Director-General, Department of the Environment and Climate Change v Olmwood (No 2)

[2010] NSWLEC 100

Land and Environment Court

of New South Wales

CITATION:	Director General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100
PARTIES:	PROSECUTOR Director General, Department of the Environment and Climate Change DEFENDANT Olmwood Pty Ltd
FILE NUMBER(S):	50041 of 2008
CORAM:	Pain J
KEY ISSUES:	ENVIRONMENTAL OFFENCES :- sentence following contested hearing - clearing of native vegetation - moderate level of environmental harm - agreement after s 34 conference to remediate part of land cleared - defendant recklessly caused contractor to clear - clearing to assist in long term development of property - limited mitigating factors
LEGISLATION CITED:	Criminal Procedure Act 1986 s 257B, 257G Crimes (Sentencing Procedure) Act 1999 s 3A, 21A Environmental Planning and Assessment Act 1979 s 126(1) Native Vegetation Act 2003 s 3, 12, 38 Native Vegetation Conservation Act 1997 (repealed) Threatened Species Conservation Act 1995
CASES CITED:	Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Camilleri’s Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15 Director–General, Department of Environment and Climate Change v Calman Australia Pty Ltd; Iroch Pty Ltd; GD & JA Williams Pty Ltd t-as Jerilderie Earthmoving [2009] NSWLEC 182 Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 Director General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 Director General of the Department of the Environment and Climate Change v Wilton [2008] NSWLEC 297 Environment Protection Authority v Barnes [2006] NSWCCA 246 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Rushby [1977] 1 NSWLR 594 The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383
DATES OF HEARING:	15 June 2010 16 June 2010
DATE OF JUDGMENT:	21 June 2010
LEGAL REPRESENTATIVES:	PROSECUTOR Mr S Rushton SC with Mr E C Muston SOLICITOR Department of Environment, Climate Change and Water DEFENDANT Mr J M Ireland QC with Ms P Lane SOLICITOR McGirr James Hall & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

21 June 2010

50041 of 2008 Director General, Department of Environment, Conservation and Climate Change v Olmwood Pty Limited (No 2)

JUDGMENT

1 Her Honour: The Defendant, Olmwood Pty Limited, was found guilty of the offence of clearing native vegetation between 1 December and 31 December 2006 on a property near Old Bar being Lot 1 DP 594864 (the property) in breach of s 12 of the Native Vegetation Act 2003 (the NV Act) in Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15 (Olmwood No 1).

2 Section 12 of the NV Act provides:

(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.

Regrowth vegetation meaning vegetation that has grown since 1990 can be cleared, Div 2 s 19.

3 It is now necessary to sentence the Defendant. The offence is a strict liability offence and mens rea is not an element of the offence. Where facts are relevant to sentencing the Prosecutor must establish these beyond reasonable doubt per R v Olbrich [1999] HCA 54; (1999) CLR 270 at [25] and [27].

Relevant facts

4 In Olmwood No 1 I found that the Prosecutor had established beyond reasonable doubt that clearing of native vegetation (nine species were particularised by the Prosecutor) had been cleared over several days in December 2006 in breach of s 12(1) of the NV Act. The Defendant was not able to establish the defence in s 12(3) of the NV Act on the balance of probabilities. The property was cleared by a contractor Mr Flemming and his employees using heavy machinery at the request of Mr Bart Elias acting on behalf of the Defendant. The amount invoiced for the work was about $81,000. There was earlier clearing on the property along fence lines and under a utility line in the centre of the property in January 2005 and August 2005 (the invoice in evidence was wrongly dated July 2005) by the same contractor. This clearing was legal under the NV Act.

5 The Prosecutor referred to evidence from the first hearing including the affidavit of Scott McGregor Priestley, formerly a Department of Natural Resources compliance officer (and now an employee of the Prosecutor in a continuing compliance officer capacity), affirmed on 23 June 2008, who investigated the clearing. Particular documents referred to are the minutes of the Precinct 3 Old Bar Rezoning Planning Group of the Council (RPG) attended by Mr Bart Elias on 8 November 2006. An extract of the minutes states:

Carl [representative of Jarberg] advised that there is a small window within the NVA – i.e. if aerial photographic evidence can be produced at a designated date (1990) showing the site as un-vegetated, than a reassessment might be made based on the current vegetation being classified as “regrowth”. Bart advised that he felt he could produce a photograph from 1992 showing the site as cleared – Bart to research this matter separately himself in regard to the Olmwood land.

6 The minutes of the RPG meeting on 6 December 2006 record that Mr Bart Elias said he had ordered copies of aerial photographs (vegetation cover when land was purchased) discussed at the previous RPG meeting. Conversations between Mr Priestley and Mr Bart Elias occurred on 12 December 2006, 9 August 2007 and 29 August 2007 as recorded in Mr Priestley’s affidavit. Mr Bart Elias refers in those conversations to the rezoning proposal being discussed in the RPG for the property. A letter dated 14 December 2006 sent by Mr Bart Elias on Olmwood Pty Ltd letterhead to Mr Priestley stated in part that:

Since 2001 Greater Taree City Council have been working with land owners in the area south of Old Bar on a residential rezoning plan known as Precinct 3. This site falls within the Precinct 3 area. The site has been recommended to be rezoned to Residential 2(a) and 6(a). An LES was prepared by Terra Consulting in July 2004, which outlined all site constraints including flora and fauna issues. The site was identified as containing Heath which is described as “degraded” and “of little conservation significance”. The report also states the “area has been cleared in the past”. As discussed this site has been progressively cleared and maintained over the last 6-7 years with a majority of the vegetation being regrowth from previous clearing and sandmining exercises.

7 The Prosecutor issued a Notice to provide information and documents dated 17 September 2007. The Defendant sent a response signed by Mr Anthony Elias dated 7 November 2007. The response stated in part that:

As far as Olmwood is now aware any vegetation that was removed was Lantana, noxious weeds or re-growth. Our understanding has always been that the site had been previously cleared and sand mined.

