Environment Protection Authority v Forestry Commission of New South Wales

[1998] NSWLEC 109

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v. Forestry Commission Of New South Wales [1998] NSWLEC 109
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Forestry Commission of New South Wales
FILE NUMBER(S):	50006 - 50010 of 1997
CORAM:	Sheahan J
KEY ISSUES:	:-
LEGISLATION CITED:	Land & Environment Court Act 1979 Environmental Offences & Penalties Act 1989 Clean Waters Act 1970
CASES CITED:	R v O'Neil [1979] 2 NSWLR 582; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 698.; Rogers v The Queen (1994) 181 CLR 251; R v Isaacs (1997) 41 NSWLR 374 ; Latoudis v Casey (1990) 170 CLR 534 (at 544 and 565); Oshlack v Richmond River Council (1998) 72 ALJR 578 ; R v Sgroi (1989) 40 ACrimR 197 at 203; R v Brown (1982) 5 ACrimR 404 at 407].
DATES OF HEARING:	26 -27/11/98
DATE OF JUDGMENT:	12/18/1998
LEGAL REPRESENTATIVES:	PROSECUTOR Brendan Docking, Barrister Mr Chris McElwain of EPA DEFENDANT Glenn Bartley, Barrister Mr L Wimalaratne of Forestry Commission

JUDGMENT:

The History of the Proceedings

1. The defendant ("State Forests") has been charged (by "the EPA") with five contraventions of pollution control licence 4022 during logging operations in early 1996 on land in Colymea State Forest near Nowra.

2. The charges concern two separate "locations" at each of two "sites", known as sites "A" and "B", within compartment 1021 of the relevant forest.

3. The alleged contraventions arise from relevant works in late January 1996, involving the construction of bridge crossings over two unnamed creeks or drainage lines, which do not run permanently as streams, and are approximately 300m apart on Honeysuckle Trail. The work at site A took place on 24-25 January 1996, the work at site B on 29-30 January 1996, and logging operations commenced in compartment 1021 on 5 February and ended on 4 April 1996.

4. At site A, location 1 was at a point south-west of the bridge and location 2 at a point north-west of the bridge. At site B, location 1 was west of the bridge and location 2 north-east of the bridge.

5. Other factual background and relevant definitions from the licence are set out in my judgment of 14 August 1998 and need not be repeated here. In summary, the relevant pollution control licence was granted for a 12 month period on and from 8 August 1995 ("the licence"). The evidence suggests that the licence contained many more conditions than that which it replaced. The harvesting plan for Colymea ("the plan") was agreed between EPA and State Forests in early 1996.

6. Having entered pleas of guilty to all five charges on 9 May 1997, State Forests was granted leave by Lloyd J on 20 November 1997 to withdraw its pleas of guilty to the charges in matters 50006, 50007 and 50010.

7. In my judgment of 14 August 1998, I found the offences in 50006 and 50010 not proved, and the offence in 50007 proved. The two matters in which the original pleas of guilty still stand, namely 50008 and 50009, were stood over for hearing on the questions of penalty and costs.

8. Now before the Court, therefore, are:

(i) Matters 50007, 50008 and 50009 for further hearing on the questions of conviction, penalty and costs; and

(ii) Matters 50006 and 50010 for formal dismissal, and resolution of the question of costs.

9. The question of costs in all five matters will be dealt with separately at the end of this judgment.

The charged contraventions of Licence Conditions

10. Condition 61(c) was allegedly breached at site B in 50007; condition 61(c) and (d) at site A in 50008; and condition 75 at site A in 50009.

11. Condition 61 deals with the siting and construction of road drainage structures, and requires that they be located and constructed in such a place and way that they will, inter alia, [61(c)] "minimise the unchecked flow of water from table drains directly into watercourses or drainage lines or onto extraction tracts, snig tracks or log dumps", and [61(d)] discharge onto surfaces or structures which provide for efficient sediment trapping.

12. Condition 75 relevantly provides that "spoil from crossing construction must not be deposited in protection strips or filter strips".

13. The contravention at site A location 1 in matter 50008 is that the table drain was located and constructed so that it discharged water directly into the drainage line. A mitre drain was cut to conduct runoff from the south-west shoulder of the road into the drainage line, directly, rather than into a disposal area; and the defendant breached the condition that the crossing approaches would be drained by mitre drains as near as practicable to the edge of the protection strip. It is also alleged that no sediment traps were installed.

14. In matter 50009, which also concerns site A location 1, the allegation is that 2-4 cubic metres of spoil was deposited within 4m of the top of the drainage line on the south-western side. Apart from the requirements of condition 75, the defendant also gave the EPA site specific information on the reconstruction of the bridge at site A, saying that "the reconstruction of this bridge will minimise disturbance to the beds and banks, with no spoil being deposited in protection or filter strips". There is also evidence that the Forestry Commission asserted on 23 September 1996 that the contractors engaged knew they were not to get spoil and rubbish "all over the place".

15. The other contravention involving site A, at location 2, forms part of the charge in 50008, and concerns the location and construction of the table drain so that it discharged water directly into disturbed soil surface on the bank of the drainage line. It also alleges no sediment traps were installed.

16. The only charge before the Court in respect of site B is that in 50007 and concerns the failure of the defendant to meet the requirements of condition 4.7(e) of the harvesting plan insofar as it defined the defendant's obligation under condition 61 to the effect that the outlet of the drainage structure must not be directed into the drainage feature (see p33 of my judgment 14 August 1998).

