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 brochures on the occasion when he was giving consideration to carrying out the subject clearing and noted that the exemptions described in the material produced by the Department referred inter alia, and I quote from the brochure:

`Clearing necessary for vermin control and to remove noxious weeds.'

By comparison, schedule 3 to SEPP 46 identifies a category of clearing which does not require development consent at item K being noxious weeds and then it refers in terms to:

`The clearing of native vegetation proclaimed as a noxious weed.'

I accept that Mr Locke honestly believed, erroneously, that he was entitled at law to proceed with the clearing that he then instructed a contractor, Mr Harrison, to carry out. A mistake as to the law, of course, is no defence to a charge brought pursuant to the provisions of the Environmental Planning and Assessment Act which attracts strict liability.

Following making that decision, the contractor, Mr Harrison, proceeded to clear over an area of about 317 hectares, although the actual area cleared was something less than 100 hectares, referred to as about 200 acres. In the process, the mint weed and other weeds were removed together with approximately 600 trees. Mr Lloyd QC, in his usual helpful way, provided the Court with a mental picture of the density of the trees being approximately one tree for each rugby field in dimensions.

There can be no doubt from the evidence given by the Department officers, Mr Dines and Ms Pearson, that there was substantial material removed from the land which consisted of weeds, which confirms Mr Locke's version of the state of the land prior to carrying out the operation.

Obviously, with any clearing of native vegetation, irrespective of its status, some environmental harm inevitably follows. In the present case there was at least the potential for considerable benefits to flow to the quality of the vegetation environment by removing the significant infestation of mint weed which has had, to my understanding, an impact extending over decades in the immediate locality. There is no evidence to show that the mint weed infestation occurred as a consequence of any negligence or overt acts on the part of Mr Locke, but rather the species was introduced into the area by various means over the years, including the impact of flooding assisting with its propagation.

Mr Lloyd, quite properly in my opinion, indicated to the Court at the commencement after the luncheon adjournment today, that the prosecutor recognised, having heard the evidence in particular from Mr Locke this morning, that what the Court was dealing with here was a technical offence and in the circumstances there were compelling matters which would go to mitigation.

Indeed, in a most responsible way Mr Lloyd indicated that the prosecutor would not have taken the matter as far as it had if there had been an opportunity to know before today what the true circumstances were. Not only did Mr Lloyd thereafter acknowledge that the offence to which the defendant had pleaded guilty was in the lowest of all categories, but the Prosecutor did not propose to make any submission against the Court exercising the discretion that it has pursuant to s 556A of the Crimes Act. Mr Lloyd explained that in reaching that conclusion the prosecution accepted that the defendant honestly believed that he had no option but to proceed in the way that he did in order to control the mint weed.

The Court has heard that the defendant had taken informal advice at least, from experts in the field in an attempt to ascertain whether the mint weed could be dealt with in other ways. Aerial spraying was out of the question having regard to the heights of the trees and in any event, would have meant that the trees themselves would have been sprayed, with ultimately the same result for the life of the trees as clearing would have.

A ground contractor had indicated that the nature of the terrain was such that the machinery could not be operated in a way which would contain damage to an acceptable level and in any event spraying up to and around the trees could not be achieved, thereby leaving areas which would remain untreated leaving the problem, having regard to the propensity of mint weed, unresolved.

Section 9 of the Environmental Offences and Penalties Act requires the Court to take into account, when imposing a penalty, a number of matters and although I do not propose, for reasons that I have outlined and will continue to elaborate on, to impose a penalty, they are nevertheless apposite to the consideration.

In so far as the extent of harm is concerned, I have already referred to the fact that rather than there being a loss of native vegetation which SEPP 46 is designed to protect, on the balance there has been an improvement to the environment to the extent at least that the mint weed problem has been attacked, or can now be finally attacked following the clearing of the land.

I have already referred to the practical measures which may have been taken to prevent or mitigate the harm and having regard to what I have said about the extent of the so called harm in the circumstances of this case, it is not necessary to give any significant weight to the extent to which Mr Locke may have foreseen any harm. There is no question that Mr Locke had control as the owner of the property.

Mr Alexis has been able to present a number of testimonials which remain unchallenged. These demonstrate that Mr Locke has a high standing in the community. He is regarded as continuing the long tradition of his family as a responsible farmer and grazier. Each of the persons were aware that he was before this Court facing the consequences of the serious offence with which he had been charged but nevertheless, each of the persons maintained the high regard in which they held the defendant. A number of them further recognised that what Mr Locke undertook was either the only option that he had available to him or it was a responsible action.

The Court has also heard an acknowledgment from the prosecutor's witnesses that the expectation would be that, if Mr Locke had applied for consent, it most probably would have been forthcoming given all of the circumstances.

The Court has repeatedly expressed a reluctance to apply the provisions of s 556A of the Crimes Act in light of the serious regard that the legislature has given to environmental offences. The legislature has done that by recognising the level of penalty or by prescribing the level of penalty at $100,000, which has since been increased to $110,000 and has seen fit to impose strict liability.

This is a case which is unique in the sense that, if it were not for his misunderstanding of the legal position brought about by the description of the exemptions in the material provided to him, Mr Locke would have applied for consent. I believe him when he was asked in the witness box if he had known otherwise what would he have done, and he said `I would have done the right thing and applied for consent.' There is no doubt in my mind that Mr Locke is that sort of person. He has no prior convictions. There is no question that he is of outstanding character and of high integrity and is recognised as a responsible and well respected agriculturist.

In the circumstances that apply to this case, having regard to all of the facts that I have referred to, the antecedents of Mr Locke and the remotest prospect that he is likely to offend in regard to this type of offence again, I am satisfied that this is a case where the provisions of s 556A can be applied and I propose to do so.

Mr Locke has incurred the ignominy of being brought to Court, he has agreed to pay the prosecutor's costs in the sum of $12,000 and obviously he has incurred costs on his own account. That I believe is penalty enough.

I therefore find the offence proved.

Without proceeding to conviction I dismiss the summons.

I order the defendant to pay the prosecutor's costs in the sum of $12,000.

The exhibits may be returned.

Time to pay?

ALEXIS: Your Honour I am instructed to ask for 12 months.

HIS HONOUR: I will allow 12 months to pay the costs.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 6 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT.

ASSOCIATE.