Garrett v Freeman (No. 4) - [2007] NSWLEC 389

Land and Environment Court

of New South Wales

CITATION: Garrett v Freeman (No. 4) [2007] NSWLEC 389

PARTIES:
PROSECUTOR
Stephen Garrett
DEFENDANT
Geoffrey Noel Freeman

FILE NUMBER(S): 50043 of 2005 and 50044 of 2005

CORAM: Lloyd J

KEY ISSUES: Prosecution :- damage habitat of threatened species knowing that the land concerned is habitat of that kind - construction of road - offence committed by corporation - no valid assessment of the activity - person concerned in management of corporation - inconsistent, evasive and self-serving evidence - independent corroboration of evidence required - actual, imputed or constructive knowledge of the contravention

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pt 5
Environmental Planning and Assessment Regulation 1994 cl 82
Environmental Planning and Assessment Regulation 2000 cl 228
Evidence Act 1995 s 184
Freedom of Information Act 1989
Interpretation Act 1987 s 21(1), s 50(1)
Local Government Act 1993 s 220, ch 11, s 731
National Parks and Wildlife Act 1974 s 5, s 118D, s 159A, s 169, s 175B
Native Vegetation Conservation Act 1997
Protection of the Environment Operations Act 1997 s 193
Rural Fires Act 1997
State Environmental Planning Policy No 14
Threatened Species Conservation Act 1995 Sch 2
Hastings Local Environmental Plan 2001 cl 8 of Sch 5

CASES CITED: Carltona Ltd v Commissioners of Works [1943] 2 All ER 560;
Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257;
Director-General of Department of Land and Water Conservation v Greentree [2002] NSWLEC 102;
Edwards v The Queen (1993) 178 CLR 193;
Environment Protection Authority v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289;
Garrett v Freeman (No. 2) (2006) 145 LGERA 459;
Garrett v Freeman (No. 3) [2007] NSWLEC 139;
Gee v Council of the Sydney City Council (2004) 137 LGERA 157;
Gunning Sustainable Development Association Inc v Upper Lachlan Council (2005) 138 LGERA 281;
Jugiong Quarries Pty Ltd v Water Administration Ministerial Corporation (Talbot J, 11 May 1995, unreported);
Lakeside Plaza Pty Ltd v Legal & General Properties No 2 Ltd (1992) 76 LGRA 60;
Ostrowski v Palmer (2004) 218 CLR 493;
Parramatta City Council v Hale (1982) 47 LGRA 319;
Shroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74;
Springer v Woollahra Municipal Council (2000) 108 LGERA 392;
Stephen Garrett for and on behalf of the Director-General, Department of Environment and Conservation (NSW) v Freeman [2006] NSWLEC 322

DATES OF HEARING: 05/06/2006; 06/06/2006; 07/06/2006; 08/06/2006; 09/06/2006; 13/06/2006; 14/06/2006; 15/06/2006; 11/07/2006; 12/03/2007; 13/03/2007; 14/03/2007; 15/03/2007; 16/03/2007; 19/03/2007; 20/03/2007; 21/03/2007

DATE OF JUDGMENT:
31 July 2007

LEGAL REPRESENTATIVES: PROSECUTOR:
D A Buchanan SC
SOLICITOR:
Stephen Garrett
DEFENDANT:
I J Hemmings (barrister) and E Y Ozen (barrister)
SOLICITORS:
Donovan Oates Hannaford

JUDGMENT:

Contents

Section
Paragraph number/s

Mr Thor Aaso 19 - 28
Mr Scott Anthony Beaumont 29 - 33
Mr Jason Berrigan 34 - 39
Mr Anthony Ward Bischoff 40
Mr Michael Andrew Coulter 41 - 44
Mr Stephen Debus 45 - 46
Professor Barry J Fox 47 - 48
Mr John Edward Jeayes 49 - 53
Mr Franklin John Lyon 54
Ms Maria Alma Matthes 55 - 60
Mr Jack Anthony Moody 61 - 62
Ms Katrina Louise O'Reilly 63
Mr Peter Matthew Owens 64 - 71
Mr Philip Anthony Redpath 72 - 77
Mr Matthew Rogers 78 - 85
Mr William Llewellyn Saunders 86 - 88
Mr Trevor Graham Schubert 89
Mr Bernard James Smith 90 - 93

Mr Geoffrey Noel Freeman 95 - 150
Mr Steven Thomas Miles 150 - 158
Ms Lisa Jane Essex-Evans 159

When was the car park conversation with Mr Rogers and Mr Aaso? 162-166
Was there a council's file? 167 - 168
When did the defendant become aware of threatened?
species on the site? 169 - 178
Had the defendant done any REFs before? 179 - 181
When was the REF undertaken? 182 - 191
Does the REF involve an eight part test? 192 - 195
What was the defendant's understanding of Pt 5 of the EP&A Act?
Did the defendant believe that a determination had been made
under Pt 5 of the EP&A Act? 196 - 201
Was there a formal engagement of King & Campbell? 202 - 206
Did King & Campbell provide the defendant with any documents? 207 - 208
Did King & Campbell contribute to the planning of the roads? 209 - 214
How did the defendant respond to Mr Rogers's email
of 17 November 2003? 215 - 216
John Jeayes 217 - 218
Section 168 NPW Act notice 219 - 223
Section 193 POEO Act notice 224 - 226
Generally 227

Did the council know, at the time of the offence, that the land was
habitat of the two threatened species? 228
Did the council do a thing, namely, construct roads? 229
Did the construction of the roads cause damage to the habitat of
the threatened species? 230 - 237
Was the act that constituted the offences essential for the carrying
out of an activity within the meaning of Pt 5 of the EP&A Act and did
the determining authority comply with that Part? 238 - 252
Section 175B 253
Is, or was, Hastings Council a corporation? 254
Was the defendant a person who is a director of the corporation or a person concerned in the management of the corporation? 255
Did Hastings Council contravene s 118D without knowledge
(actual, imputed or constructive) of the defendant? 256 - 267

- 114 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Tuesday, 31 July 2007

LEC Nos. 50043 of 2005 & 50044 of 2005

GARRETT v FREEMAN (No. 4) [2007] NSWLEC 389

JUDGMENT

INTRODUCTION

1 HIS HONOUR: The defendant, Geoffrey Noel Freeman, has pleaded not guilty to two offences against s 118D(1) of the National Parks and Wildlife Act 1974 (“the NPW Act”).

2 Section 118D(1) of the NPW Act states:

3 The charges allege that the offences were committed by a corporation, Port Macquarie-Hastings Council, and the individual defendant is charged in his capacity as a person concerned in the management of that corporation: s 175B(1) of the NPW Act. That section relevantly states:

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:

(a) the corporation contravened the provision without the knowledge (actual, imputed or constructive) of the person, or

(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.
…

4 Each charge alleges that between approximately 15 September 2003 and 19 December 2003, at Partridge Creek, Port Macquarie, in the State of New South Wales, whilst acting as a person concerned in the management of Port Macquarie-Hastings Council (formerly Hastings Council), the defendant committed an offence against s 118D(1) of the NPW Act by reason of s 175B(1) of that Act, in that the council caused damage to the habitat of a threatened species by undertaking the construction of road works on land at Partridge Creek, knowing that the land concerned was habitat of that kind. The first charge (No. 50043 of 2005) alleges that damage was caused to the habitat of the threatened species Tyto capensis, the Grass Owl. The second charge (No. 50044 of 2005) alleges that damage was caused to the habitat of the threatened species Pseudomys gracilicaudatus, the Eastern Chestnut Mouse. The maximum penalty for an offence against s 118D(1) of the NPW Act is $110,000 or imprisonment for one year or both.

5 “Damage” and “habitat” are not defined in the NPW Act. A “threatened species” is defined in s 5 of the NPW Act as having the same meaning as in the Threatened Species Conservation Act 1995, (“the TSC Act”), which at the time of these offences included a species specified in Sch 2 of that Act. At the time of these alleged offences Sch 2 listed the following species, inter alia:

Tyto capensis Grass Owl
Pseudomys gracilicaudatus Eastern Chestnut Mouse

6 On the second day of the hearing Mr I J Hemmings and Mr E Y Ozen, appearing for the defendant, submitted that the proceedings were defective ab initio and should be dismissed on the ground that the proceedings were brought in the wrong name (“Stephen Garrett for and on behalf of The Director-General of the Department of Environment and Conservation”). I rejected the submission but granted leave to the prosecutor to amend the summonses to show the prosecutor’s name as “Stephen Garrett”: Stephen Garrett for and on behalf of the Director-General, Department of Environment and Conservation (NSW) v Freeman [2006] NSWLEC 322.

7 At the close of the prosecutor’s case on the seventh day of the hearing, Mr Hemmings submitted that there was no case for the defendant to answer, relying upon s 731 of the Local Government Act 1993, which protects a councillor or an employee acting in good faith from any actions, liability, claim or demand. I rejected the submission, holding that the section does not apply to criminal proceedings: Garrett v Freeman (No. 2) (2006) 145 LGERA 459. Both of these decisions were subsequently affirmed by the Court of Criminal Appeal: Garrett v Freeman (2006) 147 LGERA 96.

8 On the fourteenth day of the hearing, during the course of the defendant’s evidence, Mr Hemmings applied by way of notice of motion for an order that I disqualify myself from further hearing these proceedings on the ground of reasonable apprehension of bias. I found, for reasons which I stated, that there could be no reasonable apprehension of bias and I dismissed the notice of motion: Garrett v Freeman (No. 3) [2007] NSWLEC 139. The hearing thus continued and concluded on the seventeenth hearing day.

AGREED FACTS

9 A statement of facts was agreed to between the prosecutor and the defendant. The facts below in pars [10] – [13] are agreed to between the parties and, so far as the defendant is concerned, are admissions made under s 184 of the Evidence Act 1995.

10 At the time of the offences charged: Partridge Creek was a place within the Hastings local government area; Hastings Council was incorporated as a council under the Local Government Act 1993; the defendant was concerned in the management of Hastings Council; the defendant held the position of Director, Infrastructure Services of Hastings Council, and that position was a senior staff position within the meaning of “senior staff” in Ch 11 of the Local Government Act 1993.

11 In both of these proceedings the Grass Owl (Tyto capensis) and the Eastern Chestnut Mouse (Pseudomys gracilicaudatus) were, at the relevant time, threatened species within the meaning of that term in the NPW Act and the Partridge Creek area was habitat of those species.

12 The construction of the road running from north to the south of the western section of the Partridge Creek area (the north-south road) and the road running from the east to the west, bisecting the Partridge Creek area (the east-west road) was, at the time of the offences charged, an activity by a determining authority within the meaning of Pt 5 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).

