Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited - [2008] NSWLEC 138

Land and Environment Court

of New South Wales

CITATION: Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138

PARTIES: PROSECUTOR
Hawkesbury City Council
DEFENDANTS
Keith Norman Johnson; Johnson Property Group Pty Limited

FILE NUMBER(S): 50027 of 2007; 50029 of 2007

CORAM: Pain J

KEY ISSUES:
Prosecution :- whether trees felled in breach of Environmental Planning and Assessment Act 1979 - whether defence of honest and reasonable mistake of fact available because felling of trees ancillary to agriculture
Prosecution :- whether vicarious liability of the defendants established through direct authorisation of the acts of the subcontractor in felling trees - whether defendant director liable for acts of corporate defendant because he was "heart, mind and will" of company

LEGISLATION CITED: Clean Waters Act 1970
Criminal Code (WA)
Environmental Planning and Assessment Act 1979 s 76A, s125(1)
Hawkesbury Local Environmental Plan 1989 cl 5, cl 7, cl 9, cl 36
Protection of the Environment Operations Act 1997 s143(1)(a), s169(1)

CASES CITED: Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404
Bergin v Stack (1953) 88 CLR 248
C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270
Coffs Harbour City Council v Michael John Hickey; Coffs Harbour City Council v Marcus Monroe Hickey [2004] NSWLEC 531
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41
Director-General of the Department of Land and Water Conservation v Greentree & Anor [2002] NSWLEC 102
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240
Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1
Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175
Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593
Gosford City Council v Beresford and Beresford Concrete Products Pty Ltd [2001] NSWLEC 43
He Kaw Teh v The Queen (1985) 157 CLR 523
Jiminez v The Queen (1992) 173 CLR 572
Kondis v State Transport Authority (1984) 154 CLR 672
Lizzio v The Council of the Municipality of Ryde (1983) 155 CLR 211
Mosman Municipal Council v Waratah Village Partners Pty Ltd [2002] NSWLEC 184
Olsen v Grain Sorghum Marketing Board; ex parte Olsen [1962] QdR 580
Ostrowski v Palmer (2004) 218 CLR 493
Penrith City Council v 24/7 Waste Bins Pty Ltd & Anor [2002] NSWLEC 186
Power v Penthill House Pty Ltd (1993) 80 LGERA 247
Proudman v Dayman (1941) 67 CLR 536
State of New South Wales v Lepore and Anor; Samin v State of Queensland and Ors; Rich v State of Queensland and Ors (2003) 212 CLR 511
State Rail Authority v Hunter Water Board (1992) 28 NSWLR 721
Stoneman v Lyons (1975) 133 CLR 550 per Mason J at 573
Tesco Supermarkets Ltd V Nattrass [1972] AC 153
Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715
Von Lieven v Stewart; Kemish v Godfrey (1990) 21 NSWLR 52

TEXTS CITED: The Macquarie Dictionary, 3rd ed (Macquarie University, Sydney: The Macquarie Library Pty Ltd, 2001
LexisNexis, Criminal Practice and Procedure New South Wales (at 24 April 2008) [6-600]

DATES OF HEARING: 10 December 2007
11 December 2007
12 December 2007
13 December 2007
14 December 2007

DATE OF JUDGMENT:
2 May 2008

LEGAL REPRESENTATIVES: PROSECUTOR
Mr D Buchanan SC
SOLICITORS
Pike Pike and Fenwick
DEFENDANTS
Mr P Byrne SC with Mr A Djemal
SOLICITORS
Herbert Geer and Rundle

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

2 May 2008

50027 of 2007 Hawkesbury City Council v Johnson
50029 of 2007 Hawkesbury City Council v Johnson Property Group Pty Limited
JUDGMENT

1 Her Honour: The Defendants are charged separately with the same offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) of carrying out development which required development consent without that consent. The development comprised the felling and/or clearing of trees. The trees felled and/or cleared were native vegetation and included 13 eucalyptus tereticorins (forest red gums) and about 200 acacia parramattensis (black wattles). The alleged offences took place on Lot 132 DP 1025876 at Pitt Town also known as 18 Johnston Street, Pitt Town (the land) on 18 April 2006. The land is also known as “Bona Vista”.

2 Section 125(1) of the EP&A Act provides:

Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

3 The land is owned by Bona Vista Properties Pty Ltd whose sole director is Mr Johnson, one of the Defendants. He is also the sole director of the other Defendant, Johnson Property Group Pty Ltd (JPG).