Mr Anthony Elias

8 The affidavit of Anthony Elias sworn 2 June 2010 was read and states that he and his brothers, Daniel Elias and Gregory Elias, are directors of the Defendant, and that it is a family company established in 2004 as a special purpose company to acquire an area of approximately 10.1 ha of land near Old Bar NSW comprising Lot 1 in DP594864. Mr Elias states that his brother Mr Bart Elias is not a director of the Defendant company but has taken part in dealings with the local council and other matters affecting the Defendant’s development proposals for the property since 2004. He also states that the Defendant acquired the property from Macquarie Bank under an option obtained in May 2004, and that the purchase was completed on 10 January 2005. Mr Elias states that his knowledge of the property and its future development potential was gained from discussions with Mr Bart Elias and also as a result of enquiries and investigations undertaken during 2004 when the Defendant company was formed and prior to completing the purchase of the property.

9 Mr Elias states that his investigations included obtaining documents from Macquarie Bank, making detailed enquiries with Greater Taree City Council (the Council), having discussions with Council officers and reading various reports which had been prepared up to 2004. He states that from these investigations he learned that since the late 1980s the Council had been pursuing an objective of developing for various purposes including residential an area of land including the property. By 2004 this was referred to in Council reports and documents as “Precinct 3”. Resource Design Management (RDM) prepared an environmental study of the precinct site for the Council in 1998. Mr Elias states that he read a copy of that report in 2004. A copy of the RDM report is annexed to the affidavit.

10 Mr Elias also states that in 2004 he read the Old Bar/Wallabi Point Development Strategy (OBWP Development Strategy) adopted by the Council in 2001 as reviewed and amended in January 2003. This document is annexed to the affidavit. Extracts from the strategy document in his affidavit identify Council’s proposed intentions for Precinct 3, including some residential rezoning and a golf course development which he understood to be referenced to part of the land subsequently purchased by the Defendant. Mr Elias also states that in 2004 he saw a letter from the Director, Natural Resources Planning Branch of the Department of Urban Affairs and Planning dated 24 July 2001 which indicated support for rezoning of that portion of the land which was zoned 7(f2) and was not considered worthy of acquisition by the Crown. This letter was part of the correspondence between Mrs Susan Ivens and the Department of Urban Affairs and Planning.

11 In 2004, prior to exercising the option from Macquarie Bank, Mr Elias inspected the property. He states that he observed clear signs of past sand mining activities (particularly on the western side), piles of building rubble, dumped rubbish in some areas on the land, and weeds including lantana. He states there were some tall trees on the eastern side but that the ground cover was broken with areas of sand exposed. There was a track down the centre of the property with a power line overhead, and clumps of dead timber, lantana and bitou bush.

12 Mr Elias also states that after acquiring the option to purchase the property he read a copy of a report entitled “Old Bar Precinct 3 – Local Environmental Study” prepared by Terra Consulting (Aust) Pty Ltd dated July 2004. Mr Elias understood this report was commissioned by the Council in the course of preparation of a draft local environmental plan. This report is annexed to the affidavit. Mr Elias states that he read in the report that no threatened or rare species were discovered and that no endangered ecological communities or critical habitats occurred within the proposed development areas. Mr Elias states that he relied on portions of the report which indicated previous clearing of the land, and that current flora demonstrated little conservation significance.

13 In October 2004 the Defendant retained a firm of consulting surveyors to prepare an identification survey of the boundaries of the property. A copy of the survey is annexed to the affidavit.

14 Mr Elias states that the Defendant also obtained a copy of development consent D488/99 for a golf course granted by the Council on 15 December 2000. He was aware prior to completing the purchase on 10 January 2005 that part of the property was approved for a golf course and future residential development.

15 RPG meetings were commenced by various local landowners and were coordinated by the Council’s Director for Planning and Building. These meetings commenced with the first meeting held on 25 October 2005 at Council offices. The Defendant was represented by Mr Bart Elias. Mr Anthony Elias also participated in some rezoning proposal discussions involving the golf course development.

16 Mr Elias states that his brother Mr Bart Elias contracted with V & S Flemming Pty Ltd to clear part of the land in January 2005. Mr Elias also states that he instructed his brother Mr Bart Elias to make additional arrangements for further clearing activity by mid-2005 for the purpose of new fencing and boundary fire protection. In June or July 2006 the Defendant went ahead with plans to fence the property. Goats were installed on the fenced property following a family decision in October 2006.

17 Mr Elias states that he played no part in the arrangements to have further clearing works undertaken on the property in December 2006, and that all arrangements were made by his brother Mr Bart Elias. When advised by Mr Bart Elias at some time earlier that “rubbish and debris” needed to be cleared away, Mr Elias recalls that he said words to the effect “[a]ll right you organise it”. Mr Elias states he was not present when the work was done in December 2006, and had no direct contact with the firm contracted by his brother. Mr Elias states that he is now aware of a telephone call from Mr Priestley of the Department of Natural Resources to Mr Bart Elias at some time during the December 2006 clearing activity, and that on 14 December 2006 Mr Bart Elias drafted a response letter to Mr Priestley which was later signed by Mr Anthony Elias on behalf of Mr Bart Elias. In about July 2007 Mr Elias recalls he became aware that Mr Bart Elias had attended an interview at the Newcastle office of the Prosecutor where he was asked questions about the December 2006 clearing activity. The Defendant received a notice dated 17 September 2007 under s 36 of the NV Act. Mr Elias requested his brother Mr Bart Elias to draft a response which was later signed by Mr Anthony Elias as a Director of the Defendant. He states that he did not read the response in detail prior to signing it.

18 The Defendant has submitted an application to Council for consent to develop the property as a manufactured home estate. Development consent was issued by Council in respect of that application on 5 February 2010.