17. The two charges which remain only to be formally dismissed concerned stabilisation works (alleged breaches of condition 76) - at site B in 50006, and at site A in 50010.

The Evidence relied on

18. In respect of the two guilty pleas (50008 and 50009) the prosecutor relied upon, from the defended proceedings:-

* the photographs in Exhibits P2 to P5 in the defended proceedings.

* letters of reprimand in Exhibit P9.

* the SEMGL Guidelines in Exhibit P11.

* Compliance Certificate in Exhibit P10.

* the video in Exhibit P7 with the agreed exception of the last two items

* the rainfall data in Exhibit P8.

* the affidavits of Robert Stanley Junor of 11 February 1997 and 30 March 1998.

* the affidavits of Russell Cowell of 14 February 1997 and 13 August 1997.

* the affidavits of Environment Protection Officer Stephen Beaman of 16 January 1997 and 27 March 1998.

19. Junor was not required to give oral evidence, but Cowell and Beaman did so, in the costs and penalty proceedings. Cowell and Beaman also swore affidavits in November 1998.

20. The defendant relied upon:

* a report and associated photographs dated 25 November 1995 by Nicholas Loane Cameron, the defendant's forests planner for south coast region (Exhibit D3). Cameron also gave oral evidence.

* the evidence of Charles William Bell, a Bega based soil conservationist with the Department of Land and Water Conservation, seconded almost full-time to the Forestry Commission for the last 4 1/2 years. Apart from oral evidence, Bell's affidavit of 25 November 1998 was relied upon as well as the photographs exhibited thereto, taken on 15 April 1997, and the following exhibits:

D4 Forest Soil and Water Protection Operator's Training Course Instructor's Training Kit dated March 1996

D5 Letter of 26 November 1997 from the Executive Director of the International Erosion Control Association (based in the USA) to Dr Bob Smith of State Forests of New South Wales recognising "Forest Soil and Water Protection Training" with an "Environmental Achievement Award".

D6 Application dated 19 November 1998 "to Re-accredit a State Forests Short Training Course" on soil and water protection with NSW TAFE and VETAB.

D7 Operational Circular 98/3 dated 6 April 1998 noting revision of "Forest Practices Code" Part 2, October 1995.

D8 Technical Guidance booklet dated August 1998 "Pollution Control Licence Conditions".

D9 Report to Bell by Colin Rosewell, Principal Soil Scientist, Department of Land and Water Conservation dated 23 November 1998 entitled "Soil loss estimates in the Colymea State Forest".

D10-12 Photographs indicating what Bell describes as erosion in the banks of the drainage line.

D13 Bell's calculation of the area/proportion of disturbed catchment at site A location 1 at 6%.

* evidence of Bruce Coleman Chessman, Principal Aquatic Ecologist with the Department of Land & Water Conservation. Affidavit 25 November 1998.

21. Mr Docking, the Prosecutor's Counsel, also relies on:

* State Forests having admitted contraventions of licence and harvesting plan conditions by paying a substantial number of penalty infringement notices since 1996;

* the disciplinary action taken against those involved at compartment 1021 (see Exhibit P9); and

* the role to be relevantly played by State Forests, which I defined in my judgment of 23 July 1997 in "the Nullum matter" (Environment Protection Authority v Forestry Commission of NSW, Nos.50058-50060 of 1996) at (p15) as follows:

"The Forestry Commission, although gaining a profit from its activities, carries out a function in the public interest, and the public looks to the public body involved in the industry to set some standard for the private sector of it, to be the `leading edge' operator in the industry". The forestry industry must be persuaded to adopt preventative measures because the potential for harm to the environment is great, and is a public concern reflected in the relevant legislation. Such harm as is an inevitable consequence of industry operations must be minimised as to extent and duration.

A pollution control licence "imposes... a degree of public trust", per Stein J in EPA v Caltex Refining (Unreported, 21 July 1994), in that the licence permits a licence holder to pollute within the constraints of that licence.

Summaries of the relevant Evidence

(a) Robert Junor

22. Junor is a natural resources management specialist of high reputation and very familiar with forestry logging and associated activities. Road making activities which do not adopt best management practice principles at "each and every location where roading activities take place", will increase the risk of sedimentation of streams with consequential impact on aquatic habitat in that little pools become filled with sediment. Such pools represent a breeding ground for animals such as an amphibian frog and insects. The silting up of pools restricts the number of sites where such animals can breed. Increased sedimentation also increases the risk of flood liability in downstream locations due to the loss of capacity of streams to carry a run-off event - the flow of water is restricted by the deposit of sediment.

23. Junor inspected compartment 1021 on 20 December 1996. Water was not flowing in the drainage lines. He was critical of the road making practices at site A and opined from photographic evidence that the road drainage structure at site A location 1 had not been constructed in such a way that the unchecked flow of water had been minimised as required by condition 61. Remediation measures at site A location 1, in his opinion, "required additional attention to become effective". He also observed on 20 December 1996 at site A location 1, that soil had been deposited in the filter strip in breach of condition 75.

24. The table drains at site B were "poorly located". "The outlets were directed onto disturbed soils forming the banks of the drainage line where there was little vegetation", in clear contravention of clause 61. Soil erosion control measures had been installed to prevent further erosion at site B but he observed sediment deposits in the drainage line consistent with soil material eroded from the outlets of the table drains.