13 Further, the prosecutor asserts the following facts and the defendant would admit them if the word “road” was changed to “track”. Hastings Council, at the time of the offences charged, constructed a road running from the south to the north of the western section of the Partridge Creek area (the north-south road), and a road running from the east to the west, bisecting the Partridge Creek area (the east-west road). At the relevant time, the defendant caused the council to construct a road running from the south to the north of the western section of the Partridge Creek area (the north-south road) and a road running from the west to the east, bisecting the Partridge Creek area (the east-west road).

THE ISSUES

14 The prosecutor has to establish, beyond a reasonable doubt, each of the elements of the offence. The prosecutor also has to negative, on the balance of probabilities, the elements of any defence open to the principal corporate offender, Hastings Council.

15 The elements of the offence under s 118D of the NPW Act are: that, a provisions of the NPW Act, namely s 118D(1), was contravened by a corporation; that Hastings Council was a corporation; that Hastings Council did a thing, namely, construct roads; that the thing caused damage to the habitat of the two threatened species; that at the time of the offence, Hastings Council knew that the land concerned was habitat of those threatened species.

16 The defences which the prosecutor must negative are, in the present case, those which appear under s 118D(2)(b)(ii) and (iii) of the NPW Act, namely: that the act constituting the offence was essential for the carrying out of an activity by a determining authority within the meaning of Pt 5 of the EP&A Act if the determining authority has complied with that Part; or an activity in accordance with an approval of a determining authority within the meaning of Pt 5 of the EP&A Act if the determining authority has complied with that Part. The defendant relies upon those defences.

17 The defendant also relies upon the statutory defence available under s 175B(1)(a) of the NPW Act, noted in par [3] above, namely that the corporation, Hastings Council contravened s 118D(1) without the defendant’s knowledge (actual, imputed or constructive). The onus is on the defendant to prove this defence on the balance of probabilities. This onus arises from the words: “unless the person satisfies the court that…”

THE PROSECUTOR’S EVIDENCE

18 The prosecution called a number of witnesses to give evidence during the proceedings. Their oral testimony and any affidavits and written statements of evidence are summarised below.

Mr Thor Aaso

19 Mr Thor Aaso swore an affidavit read in these proceedings and gave oral evidence. Mr Aaso deposes that he has worked for Port Macquarie-Hastings Council, formerly Hastings Council, since 2001. In the period 2002-2003, his position was called environmental officer. In the period from June to December 2003 inclusive, Mr Aaso reported directly to Mr M Rogers, Environmental Services Coordinator.

20 Mr Aaso has known Mr Freeman since he joined the council in 2001. In the period 2002-2003, Mr Freeman was Director of Infrastructure Services. Mr Aaso deposes that in the second half of 2003 his degree of acquaintance with Mr Freeman was very limited. Since about February 2001, Mr Aaso has been involved in the restoration of Partridge Creek. He understands Partridge Creek area to be in the northern part of “Area 13” or Thrumster. He deposes that the program he has been involved in is called the Partridge Creek Acid Sulphate Soil Hotspot Remediation Project (“ASSR Project”), undertaken by the council and the Department of Land and Water Conservation (“DLWC”). Mr Aaso deposes that as part of the project, the council commissioned Environmental Resource Management Australia (ERM), a firm of environmental consultants, to conduct studies and to prepare a number of different reports on the potential impact of various remediation options on the environment. Among these reports was an ecological assessment entitled “Partridge Creek Acid Sulphate Soils Remediation Strategy: Ecological Assessment (October 2002).” Mr Aaso deposes that the ERM report identified at least three vulnerable species living on the Partridge Creek area, the habitats of which were likely to be significantly affected by the remediation project, namely the Grass Owl, the Eastern Chestnut Mouse and the Wallum Froglet. Mr Aaso deposes that a further survey was then commissioned from the DLWC Resource Analysis Unit and was undertaken by Mr P A Redpath, an ecologist. Mr Aaso assisted in Mr Redpath’s study as the council’s representative. Mr Aaso attended the Partridge Creek site with Mr Redpath to help him with Grass Owls surveys and also with the trapping of rodents from 12 August 2002 to 16 August 2002.

21 Mr Aaso deposes that after completion of Mr Redpath’s survey in 2002 he developed a plan of management for the ASSR Project. The recommendations of Mr Redpath’s survey were embodied in the Partridge Creek Hotspot Remediation Management Plan (April 2003). Mr Aaso points out that the management plan for the ASSR Project makes reference to the Grass Owl and the Eastern Chestnut Mouse as being threatened species. Mr Aaso deposes that he sent the draft plan of management to Mr Rogers who, as he understands, approved it. The management plan was then put on the agenda of a meeting of the council, with a recommendation by Mr Aaso and Mr Rogers that it be adopted. Mr Aaso believes the council meeting was held around April 2003; however, he was not present at the meeting. He has seen a copy of the relevant minutes at which the recommendation was adopted. Mr Aaso indicates in his oral evidence that, in fact, the council’s meeting was held on 10 February 2003, but the date on the management plan is April 2003. The reason Mr Aaso gives for the discrepancy is that after the management plan was adopted at the council’s meeting, they had a further discussion with Mr J E Jeayes of the North Coast Environmental Council (“NCEC”), an environmental group in the North coast of New South Wales, who submitted further recommendations to go into the management plan, which was amended as a result.

22 Mr Aaso says that he had contact with the Hastings birdwatchers group and he administered the monitoring of the Partridge Creek area which had been undertaken by that group. On one of the survey nights, 23 May 2003, Mr Aaso was present at the Partridge Creek, along with several members of the birdwatchers group, when he saw what he believed to be a owl.

23 In September 2003, Mr Aaso received a request from Mr Freeman that he provide Mr Freeman with the documents relating to the Partridge Creek remediation strategy. This was the first communication he recalls receiving from Mr Freeman on the subject. In response to this request, Mr Aaso placed the management plan and the appendices comprising the consultants’ reports, including the ERM report and the Redpath survey, onto the network’s I-Drive (which is common to all staff at the council). On 9 September 2003, Mr Aaso sent an email to Mr Freeman, informing him that the plan of management and the consultants’ reports were accessible on that drive. Mr Aaso says that at some time after this date and before mid November 2003 , Mr Freeman initiated a conversation with Mr Aaso and Mr Rogers informing them that a few pipe culverts and an access track are going to be installed in the general area of “Area 13”. Mr Aaso deposes that during this conversation either Mr Rogers or himself said words to Mr Freeman to the effect: “You need to be aware of the threatened species out there.” Furthermore, Mr Aaso believes that either Mr Rogers or himself also said something which was a reference to the ASSR Project plan of management. Mr Aaso understood the reference to “Area 13” to be a reference to a strategic land use planning area which included the Partridge Creek area.

24 Mr Aaso deposes that in mid November 2003 he saw that some slashing had taken place in sedgelands on the site along an east-west axis, which later became known to him as the east-west road. He says that when he saw the slashing he became concerned because he believed it adversely affected the habitat of the Grass Owl and the Eastern Chestnut Mouse. At this time he did not see or know of any north-south road in the area. He expressed his concern to his supervisor, Mr Rogers. Because the work had the potential to impact the ASSR Project, sometime later he also communicated the information to Mr M Tulau of the DLWC. Mr Aaso deposes that it was at about this time that he and Mr Rogers met Mr Freeman in the council car park and had a conversation with him about the slashing at Partridge Creek. Mr Aaso gave oral testimony that this conversation was after he saw slashing and before the road had been constructed. According to Mr Aaso, Mr Rogers and Mr Freeman had a conversation to the following effect:

[Rogers] We noticed that slashing is happening at Partridge Creek. Can you tell us why? You know that there are threatened species out there area [sic].

[Freeman] It’s for survey reasons.
In cross-examination Mr Aaso conceded that he does not recollect that he (that is, Mr Aaso) directly brought to Mr Freeman’s attention that there were threatened species on the land. I thus conclude that it was only Mr Rogers who brought to Mr Freeman’s attention that there were threatened species on the land.

25 Mr Aaso deposes that Mr Freeman did not say that a road would be constructed. One to three weeks after this conversation, Mr Aaso went to Partridge Creek and, where there had been slashing, he saw clay had been put down on the east-west road. Within a week of that site visit and before Mr Rogers sent the email of 17 November 2003, to which I will refer below, Mr Aaso went out to the site with Mr Rogers. Mr Aaso deposes that nothing had changed between visits. Mr Aaso discussed the matter with Mr Rogers and Mr Aaso gathered that Mr Rogers decided to send an email to Mr Freeman about the road construction on 17 November 2003. Mr Aaso indicates that he was sent a copy of the email from Mr Rogers and he saw the email the day it arrived on is computer. Around this time Mr Aaso returned to the Partridge Creek area and saw that the road works continued. At about this time, after this visit to the site, Mr Aaso approached Mr P M Owens, the council’s planning manager, about the road.

26 Mr Aaso further states that sometime within perhaps about a month of discovering the east-west road being constructed he saw that there was a road running from north to south which intersected with the western end of the east-west road. It was constructed along what he recalls was an old track running along roughly the same axis. However, he states that before the east-west road was constructed (and before the path for it was slashed) he had been in the same area a number of times and he knew of no track which existed before construction of the east-west road along which the road was subsequently constructed.

27 Mr Aaso received a number of enquiries about the road construction. In response to one of those enquiries from Mr Jeayes, Mr Aaso sent Mr Jeayes an email on 19 December 2003. At the time Mr Aaso wrote the email, the events he described in it were much fresher in his memory. Relevantly that email states:

Approximately 2 months ago Geoff Freeman mentioned that a few pipe culverts and an access track was going to be installed in general area [sic] of Area 13. He was advised by both myself and Matt Rogers to be aware of the Threatened Species and reference was made to the Partridge Creek PoM.
Approximately 4 weeks ago slashing of the Threatened species habitat for survey lines was noticed, Geoff Freeman was questioned in this matter and made ware [sic] of the Threatened species, their habitat and in particular the roosting site of the grass owl that was slashed.

28 Mr Aaso deposes that he received a notice under s 193 of the Protection of the Environment Operations Act 1997 (“the POEO Act”) in July 2005. In response to that notice, he provided to Donovan Oates Hannaford, a firm of solicitors acting for the council, a number of documents to be forwarded to the Department of Environment and Conservation (“DEC”).

Mr Scott Anthony Beaumont

29 Mr Beaumont is an Investigator for the prosecutor, responsible for investigating breaches of legislation administered by the DEC, including the NPW Act. He made a number of inspections of the Partridge Creek area in this role which he deposes to in his affidavit:

· On his first inspection of 1 April 2004, he saw a clay and gravel road running in a general east west direction which intersected with a roadway of similar material, running in a general north south direction. The roadway was very wet and soft. The land adjacent to the east west road consisted of grassland and water. On this date he took several photographs and made a video recording of various locations within the site.

· Mr Beaumont returned to the Partridge Creek site on 2 April 2004, where he measured the distance of the north-south road to be 900 metres in length and the east-west road to be 800 metres in length.

