Director-General of the Department of Land and Water Conservation v Robson - [1998] NSWLEC 174

Land and Environment Court

of New South Wales

CITATION: DIRECTOR-GENERAL OF THE DEPARTMENT OF LAND AND WATER CONSERVATION v. M.W. ROBSON [1998] NSWLEC 174 (6 August 1998) [1998] NSWLEC 72

PARTIES: DIRECTOR-GENERAL OF THE DEPARTMENT OF LAND AND WATER CONSERVATION v. M.W. ROBSON

FILE NUMBER(S): 50043 - 50045 of 1997

CORAM: Bignold J

KEY ISSUES: :- Offence of clearing native vegetation without consent - Mitigating factors - Offence committed in ignorance of law - Appropriate penalty.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 46
Crimes Act 1900, s556A

CASES CITED: Sutherland Council v Holt

DATES OF HEARING: 6 August 1998

EX TEMPORE
JUDGMENT DATE :
08/06/1998

LEGAL REPRESENTATIVES:
Mr B Preston, Barrister
Mr P Larkin, Barrister

JUDGMENT:

The Court has before it three charges of an offence against the Environmental Planning and Assessment Act 1979 (the EP&A Act ) charged against three separate Defendants in respect of the activity of clearing native vegetation on lot 142 deposited plan 755624 being land in a rural environment situate at Evans Head with a frontage to the Woodburn to Evans Head Road, and the Evans River which clearing activity was carried out in the period on or about 27 September to 3 October 1997.

2. The Defendant Robson is the owner of the said land, the Defendant Newman is the director and manager of the company Newman Quarrying Pty Limited which is the third Defendant and the Second and Third Defendants being the persons who carried out the land clearing as contractors of the First Defendant Robson. Each Defendant has entered a plea of guilty to the charge which involves a failure to obtain the requisite development consent of the Director General of the Department of Land and Water Conservation to clearing of native vegetation as required by clause 6 of State Environmental Planning No. 46 - Protection and Management of Native Vegetation. Although that Policy was repealed at the commencement of this year upon the commencement on 1 January 1988 of the Native Vegetation Conservation Act 1997 the repeal of the State Policy does not affect the liability created by the EP&A Act and the State Policy operating together, that was incurred, as was the liability in the present cases, prior to that repeal.

3. The Court has had the benefit of a considerable body of affidavit evidence read by the Prosecutor which establishes the essential facts of the case and proves the offences as charged although of course the entry of the plea of guilty has that same effect but nonetheless the evidence has delineated the circumstances of the commission of the offence and in large measure has explained the environmental consequences of it.

4. The subject land was purchased by Mr and Mrs Robson shortly before they arranged with Mr Newman to have the land cleared for the purpose of developing the land with a new dwelling house for the Robsons and their family in a typical rural/residential type development. At the time…

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 of the Department of Land and Water Conservation v Robson [1998] NSWLEC 72
Case: [1998] NSWLEC 174
Decision Date: 08/06/1998

CaseChat Overview and Summary

The Land and Environment Court of New South Wales considered three charges against M.W. Robson, the owner of land at Evans Head, for clearing native vegetation without consent as required by the Environmental Planning and Assessment Act 1979 and State Environmental Planning Policy No. 46. The clearing took place in September and October 1997. Robson had engaged Newman and his company, Newman Quarrying Pty Limited, to clear the land for a residential development. Robson had spoken to a council officer who allegedly told him that he did not need a permit to clear land for a house site. Robson, Newman, and Newman's company pleaded guilty to the charges.

The court had to decide on the appropriate penalty, taking into account mitigating factors such as Robson's contrition, his early guilty plea, and his agreement to revegetate the cleared land. The court considered the need for general deterrence and the importance of public education through the criminal law. Robson's extensive revegetation agreement, which went beyond the cleared area, and his willingness to pay the prosecutor's costs, were significant mitigating factors. The court also noted that Newman and his company were not professional land clearers and were acting in ignorance of the law.

The court decided that the primary purpose of the criminal law, which is general deterrence and public education, would be adequately served by adopting the course suggested by Defence Counsel. The court ordered Robson to undertake the works set forth in the proposed vegetation management plan, in substitution for any pecuniary penalty. Robson was also ordered to pay the prosecutor's costs. The charges against Newman and his company were dismissed, but they were required to pay their share of the prosecutor's costs.

Orders