19 The Defendant received a remedial direction dated 5 January 2010 issued by the Prosecutor under s 38 of the NV Act in respect of the property, and commenced proceedings (matter no 10/10030) in the Court on 22 January 2010 to appeal against that notice. A settlement of the remediation issue was reached during a s 34 conference, and involves quarantining an area of 2 ha of the property from any further clearing.

20 In relation to the clearing of the property that occurred in December 2006, Mr Elias opines and summarises:

(a) that the Subject Property had a history of sand mining and that the vegetation on the land had been cleared in the past;
(b) that the work to be undertaken by V & S Flemming on the land in December 2006 would not involve any illegal act on behalf of Olmwood;
(c) that the instructions to be given to V & S Flemming involved tidying up rubbish, clearing weeds and cleaning up the site;
(d) that no permission or consent was required by Olmwood to have this work carried out. Had I believed that some form of consent or permission was required then Olmwood would have made the necessary application.

21 Mr Elias believed that the development consent granted in 2000 was not being treated by the Council as lapsed or expired, and that the consent was still operative. In light of the Court’s determination that in 2006 the Defendant contravened the provisions of the NV Act, Mr Elias expresses the Defendant’s apologies to the Court for what occurred.

22 Mr Anthony Elias was cross-examined about his knowledge of the circumstances surrounding the clearing. When asked when he became aware of the Department’s inquiries about the clearing he went out to the property on 20 December 2006 and saw the cleared property. Mr Bart Elias attended most of the RPG meetings on behalf of the Defendant. Arrangements for the property were left to Mr Bart Elias and he gave quarterly reports. He did not read all the RPG minutes as this was left to Mr Bart Elias. His role was to organise the finance for the purchase. Mr Bart Elias was responsible for progressing the rezoning through the Council. Mr Bart Elias is alive and living in the state of NSW. The contents of Mr Anthony Elias’ affidavit are based on the reports which he read and his own research of the RDM report and the Council strategy. These lead him to believe the vegetation had no environmental significance as it had been disturbed by sand mining and was covered by weeds and lantana, and bitou bush had grown through the trees. He was not aware then that consent was needed before the vegetation could be removed. He understood regrowth meant anything that had regrown since 1990. He denied that he knew before late 2007 that the NV Act imposed limits on the clearing of native vegetation with the clearing of regrowth. Mr Bart Elias did not suggest to him that aerial photographs of the land be obtained nor did he discuss regrowth. He did not discuss with Mr Bart Elias before late 2007 problems with the removal of vegetation under the NV Act. He had not seen the minutes of the RPG meeting of 8 November 2006 which referred to concerns of the Catchment Management Authority with the clearing of native vegetation. He denied he was aware of any problem with clearing the vegetation no later than November 2006. He was aware generally of regrowth and the date 1990. He had no knowledge of property vegetation plans before 2006. He did not understand what “NV Act in force” meant as referred to in the minutes of the RPG meeting of 6 December 2006 which he received when attending an RPG meeting on 20 December 2006. He was surprised to read in the minutes that Mr Bart Elias had said he would order aerial photographs. When he asked Mr Bart Elias he said he did not order the photographs.

23 He denied he knew there were problems with the NV Act by 6 December 2006 or that he decided with Mr Bart Elias that the way around the NV Act was to have the property cleared. He discussed with Mr Bart Elias earlier in 2006 that the property needed tidying up. At that time Mr Flemming said he would do work later in the year on his way home to Murwillumbah. Fencing was done in August/September and Mr Flemming did the further clearing work in December. The Prosecutor asked him why the work which was a substantial cost was pressing when no development application was then lodged and the property had not then been rezoned. The aim was only to tidy up the property continuing the work discussed in the previous year because that is what the company does. He denied there was a pressing need because the native vegetation was an impediment to the development of the property and its future rezoning.

24 When shown references in the RDM report stating that there should be a buffer maintained next to the coastal strip of Crown land he considered that the Defendant’s land was disturbed. He also looked at other pages of the report and the conclusion. He thought that no approval was needed for the clearing of vegetation on the property when he saw what the report concluded in relation to the golf course land which was proposed to be rezoned.

25 Mr Anthony Elias attended one RPG meeting on 20 December 2006. When he went to the property on that day the extent of clearing was greater than he expected. He could not define or quantify how when pressed. He expected some tidying up and rubbish removal. He did not raise with Mr Bart Elias at that time that more clearing had been carried out than he expected.

26 When he went to the property in 2004 he saw signs of sandmining and dumped rubbish and weeds such as lantana. He attended the property in September 2006 when fencing was being constructed and it was in same state as in 2004.

27 Mr Elias became aware in early 2007 that the Department had an interest in the clearing but his view was that there was no problem with the clearing in light of the reports and that no consent for clearing was required. He discussed the matter with Mr Bart Elias in late January/early February 2007 and said that the extent of clearing was more than expected. Bart had a different view. Mr Anthony Elias signed the letter dated 14 December 2006 to the Department on behalf of Mr Bart Elias. Mr Bart Elias did not go into detail of what Mr Priestley said to him. He was not aware on 14 December 2006 that the Department had particular concerns. Mr Bart Elias drafted and he signed the letter and sent it off. He was not aware at the time of where the work was up to and was not concerned. He did not understand why a letter was needed to go to the Department, he just did what Mr Bart Elias asked him to. Mr Bart Elias did not tell him about the conversation with Mr Priestley. He skimmed the letter before signing it. He personally was aware of the clearing on the land in 2005 not of any other clearing.

28 Mr Elias became aware of the Department’s concerns when the notice to provide information dated 17 August 2007 was received. He did not understand from his inspections in 2004 that there was native vegetation on the property but did from the RDM report. The reference to heath in the report did not say that it was native vegetation. He asked Mr Bart Elias to prepare the response to the notice as he had the most knowledge. The letter said that the vegetation was regrowth because that is what Council officers and other landowners had told him. He did not know the date of clearing apart from that on part of the property in 2005. That was his understanding at the time the response to the notice was prepared.