· On 28 May 2004, Mr Beaumont attended the Partridge Creek site with Mr P A Redpath, a regional ecologist from the Department of Infrastructure, Planning and Natural Resources (“DIPNR”). Video footage was taken on the site, with commentary from Mr Redpath regarding the Eastern Chestnut Mouse and Grass Owl previously located by him in that vicinity.

30 The video footage from Mr Beaumont’s inspections of 1 April and 28 May 2004 was shown during the hearing. The video is Exhibit G in the proceedings. Footage taken on 1 April 2004 shows animal (possibly dog) prints in the mud at the edge of the road. The footage of 28 May 2004 shows the east-west road to be near an area owls were nesting in 2002. The commentary in the video is by Mr Redpath who points out that the impact of the road is most serious for owl nesting as it provides access for dogs and foxes. Fresh animal footprints were shown, the commentator, Mr Redpath, said they were probably dog prints, and the size of them indicated that such a dog could damage a grass owl. The audio portion of the second visit was admitted on the prosecutor’s undertaking to call Mr Redpath.

31 Mr Beaumont details his correspondence with Hastings Council and the defendant in his affidavit. On 28 May 2004, Mr Beaumont delivered a request for information and assistance pursuant to s 169 of the NPW Act addressed to the General Manager, Hastings Council. Mr Beaumont received a response on 22 June 2004, signed by Mr Freeman. On 7 December 2004, Mr Beaumont sent a notice under s 193 of the POEO Act further requesting information and records, to the General Manager, Hastings Council. On 4 January 2005 Mr Beaumont received a response from Mr Freeman to the s 193 notice.

32 Mr Beaumont also refers in his affidavit to the interview he conducted with Mr Freeman. On 6 April 2005 he sent an urgent facsimile to the office of Mr S T Miles, solicitor of Donovan Oates Hannaford, and to the General Manager Hastings Council, requiring the council to nominate a representative for interview pursuant to s 203 of the POEO Act. Mr Beaumont received a response on 7 April 2005 to the facsimile he sent to Mr Miles, which nominated Mr Geoffrey Freeman as the council’s representative for interview. Hence on 12 April 2005 Mr Beaumont, in company with Mr J Bentley from the DEC, spoke to Mr Freeman in an office of the National Parks and Wildlife Service, Port Macquarie. In attendance with Mr Freeman was Mr Miles. After informing Mr Freeman of the nature of the investigation and confirming Mr Freeman was aware of the interview process, an audio-recorded interview was conducted and a copy of the interview was given to Mr Freeman at the conclusion of the interview.

33 I have read the transcript of interview as annexed to Mr Beaumont’s affidavit and which was subsequently tendered by the defence and admitted in evidence by consent for all purposes (Exhibit 1). A relevant fact arising from the interview is that Mr Freeman indicates that he did not recall having seen the letter from Ms K L O’Reilly, dated 26 June 2002 (to which I later refer) and which he was shown during the interview. Mr Freeman believes he may not have received the letter as it would have been allocated to his personal assistant and referred directly to Mr G Sharp.

Mr Jason Berrigan

34 Mr Jason Berrigan, for and on behalf of Darkheart Eco-Consultancy, prepared a report for Hastings Council entitled “Flora and Fauna Impact Assessment and Mitigation Measures of Access Roads on the Partridge Creek Acid Sulphate Soil Hot Spot Remediation Project, Thrumster” dated August 2004. This report presents the findings of an assessment on the effects of construction of a roadway by the council on Partridge Creek and surrounding wetlands, and proposed measures to prevent pollution of waters and impacts on fauna and flora. Mr Berrigan provides an overview and history of the site area, including the roadways. Mr Berrigan sets out the findings of his searches relating to the on-site occurrence and potential occurrence of threatened species in the locality. Mr Berrigan notes that the Grass Owl and Eastern Chestnut Mouse had been recorded on site. Mr Berrigan’s report assesses the ecological impacts of the roads. In undertaking that assessment, Mr Berrigan focuses on the potential and known impacts of the roadway construction on the soils, hydrological impacts, aquatic flora and fauna and terrestrial flora and fauna.

35 Mr Berrigan estimates that the roadway has resulted in the removal/modification of roughly 1.6744 hectares and this habitat removal occurs from the road construction; area disturbed adjacent to the road by fill spreading and subsequently being scaped back to the road; and passing bays. Mr Berrigan finds that there is also some limited potential for further habitat modification as a result of road sediment spreading by road use and erosion to adjacent areas.

36 Mr Berrigan lists a number of potential and known impacts on terrestrial flora and fauna from the construction of the subject road. The direct impacts which affect the Grass Owl, Eastern Chestnut Mouse and Wallum Froglet the most include: direct impacts such as loss of 1.644 hectares of predominantly Jointed Twig-rush/ Couch Grass Closed Sedgeland and Paspalum/Narrow Leaved Carpet Grass Tall Closed Grassland as well as a small area of Broad-Leaved Paperbark dominated forest; the loss of potential foraging, nesting and refuge resources for a number of threatened and migratory species; the potential modification of other habitat areas by altered hydrological changes; the potential modification of adjacent habitat areas by the movement of road sediment via erosion; and the prevention of recovery of native vegetation.

37 There are also numerous indirect impacts from the construction of the subject road identified by Mr Berrigan. For instance, the Grass Owl, the Eastern Chestnut Mouse and the Wallum Froglet were among the species most affected by the potential introduction/improved access for domestic pets, feral species and exotic plants via road as a passage; the cumulative addition to attrition of similar habitat in the area, contributing to range contraction of threatened species and populations of such recorded in the Hastings area; potential alteration to bushfire regime (via arson) possibly affecting weed abundance, and floristic, habitat and structural characteristics of adjacent vegetation.

38 More specifically, the significant impacts that construction of the roads have had/could have on the Grass Owl relate to habitat loss and fragmentation; road kill risk; anthropogenic impacts; exotic fauna; stormwater and water flow regime alterations; and altered bushfire regime. The most significant impacts that construction of the roads have had/could have on the Eastern Chestnut Mouse relate to habitat loss and fragmentation; physical and behavioural barrier; road kill risk; exotic fauna; stormwater and water flow regime alterations; and altered bushfire regime.

39 Mr Berrigan details in his report various mitigation measures and recommendations to counter each identified impact. The mitigation measures relate to sedimentation and erosion; access and signage; feral species control; acid sulphate soils and other water quality impacts; and water flow.

Mr Anthony Ward Bischoff

40 The prosecutor adduced evidence from Mr Anthony Ward Bischoff by affidavit. Mr Bischoff is a resident of the Port Macquarie region. He holds a scientific licence under s 132C of the NP&W Act. He uses the licence to conduct surveys over a particular area to ascertain the variety of fauna so that the survey findings can be used to help properly manage the area. In around May 2003, Mr Aaso approached Hastings birdwatchers club, of which Mr Bischoff is a member, to monitor the Partridge Creek site. As a result of that request, Mr Bischoff became involved in the monitoring. His role involved attending the Partridge Creek site on a roster system over three nights a month, to carry out fauna surveys from June – October 2003. Six surveys were to be taken per calendar month, being one post dusk and one pre dawn, over three nights. The birdwatchers club had observed the Grass Owl at the site on 20 June 2001 and twice in May/June 2003. In January 2004, Mr Bischoff attended the Partridge Creek site with Mr W L Saunders, also a member of Hastings birdwatchers club, and saw road works undertaken in the area of Partridge Creek which he believes have the potential to negatively impact on threatened species, namely the Grass Owl and possibly the Eastern Chestnut Mouse. He observed one road has been constructed directly across the main Grass Owl habitat area.

Mr Michael Andrew Coulter

41 Mr Michael Andrew Coulter swore an affidavit read in these proceedings and gave oral evidence. From January 1998 to February 2006, Mr Coulter was Director of Planning and Environment at Port Macquarie-Hastings Council. During 2001-2003, his division managed the ASSR Project at Partridge Creek. Mr Coulter deposes that the council’s officer with primary responsibility for the ASSR Project was Mr Aaso, who was supervised by Mr Rogers. A plan of management was prepared for the ASSR Project which incorporated a series of recommendations in the Redpath survey, designed to mitigate the impact of the ASSR Project upon threatened species identified in the Partridge Creek area – particularly the Grass Owl and the Eastern Chestnut Mouse. Mr Coulter states that the council adopted the plan of management.

42 Mr Coulter deposes that a report regarding the ASSR Project, which he co-authored, and the plan of management were included in the papers distributed to councillors for the meeting at which ASSR Project was considered. From the minutes of that meeting which was held 10 February 2003, Mr Coulter notes that Mr Freeman was acting General Manager at that time. Notably the report on the ASSR Project, annexed to Mr Coulter’s affidavit, states:

43 Mr Coulter also states that Hastings Council had an executive group comprising the General Manager and the Directors. Part of their business was to finalise the agenda and papers for the council’s meetings. Mr Coulter deposes that he is sure that his report on the ASSR Project and the plan of management would have been an item for discussion by the executive group before the council’s meeting on 10 February 2003. At the meeting, Mr Coulter would have made some introductory comments about it and there may have been some further discussion but the council meeting of 10 February 2003 proceeded fairly quickly through the ASSR Project agenda item.

44 Minutes from the council’s meeting of 10 February 2003 are annexed to Mr Coulter’s affidavit. They indicate that Mr Freeman was present at the meeting in the capacity of Acting General Manager and that Mr Coulter was present at the meeting. The minutes also indicate that the council made a resolution, at item 21, to approve the ASSR Project. As noted in par [43] above, Mr Coulter believes that his report on the ASSR Project and the plan of management would have been an item for discussion by the executive group before the council meeting.

Mr Stephen Debus

45 Mr Stephen Debus swore an affidavit that was read in these proceedings. He is an ecologist of the Zoology division of the University of New England, Armidale. Mr Debus prepared a report at the request of the prosecutor’s solicitor, Mr P Barley. The report deals with questions posed to Mr Debus by Mr Barley relating to the habitat of the Grass Owl. Mr Debus’ opinions in the report based on the facts which he identified in the report and by applying his specialised knowledge in raptor biology which he has obtained as a result of his studies and significant amount of field experience.

46 In his report Mr Debus indicates that Grass Owl nest sites are typically located on the ground. From his site inspection of 15 February 2006 he believes the Partridge Creek site is an appropriate Grass Owl habitat throughout all components of its life cycle. The report finds the vegetation structure, species and heights there to be typical of coastal NSW Grass Owl habitats. The report indicates that the habitat of the Grass Owl has been damaged by the construction of the roads. The roads have made the vegetation in the vicinity of the roads less desirable as a breeding site, or less conducive to successive breeding. This is because the roads have increased the potential for predation and human disturbance to the owls and their nests. Mr Debus calculates that 0.2 hectares of potential Grass Owl roosting or breeding habitat has been removed by the construction of the east-west road. The report indicates that the habitat might be further de-utilised if the road causes floodwater to back up and remain.

