Director General Land & Water Conservation v Tony Rial [1998] Nswlec 72 (29 April 1998) - [1998] NSWLEC 72

Land and Environment Court

of New South Wales

CITATION: Director General Land & Water Conservation v Tony Rial [1998] NSWLEC 72 (29 April 1998) [1998] NSWLEC 66

PARTIES: Director General Land & Water Conservation v Tony Rial

FILE NUMBER(S): 50043, 50044,50045, 50046 of 1996

CORAM: Talbot J

KEY ISSUES: :- Penalty

LEGISLATION CITED: SEPP 46

CASES CITED:

DATES OF HEARING: 15, 16 April 1998

DATE OF JUDGMENT:
04/24/1998

LEGAL REPRESENTATIVES:

Mr I S Lloyd QC With Mr M H Baird (Barrister)
Mr D P Wilson (Barrister)

JUDGMENT:

In a judgment delivered on 3 April 1997, I found that each of the defendants was liable to be convicted for the offence of clearing native vegetation growing on the property known as Windouran, near Moulamein in southern New South Wales, in January 1996, without development consent required pursuant to cl 6 of SEPP 46 contrary to the provisions of s 76 of the EPA Act.

The defence in each case relied on establishing that vegetation cleared in early 1996 was native grasslands, the clearing of which did not require development consent under SEPP 46 between 1 January 1996 and 16 February 1996. Each defendant also claimed exculpation on the basis that they honestly and reasonably believed that the land being cleared was native grassland.

I described the definitions in SEPP 46 as convoluted, obscure and difficult to construe, and said that the task of understanding what the definition of “specified native grasslands” means is a daunting one which no party found easy to resolve. However, in the end the Court found that Mr Crawford, who carried the main executive role in the management of the property, saw a window of opportunity and throwing caution to the wind decided to proceed without seeking further outside advice.

The prosecutor recognises that the defendants Rial and Harris did no more than act on instructions from Mr Crawford. Therefore, as Mr Crawford had taken executive responsibility, he should accept the major share of blame. However, Rial and Harris, being aware that consent had not been obtained, failed to make appropriate inquiries and were culpable on that account.

All defendants were aware that SEPP 46 applied to the land.

It was agreed at the trial that the area cleared contrary to provisions of SEPP 46 is 240 hectares.

Mr Lloyd QC refers to the lack of contrition or remorse displayed by the plea of not guilty and the doubt expressed by the Court about Mr Crawford’s credibility.

According to Mr Lloyd, the fact that Mr Crawford aspires to a position of leadership and trust in the community carries with it a higher duty and responsibility to observe and uphold the law.

The prosecutor suggests that at least in the case of Mr Crawford the facts indicate a penalty in the higher range, having regard to the applicable maximum of $100,000, is appropriate.

Since the hearing, further evidence directed solely to the issue of penalty has been adduced.

Mr Wilson made a substantial submission identifying mitigating circumstances to…

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.

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Details

AGLC: Director General Land and Water Conservation v Tony Rial [1998] Nswlec 72 (29 April 1998) [1998] NSWLEC 66
Case: [1998] NSWLEC 72
Decision Date: 04/24/1998

CaseChat Overview and Summary

In the case of Director General Land & Water Conservation v Tony Rial, the Land and Environment Court of New South Wales was called upon to determine the appropriate penalties for four defendants found guilty of clearing native vegetation on the property known as Windouran, near Moulamein, in southern New South Wales, without the required development consent under the State Environment Planning Act. The defendants were Tony Rial, Drew Harris, Robert Bryce Crawford, and Windouran Pastoral Company Pty Ltd. The case hinged on whether the defendants had violated the State Environment Planning Policy (Native Vegetation) 1996 by clearing native vegetation without necessary consent. The defendants argued that they believed the vegetation cleared was native grassland, which did not require consent under the policy. The Court, however, found that the defendants failed to take reasonable steps to ascertain the nature of the vegetation, and consequently, they were liable for the offence.

The legal issues before the Court included the interpretation of the relevant legislation, the applicability of mitigating factors, and the appropriateness of the penalties to be imposed. The Court had to balance the seriousness of the environmental damage caused by the clearing against the mitigating factors presented by the defendants. The prosecution argued for a penalty at the higher end of the scale, given the defendants' lack of contrition and the significant environmental impact. The defence, on the other hand, presented various mitigating circumstances, including the difficulty in interpreting the legislation, the defendants' lack of prior convictions, and the significant financial and reputational damage the defendants would suffer from a heavy penalty.

Justice Talbot, in delivering the judgment, acknowledged the complexity of the legislation and the difficulty in interpreting it but found that the defendants should have sought further advice before proceeding with the clearing. The Court also considered the mitigating factors but ultimately decided that the defendants' roles in the offence warranted penalties at the higher end of the scale. Tony Rial was ordered to pay a fine of $5,000, Drew Harris was ordered to pay $2,000, Robert Bryce Crawford and Windouran Pastoral Company Pty Ltd were each ordered to pay $10,000. The Court also made orders regarding the payment of costs, to be determined by agreement or, if no agreement is reached, according to the Land and Environment Court Regulation 1994.

Orders