29 Mr Elias has been involved in property development for a number of years. In his experience the removal of the vegetation would have had no impact on the likelihood of the land being rezoned. He believed the golf course consent entitled the Defendant to clear the property as the consent applied to the whole property and the RDM report and the Council strategy coincided with each other in referring to the area of land that was intended for the golf course. While the Defendant was trying to have land rezoned for residential development it also had the back up of the golf course consent. The reports referred to a planted landscape buffer next to the coastal strip of vegetation. If Mr Elias had thought consent was needed for the removal of vegetation he would have sought it.

Purposes of Sentencing

30 Section 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) outlines the purposes of sentencing as follows:

The purposes for which a court may impose a sentence on an offender are as follows:

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

31 The relevant statutory scheme which has been breached must be considered in determining the seriousness of the offence. The objects of the NV Act state in s 3 that:

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.

32 As the Prosecutor submitted, the prohibition on clearing of native vegetation unless consent from the regulatory authority is obtained is an important means of achieving these objects. In this way environmental assessment of the proposed clearing can be carried out. Failure to comply with these provisions undermines the Act’s objectives, see Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [65]-[71] applying also to the NV Act per Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [17]. In order for the NV Act to operate effectively this scheme must be upheld.

33 The Prosecutor relied substantially on Rae, also a sentencing determination for illegal clearing of native vegetation contrary to s 12(1) of the NV Act. Preston J referred at [8]-[9] to the need for the sentence to deter an offender from committing similar offences in the future and act as a powerful deterrent, and that this is particularly important in clearing of vegetation which is invariably undertaken for commercial gain such as clearing for urban purposes or rural residential development as it may be intended to remove a perceived impediment, lessen costs of development or increase density at [11]. These observations may apply in this case.

Objective gravity

34 Determination of the objective gravity requires that the Court consider the nature of the offence, the maximum penalty, the harm caused to the environment by the commission of the offence, the reason for committing the offence, the foreseeable risk of harm to the environment and the offender’s control over the causes of harm to the environment per Rae at [14].

Nature of the offence

35 The Prosecutor submitted and I accept the nature of the offence was serious in the statutory context of the NV Act given its objective of limiting illegal clearing of native vegetation.

Maximum penalty

36 At the time of the commission of the offence the maximum penalty prescribed by Parliament was 10,000 penalty units or $1,100,000 and a further daily penalty of 1,000 penalty units or $110,000: see s 12(2) of the NV Act which refers to s 126(1) of the Environmental Planning and Assessment Act1979. That high maximum penalty reflects the seriousness with which Parliament regards these offences, see Camilleri’s Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

Harm to the environment
(i) extent of cleared area

37 A key consideration in determining the extent of harm to the environment is the area of land cleared.

38 The Prosecutor relied on the conclusion in Olmwood No 1 at [260] that between 17,168m² and 9.2ha of native vegetation was cleared from the property and that a substantial amount of native vegetation across the whole of the property was cleared suggesting the amount cleared was at the upper end of the range.

39 The Defendant argued that the Prosecutor has the onus of proving facts not already found beyond reasonable doubt in these sentencing proceedings as required by R v Olbrich. As I did not reach any conclusion on the amount of cleared vegetation the cleared area must be considered as 1.7 ha as that is the area established as cleared beyond reasonable doubt. No greater area can be considered for sentencing purposes. Further the areas cleared legally in 2005 were substantial and would have included regrowth in those areas cleared in late 2006.

40 In Olmwood No 1 I found in [183] that:

… a substantial amount of vegetation was cleared across the whole of the property in light of the eye witness observations of the clearing in 2006, the description of how the work was undertaken by Mr Flemming’s company across the whole site and the amount of time spent undertaking the work. The precise extent of the area of vegetation cleared may not be quantifiable.

41 At [185] I held that the Prosecutor had established beyond reasonable doubt that a substantial volume of vegetation was cleared across the whole of the property in December 2006 and this element of the offence had been proved beyond reasonable doubt. I repeated this at [196] to the effect that clearing was across most of the 10.1 ha property and that parts already cleared were the three strips of land cleared along the eastern and western boundaries and along the central track in 2005. My findings were made on the basis of excluding the areas cleared in 2005. At [260] I said “Further, the area cleared on the property is likely to be in the upper end of the possible range given all the evidence I have referred to earlier and my findings at par 168-193.”

42 There is no requirement of sentencing in this case that a precise area of land cleared must be identified to enable sentencing on facts proved beyond reasonable doubt. I have made a finding of fact beyond reasonable doubt that a substantial amount of vegetation was cleared across the 10.1 ha property, putting aside the legal clearing along fencelines and the middle track that occurred in January and July 2005. I consider I can sentence the Defendant on the basis of that finding. The use of the word “likely” in [260] in the last sentence was submitted by the Defendant to preclude a finding beyond reasonable doubt. That paragraph in the judgment must be considered in the overall context of my findings made throughout the judgment. I can consider for sentencing purposes that much of the 10.1 ha was cleared.

(ii) level of environmental harm

43 The Prosecutor relied on section 5 of an ecological report prepared by Travis Peake (annexed to his affidavit affirmed 20 June 2008) concerning impacts of vegetation from the cleared area at the sentence hearing. The references to littoral rainforest were excluded for the purposes of sentencing because of the need to consider the principle in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389. His report was prepared in June 2008 after a single two day visit to the property. He concludes the area of 5.6 ha of coastal heath cleared resulted in removal of vegetation that was significant locally which he did not consider to be substantial. There has been some loss of native floristic diversity in the short term but this is unlikely to result in long-term impact. That area had the potential to support a number of threatened flora species and one endangered flora population. It was likely to support a diversity of fauna habitat resources, such as foraging and breeding habitat, particularly for native bird species and mega-bat species such as the threatened common blossom-bat and the grey-headed flying fox. There would also be a secondary impact on micro-bats and smaller birds. The dense understorey is likely to be very dense and would have provided protective cover for a range of coastal bird species, small ground-dwelling mammal species and reptile species. He estimated that the large amount of vegetation removed would impact negatively on the foraging habitat of the threatened common blossom-bat. The cleared area would have contributed to a locally significant corridor for wildlife. The loss of habitat within the cleared area of the property should be considered as part of the general trend of loss of remnant coastal vegetation on the fringes of urban development.

