Director General Department of Land and Water Conservation v Geoffrey Eric Locke & Rod Harrison [1998] Nswlec 147 (26 May 1998) - [1998] NSWLEC 147

Land and Environment Court

of New South Wales

CITATION: DIRECTOR GENERAL DEPARTMENT OF LAND AND WATER CONSERVATION v. GEOFFREY ERIC LOCKE & ROD HARRISON [1998] NSWLEC 147 (26 May 1998) [1998] NSWLEC 65

PARTIES: DIRECTOR GENERAL DEPARTMENT OF LAND AND WATER CONSERVATION v. GEOFFREY ERIC LOCKE & ROD HARRISON

FILE NUMBER(S): 50095 of 1997

CORAM: Talbot J

KEY ISSUES: :- Penalty - mitigation - no conviction

LEGISLATION CITED: Environmental Planning and Assessment Act s 76(2)
State Environmental Planning Policy 46
Crimes Act 1990 s 556A

CASES CITED:

DATES OF HEARING: 26 May 1998

EX TEMPORE
JUDGMENT DATE :
05/26/1998

LEGAL REPRESENTATIVES:
Mr I Lloyd QC With Mr M Baird (Barrister)
Mr T Alexis (Barrister)

JUDGMENT:

REASONS FOR JUDGMENT

HIS HONOUR: The defendant, Geoffrey Eric Locke is charged with an offence that he cleared native vegetation on part of portions 4 and 13 and part of Lot 2 DP 320587 in the Parish of Bunarba, Shire of Moree Plains on the property known as Edenvale between the 1 April and 18 April 1997 without development consent of the prosecutor as required by State Environmental Planning Policy No. 46 contrary to s 76(2) of the Environmental Planning and Assessment Act. He has entered a plea of guilty.

The Court has the benefit of evidence from investigating officers who, following the receipt of information, inspected the property and interviewed the defendant and the contractor who carried out the work, together with evidence from several experts who, between them, have been able to provide the Court with a detailed picture of the circumstances under which the clearing took place and the nature of the vegetation involved.

The Court has also heard oral evidence from the defendant. In the course of that oral evidence, it became apparent that at least part of the area cleared had been subjected to substantial fire damage in about 1991 and that, before that and since, there has been a growing and expanding problem associated with the infestation of mint weed and other weeds, but principally mint weed, on this area.

Mr Locke impressed the Court as an honest individual and I accept his version of events. In so doing I am cognisant of the evidence from the two investigating officers, Mr Dines and Ms Pearson, who both spoke highly of the cooperation afforded to them by Mr Locke and his willing and frank assistance in explaining to them what had occurred.

Mr Locke, with what I infer is his usual prudence, on an occasion prior to carrying out this clearing, had reason to make inquiries regarding the impact of the requirement for clearing native vegetation and in particular pursuant to the provisions of SEPP 46. Mr Locke at that time obtained brochures from the representative of the Department in the local office at Moree and spoke with an officer at Inverell. The brochures that he obtained explained or set out what were described as community information and planning guidelines for native vegetation protection and management. He returned to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Director General Department of Land and Water Conservation v...

Details

AGLC: Director General Department of Land and Water Conservation v Geoffrey Eric Locke and Rod Harrison [1998] Nswlec 147 (26 May 1998) [1998] NSWLEC 65
Case: [1998] NSWLEC 147
Decision Date: 05/26/1998

CaseChat Overview and Summary

In the case of Director General Department of Land and Water Conservation v Geoffrey Eric Locke & Rod Harrison, the defendant, Geoffrey Eric Locke, was charged with clearing native vegetation on certain portions of land without obtaining the necessary development consent as required by the State Environmental Planning Policy No. 46 and the Environmental Planning and Assessment Act. Mr. Locke pleaded guilty to the offence. The primary legal issue before the court was whether the defendant's actions constituted a strict liability offence and, if so, whether there were mitigating factors warranting the application of section 556A of the Crimes Act, which allows for dismissal without conviction under certain circumstances.

The court examined the evidence presented, including testimonies from investigating officers and experts, to understand the context and circumstances surrounding the clearing of the vegetation. Mr. Locke, who had acted in good faith and sought advice on the legal requirements, believed he was entitled to clear the land to control an infestation of mint weed. The court accepted that Mr. Locke's actions were driven by a genuine intention to manage a significant environmental problem on his property and that he had taken reasonable steps to understand the legal obligations before proceeding.

The court found that while the clearing of native vegetation without consent was a strict liability offence, the circumstances presented compelling grounds for mitigation. Mr. Locke's honest belief that he had a lawful basis for the clearing, his proactive efforts to understand and comply with environmental regulations, and the environmental benefits resulting from the removal of the mint weed infestation were significant factors. The court also considered Mr. Locke's good character, lack of prior convictions, and the strong community standing he held. Given these mitigating factors, the court decided to exercise its discretion under section 556A of the Crimes Act, dismissing the summons without proceeding to a conviction. The court ordered Mr. Locke to pay the prosecutor's costs of $12,000, with a 12-month timeframe to make the payment.

Orders