Fry v Paterson [1990] Nswlec 120 (10 October 1990

[1990] NSWLEC 120

Land and Environment Court

of New South Wales

CITATION:	Fry v Paterson [1990] NSWLEC 120 (10 October 1990 [1990] NSWLEC 16
PARTIES:	Fry v Paterson [1990] NSWLEC 120 (10 October 1990)
FILE NUMBER(S):	50076,50077,50078 of 1990
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act Local Government Act
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	10/10/1990
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: On 24 August 1990 I found the defendant, Ian James Paterson, guilty of three offences of breach of the Tree Preservation Order of the Council of the Municipality of Kiama. I adjourned the proceedings to hear evidence and submissions on penalty.

On 5 October 1990 I heard such submissions and imposed convictions on the defendant in respect of each summons. I also made orders by consent under s.126(3) of the Environmental Planning and Assessment Act requiring the defendant to revegetate the areas of his land at Foxground which had been cleared between 12 and 22 December 1989. Additionally, I ordered the defendant to pay the Prosecutor's costs in the sum of $14,628.32. I reserved the question of penalty.

The maximum penalty provided by s.126(1) of the Environmental Planning and Assessment Act for an offence against the Act is a fine of $20,000. Subsection (3) provides that a replanting of revegetation order may be directed "in addition to or in substitution of any pecuniary penalty imposed".

In the assessment of penalty it is, in my opinion, appropriate to treat the three offences as one. Each of the 3 summonses relate to different areas on the defendant's farm property at Foxground. They arise out of the same incident of tree clearing carried out over a period of around 10 days in December 1989 and could have been the subject of one summons. In my view it is therefore appropriate to regard $20,000 as the maximum total penalty which may be imposed in respect of the three offences.

It is unnecessary for me to repeat the facts of the offences in detail, suffice to say that I incorporate into this Judgment the reasons for decision I gave on 24 August 1990. Many many hundreds of significant and mature trees were felled, some up to 30 and 35m tall. A variety of species was involved, including rain forest types. The extensive photographic and video evidence received into evidence bear graphic witness to the gross extent of the devastation. A number of large piles of felled trees were pushed directly into creeks causing disturbance. As a result of the clearing erosion of creek beds has occurred as well as on slopes where rains have caused a loss of top soil because of lack of stabilisation from tree root systems.

'Before' and 'after' aerial photographs of the property also attest to the massive amount of clearing. The destruction wrought by the clearing can only be described as extraordinary. The intent of the tree clearing was obviously to improve the property for beef cattle grazing. As I said in my earlier reasons Mr. Paterson, a Sydney stockbroker, runs the 100 hectare property as a single farm employing his brother-in-law, Mr. Heather, as manager.

Mr. Paterson has twice before been convicted of breaches of the subject Tree Preservation Order in relation to the Foxground property. On 6 June 1989 he pleaded guilty and was convicted and fined $1,000 by the Local Court at Kiama. The maximum fine which a Magistrate may impose under the Environmental Planning and Assessment Act is $2,000. This offence related to significant clearing of trees from portions of the farm. The clearing, carried out between 25 October 1988 and 27 January 1989, continued notwithstanding protestations by the Council. The defendant's solicitors wrote to the Council on 24 February 1989 stating that, although their client was aware of the tree preservation order, he was not familiar with its full provisions. They said that they had provided him with a copy of the order, and Council's pamphlet on it, together with an application form for permission for removal of trees.

On 12 December 1989 the defendant again pleaded guilty, was convicted of a breach of the Tree Preservation Order and fined $300 by the Local Court at Kiama. This offence related to substantial tree lopping and pruning carried out in July 1989 at the property. The lopping of the trees around the homestead was effected in the month after the conviction and fine of $1,000. Significant trees, one with a girth of 600mm, were lopped to within a metre of the ground. No application had been made for approval to the work.

From the above it is apparent that by December 1989 the defendant was well and truly aware of the Council's Tree Preservation Order and the need to obtain the approval of Council to any proposed clearing of trees. Indeed, it appears that the defendant pleaded guilty to a breach of the Order at or about the very same time that he was embarking on the subject very extensive land clearing. The offences therefore can only be seen in the most serious light. They constitute a deliberate act of wholesale defiance of the Kiama Council bearing in mind the prior offences on the same property. They reveal an alarming attitude bordering on contempt for the law and for the authority of the Council.

There are, however, a number of mitigating factors to be taken into account. The most important of these is the willingness of the defendant to consent to and carry out a considerable replanting programme at a cost of around $70,000. The plan, agreed to by the Council, could lead to the improvement of the vegetative cover on the farm when it is carried into fruition. The programme covers the whole of the large property and includes revegetation of areas not covered by the subject offences. Indeed, some 4,500 plantings are involved. The preparatory works have already commenced.

At the same time it may be noted that the defendant will also benefit from the programme which includes $33,000 worth of fences as well as weed control. No doubt the costs of this exercise will constitute a sizeable business taxation deduction.

I also take account of the significant costs ordered against the defendant, (which order I made on October 5), as well as his own legal costs.

Mr. Hale, appearing on behalf of the defendant, asks me to take account of the fact that the property was being cleared for rural improvement purposes and that this is not a case of complete clearing for no reason. I take account of this aspect. He also points to the fact that what his client was doing was no different from what Australian farmers have done for the past 200 years of European occupation. In the circumstances of the Tree Preservation Order, the defendant's knowledge of it and his responsibilities, I will forbear from comment on this submission.

The defendant also seeks to rely on the failure of his brother-in-law Mr. Heather, the farm manager, to apply for approval and the latter's belief that it was his responsibility to apply. I reject this as a relevant factor in mitigation. Mr. Heather's evidence was equivocal on this point and the defendant gave no evidence.

Lastly, Mr. Hale submits that there will be no long term environmental damage. However, while successful rehabilitation will reduce the long term adverse environmental impact the short term effects have been disastrous and the devastation wrought to the land far-reaching.

Taking into account all of the mitigating factors the question remaining in my mind is whether the totality of fines to be imposed for the 3 offences should be $20,000 or some lesser figure. Bearing in mind the gravity and repugnance of the offences, reflected by the circumstances, I find it difficult to refrain from imposing the maximum penalty which I believe is thoroughly warranted. Nonetheless, it seems to me that some reasonable discount must be made for the mitigating evidence, especially the voluntary revegetation programme. In all the circumstances I impose a penalty of $6,000 with respect to each offence - a total of $18,000.

I therefore order the defendant to pay a penalty of $6,000 to the Registrar of the Court in respect of each of the summonses, Nos. 50076 of 1990, 50077 of 1990 and 50078 of 1990, to be paid on or before 4 months from this date, such fines to be remitted by the Registrar to the Council of the Municipality of Kiama pursuant to s.640 of the Local Government Act . The exhibits may be returned.