44 Mr Peake was cross-examined in relation to section 4 of his report which identifies key threatening processes and the potential for these to occur and increase in the future as a result of the clearing. He agreed that as he had visited the property only once in 2008 and did not know what was happening on the property today, that he could not say that the potential for the occurrence and impacts of a number of key threatening processes had occurred. I note that observation was made in the context of the Threatened Species Conservation Act 1995 (the TSC Act), which does not arise directly given that the Prosecutor is not raising the presence of littoral rainforest, a threatened community under the TSC Act, as part of its case on sentencing. Section 5 of the report is separate from section 4 and can be considered for the purposes of identifying the environmental harm resulting from the clearing.

45 The Defendant argued there was minimal environmental harm:

(a) the significant effects of sandmining on the whole of the property were observed by Mr Fekete and also Mr Anthony Elias. It is clear from all of the studies now in evidence that the property was heavily debilitated by the mining activities which took place.
(b) the NSW Government declined to acquire the property as part of its acquisition of land for coastal protection. It was not treated as of environmental significance.
(c) the Council desired to open up residential land for development at Old Bar, and pursues rezoning for residential land to which the Act will have no further application.
(d) the Terra study (2003/2004) described the property as of low conservation value and “depauperate”.
(e) further consents have been given by the Council for a manufactured home estate on the entirety of the property.
(f) it is noteworthy that the evidence of Mr Peake about the impact on coastal species is in general terms and does not attempt to quantify the relative harm of the clearing on the property.

Finding

46 In relation to environmental harm, I consider that the matters identified by Mr Peake articulate the environmental harm resulting from the broad scale clearing of native vegetation which occurred across most of the property as I held in Olmwood No 1 in relation to the extent of clearing. Clearing of native vegetation results in loss of habitat for species which rely on the vegetation for foraging and breeding purposes. There is a cumulative effect of loss of habitat from the removal of such vegetation in the coastal area of northern NSW over many properties over time. That no particular conservation significance for this particular coastal heathland was identified in any reports prepared for the rezoning process such as the Terra Consulting report does not belittle the importance of the preservation of fragments of native vegetation in such areas. Further, in this case the property adjoined coastal vegetation on Crown land which was identified as worthy of conservation. The need to consider buffers for such vegetation was referred to in the RDM report at par 4.4 (titled Conservation values) as well as figure 8 (titled Development Principles South Old Bar), inter alia.

47 I do not agree with the Defendant’s submission that the evidence in the case suggested the property was heavily debilitated by sand mining activities. While parts were affected that observation does not apply to the whole of the property based on the evidence in the first hearing. That the Council has chosen to allow development on the property is a neutral factor.

48 Development consent for a manufactured home development was granted by the Council on 5 February 2010 in relation to the majority of the property. A remediation order under the NV Act s 38 has been made by consent in Class 1 proceedings whereby approximately 2 ha of the eastern side of the property will be quarantined from further clearing and revegetated by the Defendant. This will necessitate an application to amend the development consent granted to accommodate the size of the land to be remediated. That the Defendant has agreed to a remediation order on 22 April 2010 which obliges it to maintain an area of land on the eastern side of the property of about 2 ha area in its current natural condition will mitigate some of the adverse environmental impacts resulting from the clearing.

State of mind of the offender

49 The Prosecutor submitted that while the offence is a strict liability offence so that mens rea is not an element of the offence, it can be relevant in determining the seriousness of the offence to consider the state of mind of the offender at the time of its commission. A strict liability offence that is committed intentionally, negligently or recklessly is more serious than one not so committed per Rae at [42]. A large measure of premeditation will render an offence more serious per Rae at [43].

50 The Prosecutor submitted that the Defendant, the property owner, acted through Mr Bart Elias. On 8 November 2006 he attended a meeting of the RPG which minutes record that he considered he could produce a photograph from 1992 showing the property was cleared and that he would research this. Olmwood No 1 at [259]-[261] makes clear that Mr Bart Elias could not have located any aerial photographs showing the property as cleared after 1990. In mid-November 2006 Mr Bart Elias contacted Mr Flemming and asked for an estimate of the cost to mulch the vegetation on the land and later said it was all right to do the job. Clearing took place from 1 to 18 December 2006. On 6 December 2006 at a meeting of the RPG Mr Bart Elias said that he had ordered copies of aerial photographs discussed at a previous meeting. There was no mention of mulching of vegetation. Without such photographs he could not have been satisfied that the property fell within the window of being regrowth in the NV Act of seven years. Arranging for the clearing work was reckless at best, deliberate at worst. The clearing was premeditated.

51 Mr Bart Elias is the appropriate person to give evidence on behalf of the Defendant and his failure to appear suggests that he could not have given evidence which would have assisted the Defendant’s case. Only he could have assisted in the sentencing process. The inferences the Prosecutor asks to be drawn based on the evidence of his actions around the time of the clearing giving rise to the offence is that the clearing was premeditated, reckless at best or negligent.

52 Alternatively, Mr Anthony Elias should not be considered to be a credible witness. Given the RPG minutes of 8 November 2006 and 6 December 2006 it is very unlikely that he would not have been aware of the need to comply with the NV Act and the use of the “window”. It is very surprising that he was aware of the concept of regrowth and 1990 but cannot explain the significance of the connection. Further he believed that only regrowth was cleared with no explanation of why he held that belief. While he said that when he visited the property in 2006 the clearing exceeded what he expected to have occurred he did not say what he meant by this. Nor could he say why the Defendant chose to clear up the property in December 2006 at a cost of $81,000. The only rational explanation is that this would assist the rezoning process for the land to allow residential development which process had been on-going for several years.

