obtained, then although the riparian zones would need to be protected, an expert’s assessment would mean that ELC could “under scrub the entire Lot”;

(j) natural grasses already existed on the property and ELC had carried out “extensive vegetation reduction” which would promote natural habitat and, if maintained, would “be an excellent site (apart from the trees you have to keep) for future use”;

(k) ELC still had “a bit of clearing up” to do on what was described as the “toe site”, which was where “the bit” that was “over cleared” was located;

(l) by reference to a 1990 satellite image of “most of the site”, absent an expert assessment ELC would be “hard put to say that the site as is today does not look like it did in 1990”;

(m) all the work carried out to date “could be illegal”; and

(n) the conclusions to be drawn for the property included the need to get an “expert’s assessment on this site”, the need to reseed the area “as soon as possible keeping 20 metres from watercourses”, the retention of “large and old trees”, the “retention of larger dead trees where possible for habitat purposes”, the mulching of material on site, the removal of all “smaller standing dead timber and mulch all stumps”, and the continuation of clearing “after the assessment to the extent of the lot and if required on the other side of Picton Road”.

292 Notwithstanding the contents of the attachment, the only direction forthcoming from Walker was an approval given by Mr Fife to Mr Black to resume the clearing in or about October 2006, which ELC did until early 2007 when the work ceased.

293 As a consequence of the 2006 Keystone report, however, some additional areas of the property identified by Mr Fife to be cleared and the requested 50 m cleared perimeter were not carried out by ELC.

294 While another report was commissioned from Keystone, by the time it was completed in February 2007, the clearing the subject of these proceedings was complete.

Reliance by Walker on ELC’s Specialist Expertise and Experience

295 The defendant submitted that by engaging ELC, it had relied on the expertise and knowledge of ELC as land clearing specialists. This, it submitted, was evident by the limited instructions it had given ELC in relation to the execution of the clearing.

296 The defendant argued that the email sent by ELC to Walker with the paraphrased 2006 Keystone report attached to it was strong evidence of the independent activities of ELC. The taking by ELC of Keystone’s work and making and expressing it as their own amounted to a clear undertaking by it of the burden both to investigate and to advise the defendant and to execute the defendant’s instructions in accordance with all lawful requirements.

297 For the reasons given below I do not agree.

298 Having said this, and notwithstanding Mr Black’s unsatisfactory evidence to the contrary, I do find that ELC held themselves out, as at 2006, at least by their promotional material, to be a specialist environmental land clearing company. But what this meant, and therefore, what skills ELC represented that they were offering to Walker remains uncertain in light of Mr Black’s largely confusing and self-serving evidence on this issue.

299 What the evidence did not establish, in my opinion, was that as at the date that the defendant engaged ELC, ELC held itself out as being able to provide specialist expertise and advice on whether the clearing of vegetation that it was engaged to carry out was lawful or not.

300 In addition, the evidence did not demonstrate that Walker engaged ELC for this purpose or that Walker relied upon ELC’s services in this regard. The only evidence as to the terms of ELC’s engagement was that the arrangement was informal with no written agreement setting out the services it was to provide. That ELC had previously carried out clearing work for the defendant elsewhere did not assist one way or the other.

301 In any event, whatever purported specialist knowledge and expertise ELC held itself out as having at the time, it plainly did not exist beyond that of operating the particular machinery used in the clearing process. For example, notwithstanding the evidence of Mr Black that ELC’s employees had had regulatory environmental training, he was not aware of the significance of the 1990 date. Mr Humphreys confessed to knowing even less about the legal requirements for clearing native vegetation. That ELC mitigated its lack of expertise by engaging experts such as Keystone to provide it with advice, only served to reinforce its general lack of specialist knowledge and skill in relation to land clearing. Even if the defendant had relied on ELC’s purported expertise in clearing native vegetation, which I do not find, this reliance could not have been maintained once Keystone were engaged and the 2006 Keystone report was issued.