Professor Barry J Fox

47 Professor Barry J Fox prepared a report for the prosecutor entitled “Partridge Creek Area – Potential Habitat for Threatened Species – Eastern Chestnut Mouse (Pseudomys gracilicaudatus) – Potential Damage to Threatened Species Habitat” which is dated April 2006. This report is based on a visit to the Partridge Creek Area on 15 February 2006. Professor Fox reports that the Partridge Creek Area is clearly suitable habitat for the Eastern Chestnut Mouse as the vegetation present falls well within the physical parameters for suitable habitat.

48 Professor Fox has no doubt that construction of the east-west and north-south roads in the Partridge Creek area has caused damage to habitat of the Eastern Chestnut Mouse. There is damage from the alienation of the actual area now occupied by the road. The potential effect of the road can influence water flow and water levels in the immediate surrounding area. There is also potential for run off carrying nutrient material from the road base onto the immediate surrounding area impacting the native vegetation, potentially changing vegetation structure and vegetation density. Furthermore, Professor Fox notes that the nature of roads, devoid of vegetation cover can act as a substantial disincentive for the Eastern Chestnut Mouse to cross the roads and hence may isolate regions of potential habitat and also deter dispersal and migration of the Eastern Chestnut Mouse. However, by far the most important potential effect on animal populations is that roads provide predators with easy access to the areas occupied by the Eastern Chestnut Mouse. Professor Fox concludes that there has been substantial damage to the Eastern Chestnut Mouse population.

Mr John Edward Jeayes

49 Mr John Edward Jeayes gave evidence in the proceedings by affidavit. Mr Jeayes is Secretary of the North Coast Environment Council (NCEC), an environmental group. In about mid 2003, Mr Jeayes was approached by individuals who were concerned about the ASSR Project’s impact upon threatened fauna species in “Area 13”, in particular the Eastern Chestnut Mouse and the Grass Owl.

50 Mr Jeayes deposes that on 16 April 2003 he attended a meeting with Mr Rogers and Mr Aaso from Hastings Council, and Mr Talau and Mr Redpath from DIPNR. Mr Jeayes says that it was resolved at that meeting that NCEC would provide recommendations for extra precautionary measures to protect the Grass Owl and the Eastern Chestnut Mouse, which would be considered by the council. On 25 April 2003, Mr Jeayes wrote a letter to Mr Aaso which listed ideas for precautionary actions which might be taken by the council. On 4 April 2004, Mr Jeayes gave a copy of that document to Mr Beaumont.

51 Mr Jeayes deposes that it was in either December 2003 or January 2004, (but probably, I infer, in December 2003), that he received information that roading had been constructed either through or beside the habitat of both the Eastern Chestnut Mouse and the Grass Owl at the Partridge Creek site. Mr Jeayes indicates that he was informed that this work was carried out by Hastings Council’s Department of Infrastructure, under the direction of its Director, Mr Freeman. As a result of receiving that information, Mr Jeayes rang Mr Aaso and had a conversation with him and that Mr Aaso responded to his request for details of the works by email the next day, on 19 December 2003. Mr Jeayes then put several questions regarding the issue to Mr Aaso in an email, which Mr Aaso passed on to Mr Freeman for reply. Mr Jeayes says that he did not receive a reply.

52 Mr Jeayes submitted a letter dated 20 January 2004, on behalf of NCEC to the Hastings Council, requesting access under the Freedom of Information Act 1989, to documents relating to the Partridge Creek roading and threatened species issues. Mr Jeayes attended the council’s office building and handed this document to the staff at the front desk. On 4 March 2004, Mr Jeayes received a written reply from the council, explaining that information was on hand and had been copied. Mr Jeayes was informed that he could pick up that information, which he did a few days later.

53 On 4 April 2004, Mr Jeayes had a conversation with Mr Beaumont and as a result of that conversation, he handed Mr Beaumont numerous documents relating to the Partridge Creek site.

Mr Franklin John Lyon

54 The prosecutor adduced evidence from Mr Franklin John Lyon by affidavit. Mr Lyon has done work for Port Macquarie-Hastings Council for about 14 years, a large part of which has been slashing (grass cutting). In 2003, Mr Freeman organised to meet Mr Lyon at Thrumster. Mr Freeman told Mr Lyon he wanted the existing tracks to be slashed so they could be driven along. Mr Lyon performed slashing work in the Partridge Creek area commencing on 11 September 2003. Mr Freeman told Mr Lyon where to do the work. Mr Lyon slashed a track for what is now the east-west road sometime between 18 and 23 September 2003. Mr Lyon did this work prior to a vacation that he took, which was on 30 September 2003.

Ms Maria Alma Matthes

55 Ms Maria Alma Matthes gave evidence in the proceedings through two affidavits, sworn 20 May 2005 and 4 May 2006 and through oral testimony. Ms Matthes was a senior threatened species officer with the DEC. In her second affidavit she deposes that she left the DEC in September 2005 and has since been operating an environmental consultancy. In her employment at the DEC she prepared numerous Director-General’s requirements for species impact statements. The opinions that she expressed in her first affidavit are based on her specialised knowledge of threatened species and their habitats and applicable planning requirements and law.

56 In her first affidavit, Ms Matthes states that she inspected the Partridge Creek site with Mr Freeman on 29 January 2004. On this inspection Ms Matthes observed that the east west road ran through the area she believed to be the habitat of the Grass Owl, the Eastern Chestnut Mouse, and the Wallum Froglet, all of which are threatened species. Mr Freeman informed Ms Matthes that the council constructed the two roads during September 2003 for fire fighting and future development purposes. He further explained the southern end had a locked gate but the northern end was open and easily accessed from a road off Hastings River Drive. He explained that the council did not have control of the northern end and anyone could access the site from there. Ms Matthes thought that the access to the threatened species habitat provided by the roads, particularly the east-west road, was potentially a serious threat to the Grass Owl, Eastern Chestnut Mouse and Wallum Froglet. On review of the reports Mr Freeman gave to Ms Matthes during their meeting (including ERM report and Redpath survey), Ms Matthes confirmed the view that the east west road had been constructed through the known habitat of the Grass Owl, Eastern Chestnut Mouse and Wallum Froglet. At the end of the inspection, Ms Matthes explained that the threatened species habitat had clearly been damaged and that it really came down to whether the council had an appropriate approval for the works done by it and whether the works were undertaken in accordance with the approval. Mr Freeman queried what that approval would be. Ms Matthes suggested that in this case it was probably a Review of Environmental Factors (REF) under Pt 5 of the EP&A Act. Mr Freeman explained he had done a “preliminary REF” because he saw the proposed works as being what he termed “minor works” and that the council had done no detailed assessment. When Ms Matthes asked what a preliminary REF was, Mr Freeman indicated a preliminary REF was a short ‘tick-a-box’ document.

57 On 3 February 2004, Ms Matthes received by post from Mr Freeman copies of two maps, a copy of the preliminary REF undertaken for the roads constructed at Partridge Creek and a “with compliments” note signed by Mr Freeman. After reviewing the documents, Ms Matthes formed the opinion that there is unlikely to be a valid approval for the works undertaken in the Partridge Creek area.

58 Ms Matthes believes that the council should have a valid approval under Pt 5 of the EP&A Act for the roads prior to construction works commencing. The Rural 1(a1) zoning of the Hastings Local Environmental Plan 2001 identifies such works as being permissible without development consent. However, the effect of this is that the council would be required to assess the environmental impact of the activity in accordance with Pt 5 of the EP&A Act. Ms Matthes deposes that the most appropriate mechanism for this is the preparation of a REF to satisfy ss 111 and 112 of the EP&A Act. In order to determine whether an activity is likely to significantly affect threatened species the factors to take into account are generally considered as “assessment of significance” or eight part test assessment. Ms Matthes points out that in addressing each of these factors for consideration in the preliminary REF, the council merely ticked a box identifying the impact as “acceptable”. Moreover, Ms Matthes contends the preliminary REF was prepared using outdated legislation. She deposes that cl 228 of the Environmental Planning and Assessment Regulation (“EP&A Regulation”) 2000 specifies the factors to be taken into account when considering the likely impacts of an activity on the environment. The preliminary REF does not appear to have been prepared in accordance with the EP&A Regulation 2000, rather it has identified the factors under cl 82 of the EP&A Regulation 1994. However, the earlier regulation is now outdated and not relevant to the current planning process.

59 Ms Matthes deposes that the preliminary REF has no determination date, is not signed and does not identify the proposed action, other than the words “Thrumster Land Access Road” handwritten on the top of the front page. Moreover, there were no details provided in, or with, the preliminary REF in relation to threatened species and their habitat on the site, such as the location of roads, the materials to be used, what measures are to take place, and how the works are to be undertaken. Ms Matthes states that generally there would be standard information contained in, or accompanying an REF with threatened species issues. In Ms Matthes’ opinion the ‘tick-a-box’ preliminary REF with no date, no signature and a lack of information to demonstrate that threatened species and their habitats will not be significantly impacted, cannot be seen as a reasonable examination of threatened species matters. Ms Matthes believes that this is particularly relevant, as it appears that the council knew of the presence of threatened species in the vicinity prior to the road construction. Ms Matthes states in her oral evidence that she has seen checklists used where there has been an assessment but no formal document called an REF prepared, but such checklists always have some accompanying documentation.

60 Ms Matthes has deposed that on 1 April 2004 she attended the Partridge Creek site with Mr Beaumont. She observed numerous dog prints along the north-south and east-west roads. This observation raised additional concerns that the roads could lead to threatened species being further impacted by feral dogs gaining improved access to the site. Ms Matthes deposes that the council prepared and determined an REF, dated 20 May 2004, for proposed sediment and erosion control measures, which identified that the preliminary REF provided by Mr Freeman was not likely to be valid.

Mr Jack Anthony Moody

61 Mr Jack Anthony Moody gave evidence in the proceedings by way of a statement of evidence, an affidavit and oral testimony. In his affidavit Mr Moody attests that the opinions he expresses in his statement of evidence are based upon facts that he identifies in it and by applying his specialised knowledge in town planning. Mr Moody expresses the opinion that the environmental assessment carried out by the defendant in relation to the subject road works is seriously deficient and does not satisfy the relevant provisions of the EP&A Act and the EP&A Regulation. In particular, he does not consider that the defendant’s assessment satisfies s 111 of the EP&A Act. Mr Moody highlights the deficiencies in that document as follows:

a) there is no reference to any reports, documents, statements or any other information which formed the basis for completion of the checklist in the manner indicated;

b) there appears to be no report or detailed assessment in accordance with cl 228(2)(f) of the EP&A Regulation which relates to “any impact on the habitat of protected fauna” (within the meaning of the NPW Act)”;

c) the document is in effect a simple “checklist”. There is no report, commentary or the like as would normally be prepared in order to consider the relevant factors under cl 228 of the EP&A Regulation and s 5A of the EP&A Act;

d) the ‘tick a box’ nature of the inquiry leads to a ‘black or white’ judgment, there is no middle ground or qualification;

e) there is no evidence of any conditions or ameliorative measures considered, recommended or imposed for the road works;

f) the document contains no response to the question whether the proposal will have a significant effect on the environment of protected fauna and whether a fauna Impact statement should be required.