53 The Defendant argued that Mr Anthony Elias was the appropriate person to give evidence on behalf of the Defendant as he was a director, had knowledge of the property and was involved with events sufficiently to enable him to comment. The reliance by the Prosecutor on the 8 November 2006 minutes where Carl Wilson (representative of Jarberg, another local property owner) referred to a “window” under the NV Act and Mr Bart Elias said he proposed to obtain aerial photographs of the Defendant’s land as a basis to ask the Court to conclude beyond reasonable doubt that the Defendant was involved in a plan to capitalise on the situation that was about to end because of the NV Act coming into force, is not made out. The decision to clear/tidy up the land was made earlier as attested to in Mr Anthony Elias’ oral evidence when he stated that arrangements for Mr Flemming to come to the land were made months before the work was carried out at a time Mr Flemming was not available. There is no evidence that Mr Anthony Elias discussed the 8 November 2006 and 6 December 2006 meetings with Mr Bart Elias and he did not become aware of those minutes until 20 December 2006 when he attended the RPG meeting himself. I cannot conclude beyond reasonable doubt that the clearing giving rise to the offence was premeditated or reckless or negligent.

Finding

54 I consider that Mr Anthony Elias is an appropriate person to give evidence on behalf of the Defendant given that he is a director of the company, unlike Mr Bart Elias, to the limited extent he is able to do so. As identified in his written and oral evidence set out at length above in par 8-29 he had knowledge of the property before its purchase in 2005. He visited the property in 2004 and saw sand mining, rubbish and weeds on the property. He read the reports of RDM (1998) and the 2004 Terra Consulting report prepared for the Council (2004) inter alia. He discussed management of the property with Mr Bart Elias during 2005 and 2006 including instructing Mr Bart Elias to arrange for the installation of fencing. While Mr Bart Elias was tasked with progressing the rezoning of the property to allow residential development with the Council he was familiar with the company’s plans for the property. He, not Mr Bart Elias, attended the RPG meeting on 20 December 2006.

55 Mr Anthony Elias appeared to lack any knowledge about native vegetation as he could not identify it himself on the property during his inspection in 2004 but relied on reports which referred to there being native vegetation. His knowledge of the NV Act at the time of the offence also appeared poor. His evidence is that he was aware of regrowth and the date 1990 but not its significance. He attended the RPG meeting on 20 December 2006, and was given a copy of the RPG meeting minutes from 6 December 2006 where the Council advised that the NV Act had come into force but he said he did not know what that meant. Nor I surmise did he make any inquiries about the operation of the NV Act at any stage.

56 He was cross-examined at length by the Prosecutor’s counsel concerning his knowledge of the circumstances of the clearing in December 2006 and could throw no light on the actions of Mr Bart Elias in that period. In that respect his evidence was unhelpful. I do not consider that I should find his evidence lacked credibility because of that. Accepting his oral evidence that the decision to tidy up the property was made with Mr Bart Elias several months before the clearing occurred in December 2006, there does not appear to be any basis for a finding on facts proved beyond reasonable doubt that the clearing was premeditated or intentional. I agree with the Defendant’s submission that I should not extrapolate from the statements of Mr Bart Elias at the RPG meeting on 8 December 2006 and 6 December 2006 that he would attempt to get aerial photographs of the property, the inference that the clearing was an intentional and premeditated attempt to circumvent the NV Act.

57 I do consider that the Defendant through the actions of Mr Bart Elias acted recklessly in relation to the clearing in December 2006 by Mr Flemming. No additional vegetation studies were obtained by the Defendant before Mr Bart Elias gave instructions which resulted in most of the property being cleared of all vegetation. There was no rational basis for the statements made by Mr Bart Elias at the RPG meetings or to Mr Priestley in writing and in interviews that the vegetation was regrowth as defined under the NV Act which could be cleared. As found in Olmwood No 1 no aerial photographs existed which could have confirmed that view. According to his answers in the interviews and in writing this was part of the development of the property in pursuit of the rezoning process with the Council.

58 Mr Anthony Elias signed on behalf of the Defendant a letter dated 14 December 2006 to Mr Priestley and in the response to the s 36 notice sent by the Prosecutor, which stated the vegetation was regrowth. His evidence was that he just skimmed the letter of 14 December 2006 before signing it. He relied on the answer prepared by Mr Bart Elias in relation to the s 36 notice response. He personally was aware of only the partial clearing that occurred in 2005 so that he could not exclude the possibility that the rest of the vegetation was not regrowth. Reliance on oral statements by Council officers or other landowners who he said told him the vegetation was regrowth does not suggest a careful approach to ascertaining whether it was. This view is compounded by his evidence that the clearing undertaken on the property was greater than he had expected when he saw it on 20 December 2006. This evidence further confirms the clearing was done recklessly.

Reasons for committing the offence

59 As identified in Rae, the carrying out of an offence for profit or to save incurring an expense or to avoid the cost of obtaining and implementing a statutory permission increases the seriousness of the crime.

60 The Prosecutor argued the Defendant’s behaviour suggested the purpose of the clearing was to avoid the need to obtain statutory permission given the circumstances and in light of the clearing by Mr Flemming costing $81,000. The Prosecutor relies upon the references made by Mr Elias to the rezoning proposal in his discussions with Mr Priestley on 12 December 2006 (par 10 of Priestley affidavit 23 June 2008), and the conversations between Mr Elias and Mr Priestley on 9 and 29 August 2007 (par 27 and 28 of Priestley affidavit 23 June 2008) and the development applications which confirm the clearing was to progress development of the property.

61 The Defendant argued to the contrary that the Defendant did not act for gain or surreptitiously. The Defendant believed there was an existing development consent for a golf course which allowed the clearing. That belief was misguided given the Court’s findings in Olmwood No 1 that the development consent for the golf course did not permit the clearing. The issue was complex, as can be seen from that judgment. There was no deliberate failure to comply with any direction. Mr Anthony Elias, an experienced developer, denied that the clearing was done to avoid having to comply with the NV Act or to increase the likelihood of the property being rezoned for development.