25. In his affidavit of 30 March 1998 he gave further evidence on soil stabilisation issues namely the value of coconut mesh and the use of grass seeds. He expressed the opinion that the application of seed and coconut mesh at A and B could have taken place immediately following construction. A bare soil surface remains vulnerable to erosive forces of run-off water and protection is essential to avoid further damage and prevent sedimentation and pollution of water courses. He expressed the opinion that the use of coconut mesh and grass seeds would have been well suited to stabilising the surface of the soil at both sites.

(b) Russell Cowell

26. Cowell is now manager of the Air Toxics Research Unit but, at the relevant time, was manager of the EPA's Inland Catchments Unit and then a policy analyst in its Waters and Catchments Policy section. With Beaman he inspected the sites on 18 September 1996, notably the bridge at the boundary between compartments 1021 and 1022. He observed dead plant material and fine sandy silt in a 10m length of the creek immediately upstream west of the bridge. For the next 40m upstream he saw no similar vegetation or silt. For a distance of 150m downstream he observed the base of the creek to be in a similar condition to that area immediately upstream, ie, "a bed of silt and fine sand surrounding medium to large boulders". There was a low flow of water upstream but he could detect no surface flow downstream "although it was occasionally possible to hear a trickle beneath some of the boulders".

27. Whereas he was able to detect a number of Mayfly and Caddisfly larvae on the rocks in the upstream section of the stream, he could find none downstream.

28. He concluded that the 150m long section immediately downstream of the bridge was affected by silt laden run-off from the road and bridge area. He saw no other visible source for this material and concluded that the silt laden run-off had smothered the creek bottom, with consequent impacts outlined in an annexure to his affidavit entitled "Statement of Environmental Effects Suspended Solids (non-filtrable residue)". The 150m of material would easily be moved further downstream under the influence of higher flow.

29. Relevantly in par 15 of his affidavit of 14 February 1997 he says:

"During my inspection, I observed that the bridge over the creek constituted a replacement of an earlier bridge. It is thus possible that the sand and silt in the creek bed was due to this earlier bridge and the associated road approaches. I was unable to definitely decide between these possibilities although the impression I gained was that the sediment deposits downstream of the bridge were reasonably fresh since there was no cover of leaf litter, emergent plant life or covering of algae or moss. By `reasonably fresh' I mean that the sediments had been deposited within the previous few months."

30. He inspected again on 5 December 1996 and observed a "thin layer of leaf litter over much of the sediment and ... small plants growing in the sediment".

31. He concluded:

"Since these differences developed between my two visits, a period of approximately three months, this would indicate that such changes can occur reasonably rapidly and that their absence in September would indicate the quite fresh nature of the sediments as observed at that time. This means that the sediments were most likely due to the new bridge and the associated work rather than the old one."

32. On 5 December he also visited site B where he observed some sign of erosion on the road area within about 30m of the bridge in each direction. He saw little or no evidence of sedimentation in the creek bed downstream of this site but "formed the opinion that because of the erosion that was commencing there was a significant potential for the movement of large masses of sediment into the creek in the future".

33. The Annexure stating the Environmental Effects of Suspended Solids indicates that the principal effects of the discharge of waste water of high concentration of suspended solids are a reduction in biological activity, possible mortality of aquatic organisms, siltation, and a decrease of aesthetic value. Continued siltation has the effect of reducing navigation and suspended solids have the effect of making the water look "cloudy" and, therefore, aesthetically unattractive.

34. Cowell made a further inspection on 11 August 1997. His observations at the southern site were little different from the 18 December 1996 results. However, he detected sediment in the pool at the end of the 150m section which appeared to him to confirm his prediction that the sediment would move under subsequent higher flows and affect a larger section of the creek.

35. He gave a further affidavit on 12 December 1998 commenting on Bell's inspection report and a further inspection which he made on 5 November 1998. He observed that at site A location 1 a large proportion of the catchment area is bare rock and would yield almost 100% run-off. Another large proportion has a slope of greater than 20 degrees and would similarly yield a high percentage run-off. He acknowledges that the catchment area above site A location 1 is relatively small.

36. In his oral evidence he identified four contributing factors to the sediment discovered in the drainage line around the crossing structure and downstream re site A location 1:

1. Disturbance from the bridge construction works.

2. Disturbance to surrounding areas marked "disturbed area".

3. Rainfall event on road surface.

4. Catchment run-off into table drain.

37. He concluded that factor 1 would be the most significant cause, particularly in association with factor 2. A rainfall event is required to carry the sediment. The defendant's contention is that at least some of the silt came from the old bridge, in respect of which no charge was laid, and that another cause of the silt was erosion, in respect of which some photographic evidence was produced.

(c) Stephen Beaman

38. Beaman's primary affidavit of 16 January 1997 underpins the charges in all 5 matters. While he has extensive forestry experience, per annum it would be possible to inspect only 50-60 of 400-500 forestry operations state-wide. He first visited the subject site on 3 April 1996 and then again with forestry officers on 10 May 1996 and 23 September 1996. On the second occasion some works were proposed and further works were proposed on the third occasion.

39. On 30 June 1997 he obtained a professional accreditation from the Australian Society of Soil Science Inc as a certified professional soil scientist. His affidavit of 27 March 1998 gives evidence on erosion control techniques and practices and annexes several photographs taken on 10 May 1996 at site A.