62 Mr Moody further points out that the two reports referred to by Mr Freeman in the environmental assessment of the road works, one prepared by Mr Redpath and the other by ERM, make no mention of the subject road works and were completed for a totally different subject matter. Moreover, the report by Mr Redpath specifically highlighted the possible adverse impacts of road works generally in the area and both reports found threatened species on the subject site. Mr Moody indicated during his oral evidence that he doesn’t believe one person could have carried out the assessment as required by s 111 of the EP&A Act for the works as constructed. In his view it would require a multi-disciplinary approach particularly due to the sensitivity of the area. In his experience, not only of reporting, but also of appointing consultants and overseeing assessment, there was no occasion where one person undertook both the assessment and the preparation of the report. On even small-scale projects a multi-disciplinary approach was required. He contends that in the case of the Partridge Creek road works, assessments would be absolutely essential from flora and fauna expert(s), a hydrologist, an engineer, an arborist, a person with expertise in soil and erosion management, and a town planner.

Ms Katrina Louise O’Reilly

63 Ms Katrina Louise O’Reilly swore an affidavit which was read in these proceedings. Since 2001 she has been employed as a resource compliance manager with DIPNR at the Grafton regional office. She states that in June 2002 she received a preliminary alleged breach information form describing some recent native vegetation clearing at the Partridge Creek area. In response to that information, Ms O’Reilly undertook a site inspection and sent an advisory letter to the council on 26 June 2002 referring to the clearing activity. The letter of 26 June 2002 was addressed to the general manager, Mr B Smith, and also marked for the attention of Mr J Sharp and Mr G Freeman. The letter draws attention to the fact that a number of threatened species, including the Eastern Chestnut Mouse and the Grass Owl, were recorded as inhabiting the area where the slashing and under-scrubbing of native vegetation has occurred.

Mr Peter Matthew Owens

64 Mr Peter Matthew Owens swore an affidavit read in these proceedings and he gave oral evidence. Mr Owens has worked for Port Macquarie-Hastings Council since November 1995. Mr Owens is currently employed as Planning Manager and has been in this position since December 2002. He says that his immediate manager both now, and in the period June to December 2003, was Mr Coulter. When the council is preparing to undertake works such as the construction of a road on its own land, Mr Owens’ role is to ensure compliance with the EP&A Act. He has to determine what requires development consent or a Pt 5 approval or what is exempt development. He is aware, and was aware in the period of June through to December 2003, that development consents and Pt 5 approvals needed to take into account whether the land concerned had on it habitat of any species which are or were threatened species under the TSC Act.

65 Mr Owens states that in the period from June to December 2003, he was aware that some works did not require development consent, as specified in the Hastings Local Environmental Plan 2001 (“the LEP”), and that some works were exempt development under the EP&A Act. Clause 8 of Sch 5 of the LEP did not require development consent for certain road works. However, Mr Owens believes a road constructed through a wetland area or threatened species habitat would not have been exempt under the LEP.

66 Mr Owens deposes that in the period from June to December 2003, the development control planners in his department, himself or Mr Coulter would have determined whether consents or approvals were required for anything which was development under Pt 4 or an activity under Pt 5 of the EP&A Act. In that period he was aware that threatened species as listed in the TSC Act were likely to be found in the area west of Port Macquarie airport. However, he could not say specifically if there were any in the exact area of Partridge Creek.

67 In the period from June to December 2003, Mr Owens was aware of the ASSR Project. He recalls that, before September 2003, there was a mouse found in the area to which the ASSR Project relates, which was identified as a threatened species. He also deposes that he is aware that an owl is often found in areas where that mouse was found because they have a predator/prey relationship. Further, he is aware that the owl concerned had been identified as a threatened species. He became aware of these species by talking to Mr Aaso and Mr Rogers.

68 Mr Owens deposes that during his time as Planning Manager, he has usually been informed of any road works on the council’s land for new public roads, but he is not informed of operational works, such as fire trails. In the period from June to December 2003, if the council was constructing a road on its own land and threatened species were an issue he would expect to be contacted. When contacted on such occasions he provides advice. Mr Owens was not contacted by anyone in relation to the construction of the roads at Partridge Creek. He deposes that had it been brought to his attention that threatened species were a consideration in planned road works then a suitable environmental investigation would need to be done first as a standard requirement. This would need to satisfy the requirements of the TSC Act and Pt 5 of the EP&A Act.

69 Mr Owens refers to the old pro-forma document, which the council used for reviewing REFs, entitled “Thrumster Land Access Road”, annexed to his affidavit. (This is the same document prepared by Mr Freeman, which Mr Freeman says satisfies Pt 5 of the EP&A Act.) Mr Owens deposes that on its own the document is not, and was not in 2003, a complete REF. He indicates that the form completed was used in the past as a prompt for what to look for when reviewing an REF. It was a check sheet that was used to assess the REF. Mr Owens refers to a document underneath a letter dated 18 May 2004 from Mr G Freeman to Mr G Davey, Manager, Conservation Programs and Planning, entitled “Review of Environmental Factors: Proposed Erosion & Sediment Controls Partridge Creek Access Track.” He deposes that the document comprises 25 pages and is the type of document his department receives and received around 2003 by way of an REF for assessment and approval under Pt 5 of the EP&A Act. Mr Owens believes that the three-page REF assessment sheet which was completed for the ASSR Project is not an REF, it is an assessment sheet. He deposes that an REF will state what work has been proposed and where it has been proposed and all the studies that have been done.

70 Mr Owens deposes that a review of environmental factors undertaken under Pt 5 of the EP&A Act is assessed in relation to its adequacy and whether it suitably deals with the impacts that are likely to occur. Further work might be required in a case where threatened species have been identified in an area where works were proposed and there was a potential for impact on those species, or if the assessment did not adequately deal with those impacts, and any amelioration measures. He states that in any situation where a road was to be constructed and it traversed the habitat of threatened species, the proponent would be questioned about exactly what was being proposed. Then the council would ask the proponent to undertake the appropriate flora and fauna studies done and then to prepare an REF for assessment by the council. Mr Owens’ department would conduct the assessment. In the period from June to December 2003, when an REF was assessed by his department, a copy of the REF and the assessment were usually kept. Mr Owens deposes that no REF was prepared by, or assessed in his department for works in the Partridge Creek area. Further, Mr Owens deposes that, in 2003, if the council was the proponent, in terms of an assessment under Pt 5 of the EP&A Act, the determining authority would have been the Director, Mr Coulter, or the development assessment panel (made up of management team and senior staff in Development and Environment Division plus one councillor) or Council in a council meeting. In 2003, if the council was the proponent, in terms of a Pt 5 assessment, the determining authority would have been Mr Owens or Mr Coulter.

71 In cross-examination Mr Owens indicated that he is not informed of road works when they are road repairs or rehabilitation works on existing roads. He also does not get informed about the construction of some tracks, particularly things like fire trails. Mr Owens indicated that whether investigations as to environmental impacts of the works need to be carried out depends on the circumstances of the case - sometimes it is based upon the scale of works, other times the likely impact the works will have.

Mr Philip Anthony Redpath

72 Mr Philip Anthony Redpath has sworn two affidavits in the proceedings the first affidavit on 21 October 2004 and the second affidavit on 5 April 2006. He is a regional ecologist at the Grafton office of the DIPNR. In his first affidavit, Mr Redpath states that in early 2002 he was requested to evaluate the ERM report, which was prepared as part of the ASSR Project at Partridge Creek. As a result of this, he made a recommendation that a further threatened species survey of the Partridge Creek site be prepared to determine the impacts and decide if a species impact statement (“SIS”) was required.

73 On 28 May 2002, Mr Redpath made an initial inspection of Partridge Creek during the planning stage for the survey with Mr Aaso and Mr Shephard. He noted clearing by slashing was occurring in the areas to be surveyed and requested Mr Thor to ask the contractor to cease work until such time as consent has been granted for such works and the survey had been completed. As a result of this inspection and the knowledge that a potential breach of the Native Vegetation Conservation Act 1997 had occurred, Mr Redpath made a report to Ms O’Reilly, resource compliance manager of the DIPNR (then DLWC) at Grafton. On 26 June 2002, Ms O’Reilly sent an advisory letter addressed to Mr Smith, the General Manager of Hastings Council, and also marked it for attention to Mr J Sharp and Mr G Freeman, to which I have referred in par [63] above. The letter explained the relevant provisions of the Native Vegetation Conservation Act 1997 and the requirement for development consent to be sought prior to any clearing outside limited exemptions. The letter also referred to the threatened species and aboriginal sites issues associated with the subject site. From 12 August to 16 August 2002, Mr Redpath supervised and undertook a flora and fauna survey at Partridge Creek.

74 Mr Redpath deposes that the survey he conducted identified the Eastern Chestnut Mouse and the Grass Owl as both residing in the area. On 18 December 2003, Mr Aaso confirmed the representation by Mr Tulau from the Kempsey office of the DIPNR that an unsealed road through the middle of the ASSR Project site had been constructed, and their observations suggested to Mr Redpath that the road had been constructed through the middle of the Grass Owl and Eastern Chestnut Mouse habitats.

75 On 5 February 2004, Mr Redpath, accompanied by Mr R Saul from the Kempsey office of the DIPNR, drove through the Partridge Creek site on roads that were not present when he undertook his survey. Based on his observations during this site visit, Mr Redpath believes the east-west road passes directly through the area where the Grass Owls had been observed roosting. Further, he contends that the area of habitat has all the characteristics that constitute ideal Grass Owl breeding habitat. In his view the east-west road damages habitat where he believes grass owls were nesting when he observed them previously. He also observed the new road network passed through areas that contained shrubby low, heath vegetation (Wallum Heath). Mr Redpath deposes that that vegetation type is consistent with where Eastern Chestnut Mouse species were captured. It is Mr Redpath’s opinion that the road added another level of impact, providing access to domestic and feral dogs and cats and foxes. This was evidenced by the presence of dog tracks in the soft-side margins of the road during his site inspection of 28 May 2004. Further, Mr Redpath observed the Grass Owl was easily disturbed. In his opinion, the presence of a road within close proximity to breeding sites has the potential to affect the Grass Owl’s behaviour.

76 In his second affidavit, Mr Redpath deposes that he does have specialised knowledge in the design, conduct and interpretation of flora and fauna assessments, particularly for the purposes of assessing development proposals. He deposes that the area between PCS-002 and PCS-007 (part of the Partridge Creek site) was an area Grass Owls were observed to be roosting. With the raising of the water levels pursuant to the ASSR Project, that area would be ideal breeding habitat for the Grass Owl. However, that area has now been dissected by the east-west road and thus that part of the habitat of the Grass Owl has been obliterated.