Hawkesbury Local Environmental Plan 1989

4 At the time of the offences charged, the planning controls for Pitt Town were in the Hawkesbury Local Environmental Plan 1989 (the LEP) which became exhibit G. Under the LEP, the land was zoned 7(d1) Environmental Protection (Scenic). Under cl 7 of the LEP Hawkesbury City Council (the Council) is the consent authority. Under cl 9, the land use matrix table specified what activity requires development consent in this zone. Development permitted without consent in the 7(d1) zone was confined to agriculture. “Agriculture” is defined in the LEP as:

.. the use of land for horticulture, any purpose of husbandry, including the keeping or feeding of live stock, poultry or bees, and the growing of fruit, vegetables and the like, but does not include animal establishments or intensive agriculture.

5 “Clearing native vegetation” is referred to in the land use matrix table as development that requires a grant of consent and for which a complying development certificate cannot be issued. “Clearing of native vegetation” is defined in s 5 of the LEP as:

… the removal of vegetation considered indigenous, native or belonging naturally to Australia for any purpose other than bushfire hazard reduction.

6 Clause 36 of the LEP provides that a person shall not, on land within zone 7(d1) fell trees, inter alia, without the consent of the Council.

Summary of Prosecutor’s case

7 The offences consisted of carrying out development which required development consent under an environmental planning instrument which applied to the land where such a development consent was not obtained and in force in respect to the development, contrary to s 76A(1)(a) of the EP&A Act. The development comprised the felling and/or clearing of trees. The trees were “native vegetation” within the meaning of that term in the LEP. The term is not defined in the LEP. It bears its ordinary and natural meaning of vegetation which is indigenous or native to or belonging naturally to Australia.

8 The first basis of liability is that, as the land was zoned 7(d1) Environmental Protection (Scenic), a combination of cl 7 and cl 9(1)(d) and the land use matrix for cl 9 of the LEP had the effect that the development of clearing native vegetation could be carried out on land in zone 7(d1) only with development consent of the Council for which a complying development certificate could not be issued. No such consent was granted or in force for the activity the subject of the offence.

9 The second, alternative, basis for liability is that cl 36 of the LEP provided that a person must not fell trees on land in zone 7(d1) without the consent of the Council and that no consent was granted or in force.

10 The offences charged are offences of strict liability (Power v Penthill House Pty Ltd (1993) 80 LGERA 247 (Stein J) at 252 – 253). Accordingly, if raised by either Defendant, a defence of honest and reasonable mistake of fact is available but no proof of intention to commit the offence is required. The actions giving rise to the offence were carried out by Mr Sorenson, an employee of WJ Friend Pty Ltd. That company was engaged by the Defendants to do the work giving rise to the offence.

11 The Prosecutor submitted that JPG is liable for Mr Johnson’s statements and actions because Mr Johnson was the embodiment of the company, he was its directing mind and will (Tesco Supermarkets Ltd v Nattrass [1972] AC 153 per Lord Reid at 170; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 per Brennan J at 514; Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 per Gleeson CJ at 717). The Prosecutor contends that Mr Johnson’s statements and actions in this matter were the statements and actions also of JPG. Likewise, on the evidence, the actions of the corporate defendant in this case were the actions of Mr Johnson.

12 In relation to the liability of the Defendants for the conduct of WJ Friend Pty Ltd, via its employee Mr Sorenson, the general rule is that a head contractor is not usually vicariously liable to a third party for acts or omissions of an independent contractor or subcontractor (Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 per Dixon J at 48). However, an exception to this principle is where the principal has directly authorised the doing of the relevant act, the doing of some act which comprises that act, or the doing of some act which leads by all physical necessity to the offence (Stoneman v Lyons (1975) 133 CLR 550 per Mason J at 573, Stephen J at 562; Kondis v State Transport Authority (1984) 154 CLR 672 per Brennan J at 692).

13 The Prosecutor submitted that the Defendants directly authorised, indeed instructed, that the tree clearing be done. Alternatively, the Prosecutor says the felling of the trees was a necessary result of the conduct authorised by the Defendants.

Evidence

14 Bona Vista Properties Pty Limited is the registered proprietor of both the land and the adjoining Lot 14 in DP 865977. Australian Security and Investment Commission (ASIC) property searches tendered as exhibits C, D and E show that Mr Johnson is the sole director as well as secretary of JPG, Bona Vista Properties Pty Ltd and Johnson Property Investments Pty Ltd. Mr Johnson is the sole shareholder of Johnson Property Investments Pty Ltd. This company is sole shareholder of both Bona Vista Properties Pty Limited and JPG.

15 Mr Graeme Faulkner, General Manager of Hawkesbury City Council (the Council), affirmed an affidavit on 19 February 2007 in which he confirmed that exhibit G was a certified copy of the Hawkesbury LEP as at 18 April 2006, and that exhibit H was a certified copy of the zoning extract as at 18 April 2006.