302 While it is true that ELC did not follow Walker’s instructions in every instance given that it neither cleared every area to which it was directed nor did it create the cleared 50 m buffer and that, therefore, to this extent it exercised a degree of objective independence, the fact remains that the clearing that it did carry out was undertaken in accordance with and directly as a result of Walker’s instructions. A single illustration will suffice, namely, notwithstanding the warnings contained in the 2006 Keystone report, ELC continued to clear in October 2006 upon Walker giving it approval to do so.

303 Accordingly, in these circumstances I do not find the fact that Walker engaged ELC to carry out the clearing exonerates it from liability.

Did Walker “Cause” ELC to Carry Out the Clearing?

304 The behaviour of ELC demonstrates that the works undertaken by it were in accordance with the instructions, as I have found them above, given by Mr Fife, namely, that it “tidy up the site” by clearing vegetation that comprised, amongst other things, “small undergrowth”. As a consequence of the instructions it received, ELC mulched, tremmed and felled native vegetation in the areas indicated by Mr Fife. Mr Fife, aware of the machinery that was being utilised in order to carry out the clearing, at no point expressed any concern to ELC about the work it was performing. To the contrary, after the substance of the 2006 Keystone report was passed on to him, he simply instructed ELC to continue with the clearing. It did as directed.

305 Notwithstanding that ELC did not clear all of the areas directed to be cleared by Mr Fife and did not clear the 50 m perimeter once the 2006 Keystone report was received by it, it nevertheless followed Mr Fife’s instructions in relation to clearing in all other aspects. The clearing of native vegetation that it carried out was therefore as a natural consequence of the instructions given by Mr Fife. Put another way, had those instructions not been forthcoming the clearing of native vegetation would not have occurred (Olmwood at [368]).

306 While I accept the submission of the defendant that there is no suggestion in any of the evidence that there was any instruction by the defendant to clear native vegetation, this is irrelevant to the determination of whether the landholder caused the unlawful clearing given the offence is one of strict liability.

307 I therefore find that the defendant has not established on the balance of probabilities that the clearing undertaken by ELC was not caused by the defendant and that therefore, as the landholder, the defendant is to be taken to have carried out the clearing pursuant to s 44 of the Act.

Did Walker “Permit” the Clearing to be Carried Out by ELC?

308 There is no evidence that prior to the receipt of the copy of the 2006 Keystone report Mr Fife had any awareness or knowledge that native vegetation would be cleared in breach of the Act. At its highest the evidence reveals that he was careless as to consequences of his instructions to ELC. This is insufficient, however, to amount to permission for the purpose of s 44 of the Act.

309 While the receipt of the attachment to the 27 September 2006 email arguably conferred on Mr Fife a greater appreciation of the possible unlawful consequences of the clearing that he had directed ELC to carry out, absent any evidence that he read the attachment or understood the significance of its contents, I am not satisfied that its receipt, without more, had the consequence that he ‘permitted’ the clearing of native vegetation by ELC after he gave the approval for the clearing to resume in or about October 2007, for the purposes of the Act.

310 I therefore find that the defendant has established on the balance of probabilities that it did not permit the clearing undertaken by ELC for the purpose of s 44.

Is Walker Vicariously Liable for the Acts of ELC?

311 Alternatively, the prosecutor submits that separate to any liability attributed to the defendant pursuant to s 44 of the Act, the defendant was vicariously liable for the clearing carried out by ELC.

312 In North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 Preston J summarised the exceptions to the general principle that a defendant will not be vicariously liable for the conduct of an independent contractor (Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-operative Assurance Co of Australia Limited (1931) 46 CLR 41 at 48; Multiplex at [277]; Coffs Harbour City Council v Hickey [2004] NSWLEC 531 at [48]) (at [114]):

114 Between Mr Moline and Mr Jack, there was no relationship of employer and employee or of principal and agent. Mr Jack was an independent contractor. Generally, an accused will not be vicariously liable for the conduct of an independent contractor: Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48; Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 58-59 [277]. There are exceptions to this general principle. An accused may be vicariously liable where the accused has directly authorised the doing of the actus reus by the independent contractor: see Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59 [278], [280] and Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262 [104] – 263 [106]. An accused may be vicariously liable where the work done by the independent contractor is subject to the control and direction of the accused in the actual execution of the work: see Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59 [280], 61-62 [290]. In Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262 [102], Pearlman J described the content of the control test as follows:

“That test involves a right to direct and control a course of action, in circumstances where the right is capable of exercise and is, or is likely to be, effective. It relates to the manner in which the independent contractor undertakes the course of action, that is, the way in which the tasks are to be performed or how they are to be carried out”.