77 Mr Redpath contends that for the purposes of the 2002 study, he traversed the Partridge Creek area extensively. They used existing tracks where possible. He says, therefore, “with confidence” that there was no track which occupied the road-line now occupied by the east-west road. Similarly, he believes that there was no track which occupied the road-line now occupied by the north-south road. On top of the opportunity for easier access by predators it is Mr Redpath’s opinion that the construction of the north-south road and the east-west road has the potential to affect the habitat of both the Grass Owl and the Eastern Chestnut Mouse because of the potential for the roads to interfere with the hydrological conductivity (the lateral passage of water flows through the soil profile) of the area. Moreover he believes the construction of the north-south and the east-west roads has provided opportunity now which previously did not exist for the incursion of weeds into the habitat of both the Grass Owl and the Eastern Chestnut Mouse in the Partridge Creek area. The east-west road dissects the very area where a pair of owls were roosting during the 2002 study. In Mr Redpath’s opinion there is a strong likelihood that, if the Grass Owl were breeding there in 2003, then their roost or nest complex would have been destroyed by the construction of the east-west road.

Mr Matthew Rogers

78 Mr Matthew Rogers swore an affidavit read in the proceedings and gave oral testimony. In 2003, Mr Rogers was employed by Port Macquarie-Hastings Council as its Environmental Services Coordinator. He had held that position since 2000. In 2003 and continuing today, Mr Aaso was and is a member of his staff. Mr Rogers says that in 2003 he reported to the Manager of Building and Environment, Mr D Pensini, who was responsible to Mr M A Coulter. He also confirms that Mr Freeman was Director of Infrastructure Services in 2003.

79 Mr Rogers became familiar with the Partridge Creek area particularly because of the ASSR Project undertaken in that area in 2003. The council and the DIPNR jointly funded the ASSR Project on this site. He states that as part of the ASSR Project there were two studies of the ecology of the area, one by ERM and the other by Mr P Redpath. In mid 2002 ERM provided the council with an ecological assessment (entitled, as noted above, “Partridge Creek Acid Sulphate Soils Remediation Strategy: Ecological Assessment (October 2002)”) which identified that there were at least three vulnerable species living in the Partridge Creek area, the habitats of which were likely to be significantly affected by the remediation project: the Wallum Froglet, the Grass Owl and the Eastern Chestnut Mouse. As a result of recommendations made in the ERM report a survey was commissioned from an ecologist, Mr P Redpath. Mr Redpath prepared a report entitled “Partridge Creek Acid Sulphate Soil Hotspot Remediation Project Targeted Fauna Survey and Eight Part Test Assessment” (December 2002). Both studies showed that there were threatened species at Partridge Creek. This was prior to the construction of the north-south and east-west roads.

80 Mr Rogers states that in August 2002, when he was at Partridge Creek with Mr Aaso and Mr Redpath, he saw what he believed to be a Grass Owl in the area. He had numerous discussions with Mr Aaso as to how best to manage the ASSR Project so as to minimise harm to the threatened species identified in the reports. In April 2003, Mr Rogers was present at a meeting with Mr Jeayes, secretary of the NCEC. They discussed the ASSR Project and particularly its impact on the Eastern Chestnut Mouse and Grass Owl. Mr Rogers deposes that a plan of management for the ASSR Project was developed – Partridge Creek Hotspot Remediation Management Plan (April 2003). Mr Rogers deposes that there was a council report drafted by Mr Aaso for the council meeting on 10 February 2003 titled “Item 21 Partridge Creek Acid Sulphate Soil Hotspot Remediation Project.”

81 Mr Rogers is unsure of the exact date, but some weeks and possibly two months before 17 November 2003, he attended the Partridge Creek area. He saw that slashing of vegetation had taken place, in the vicinity of what is now the east-west road and, from his experience of slashing, that slashing appeared to be fairly recent. Mr Rogers believes the slashing was within 100 metres of where he sighted the Grass Owl in August 2002. Again Mr Rogers is unclear about the date, but he believes that it was shortly after the site visit, he had a brief conversation with Mr Freeman in the council car park. Mr Aaso was present. Mr Rogers recalls that he had the following conversation with Mr Freeman:

[Rogers] There is slashing taking place out at Partridge Creek. Why is that? There are threatened species in the area and I have concerns about how they might be affected.

82 According to Mr Rogers, Mr Freeman did not say anything to the effect that a road would be constructed. I must note here that under cross-examination Mr Rogers contradicted this saying that he did not recall informing Mr Freeman there were threatened species in the area. He corrected himself under re-examination, however, stating that he had indeed warned Mr Freeman about the presence of threatened species in the area when they met in the car park. Mr Rogers stated that he made the inconsistent statement due to the pressure of being in court. I accept this: the terms of the conversation are consistent with the evidence of Mr Aaso as to what was said, which I have noted in par [24] above. In his oral evidence, Mr Rogers also indicated that he doesn’t know if Mr Freeman was aware of the existence of threatened species on the site before their meeting in the car park but he would have to assume that Mr Freeman would have read this in a council report or some such document.

83 In his affidavit Mr Rogers says that sometime after this conversation with Mr Freeman, Mr Aaso told him of the construction of the road at Partridge Creek. Within a day or two of this conversation with Mr Aaso, he went with Mr Aaso out to the Partridge Creek area. This visit was either the day before or the day of his email of 17 November 2003 to Mr Freeman. On this visit, Mr Rogers and Mr Aaso drove along part of the north-south road. Intersecting with that road and in the vicinity of where he had seen the slashing, there was the east-west road, which had been substantially constructed. Mr Rogers found it surprising that a road had been built without his knowledge and it caused him concern that it had been built through a threatened species habitat. He was concerned about the impact the road would have on the hydrology of the area considering the ASSR Project. He felt he needed to inform whoever was responsible for the road of the threatened species concerns. As he believed Mr Freeman was likely to be aware of the road being constructed, he emailed him on 17 November 2003.

84 In the email to Mr Freeman, Mr Rogers used the words “As you would be aware...”. Mr Rogers points out that this is because he was assuming Mr Freeman had been present at the council’s meeting on 10 February 2003 where the plan of management for the ASSR Project was adopted and that Mr Freeman would have been aware of its contents. The email of 17 November 2003 annexed to Mr Rogers’ affidavit relevantly states:

The road is located right through and [sic] area that has been identified as habitat for two threatened species, namely the Eastern Chestnut Mouse and the Grass Owl. As you would be aware we have had to make special provision in our ASS remediation proposal to cater to this constraint and I am concerned that Council may be open to criticism in relation to any impact of the current works on threatened species.

85 According to Mr Rogers, Mr Freeman never responded to his email and Mr Rogers had no conversation with Mr Freeman about it. Mr Rogers was not aware of any REF having been done for the road construction. Mr Rogers had no conversation with Mr Freeman about a REF for the road. He deposes that in circumstances where there were threatened species involved he would expect a proper REF to be carried out to ensure that the requirements of the EP&A Act are complied with and to ensure that threatened species are not harmed as a result of such works.

Mr William Llewellyn Saunders

86 An affidavit sworn by Mr William Llewellyn Saunders was read in these proceedings and Mr Saunders gave oral evidence. He has been involved in bird watching for the last twenty years. While he has no formal qualifications, he has done previous bird atlassing (the recording of bird species in various areas, then placing those records into a central computer). He became involved in the Partridge Creek area prior to 1998. For two years, from February 2001 to early 2003, he attended the site regularly recording bird species. Mr Saunders attests that on 20 June 2001, near the windmill near the old council house at the Partridge Creek site, he flushed out a Grass Owl. Mr Saunders recorded the sighting. He has been back to the site many times since and has seen a roadway which has been constructed over the wetland. Mr Saunders estimates the area where he first saw the Grass Owl to be within 500 meters of the roadway as it now stands.

87 Mr Saunders deposes to the details of a meeting he had with Mr Freeman on 21 January 2004. At about 11am, Mr Saunders arrived at the office of Mr Freeman with his wife. When in the office, Mr Saunders produced a copy of the ASSR Project’s plan of management, final draft of January 2003. Mr Freeman informed Mr Saunders that he believed he (that is, Mr Freeman) was at the Hastings Council meeting when the plan was adopted and he has a copy of the plan. Mr Saunders also produced the Partridge Creek ASSR Project Targeted Fauna Survey and eight part test assessment by Mr Redpath. Mr Freeman said he had a copy of the document. Mr Freeman further stated that he had both documents before the roads were planned and he was aware of their contents. Mr Freeman, in response to a question put forward by Mr Saunders regarding the requirements for an EIS, indicated that he was fully conversant with such requirements, and that he didn’t consider that an EIS was required before the roads were constructed. Mr Freeman stated that he saw no reason to seek legal advice in relation to that, as he didn’t believe it to be a designated wetland. In his oral evidence, Mr Saunders confirmed that Mr Freeman said in conversation that he had all the documents before he constructed the roads and he decided he didn’t need to conduct a review.

88 Mr Saunders took a contemporaneous record of the meeting. Those contemporaneous records indicate that Mr Saunders also mentioned, in the meeting with Mr Freeman, that the reports stressed that the Grass Owl was sensitive to habitat disturbance and that the road had been sited within 100 meters of where it was known to be breeding. He informed Mr Freeman that the road would give easier access to predators, had reduced the habitat of the threatened species and would further divide the area.

Mr Trevor Graham Schubert

89 Mr Trevor Graham Schubert swore an affidavit in these proceedings. He is Maintenance Co-ordinator for Port Macquarie-Hastings Council. He was in 2003, and continues to be, responsible to Mr Toft and ultimately to the Director of Infrastructure Development, who was in 2003 Mr Freeman. Mr Schubert deposes that he co-ordinated the construction of the east-west and north-south roads. Mr Schubert deposes that the works were done in late 2003. He had a meeting on site with Mr Freeman a few weeks before the works started. Mr Freeman told Mr Schubert that he wanted to build a road from the south to the north to enable the council and others to carry out survey work for proposed subdivisions in the area. Mr Schubert deposes that Mr Freeman told him where both roads were to be built. During the construction of the north-south road, Mr Freeman told Mr Schubert that he wanted another road built, running from the north-south road in an easterly direction. Mr Freeman showed Mr Schubert where he wanted it to run from and to. Mr Schubert deposes that there was already a track where both roads were built. Mr Schubert estimates that it took three months to complete the road works.