40. In April 1998 he was appointed manager of the Forestry Unit of the EPA. Prior to that he was a Forestry Practices specialist in that unit from March 1995 to April 1998. As a result of his work in that unit he became aware that the EPA had issued a number of penalty infringement notices to the Forestry Commission between April 1995 and September 1998 in respect of contraventions of conditions of pollution control licences. The attached schedule details some 20 notices of which apparently 3 are in dispute and another 1 concerns compartment 1021. It was issued on 20 December 1996 for "conducting logging operations in contravention of an approved harvesting plan".

(d) Nicholas Cameron

41. Cameron gave oral evidence in respect of his written report of 25 November 1998 (Exhibit D3). Since 1997 he has been the Forest Planner for the south coast region based in Batemans Bay but from 1993-1997 he was the Marketing Forester for the district responsible to supervise the harvesting and sale of native hardwood. He worked in conjunction with Planning Forester, Damien Dubrowin who prepared the harvesting plan for compartment 1021. He also supervised Marketing Foreman, Richard Murrell, who had day to day responsibility for the supervision of logging in compartment 1021.

42. In late 1995 he observed that the old log bridge at site A had collapsed into the watercourse. He concluded that most of the soil which had been on top of the original bridge had been washed down the watercourse. That which was left had been somewhat stabilised by vegetation. He concluded that it would be necessary to replace the bridge in order to provide access for logging.

43. When operations began on 24 January 1996, an excavator was used to remove the collapsed bridge at site A.

44. The old bridge crossing at site B was still in place, but, on 29 January 1996, the stringers of that bridge cracked when the logging contractors drove a bulldozer over it. Arrangements were made to co-ordinate the replacement of the cracked bridge stringers and the work involved was similar to that carried out at site A.

45. The thrust of Cameron's evidence, both written and oral, is that much of what was done by the Forestry Commission, its employees and contractors at the sites at that time, displayed some shortcomings. Some of the material now available in the training kit was available at the time, but not to officers such as Murrell. It also appears that, for the environmental precautions required at the sites, the machinery available for the work was inadequate.

46. Cameron's statement in Exhibit D3 indicates that he would adopt different practices and specifications if the work were being done now. His evidence also infers that there were excessive delegations left to the discretion of the logging contractor. He underestimated the disturbance of the ground at the outlet to the mitre drain at site A location 1 occasioned by the removal of the collapsed bridge. The extent of that disturbance was not anticipated. He says "since then there has been a much greater awareness of the need for additional more comprehensive measures to minimise unchecked water flow".

47. Removal of the collapsed bridge at A resulted in an estimated 5 cubic metres of spoil being deposited in the filter strip. The spoil was located outside the drainage line. "There was perceived at the time to be no other practical alternative place to deposit the spoil". He concedes a lack of familiarity at the time with condition 75 which, to the best of his knowledge, was the first time the implementation of that condition was required.

48. His statement also gives evidence of the remediation of sites A and B.

49. On co-operation with the prosecutor, Cameron says as follows:

"In 1993/94 State Forests first approached EPA to enter into a licensing regime to protect soil and water. Since that time State Forests staff have worked in close cooperation with the EPA in developing what is now considered to be a world class pollution control licence. This process also included close cooperation between State Forests planning staff and the EPA in preparing and reviewing harvesting plans for every logging operation.

Training programs were also developed by State Forests in cooperation with the EPA to educate staff and logging operators in the application of practical measures to protect soil and water. In Batemans Bay District the first of these training programs was undertaken in late 1996. Prior to the introduction of formal training PCL education days were held throughout the State including Batemans Bay to highlight the differences between the Standard Erosion Mitigation Guidelines, used up to 1994, and the new PCL. Less formal training in soil and water protection has been provided to logging operators and State Forests logging supervisors by Soil Conservationist Charlie Bell. Charlie is specifically employed by State Forests Southern Regions to provide practical advice to field staff to logging operators on soil and water protection issues".

(e) Charles Bell

50. Bell has carried out a number of inspections of compartment 1021, firstly with Murrell on 16 April 1996 at the request of Cameron, in response to concerns expressed by Beaman. His conclusion from soil testing is that water run-off and soil movement is low, and that therefore the risk of water pollution caused by fine sediment, is also low.

51. Between 5-7 June 1996 State Forests employed a DLWC bulldozer to construct rollover crossbanks on the entire length of Honeysuckle Trail up to and including the section at sites A and B. Rollover banks were constructed approximately 17m south of A and 21m on the northern side of B and "these structures were effective in diverting all water run-off from the road surface".

52. He next visited the site on 15 April 1997 with Cameron and others primarily to discuss the evidence served in respect of Beaman, Cowell, Laird & Junor. On this inspection he took a detailed look at the bridge and road drainage construction at A and B and took photographs.

53. He estimated that only 6-10 cubic metres of an estimated 60 cubic metres of earth fill originally placed on the old bridge at A remained at the time of his inspection. 3-5 cubic metres was left in the drainage line contained by the collapsed logs and boulders. He estimated that 4-5m of earth fill was removed during construction of the new bridge and stockpiled adjacent to it. This was the spoil detailed in charge 50009. To remove it would require pushing it 70m along the road - State Forests were reluctant to do so as removal would create excessive ground disturbance and EPA did not request the removal.

54. Murrell had estimated that three-quarters of the fill on the structure of the collapsed bridge was still in place.

55. Bell formed the opinion "it was obvious that sediment deposited in the drainage line was due to the collapse of the old bridge. The absence of deposits of silt in the pool downstream of the bridge suggests that the silt had deposited between the boulders within close proximity of the bridge".

