Director-General of the Department of Land and Water Conservation v Leverton Pastoral Company Pty Limited

[2002] NSWLEC 212

Land and Environment Court

of New South Wales

CITATION:	Director-General of the Department of Land and Water Conservation v Leverton Pastoral Company Pty Limited [2002] NSWLEC 212
PARTIES:	PROSECUTOR Director-General of the Department of Land and Water Conservation DEFENDANT Leverton Pastoral Company Pty Limited
FILE NUMBER(S):	50113 of 2001
CORAM:	Talbot J
KEY ISSUES:	Prosecution :- mitigation - remedial order
LEGISLATION CITED:	Crimes Sentencing Procedure Act 1999 s 22 Native Vegetation Conservation Act 1997 s 21(2), s 47(1)(a)
CASES CITED:	R v Thomson; R v Houlton (2000) 49 NSWLR 383
DATES OF HEARING:	18/09/2002
EX TEMPORE JUDGMENT DATE :	09/18/2002
LEGAL REPRESENTATIVES:	PROSECUTOR Mr C J Leggat (Barrister) SOLICITORS Crown Solicitors Office DEFENDANT Mr C M McEwen (Barrister) SOLICITORS Long Howland Lawyers

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50113 of 2001

Talbot J

18 September 2002

Director-General of the Department of Land and Water Conservation

Prosecutor
v

Leverton Pastoral Company Pty Limited

Defendant

Judgment

Introduction

1 HIS HONOUR: A plea of guilty has been entered by the defendant company, Leverton Pastoral Company Pty Limited, in answer to the charge made by the summons issued in September 2001.

2 The Court has been quite significantly assisted by the parties’ compliance with its directions for the preparation of a Statement of Agreed Facts. The preparation of that document has assisted in limiting the extent to which evidence was required. Its form is comprehensive in terms of identifying the offence, the relevant background, the environmental impact and the relevant matters that generally need to be taken into account in assessing an appropriate penalty.

3 The charge is that the defendant failed to comply with the provision of Pt 2 of the Native Vegetation Conservation Act 1997 (“the Native Vegetation Act”) on two adjoining parcels of land, namely lot 1 in deposited plan 756025 and lot 7 and lot 9 in deposited plan 756014 being part of the property “Luellan” which is situated near Boggabilla (“the subject lands”), being land to which no regional vegetation management plan applied at the relevant dates of the offence which are alleged to be between 1 August 1999 and 22 September 1999.

4 The offence is a contravention of s 21(2) of the Native Vegetation Act. The subsection provides that a person must not clear native vegetation on any land except in accordance with a development consent that is in force or a native vegetation code of practice.

5 The defendant is a family company. The primary directors and shareholders are David Manchee, Jane Manchee and their son Geoffrey Manchee. It is a curious quirk of history that in or about 1904 an ancestor of Mr Manchee acquired the subject lands from the New South Wales State Government on condition that he clear the lands and face forfeiture thereof if they were not cleared or regrowth thereon was not controlled.

6 At the time of the offence the property Luellan consisted of 1636 hectares. It forms part of a total disparate holding (comprising approximately 10,000 hectares) held by family interests. In September 1999, when the subject clearing took place, approximately seventy per cent of the native vegetation within lot 1 was less than ten years old. It is not in dispute that the offences charged does not relate to that seventy per cent but rather to the remaining thirty per cent of the vegetation on lot 1.

7 According to the Agreed Statement of Facts the defendant planned to regenerate 136 hectares on lot 1 to improve grazing productivity through what is described as a strip cell grazing plan.

8 The defendant company proceeded to clear that part of lot 1 the subject of the charge on the basis of an understanding that clearing was exempt from the requirement to obtain development consent. In the company’s opinion, what were being cleared were trees and woody weeds less than ten years of age where the land had been previously cleared for pasture. The balance of the remaining vegetation was necessarily cleared for the construction of fence lines to assist with the cell strip grazing where the land had also previously been cleared for pasture.

9 In relation to lot 7 and lot 9 the company proceeded on the basis that the clearing was exempt from the requirement for development consent. In the defendant’s opinion, the clearing was within the minimal clearing regrowth and rural structures exemptions. The grass clearing was within the Moree Plains Shire Grassland Plan exemption. The Court has been advised that, up until 31 December 1999, the Grassland Plan overrides the constraints imposed by the Native Vegetation Act.

10 The intention of the defendant in relation to the clearing in lot 1 was also to control vermin, in particular feral pigs which frequently inhabit lot 1. The defendant again believed that the work involved entitled it to an exemption under the Act even though the primary reason for the clearing was not necessarily for vermin control.

11 When the defendant was requested by officers representing the Department of Land and Water Conservation (“DLWC”) to cease work it did so voluntarily. Neither the defendant nor any of its shareholders or directors has been previously charged with any offence in respect of any matter.

12 The clearing was carried out by a bulldozer and a loader, which pushed and gathered trees into piles. The piles were then set alight. The land area in which clearing took place in lot 1 was approximately seventy five hectares. In lot 7 and lot 9 it was approximately 250 hectares.