Mr Bernard James Smith

90 Mr Bernard James Smith swore an affidavit that was read in these proceedings and gave oral evidence. In 2000, Mr Smith was appointed General Manager of Hastings Council. In late 2000, Mr Freeman was appointed Director of Infrastructure Services. According to Mr Smith, Mr Freeman held that position until 2005 when he was appointed Director of Water and Natural Resources. Mr Freeman’s responsibilities in 2003 extended to the construction of roads on land owned by the council. Mr Freeman reported directly to Mr Smith. In 2003, Hastings Council had an executive group comprising Mr Smith; the Directors; the Finance Manager; and the Manager, Governance and Executive Services. Mr Freeman took an active role in the executive group, which was (and is) the core management group for the council. Mr Smith believes that in 2003, on the basis of delegations of authority which the council had made, the Director, Planning and Environment; the Director, Infrastructure Services (who was Mr Freeman); the Manager, Technical Services; and, the Manager, Planning had delegations to make determinations under Pt 5 of the EP&A Act.

91 Mr Smith deposes that both now and in 2003, whenever the council is preparing to undertake works such as the construction of a road on the council’s land, the person whose responsibility it is to ensure compliance with the EP&A Act is the director responsible for that activity. Mr Smith refers to a letter, annexed to his affidavit, which was addressed to him, dated 26 June 2002 that was sent by Ms O’Reilly. He states that if the letter was received by the council, it would have come into Central Records and then been allocated to the appropriate officer. He is not able to say to whom the letter did go to but he believes that it should have gone to Mr Sharp and Mr Freeman as requested in the letter. As noted in par [63] above, the advisory letter of 26 June 2002 from Ms O’Reilly refers to the clearing of native vegetation at Partridge Creek, notes the terms of the Native Vegetation Conservation Act 1997 and the council’s legal obligations under that Act. Relevantly the letter states: “You should also be aware that the “Ecological Assessment” report for the Partridge Creek Acid Sulphate Soil Remediation Strategy prepared by Environment Resource Management Australia, for Hastings Council June 2002 recorded a number of threatened species which inhabit the immediate area where the slashing has occurred.”

92 Mr Smith deposes that in 2003 he was aware of the ASSR Project and that a number of studies were conducted as part of planning for the ASSR Project. From memory, he first became aware of an issue of threatened species in the Partridge Creek area as a result of community concerns regarding the council’s activities in the area. From the minutes of the council’s meeting on 10 February 2003, Mr Smith says that at that meeting the council approved a plan of management for the ASSR Project. Also from those minutes, Mr Smith says that he appointed Mr Freeman to act as General Manager in his absence during February 2003 and it was the responsibility of Acting General Manager to oversee the preparation of the papers for the council’s meeting.

235 Mr J Berrigan, whose report was also admitted into evidence without objection, assessed the ecological impacts of the roads. The report focussed on the potential and known impacts of the roadway construction on the soils, hydrological impacts, aquatic flora and fauna and terrestrial flora and fauna. Mr Berrigan reports that the roadway has resulted in the removal/modification of habitat. Mr Berrigan noted that the significant impacts that construction of the roads have had/could have on the Grass Owl relate to habitat loss and fragmentation; road kill risk; anthropogenic impacts; exotic fauna; stormwater and water flow regime alterations; and altered bushfire regime. Furthermore, the most significant impacts that construction of the roads have had/could have on the Eastern Chestnut Mouse relate to habitat loss and fragmentation; physical and behavioural barrier; road kill risk; exotic fauna; stormwater and water flow regime alterations; and altered bushfire regime.

236 Ms M A Matthes, as noted in par [56] above, was a senior threatened species officer with the DEC until she set up her own Environmental Consultancy in September 2005. When she went to the Partridge Creek area on 1 April 2004 she observed numerous dog prints along both the north-south and east-west roads, which raised concerns that the road could lead to the threatened species being further impacted by feral dogs gaining improved access.

237 None of the expert evidence described above is disputed. I accept it without reservation. It clearly establishes beyond a reasonable doubt that the construction of the roads has caused significant damage to the habitat of the two threatened species in this case.

Was the act that constituted the alleged offences essential for the carrying out of an activity within the meaning of Part 5 of the EP&A Act and did the determining authority comply with that Part?

238 It is an agreed fact that the construction of the roads in question was, at the time of the offences charged, an activity within the meaning of Pt 5 of the EP&A Act.

239 A preliminary question which arises in this context is: who was the determining authority? In a sense the question does not really matter. The real question raised by s 118D(2)(b)(ii) is whether the determining authority (whoever that is) has complied with the requirements of Pt 5 of the EP&A Act. I nevertheless note the following evidence:

240 Mr Owens, who has since December 2002 held the position of Planning Manager within the council, said that his department would carry out the Pt 5 assessment and that no such assessment was done by, or in, his department for works in the Partridge Creek area. Further, Mr Owens says that, in 2003, if the council was the proponent of an activity, in terms of an assessment under Pt 5 the determining authority would have been either himself or Mr Coulter, the Director of Planning and Environment.

241 However, the council’s General Manager, Mr Smith, deposed that whenever the council is preparing to undertake work such as the construction of a road on its land, the person whose responsibility it is to ensure compliance with the EP&A Act is the Director responsible for that activity.

242 As I have said, I do not need to resolve this question. Mr Freeman says that he made an assessment under Pt 5 of the EP&A Act. It was, however, not a valid assessment of the activity under that Part. What he did does not comply with Pt 5 of the EP&A Act. What he did was a mere token attempt to comply with the requirements of that Part and which merely pays lip service to the requirements of that Part. That is, the suggestion that the council by its Director of Infrastructure Services, Mr Freeman, complied with Pt 5 of the EP&A Act, or gave a valid approval within the meaning of that Part, is firmly rejected.

243 The key provisions of Pt 5 are, relevantly, ss 111 and 112. Section 111(1) requires a determining authority, in its consideration of an activity, to “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.” Moreover, s 111(4) states that without limiting sub-s (1), a determining authority must consider the effect of an activity on, in the case of threatened species and their habitats, whether there is likely to be a significant effect on those species or their habitats: and if there is likely to be a significant effect on the habitat of threatened species, then s 112 requires the preparation and assessment of an environmental impact statement. The expert evidence which I have noted in pars [231] - [236] above clearly shows that the habitat of the threatened species in the present case would be affected to a significant extent.

244 The document that purports to be an assessment under Pt 5 of the EP&A Act which was completed by Mr Freeman is nothing more than a three page ‘tick-a-box’ checklist. It does not even mention the threatened species which are supposed to be the subject of the assessment! Moreover, nowhere in the in the document is there any mention of whether the activity is likely to have a significant effect on the habitat of those species, as expressly required by s 111(4) of the EP&A Act. It only answers the question as to whether a significant area of known habitat is to be modified or removed, which is not the question that s 111(4) calls for.

245 The document prepared by Mr Freeman – described in the evidence as a review of environmental factors – does not come near to being an examination which takes into account “to the fullest extent possible” the effect of the activity.

246 The expert evidence on this question, which is not contradicted, is damning. I have described the criticism of the document by Ms Matthes in par [58] and [59] above, who identifies its defects. Shortly stated, the document prepared by Mr Freeman has no determination date; it is not signed; it does not identify the proposed activity other than the words “Thrumster Land Access Road” handwritten on the front page; there is no mention of the location of roads, the material to be used, or how the works are to be undertaken; and there is no mention of the threatened species whose habitat is to be affected – for all we know Mr Freeman may have been considering the impact of the activity on the koala rather than on the Eastern Chestnut Mouse or the Grass Owl.

247 I have also described the criticism by Mr Moody in par [61] above. I refer, in particular to his detailed criticism in sub-pars [61](a)-(f) above which clearly demonstrates that there has been no compliance with the requirements of s 111 of the EP&A Act. I have no hesitation in accepting the expert evidence of both Ms Matthes and of Mr Moody. This was not an assessment within the meaning of Pt 5 of the EP&A Act.

248 Moreover, a member of the council’s own staff, Mr Owens had described – in par [69] above – the purpose for which the three page REF is used within the council: it is usually a prompt sheet or check sheet for what to look for when reviewing a REF. Mr Owens goes on to describe, in his evidence, the type of document which is a REF assessment, which is typically about 25 pages in length.

249 Mr Freeman says that when he prepared the document he read and considered the reports and materials that were available to him on the council’s I-Drive, which include the ERM report, the Redpath survey and the ASSR Project’s plan of management. In particular, Mr Freeman says that he considered the eight part test that had been prepared by Mr Redpath in the Redpath report to satisfy himself about those matters. However, Mr Redpath’s assessment is of the impact upon the threatened species habitat of the ASSR Project. It was not an assessment of the impact of the construction of the roads on the threatened species habitat. That is to say, the reports to which Mr Freeman says that he had recourse were completed for a totally different subject matter.

250 Mr I J Hemmings and Mr E Y Ozen, appearing for the defendant, submit that there is no necessity for any formal documentation of an assessment under Pt 5; rather, the review and determination is a mental one, which Mr Freeman undertook. The document that Mr Freeman prepared, however, is a written record of his mental process and a written record of the exercise that he performed. It is totally inadequate. Moreover, for the reasons I have described in par [227] above, I am not inclined to accept anything that Mr Freeman says, unless some extrinsic evidence corroborates it. The only extrinsic evidence of his mental process in performing the exercise required by Pt 5 of the EP&A Act, is the document itself.

251 Finally, the assessment under Pt 5 must be undertaken before the commencement of the activity to which it relates. In the present case the purported assessment took place after the commencement of the activity, so that even if it were a valid assessment, the determining authority has failed to comply with that Part. Mr Hemmings concedes in his submissions that construction had commenced before Mr Freeman carried out his assessment. Mr Freeman, in his own evidence, says that he believed that the geotextile fabric or the clay had been started to put down and construction of the roads had commenced, as noted in par [120] above. Mr Freeman repeated in his evidence that construction of the roads had started and was underway before he did his assessment, as noted in pars [125], [126], [132] and [134] above.

252 The prosecutor has proved that the council failed to comply with Pt 5 of the EP&A Act; that is, that the defences in s 118D(2)(b)(ii) or (iii) are negatived.

Section 175B of the NPW Act

253 It follows from the above findings that the offence under s 118D is proved beyond a reasonable doubt. I also find proved beyond a reasonable doubt that the statutory defences under s 118D(2)(b) has been negatived. It is only if there is such a contravention by a corporation that the defendant could become liable under s 175B. This raises further questions for determination.

Is, or was, Hastings Council a corporation?

254 Yes, s 220 of the Local Government Act 1993 says so.

Was the defendant a person who is a director of the corporation or a person concerned in the management of the corporation?

255 It is an agreed fact between the parties that the defendant was concerned in the management of Hastings Council at the relevant time.

Did Hastings Council contravene s 118D of the NPW Act without the knowledge (actual, imputed or constructive) of the defendant?

256 This is the defence, available under s 175B(1)(a), upon which the defendant relies. The defendant, however, bears the onus of proving this defence on the balance of probabilities. This must be so, because the section says “unless the person satisfies the court that…”, the “person” being the person who is concerned in the management of the corporation. That is, as I understand it, there is no obligation on the part of the prosecutor to negative the defence.