56. Bell considered that at site B the area appeared to be stable except for sediment movement caused by partially ineffective silt fencing on the eastern side of the northern approach. Vegetation and a rollover crossbank were effective in diverting run-off into undisturbed vegetation.

57. He visited A again on 23 April 1997 to supervise the removal of the collapsed logs beneath the bridge and install additional silt fencing. His fourth inspection was with Chessman, Cameron and others on 29 July 1997. He returned on 31 July to supervise further work.

58. Bell is the main provider of training on soil and water conservation issues for State Forests in the south coast region. He commenced initial training sessions with supervising forest officers in 1994.

59. The course in Exhibit D4 runs for 2 days through TAFE and has an "on the job competency based assessment". All work is involved with operations within State Forests including SFO and logging contractors are required to successfully compete the course. Relevant training occurred in the Batemans Bay area on 7-8 October 1996 and 5-6 May 1998. The course has recently been updated and an application for re-accreditation submitted (see Exhibit D6 and won an award see Exhibit D5) having been judged "to be an outstanding example of excellence in natural resource conservation and environmental protection".

60. Mr Bell gave oral evidence of very little run-off in undisturbed forest areas.

61. He produced photographs which show bank erosion and testified that most of the sediment in the creek came from the bridge structure.

62. It was he who ordered the report from Mr Rosewell (Exhibit D9) dated 23 November 1998.

(f) Colin Rosewell

63. Rosewell estimated probable soil loss from the forest roads at sites A and B using the Revised Universal Soil Loss Equation and the SOILOSS Model which is based on RUSLE.

(g) Bruce Chessman

64. At site A Chessman observed a new earth-covered log bridge constructed on top of an older similar bridge over a gully containing a small stream. Part of the old bridge had collapsed and part had been removed. "It appeared that much of the soil that would have originally covered the older bridge had been scoured by the flow of water during storms and transported downstream". He found little aquatic life. He would expect much more if the stream were perennial. That which is there would adapt to the usual rain events. "Because of the low density of macroinvertebrate fauna both upstream and downstream of the crossing, I inferred that it is likely that the gully does not contain permanent surface water, except perhaps in a few of the deeper pool areas".

65. He inspected an area 20m upslope and 60m downslope at site B and did not observe any surface water. He observed that the gully bed was heavily eroded for about 10m upslope and there were many small pockets of apparently freshly deposited coarse sediment downslope.

66. In general comments Dr Chessman said as follows:

"Taking account of the spatial extent of fresh sediments deposited in the two gullies, the lack of an aquatic ecosystem at site B and the apparently intermittent nature of the stream at site A, I consider the sedimentation impact on the gullies to be minor at the time of my inspection.

Material eroded in the gully crossings during storms would be dispersed downstream, with coarser material generally deposited in a short distance and finer material transported farther downstream, mixing with sediment from other sources. Reported sediment generation rates for Australian catchments range from about 1 to 500 tonnes per square kilometre per year, with lower values generally associated with undisturbed forested catchments compared with agricultural and urban catchments. Given a catchment area for Colymea Creek above the gully draining site B of 6400 ha (64 square kilometres), the average annual sediment load in Colymea Creek from other sources can be estimated as at least 64 tonnes and quite likely as much as 640 tonnes".

(h) State Forests' response

67. The EPA's concerns in compartment 1021 were first advised to State Forests on about 3 April 1996. Although no formal allegations had been received as at 7 November 1996, "their concerns regarding potential PCL breaches have been acknowledged and are generally accepted. Remedial action has been completed within the compartment".

68. The letters Cameron sent to Murrell and Clifford on 22 April 1996 were by way of disciplinary action. In evidence, Cameron indicated that he might not now regard all the alleged breaches in the letters as, in fact, breaches, but in the letter to Clifford, he says on behalf of the District Forester "a large number of breaches of the harvesting plan were identified...". He goes on to refer to the "poor level of compliance within 1021" as not having escaped the attention of the EPA, and acknowledges that it is probable State Forests will be fined for breaching the licence. "Perhaps of most concern is that our credibility as responsible logging supervisors has been undermined. This undoubtabley (sic) will lead to closer external scrutiny of our operations in future".

69. In acknowledging Clifford's limited experience in logging supervision, he also conceded "the lack of assistance you received from myself during the course of the operation".

Considerations on sentence

70. The maximum penalty for each offence is $125,000.

71. Mr Docking says that "the criminality is to be measured not only by the seriousness of what occurred by way of the (actual and potential) environmental harm, but also by reference to the reasons for the occurrence. It is submitted that the present offences were not `unforeseen non-negligent and unintended accident(s)' and certainly these breaches of licence could easily have been avoided".

72. Relevant sentencing principles, derived from the common law, are collected in cases such as R v O'Neil [1979] 2 NSWLR 582, and in the judgment of Kirby P, as he then was, in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 698.

(i) "Section 9" considerations

73. The Court is assisted in the matters to which it should have regard by the provisions of s 9 of the Environmental Offences & Penalties Act 1989:

"In imposing a penalty for an offence against this Act, the court is to take into consideration (in addition to any other matter the court considers relevant):

(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence; and

(b) the practical measures which may be taken to prevent, control, abate or mitigate that harm; and

(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence; and

(d) the extent to which the person who committed the offence had control over the causes which gave rise to the offence; and

(e) whether, in committing the offence, the person was complying with orders from an employer or a supervising employee."