313 The first of these exceptions was expanded upon in Coffs Harbour City Council v Hickey [2004] NSWLEC 531 (at [52] and [53]):

52 There are two exceptions to the general rule that a principal is not vicariously liable for the acts of an independent contractor. The first of these exceptions is relevant and provides that a principal may be vicariously liable where he or she directly authorises the particular conduct: McConnell Dowell at 262; Multiplex at 59; Stoneman v Lyons (1975) 133 CLR 550. In Stoneman v Lyons , Mason J (at 573, Stephen J concurring) states that the offensive act will be the act of the independent contractor unless the defendant orders the contractor: (a) to do the act which constitutes the offence; (b) to do some act which comprises that act; or (c) to do some act which leads by all physical necessity to the offence.
53 Moreover in McConnell Dowell , Pearlman J stated (at 265) that the orders of the principal must give rise to more than a mere risk that the act comprising the offence will occur. This means that the felling of the trees would need to be a necessary result of the authorised conduct.

314 In Hickey Lloyd J held (at [54]) that a direction by the defendant to contractors to clear weeds, lantana and regrowth did not constitute a direct authority to cut down the trees giving rise to an offence of cutting down trees contrary to a tree preservation order without development consent.

315 In the present case the defendant submitted that, similar to the arguments it put forward in relation to its liability under s 44 and relying on Hickey and Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 (at [79]-[121]), no liability could be attributed to it for the clearing undertaken by ELC because it neither authorised the removal of the native vegetation nor, in the alternative, did it exercise a sufficient degree of control and direction over ELC in the actual execution of the work, especially given its reliance on ELC’s specialist land clearing expertise, to be vicariously liable for its acts.

316 While I agree with the latter submission, I do not accept the former. In Hickey Lloyd J relevantly held that a specific instruction to do an act that would lead by all physical necessity to the felling of the trees was necessary given the reliance placed by the defendant on the experience and expertise of the contractors engaged, to ground authorisation sufficient to attract vicarious liability. In that case his Honour found that the evidence did not establish that such an instruction had been given.

317 In the present case, I find that the instructions given by Mr Fife to ELC were sufficient to amount to a direction to do an act that would lead by all physical necessity to the clearing of native vegetation. Mr Fife directed ELC to remove the “undergrowth” or “small regrowth”. While what this constituted was left up to ELC, given the absence of instruction by Mr Fife as to what could be removed, the execution of Mr Fife’s instructions led by all physical necessity to the clearing of native vegetation. The clearing of “undergrowth” and/or “small regrowth” constituted the work that ELC was directed by the defendant to perform, which included the removal of native vegetation. The instructions, framed as they were, led to much more than a mere risk that the consequential event of unlawful clearing of native vegetation would occur; they led inexorably and inevitably to this end (McConnell Dowell at [119]). I make this finding in light of the earlier findings made by me concerning the reliance placed by the defendant on ELC’s specialist knowledge and expertise. For this reason I am therefore satisfied beyond reasonable doubt that the defendant is vicariously liable for the clearing carried out by ELC.

318 However, I do not find that the evidence demonstrates to the requisite degree or standard that the defendant exercised detailed control over the manner of doing the work which led to the clearing of the native vegetation. That is to say, the evidence does not disclose that the defendant, through Mr Fife, supervised the works or instructed ELC as to how the clearing should take place sufficient to establish that the defendant ought to be vicariously liable for the clearing carried out by ELC on this basis (Multiplex at [276]-[292]).

Conclusion and Orders

319 I find that the prosecution has established beyond reasonable doubt all the essential elements of the offence with which the defendant has been charged in the summons. I further find that the defendant has failed to establish on the balance of probabilities any available defence to the charge.

320 The defendant is therefore convicted of the offence.

321 The proceedings are stood over for sentencing.

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