257 Although the defence under s 175B(1)(a) is determined on the balance of probabilities, I am able to find beyond a reasonable doubt that Mr Freeman knew before any of the road works was started that the land was habitat of the two threatened species. I have found Mr Freeman to be an unreliable witness with a constantly changing version of events, often contradicting himself, and that no reliance can be placed on anything he has said unless it is independently corroborated.

258 I have referred to evidence that Mr Freeman was the Acting General Manager of the council on 10 February 2003 when a report on the ASSR Project (ERM report) and the plan of management were placed before the council – see par [42] above. I have also referred to evidence that both the ERM report and the plan of management would have been an item for discussion by the executive group, comprising the General Manager and the Directors, before the 10 February 2003 council’s meeting – see par [43] above. The ERM report states that an assessment of the project under Pt 5 of the EP&A Act was required, which must have regard (inter alia) to “whether there is likely to be a significant effect on threatened species…”, and “ if the activity is likely to significantly affect the environment or threatened species, populations or ecological communities or their habitats.” It is inconceivable that Mr Freeman would have been unaware of the substance of the report, including the fact that threatened species had been identified on the land and that an assessment under Pt 5 of the EP&A Act was required.

259 More telling, however, is the fact that Mr Freeman does say that he had a meeting with Mr Saunders on 21 January 2004, which is corroborated by Mr Saunders. I accept, however, Mr Saunders’ version of what took place at that meeting. Mr Saunders’ evidence on this point is worth repeating:

[11b] About 11am on 21 January 2004, I arrived at the office of Geoff Freeman with my wife. In Mr Freeman’s office with my wife, I produced a copy of the Partridge Creek Hotspot Remediation Plan, final draft January 2003. I said to Mr Freeman, “Were you at the meeting at Hastings Council when this was adopted?”
He said, “I believe I was.”
I said, “Do you have a copy of this plan?”
He said, “I do.”

I then produced the Partridge Creek Acid Sulphate Soil Hotspot Project Targeted Fauna Survey and 8 Part test assessment by Phil Redpath DLWC, dated December 2002. I said, “Do you have a copy of this document?”
He said, “I do.” He said, “I had both documents before the roads were planned, and I am aware of their contents.”

I said, “Are you fully conversant with the requirements for EIS or review of EIS where designated wetlands and endangered fauna is concerned, particularly were [sic] there is ongoing research by the Department of Land and Water Conservation into endangered species?”
He said, “I am and don’t consider that one was required before the roads were constructed. I saw no reason to seek legal advice from the council’s legal representatives or the Department of Land and Water Conservation. I don’t believe it is a designated wetland and as far as I know, there’s no definitive definition of a designated wetland.” He also said, “I have not discussed legal requirements with any council staff, and no staff had bought [sic] to my notice any action taken in relation to the roads was illegal.”

260 Mr Saunders was not cross-examined on par [11b] of his affidavit nor on the content of what he said, other than questions directed to how contemporaneous were his notes of that meeting. The contemporaneous notes annexed to the affidavit confirm the content of par [11b]. I have no reason to doubt that Mr Saunders was telling the truth. I accept his evidence unreservedly. It demonstrates an admission by Mr Freeman that he had the reports and was aware of their contents before the roads were planned – which would include the references to the habitat of the two threatened species on the land. It also shows that Mr Freeman was aware of the requirements for, or review of, an EIS where endangered fauna is concerned and that he did not consider one was required before the roads were constructed.

261 The admission to Mr Saunders is consistent with the evidence of Mr Aaso. In response to a request from Mr Freeman, Mr Aaso had placed the management plan for the ASSR Project with the appendices comprising the ERM report and the Redpath survey on the council’s network I-Drive and then, on 9 September 2003, sent an email to Mr Freeman informing that this material was accessible on that drive. This was before any work had started on the construction of the roads and before Mr Lyon started slashing the tracks prior to the road construction work.

262 I have described the evidence of the conversation between Mr Aaso, Mr Rogers and Mr Freeman in the council’s car park. There is some uncertainty as to when this conversation took place, but it was before Mr Freeman carried out his purported REF. I accept the versions of that conversation given by Messrs Aaso and Rogers in their evidence, which I have set out in pars [24] and [81] above, in which Mr Freeman did not deny the assertion by Mr Rogers that he (that is, Mr Freeman) knew that there are threatened species in the area. I accept Messrs Aaso and Rogers’ versions for the reasons I have stated in par [227] above. This, I find, is further evidence that Mr Freeman knew of the presence of threatened species in the area before any work was commenced on the construction of the roads. It was after his conversation in the council’s car park with Messrs Aaso and Rogers and after construction of the roads had commenced that Mr Freeman thought that he should do something in the nature of an assessment of the impact, as he himself acknowledged (see par [143] above).

263 I find that Mr Freeman, knowing that the area over which the roads were to be constructed comprised the habitat of threatened species, also knew that an assessment of the impact of that activity was required under Pt 5 of the EP&A Act. Moreover, Mr Freeman’s own evidence is that he was aware of Pt 5 of the EP&A Act and knew that an assessment was required under that Part (pars [123], [138] and [142] above). He must have known this because he subsequently purported to make such an assessment, albeit a token attempt (pars [106] and [132] above).

264 It is self-evident that the construction of the roads through the habitat of threatened species would damage that habitat. If Mr Freeman did not have actual knowledge of this fact then, as submitted by the prosecutor, he adopted a position of “wilful blindness” as to the existence of a fact which comprised the principal offence, in which event that knowledge can be imputed.

265 I have found that although the construction of the roads was an activity within the meaning of Pt 5 of the EP&A Act, there was no compliance with the requirements of that Part – see pars [238] – [252] above. That is, the defence under s 118D(2) is not available. Since Mr Freeman says that he was aware of Pt 5, then he would also have been aware of the fact that it required the determining authority to “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.” It is also self-evident that a purported assessment of the activity under Pt 5 of the EP&A Act which does not even mention the threatened species whose habitat is to be damaged could not satisfy the requirement to “examine and taken into account to the fullest extent possible” all matters affecting that environment. I have noted that Mr Freeman says that he took into consideration the ERM report and the detailed eight part test that had been prepared by Mr Redpath (in the Redpath survey). I have also noted that Mr Redpath’s assessment, however, was clearly not an assessment of the impact of the roads (which were not then planned) but an assessment which was carried out for a totally different subject matter, a fact that Mr Freeman acknowledged in his evidence (par [130] above).

266 Mr Freeman was not only aware of the requirement of Pt 5 of the EP&A Act, he knew that Pt 5 applies to any activity of the council: see par [142] above. Mr Freeman says that he honestly believed that he was satisfying what was required of him under Pt 5 of the EP&A Act. I have previously concluded, for the reasons given in par [227] above, that Mr Freeman’s evidence cannot be accepted unless it is independently corroborated. The only independent corroboration is, as I have noted, the totally inadequate checklist or REF which does not even mention the particular threatened species whose habitat it is supposed to assess, and which falls far short of the requirement to examine and take into account “to the fullest extent possible” all matters affecting that environment. From Mr Freeman’s admission he was aware of Pt 5, the requirements of that Part can be imputed to Mr Freeman, being a legal obligation imposed on all determining authorities. Alternatively, I find that Mr Freeman had constructive knowledge of the requirements of Pt 5: “constructive” denoting an act, statement, or other fact having an effect in law though it may not have that effect in fact (The Oxford Companion to Law, 1980, Clarendon Press, Oxford). In short, I find that if Mr Freeman did not have actual knowledge that Pt 5 had not been complied with, then he had either imputed or constructive knowledge that the requirements of Pt 5 had not been complied with.

267 I find therefore, on the balance of probabilities, that the defendant has not established the defence under s 175B(1)(a) of the NPW Act on which he relies.

Conclusion

268 For the reasons explained above, I find each of the offences with which Mr Freeman is charged to be proved beyond a reasonable doubt. The proceedings should be re-listed for further hearing and submissions on penalty and costs.

I hereby certify that the preceding 268 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

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CITATION:	Garrett v Freeman (No. 4) [2007] NSWLEC 389
PARTIES:	PROSECUTOR Stephen Garrett DEFENDANT Geoffrey Noel Freeman
FILE NUMBER(S):	50043 of 2005 and 50044 of 2005
CORAM:	Lloyd J
KEY ISSUES:	Prosecution :- damage habitat of threatened species knowing that the land concerned is habitat of that kind - construction of road - offence committed by corporation - no valid assessment of the activity - person concerned in management of corporation - inconsistent, evasive and self-serving evidence - independent corroboration of evidence required - actual, imputed or constructive knowledge of the contravention
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Pt 5 Environmental Planning and Assessment Regulation 1994 cl 82 Environmental Planning and Assessment Regulation 2000 cl 228 Evidence Act 1995 s 184 Freedom of Information Act 1989 Interpretation Act 1987 s 21(1), s 50(1) Local Government Act 1993 s 220, ch 11, s 731 National Parks and Wildlife Act 1974 s 5, s 118D, s 159A, s 169, s 175B Native Vegetation Conservation Act 1997 Protection of the Environment Operations Act 1997 s 193 Rural Fires Act 1997 State Environmental Planning Policy No 14 Threatened Species Conservation Act 1995 Sch 2 Hastings Local Environmental Plan 2001 cl 8 of Sch 5
CASES CITED:	Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257; Director-General of Department of Land and Water Conservation v Greentree [2002] NSWLEC 102; Edwards v The Queen (1993) 178 CLR 193; Environment Protection Authority v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289; Garrett v Freeman (No. 2) (2006) 145 LGERA 459; Garrett v Freeman (No. 3) [2007] NSWLEC 139; Gee v Council of the Sydney City Council (2004) 137 LGERA 157; Gunning Sustainable Development Association Inc v Upper Lachlan Council (2005) 138 LGERA 281; Jugiong Quarries Pty Ltd v Water Administration Ministerial Corporation (Talbot J, 11 May 1995, unreported); Lakeside Plaza Pty Ltd v Legal & General Properties No 2 Ltd (1992) 76 LGRA 60; Ostrowski v Palmer (2004) 218 CLR 493; Parramatta City Council v Hale (1982) 47 LGRA 319; Shroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74; Springer v Woollahra Municipal Council (2000) 108 LGERA 392; Stephen Garrett for and on behalf of the Director-General, Department of Environment and Conservation (NSW) v Freeman [2006] NSWLEC 322
DATES OF HEARING:	05/06/2006; 06/06/2006; 07/06/2006; 08/06/2006; 09/06/2006; 13/06/2006; 14/06/2006; 15/06/2006; 11/07/2006; 12/03/2007; 13/03/2007; 14/03/2007; 15/03/2007; 16/03/2007; 19/03/2007; 20/03/2007; 21/03/2007
DATE OF JUDGMENT:	31 July 2007
LEGAL REPRESENTATIVES:	PROSECUTOR: D A Buchanan SC SOLICITOR: Stephen Garrett DEFENDANT: I J Hemmings (barrister) and E Y Ozen (barrister) SOLICITORS: Donovan Oates Hannaford