74. The acts of the defendant are those of both an employer and a supervising employee, so s 9(e) is not relevant here.

75. In respect to s 9(d) there can be no issue that the defendant was in the perfect position to control all the causes which led to all of the breaches in these proceedings.

76. Likewise, the defendant must be regarded as reasonably likely to have foreseen actual or likely harm to be caused to the environment by each of the three offences given that in any one year it would build hundreds of structures of this type over drainage lines or water courses such as were involved here for the purposes that were relevant here [s 9(c)].

77. In respect of whether there were simple and practical preventative measures that may have been taken in the circumstances, the Court is in a slightly unusual situation of having found, in my judgment of 14 August 1998, that only certain specific stabilisation measures were strictly required by the licence conditions, and now having to consider whether other stabilisation measures could or should have been taken, in any event, to mitigate the harm.

78. Mr Docking asked the Court to consider alleged contradictions in the evidence of State Forests at the sentencing hearing, when compared with its evidence at the earlier substantive hearing, and to revisit for sentencing purposes the question of the necessity to install certain stabilisation measures.

79. Mr Bartley relies on Rogers v The Queen (1994) 181 CLR 251 to preclude the prosecution from asserting in sentencing proceedings the opposite of what was found in favour of the defendant in the substantive proceedings. He also relies on R v Isaacs (1997) 41 NSWLR 374 to remind the Court that facts adopted for sentencing purposes must be consistent with the factual basis of the verdict of guilty.

80. While I agree with Mr Bartley's submissions, and, in any event, do not consider that there were significant contradictions in the evidence, I also do not think it is necessary for me to make such a finding in order to conclude, for the purpose of setting an appropriate penalty, that there were additional preventative measures that could well have been taken.

81. In my opinion, while State Forests was strictly obliged by the licence to install only certain specified stabilisation measures, it is nevertheless a relevant factor for sentencing purposes that it could have, in addition, taken other simple and practical measures to mitigate the harm.

82. It is clear from the events at both sites that there were very simple and practical measures which may have been taken to prevent, control, abate or mitigate the harm. Indeed, it is fair to say, as Mr Docking does in his written submissions, that the remedial measures undertaken by the defendant following the EPA's detection of the offences illustrate such measures. By 20 December 1996 the defendant had caused to be placed, on the steeper embankments adjacent to the bridge at site A location 1, a coconut fibre mulch erosion control mattress to prevent erosion.

83. By the same date, at site B, the defendant had caused soil control measures to be installed to prevent further erosion including the stabilisation of drain outlets with coconut fibre mulching and sediment traps.

84. The evidence suggests that, sometime after 10 May 1996, at site A, steps were taken to minimise the unchecked flow of water from table drains directly into the drainage line. These steps included rollover banks, grass seeding and stabilisation works, silt top fencing, and coconut fibre mesh at sites A and B.

85. The Court must therefore turn to the question of actual and likely environmental harm [s 9(a)].

86. I have earlier referred to the usual consequences of water flowing down a road and causing sediment to be discharged into a drainage line. These include detrimental impact on the aquatic environment and flooding effects.

87. At site B, it is conceded by the EPA that there is no evidence of actual environmental harm, although there may be potential harm.

88. At site A I am satisfied beyond reasonable doubt that at least some of the polluting sediment observed in the watercourse was there as a result of the breaches charged in these proceedings. However, while it is accepted that there is active erosion since the construction work, there is also evidence to suggest the presence of erosion prior to the construction work. While the damage that might be attributed to the pre-existing crossing structures is the responsibility of State Forests in some regards, the totality of the damage cannot be attributed to it.

89. Accordingly, I have come to the conclusion that the amount of actual environmental harm caused by these breaches is not great, and has probably been satisfactorily remediated.

(ii) Mitigation

90. In mitigation, Mr Bartley, Counsel for the Defendant, reminds the Court that the relevant standard to apply is the pollution that would be considered to represent acceptable compliance with the licence. Practical measures of mitigation of harm must be measured against that test. State Forests has many compartments and many crossings. On this occasion, as at Nullum, it did not meet the EPA's standards and, therefore, punishment is required. However, these incidents cannot be considered in vacuo. State Forests had many things to consider.

91. The new licence for 1021 was more comprehensive than the old and he concedes that Cameron and Murrell were not fully up to the task the first time around. These are, however, isolated lapses. Training and on-the-job learning has improved the position since. It is too simplistic to look at what might occur at the end of 1998 and "retro-fit" it to the circumstances of early 1996. Add to this the fact that the problem at site A was quite unusual and, in coping with it, the usual machinery may not have been adequate.

92. All in all, the situation was very dynamic, there was a whole new regime of regulation and with the wisdom of hindsight, the Court may adjudge that State Forests officers and its contractors should have done more. There is no question that they made the wrong choices regarding the spoil but they acted in good faith and with a genuine concern to comply with the licence. There is unlikely to be a recurrence and it should be remembered that mishaps of this type are basically inevitable from time to time. The Court is entitled to have regard to the fact that they have done better since and have learned from the experience.

93. Mr Bartley also submits that his witnesses have responded honestly, considering the passage of time, and that any variations between their evidence in the conviction proceedings and those in the penalty proceedings, should not be regarded as invalidating their earlier evidence or the Court's earlier findings.