13 The prosecutor engaged the assistance of Wendy Hawes, the Regional Ecologist, Barwon Region, from the DLWC to assess the significance of the vegetation cleared. Following the inspection of three uncleared sites, Ms Hawes came to the conclusion that the vegetation which had been cleared would have been in very good condition and included a range of age classes of the dominant species consisting of Belah layered open woodland community and native grassland.

14 The conservation status significance of the Belah and Bimble Box woodlands, which were both cleared, is that they are considered to be inadequately represented in the so-called Conservation Reservation System. In Ms Hawes’ opinion, the area cleared constituted a proportion of one of the more intact remnants within the Brigalow Belt South Region. It was also part of a major regional east-west vegetation corridor.

15 Mr McEwen, on behalf of the defendant, indicated that the Court could not be necessarily satisfied that it is a given that the vegetation forming part of a corridor. According to his submission, the aerial photographs tendered show that there is really no evidence to show that there is a connection to any other areas which could possibly describe or entitle the Court to accept that vegetation formed part of a corridor.

16 The Statement of Agreed Facts recognises that the vegetation provided resources for some migratory species of birds and habitat for a threatened species, namely the Grey-Crowned Babbler.

17 The defendant has been co-operative with the prosecutor throughout the investigation and in preparation for the hearing.

18 The prosecutor contends that the Court should take into account that the objective in carrying out the clearing was solely for profit. There was an expectation that the capacity for grazing the subject lands could be increased by fifty per cent.

19 On the other hand the defendant contends that it has received no economic benefit from the clearing or planned clearing of the regrowth on lot 1 and that, in its opinion, the act itself has caused the defendant enormous losses in terms of devaluation of land value and lost income from lower production.

20 There is some substance in the argument that the ultimate result for the defendant is that not only has it suffered a devaluation of its property in the order of $232,000, as evidenced by the re-evaluation of the property by the Valuer-General, but also the loss of production as a consequence of the agreement to enter into the remediation program. This will mean that there is a significant loss of return on the land.

21 The prosecutor asks the Court to take into account four specific matters in relation to the seriousness of the offence.

22 The first is that the area of the clearing involved is only seventy five hectares on lot 1 and 250 hectares on lot 7 and lot 9, in the context of the total holdings of the family comprising approximately 10,000 hectares. Furthermore, as Mr McEwen submits, it needs to be appreciated that only thirty per cent of the vegetation removed on lot 1 gives rise to the offence. The other seventy per cent is exempt vegetation less than ten years old.

23 Moreover, Mr McEwen directs the Court’s attention to the evidence gleaned from the aerial photographs that show, prior to clearing, the actual vegetation on lot 7 and lot 9 was sparse and scattered. The Court takes account of the fact that the offence in respect of lot 7 and lot 9 relates only to trees and shrubs and not to the grasslands in that area of 250 hectares. I have previously mentioned that up to 31 December 1999 the grasslands were exempt from the application of the Native Vegetation Act.

24 Secondly, Mr Leggat, who appears for the prosecutor, relies upon a rather bold submission that the clearing was carried out in an environmentally unsympathetic way in that a bulldozer was used thereby leaving the land in a state where there could be no prospect of regrowth from stumps or other remnants and that if, for example, the land had been cleared by using a chainsaw the soil would not have been disturbed. There is no evidence to support such a conclusion. There is nothing to suggest that the defendant approached the task of clearing in a vandalistic or irresponsible way.

25 The third aspect that Mr Leggat seeks to rely upon is the fact that the defendant was carrying out the activities solely for the purpose of profit. That is clearly recognised by the defendant. It was part of the grazing program the family adopted for this land. Even though, coincidentally, as Mr McEwen points out, there were some benefits in terms of vermin control, there is no doubt that the defendant approached the task of clearing intentionally and deliberately and for the purpose of seeking a commercial gain.

26 Fourthly, Mr Leggat submits that the Court should take into account that there was a significant and adverse impact on native vegetation. This must be subject to appreciating the real context, as I have already explained. Firstly, in relation to lot 1 some seventy per cent of the vegetation could have been removed without consent. Secondly, in relation to lot 7 and lot 9, the sparsity of the trees and shrubs removed. There is no doubt that there was a significant and adverse impact on the vegetation because it was removed. However, Mr McEwen asks the Court to balance the agreement by the defendant to enter into that agreement against what would otherwise be regarded as an ongoing significant and adverse impact on the native vegetation concerned.

27 Mr Leggat recognises that the defendant is entitled to the full discount for having entered an early plea of guilty pursuant to s 22 of the Crime Sentencing Procedure Act 1999 and in accordance with the judgment of the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383. The prosecutor recognises that the Court is entitled to take into account the lack of any prior relevant convictions. Finally, that the defendant has agreed to pay the costs incurred by the prosecutor in the sum of $31,000.

28 The Court has the benefit of a number of supporting testimonials tendered by the defendant. The testimonials are from persons of substantial standing, not only in the community around Boggabilla and Moree, but throughout the State of New South Wales and indeed the Commonwealth. There can be no doubt the Manchee family are held in high esteem in the local community and throughout the community generally. They are not regarded by the Court as persons likely to find themselves before a Court for the purposes of answering the type of charge in the future.