Finding

62 The interviews between Mr Priestley and Mr Bart Elias set out in Mr Priestley’s affidavit suggest the work on the property was done as part of the long term development of the property through the rezoning process with the Council. The cost of the clearing work was $81,000, a substantial sum. There is no explanation in the evidence of Mr Anthony Elias for why the clearing was carried out other than there was a need to tidy up the property because that is what the Defendant did. The clearing was part of a process of fencing and tidying up that had started in 2005. That process was undertaken as part of the intention to develop the property.

63 It is not established on the evidence whether the clearing provided a particular benefit to the Defendant in terms of the rezoning of the land and its future development. The NV Act required that permission for the removal of the vegetation was necessary. Mr Anthony Elias stated several times that had the Defendant been aware consent was required it would have been sought. It relied on the golf course consent as authorising clearing of the whole of the land and I consider that was reasonable in the circumstances. The Council sent a letter dated 12 November 2007 referred to in the first hearing see Olmwood No 1 at [265] which stated that in its view the consent had been commenced. That I ultimately held after much deliberation in Olmwood No 1 that the consent had lapsed does not suggest that this belief was unreasonable.

Foreseeability and risk of harm/control over causes

64 The Prosecutor submitted that a reasonable person would foresee the risk of harm caused or likely to be caused to the environment by the commission of the offence. I agree.

65 The Defendant had control over the cause of the clearing and should have refrained from causing the native vegetation on the land to be cleared until any necessary consent had been obtained.

Finding on objective circumstances

66 I consider the objective circumstances of the offence for this offender are of low to moderate objective gravity.

Deterrence

67 The sentence must ensure that the offender is held accountable for its actions and is adequately punished. The sentence must deter the offender from committing similar offences in the future. Further, the sentence of the Court needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. Similar observations in the context of the NV Act are made in Director General of the Department of theEnvironment and Climate Change v Wilton [2008] NSWLEC 297 at [77] and in Rae at [77].

68 Mr Anthony Elias has been involved in property development for a number of years. He is speaking for a corporate defendant engaged in a substantial redevelopment process of its property. Persons engaged in such activity need to be aware of relevant laws concerning those activities including laws to prevent illegal clearing of native vegetation.

Mitigating (subjective) circumstances

69 There are matters to be considered in mitigation of any penalty to be imposed, as provided for under s 21A(3) of the CSP Act.

Prior convictions- s 21A(3)(e) of the CSP Act

70 The Defendant does not have any prior convictions for any environmental offences.

Assistance to the authorities – s 21A(3)(m) CSP Act

71 The Defendant argued that it provided assistance to the authorities through attendance at interviews and its response to the s 36 notice to provide information sent by the Prosecutor. The Prosecutor submitted that while Mr Bart Elias and Mr Anthony Elias provided some assistance to investigating officers, the extent to which this can be relied upon by the Defendant as a mitigating factor must, to some extent, be diminished by the content of the assistance provided. In particular the reference to the vegetation being regrowth in the letter of 14 December 2006 and in the response to the s 36 notice was not made with the benefit of any specific knowledge to support such a statement. I agree with that submission in light of Mr Anthony Elias’ evidence that he was not aware of any clearing event other than that in 2005 which would suggest that the vegetation cleared was regrowth. Reliance on general statements from Council officers and other landowners that vegetation on the property is regrowth is not adequate for a matter that can result in a criminal conviction.

Contrition and remorse- s 21A (3)(i) CSP Act

72 Mr Anthony Elias states in the last paragraph of his affidavit that the Defendant is sorry for what occurred in light of the Court’s findings in Olmwood No 1. The Prosecutor criticises this wording as being a qualified expression of remorse but I accept the Defendant’s submission that this is a reasonable statement in the circumstances of this case given my findings in relation to the golf course consent.

73 Further the Defendant’s counsel submitted that Mr Anthony Elias said on numerous occasions that if approval had been required for the removal of the vegetation then it would have been sought. This is not a “fly by night” company but one which has spent considerable sums on fencing and clearing in the context of negotiations with the Council about the Precinct 3 rezoning. Further the Defendant has agreed to the remediation order which will require it to revegetate and keep 2 ha on the eastern boundary, part of which it can otherwise clear under exemptions in the NV Act. I consider these submissions should be taken into account in the Defendant’s favour.

Prosecutor’s costs

74 The Prosecutor is entitled to seek an order that its costs be paid under s 257G of the Criminal Procedure Act 1986. These costs will be substantial given the lengthy contested hearing. The Defendant submits that there will be a significant impost on it in paying these costs which should be taken into account in fixing an appropriate penalty. It was submitted that consideration of the payment of costs is not confined to the determination of the appropriate fine when the Defendant’s capacity to pay is in issue, relying on Environment Protection Authority v Barnes [2006] NSWCCA 246.

75 The making of a costs order is a matter determined in the Court’s discretion. While I am not precluded from considering the amount of costs incurred by a prosecutor in determining the level of penalty nor am I bound to do so. As submitted by the Prosecutor the purpose of the costs order is to compensate it for the costs it has been put to in pursuing this prosecution. The fact alone that there is likely to be a large impost on this Defendant because of the contested hearing resulting from this Defendant’s plea of not guilty is not a relevant factor in relation to costs in this matter. The appropriate order I will make is that the Defendant must pay the Prosecutor’s costs as agreed or assessed.