94. He submits that some leniency is called for by the swift remediation of the breaches and the general improvement in practice. These were uncharacteristic aberrations in the fullness of time, not incidents of on-going neglect or indifference. State Forests has made efforts towards perfect compliance. At worst, its actions in these circumstances, could be regarded as only negligent. The Court should be mindful that the task facing State Forests, in the field, is to "marry law and science on the ground".

95. Mr Bartley submits that most of the sediment came from the old bridges, and State Forests should not be penalised for that. The actual harm done is minimal and the potential for harm, little different. These events occurred in a hard environment of low biodiversity.

96. Further on the question of mitigation, Mr Bartley puts that his client has been co-operative with the prosecutor and obedient to the intentions of the Parliament - it has negotiated licensing arrangements and harvesting plans, undertaken training, and improved its supervision.

97. It entered a plea of guilty at the earliest opportunity indicating contrition and remorse. Only Counsel's advice that a major dispute on the facts justified its challenge to three charges led to the change of plea. It then won the two factual disputes. Its defence to the third charge was technical in nature.

98. Mr Docking, responding on behalf of the EPA, submits that there should be no deduction for a guilty plea, in respect of the site B offence.

99. He further submits that the Court should consider the alleged contradictions between the evidence given by Cameron at the substantive hearing and his evidence in the penalty hearing as indicating a lack of contrition on the part of State Forests.

100. He acknowledges, however, State Forests' co-operation with the EPA, and its introduction of remedial measures, and of training and education programmes.

(iii) The Forestry Commission's criminal history

101. An appearance in Coffs Harbour Local Court on 25 August 1993 resulted in State Forests receiving a s556A discharge, and paying costs of $8,045, in respect of an alleged breach of the Clean Waters Act 1970.

102. The evidence suggests that, apart from the Nullum matter, in which the charges I dealt with related to events in October 1995, these current charges, arising out of activities in January 1996, are the only occasion State Forests has been dealt with by this Court.

103. In the Nullum matter this Court imposed, on 23 July 1997, fines of $12,500, $7,500 and $5,000, plus costs of $10,000.

104. Such matters should be weighed in the sentencing balance [R v Boney (NSWCCA, 22 July 1991, per Grove J)], including the penalty infringement notices detailed in Annexure "A" to Beaman's affidavit of 25 November 1998. [Ex parte Newman (1969) 1 NSWLR 538 per Jacobs JA].

(iv) The totality principle

105. I declined in the Nullum case to apply the principle of "totality" because I found that the offences involved there were not sufficiently connected.

106. The principle might best be explained by quoting the following passage from the judgment of Street CJ in R v Holder [1983] 3 NSWLR 245 at 260:

"The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straight-forward adding up of the terms appropriate for the offences if each were viewed alone".

107. The principle of totality does apply where the penalty imposed is by way of fine [R v Sgroi (1989) 40 ACrimR 197 at 203], but may not have the same force as it does in the case of imprisonment. [R v Brown (1982) 5 ACrimR 404 at 407].

108. In this case, the principle of totality should apply to the offences alleged at site A location 1 and, in my opinion, it would also be appropriate to include the contravention alleged at site A location 2. Accordingly, I have decided to apply the totality principle in respect of the charges in matters 50008 and 50009, but to consider the offence in 50007, regarding site B, in its own right.

109. In determining the appropriate penalty to apply in this case, I have taken into account the fact that the actual environmental harm does not appear to be great, and the generally co-operative approach demonstrated by State Forests. However, I have also considered the fact that this is not State Forests' first infringement, that there were clearly simple, practical measures that could have been, but were not, adopted by State Forests to mitigate the harm involved which, although not extensive, must have been foreseen by State Forests as likely to occur.

110. In these circumstances, where all three offences are at the "relatively less serious" end of the spectrum, but are "second offences" of a similar type, I have determined that an appropriate aggregate penalty in respect of site A is $20,000, and in respect of site B $10,000.

The Questions of Costs

111. As the parties have reached no agreement on costs the Court must conclude the appropriate order to make.

112. The power to award costs in Class 5 proceedings is specifically conferred by s 52 of the Land & Environment Court Act 1979 and is discussed in detail in Owen v Willtara Construction Pty Ltd, 50002 of 1998, Bignold J, 11 December 1998 ("Owen").

113. In the two matters in which pleas of guilty have been entered, and in the defended charge found proved, the Court would normally order the defendant to pay the prosecutor's costs. In the charges that were dismissed it would not be unusual for the prosecutor to be ordered to pay the defendant's costs.

114. On 23 January 1997 the Chief Judge signed the order which commenced these proceedings, and all 5 summonses were then served. After mentions on 21 February and 4 April 1997, the defendant entered pleas of guilty to all 5 charges on 9 May 1997 and the matters were set down for submissions on sentence on 5 September 1997. The prosecutor then served its draft statement of facts on 28 July 1997, and, when that was considered at a conference of State Forests officers on 6 August 1997, a recommendation was made that the defendant should seek to withdraw its plea to several of the charges.

115. On 5 September 1997 the defendant made its application to withdraw the pleas of guilty to three of the 5 charges, namely, 50006, 50007 and 50010. That hearing concluded on 8 October 1997, and Lloyd J delivered his judgment on 20 November 1997, granting the application.

116. In two of the matters (50006 and 50010), those in which I eventually found the offences not proved, Lloyd J had formed a preliminary view that the defendant may not be criminally responsible for what he called "stabilisation offences".