29 I accept the references at face value. They have been tendered without objection. I regard the offence by the company as being “one off”. There is unlikely to be a re-occurrence.

30 The principals of the company are in Court. Mr McEwen, upon instructions, expressed contrition on behalf of the defendant. Although it was believed at the time that what was being done was being done pursuant to a legal entitlement to engage in farming activities on the company’s own land, the company representatives nevertheless apologised to the Court for a breach of its statutory obligations under the Native Vegetation Act.

31 I accept that the bringing of the charge would have placed significant stress on the directors and shareholders of this company and their family members. They have suffered embarrassment as a consequence of being brought before the Court to answer criminal charges.

32 It is appropriate that I take account of the agreement by the defendant company to accept a direction to carry out remedial work. My understanding is that the direction will be given force pursuant to s 47(1)(a) of the Native Vegetation Act No formal order of the Court will be required in that regard. The defendant has agreed to enter into or accept the direction voluntarily. It imposes quite substantial constraints upon the future use of the subject lands and other land in terms of the potential to make a profit from the grazing activities.

33 I do not propose to go through all of the detail of the direction but the most salient provisions require that parts of the land be excluded from any grazing activity for an initial period of time. Other constraints apply over a longer period. The object of the direction is to restore the vegetation community in lot 1 by allowing natural regeneration of the vegetation to occur and thereby restoring the habitat and the so-called connectivity values that have been lost as a result of the clearing. Also, in order to protect the ecological values of the vegetation, the company is required to erect fencing whereby stock are excluded from the southern area of lot 1 and to maintain that fencing in a stock proof condition. Stock is to be excluded from that area for five years from 18 September 2002. No clearing, cultivation or pasture improvement (even using exemptions under the Native Vegetation Act) can occur in this area without written permission of the department. After five years stock may be re-introduced to the area on a controlled basis and under certain conditions.

34 In relation to the northern part of lot 1, that is the uncleared section, no exemptions will be permitted in this area for five years. The company will be entitled to carry out low intensity burning under the supervision of the Rural Fire Service for five years. From 18 September 2002 stock can be introduced but only up to the notional carrying capacity specified by the Rural Land and Protection Board. After the period of five years there will be no restriction.

35 Provision is made for the control of weeds and noxious animals. There is also a constraint on the extent to which fire controls can be used in the areas concerned.

36 It is apparent from a reading of the direction that, although it may be right, as Mr Leggat, says that the original intention was to gain some benefit for production which translates into a profit making concern, the ultimate consequence of the defendant carrying out the clearing is that it will suffer, and has indeed already suffered, economic constraints and losses.

37 The prosecutor agrees, quite properly in my opinion, that having regard to the whole of the circumstances, the penalty imposed should be a modest one.

38 There are various general principles of sentencing which need to be taken into account. They involve ensuring that this type of offence is not regarded lightly or as being trivial as a matter of general deterrence. Those who transgress, no matter how innocently, can expect that the law will be strictly applied to them. There are questions of individual deterrence. As already mentioned above, individual deterrence is not of great significance having regard to the character and antecedents of the people associated with the defendant and the defendant itself.

39 Nevertheless, it is important that the Court should recognise that the parliament has identified this type of offence as a serious one. The maximum penalty at the time that the offence occurred was $110,000. The maximum penalty has subsequently been increased to in excess of $1,000,000.

40 However, the defendant is entitled to the benefit of a number of matters I have referred to in the course of these reasons. These include the early plea of guilty, the mitigating circumstances, the extent of clearing that was contrary to law, the economic loss that the defendant will ultimately suffer, the defendant’s antecedents and the significant impost of paying the prosecutor’s costs in the sum of $31,000.

41 I am satisfied in all of the circumstances that the defendant did clear native vegetation on the said lots 1, 7 and 9 without first obtaining development consent or otherwise in accordance with a native vegetation code of practice. The elements of the offence have been proved beyond reasonable doubt. The Court proposes to enter a conviction.

42 No submission has been made that a penalty should not be imposed. I recognise, however, that the acceptance by the defendant of the direction to carry out remedial work is in a sense, at least as to part, a penalty. Part of the so-called remedial work appears to go beyond simply restoring the damage caused.

43 I expressly accept the explanation given by the defendant that at the time the offence occurred it held the belief that it was entitled, in view of the history of the clearing on the land and the nature of the vegetation being cleared, to do what it was doing without having to obtain consent.

44 In all of the circumstances it is appropriate, as the prosecutor concedes, that the penalty should be modest. I propose to impose a fine in the sum of $5,000.

45 The formal orders of the Court are as follows:-

(1) The offence is proved.

(2) The defendant is convicted of the offence as charged in the summons.

(3) The defendant is ordered to pay a monetary penalty in the sum of $5,000.

(4) The exhibits, except exhibit A, may be returned.

(5) The agreement by the defendant to pay the prosecutor’s costs in the sum of $31,000 is noted.