Evenhandedness

76 The principle of evenhandedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court; see Axer at 365.

77 In Director–General, Department of Environment and Climate Change v Calman Australia Pty Ltd; Iroch Pty Ltd; GD & JA Williams Pty Ltd t-as Jerilderie Earthmoving [2009] NSWLEC 182 (Calman) I reviewed a number of sentencing decisions considering s 12 of the NV Act and the previous Native Vegetation Conservation Act 1997 (repealed) at [62]-[65]. It is useful to incorporate these paragraphs here. Rae also identifies a number of cases at [79]-[83]. My review in Calman at [62]-[65] is as follows:

Native Vegetation Conservation Act 1997 (repealed)

[Referring to Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530:]

62 Taylor was a prosecution under s 21(2) of the NVC Act. Approximately 30.5 hectares of native vegetation was cleared. The actual harm to the environment was held by Lloyd J to be significant, including clearing vegetation comprising an endangered ecological community. The defendant knew that there was legislation regulating land clearing but denied knowledge of the precise legislation or the department responsible for administering legislation regulating the clearing of vegetation. The objective circumstances of the crime were considered by his Honour to be of moderate seriousness. Mitigating factors considered were the absence of prior convictions and the early plea of guilty. There was some evidence of contrition and remorse including in the offer to remediate the land although the extent of the contrition was tempered by untruthful and misleading statements made by the defendant in the investigation phase to the prosecutor. Lloyd J considered that the appropriate penalty was a fine of $30,000, discounted by 33 per cent for all mitigating factors, resulting in a fine of $20,000 of a maximum $1.1 million.

[Referring to Wilton (2008):]


63 Wilton was another prosecution under s 21(2) of the NVC Act. Biscoe J fined the defendant $30,000 on one charge and $10,000 on another charge for clearing native vegetation on the eastern and western parts of the defendant’s property respectively. The maximum penalty was $1.1 million. His Honour also ordered the defendant to pay the prosecutor’s costs of $30,000 in total. The land cleared in the eastern part was between 13.1 and 13.5 hectares and was 18.3 hectares in the western part. There was actual environmental harm caused by commission of the offence but his Honour held that it was relatively moderate as it had not adversely affected any threatened species, populations or ecological communities. The defendant cleared the land for the purpose of commercial planting and harvesting of trees for profit. The defendant believed that the clearing was exempted from a requirement for development consent under the Act. The Court found that the defendant made a serious and careless error in forming that belief. Mitigating factors considered were the absence of prior convictions, the defendant’s good character, his full assistance to the prosecution, the plea of guilty at the earliest available time, his expression of remorse, acceptance of responsibility for his actions and acknowledgment of the damage caused, a donation by the defendant of the felled timber to charities and compliance with a remediation order. In respect of the charge for clearing the eastern area, Biscoe J added $10,000 to the fine that was considered to be otherwise appropriate with the object of negating the net financial advantage that the defendant would otherwise obtain.

Offences under Native Vegetation Act 2003

[Referring to Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256:]

64 Hudson, delivered in January 2009 and dealing with an offence committed between November 2007 and March 2007, was the first prosecution under s 12(1) of the NV Act and concerned the clearing of 486 hectares of native vegetation. The defendant pleaded not guilty. In finding the defendant guilty, Lloyd J held that the offence was committed deliberately and after the defendant had been told expressly by an officer of the relevant regulatory authority that native trees must be retained on the land. The offence was committed to make the land more available for agriculture and hence for commercial gain and the harm to the environment caused by the offence was substantial. Lloyd J stated that there was a need for both individual deterrence and general deterrence. The objective gravity of the offence was considered by his Honour to be high. There were few mitigating factors as there was no plea of guilty, no assistance to the investigating or prosecuting regulatory authority, no expression of contrition or remorse and there was no remediation or offer to remediate the environment harmed by the offence. The defendant was, however, a first offender. The defendant was fined $400,000 of a maximum $1.1 million and ordered to pay the prosecutor’s costs. The defendant was also fined $8,000 for failing to comply with a notice issued under s 36(2) of the NV Act.

[Referring to Rae (2009):]

65 In Rae the defendant pleaded guilty to an offence under s 12(1) of the NV Act. An area of 215 hectares was partially cleared, including an area of 155 hectares which was cleared of 95 per cent of all trees. Most of the trees cleared were mature and some were in excess of 17m in height. The defendant admitted to investigators that he knew that he needed consent for the clearing but went ahead without seeking consent. The clearing was held to be premeditated and intentionally carried out with knowledge of its seriousness. The trees were cleared to improve the property by making it more viable for agricultural purposes and to increase its capital value. The native vegetation which was cleared had significant conservation status and contributed to biodiversity. Preston J held that there was a high degree of environmental harm and the seriousness of this harm was considered an aggravating factor in sentencing. The defendant agreed to a direction by the prosecutor to carry out remediation of the site. Overall the offence was considered to be of medium objective gravity. Mitigating factors considered were the absence of prior offences, the defendant’s good character, the defendant’s guilty plea (though not at the earliest opportunity), his expression of contrition and remorse and his assistance in the investigation. A fine of $160,000 was imposed.

78 In Calman three defendants, two landowners and a contractor, pleaded guilty to clearing native vegetation of about 21 ha for agricultural purposes. The contractor’s business was land clearing. The offences were committed without knowledge that the clearing was illegal under any law. The landholders agreed to a remediation order. The defendants pleaded guilty early, were of good character and had no prior convictions. Each was fined $22,000 and ordered to pay a third of the Prosecutor’s costs. The Prosecutor’s costs of $73,000 were substantial.

79 In Taylor, Wilton, Rae and Calman there were early pleas of guilty to take into account in mitigation of penalty, but not in Hudson. There are generally fewer matters I can consider in mitigation in this matter than these other cases. This matter concerns a lesser area of cleared land than a number of these cases but a relevant consideration is that the clearing occurred in the coastal zone where clearing of pockets of vegetation is an environmental concern, as identified by Mr Peake.

Penalty

80 In Olmwood No 1 I convicted the Defendant of the offence charged in the summons. In light of the objective and subjective circumstances of the offence I consider the appropriate penalty is $100,000.

Orders

81 The Court makes the following orders:

1. The Defendant is fined the sum of $100,000 to be paid to the Registrar of the Court within 28 days of today's date.

2. The Defendant must pay the Prosecutor’s costs of the proceedings as agreed or assessed.

3. The exhibits may be returned.