117. In respect of 50007, His Honour formed the view that there was confusion as to whether it was the location or manner in which the structures were constructed that constituted the offence and how far away the drainage structures should be from the bridge. He did not see it as a situation where the defendant had merely received different and/or more favourable advice from its counsel or legal officers.

118. Mr Docking for the prosecutor divides the proceedings and their costs into four phases:

(a) Phase 1 covers the investigation stage, right up to the entry of the 5 guilty pleas.

Mr Docking submits the prosecutor should get all its costs for this phase.

(b) Phase 4 is the sentencing proceedings, and Mr Docking submitted that the prosecutor should be entitled to all its costs of that phase.

(c) Phase 2 covers the time from the entry of the 5 guilty pleas on 9 May 1997 until the judgment of Lloyd J on 20 November 1997.

Lloyd J reserved the question of costs, but the general rule is that a person who seeks an indulgence from the Court normally pays the costs. However, on this occasion, costs have not been argued on that basis. Mr Docking submits that in the circumstances of Phase 2 of this case (see p41 of transcript) the prosecutor would normally be entitled to the costs of one day and the defendant to the costs of the other. Accordingly, he concedes that the appropriate order for costs in respect of those proceedings might be that each party pay its own costs.

(d) Phase 3 is the 4 day defended hearing of the charges 50006, 50007 and 50010.

Two of the prosecutions did not succeed, and one did. However, the evidence on the two stabilisation charges and the evidence on the one drainage charge appear to Mr Docking to have occupied approximately equal court time.

The prosecutor puts that it may well be able to argue for all of its costs of this phase, but, on the basis of time spent, it could expect to be held to be entitled to only half of the costs involved in the trial. From the bar table Mr Docking informed the Court that the EPA had offered, without prejudice to any other case, that each side bear its own costs of that hearing.

119. Mr Docking seeks to rely upon "disentitling conduct" on the part of the prosecutor, in that a key witness (Murrell) refused to be interviewed, and there was a "shift" in the defendant's evidence between the phase 3 and phase 4 hearings.

120. Disentitling conduct is dealt with by the High Court in Latoudis v Casey (1990) 170 CLR 534 (at 544 and 565), and in Oshlack v Richmond River Council (1998) 72 ALJR 578 (at 592), and I find on the defendant's part in this case none of the types of disentitling conduct discussed in those cases.

121. Mr Bartley for the defendant adopts the separation of the case into the 4 phases described above. He conceded that the defendant should be responsible for the costs of phase 4, the two day hearing on sentence, but he applied for the defendant to have an order for costs in its favour in respect of phases 1-3. In his supplementary written submissions he also asks for the costs of such submissions, on the basis that the dispute which arose about alleged contradictions in the evidence led for the defendant "consumed costs unnecessarily".

122. He submits that the costs in phase 1 should normally follow what is decided regarding costs in phase 3.

123. In respect of phase 2 he submits that, on the principle in Latoudis v Casey, as the defendant succeeded, it should be entitled to its costs, albeit that those costs may be reduced by the adjournment. Nonetheless, the "balance of the account" for phase 2 would favour the defendant.

124. Mr Bartley submitted that most of the 4 days in phase 3 was spent on the two cases which the prosecutor lost, and only a minority of the time on a legal disputation regarding agreed facts in respect of which the defendant lost. He believes there is a heavy "balance of the account" in favour of the defendant rather than any suggestions that each party bear its own costs, or that the defendant pay any of the prosecutor's costs. He said the defendant would accept my apportionment of the time spent, but not on the basis of the numbers of charges which succeeded or failed. The costs incurred in respect of those three matters in phase 1 of the case, should run with the outcome on costs in phase 3.

125. So far as the exchange of supplementary written submissions is concerned, I can only say that I requested them and found them useful. Accordingly, I would, in isolation, order each party to pay its own costs in respect of them, and I have weighed such shared responsibility for costs in the overall balance I have sought to strike.

126. The Court's wide discretion on the question of costs must be exercised judicially. (See Owen, especially pars 26ff). Therefore, I cannot see why the Court should make an order reflecting the offer the EPA made on the costs of Phase 3. If there were to be some apportionment exercise undertaken on the basis of time spent, it would be appropriate, in the absence of a concluded agreement between the parties, that the Registrar of the Court might facilitate some assessment process.

127. In all the circumstances recounted above, given that the prosecutor:

* ultimately succeeded in 3 of its 5 charges,

* had a substantial case to argue in respect of the other 2, and

* succeeded in respect of both sites in respect of which charges were laid,

I believe that the simplest and fairest course for the Court to take on costs is that the defendant be ordered to pay the majority share of all the costs incurred by the prosecutor in matters 50006-50010, and I determine that a fair share is 75% of the total.

Orders

128. Accordingly, the orders of the Court will be as follows.

1. The defendant is convicted of the charges laid in the summonses in matters 50007, 50008 and 50009 of 1997.

2. The charges laid in the summonses in matters 50006 and 50010 of 1997 are dismissed.

3. In matter 50007, the defendant is fined an amount of $10,000, payable within one month.

4. In matter 50008, the defendant is fined an amount of $12,500, payable within one month.

5. In matter 50009, the defendant is fined an amount of $7,500, payable within one month.

6. The defendant is ordered to pay 75% of all the costs, to be agreed, or assessed according to law, as having been incurred by the prosecutor in the concurrent prosecution of all five matters, payable within one month of such agreement or assessment.

129. All exhibits may be returned.