Mr Ryan

16 Mr Malcolm Ryan is currently Director of Planning and Assessment Services at Warringah Council. He was formerly a Director of Environment and Development as well as Director of City Planning at the Council. He swore an affidavit on 23 February 2007 which was read in part and also gave oral evidence.

17 Mr Ryan received a call on Wednesday 12 April 2006 from Mr Johnson, who expressed his intention to establish a turf farm and grow trees for a subdivision on the land. Mr Johnson wanted to know whether the growing of trees and/or turf growing was “agricultural” in Mr Ryan’s opinion. Mr Ryan responded that while turf farming was an agricultural activity, he needed more information in relation to the growing of trees, namely whether they would be grown in pots or in the ground – if pots, then Mr Ryan would have had to check if that was a nursery or forestry or part of agriculture. Mr Ryan told Mr Johnson that he should put everything in writing to the Council. No mention was made during the conversation about the removal of trees from the land.

18 Mr Ryan was “very familiar” with both the land at the time as well as Mr Johnson’s and JPG’s connection with the land. Management of vegetation on that land was, according to Mr Ryan in oral evidence, “a significant issue with the local environmental study that was prepared for that land and became an issue in the subsequent rezoning by Council.” As a result of rezoning, some of the vegetation on the subject property was preserved, and some was not. According to Mr Ryan, the area of trees in issue in this case was an area that was allowed to be subdivided.

19 Mr Ryan returned to work on Tuesday 18 April 2006 after Easter Monday. He received a letter dated 13 April 2006 from JPG signed by Mr Johnson, which indicated that work was going to take place at the land, and, based on legal advice, this work did not require development consent under the LEP. The letter (exhibit K1, annexed to Mr Ryan’s affidavit) attached the legal advice and a “Proposed Plant and Turf Cultivation Plan” from JPG (the turf farm plan), which superimposes a proposed turf area and tree and plant area over the land. Mr Ryan then called JPG and spoke to Mr Hedge and informed him of his disagreement with the opinion expressed by JPG in the letter received earlier that morning. Mr Ryan said to Mr Hedge that they should not proceed with the work. Later that morning Mr Johnson rang Mr Ryan requesting a meeting at Pitt Town at noon, which Mr Ryan attended along with Mr Hall. On arrival, Mr Ryan saw that at least five very large eucalyptus trees had been pushed over and were in a heap on the subject land. He also saw a black Toyota RAV 4 vehicle and a large bulldozer on the land. He saw Mr Johnson and Ms Romano when he entered the land. The bulldozer driver was walking away from the machine towards the Bona Vista homestead to the west.

20 Mr Ryan told Mr Johnson that he believed development consent was needed and that he could not do the work without approval. Mr Johnson then called a solicitor, Mr Wilcher from Herbert, Geer and Rundle, on his mobile. With Mr Johnson holding the phone, Mr Wilcher spoke with Mr Ryan over the loudspeaker. Mr Ryan said: “I believe you do require development consent for the clearing of trees… that the LEP has a clause that covers that”. Mr Wilcher disagreed, stating that he thought it was ancillary to agriculture and a “grey area”. However Mr Wilcher said Mr Johnson would agree to undertake to submit a development application. Mr Johnson similarly agreed.

21 On a drive around the land on the same day with Mr Johnson and Mr Hall, Mr Ryan observed that a very large number of “acacia” species, which he believed were black wattles, had been pushed over. After being driven around the land, Mr Ryan advised Mr Johnson to stop all work and to remove the bulldozer. After refusing to let the bulldozer operator do any clean up work, Mr Ryan told the operator to take the bulldozer away, which the operator did, backing away to the Bona Vista homestead. Mr Ryan instructed Mr Hall to return to the land later that day to take photographs and prepare file notes. Mr Ryan then left the land.

22 Mr Ryan states in his affidavit that the areas on an aerial photograph of the land with a computer overlay of the boundaries (the “aerial photograph”, tendered as exhibit K5) shown in red and blue show the approximate locations where the trees were felled on 18 April 2006. Exhibit K5 is referred to and explained in Ms Johnson’s evidence at par 88.

23 In cross-examination Mr Ryan was asked, inter alia, if the conversation with Mr Johnson on 12 April 2006 was out of the ordinary and he replied that it was not. He had not taken notes of the conversation. It was significant in that Mr Johnson had asked him difficult questions about trees in pots and trees in the ground and whether that activity needed development consent but otherwise the conversation was normal. Mr Ryan agreed that he does not refer to that part of the conversation in his affidavit. Nor does he refer in his affidavit to telling Mr Johnson he should write to Council with more details. Mr Ryan did not agree that his recollection of the conversation was unclear and he always remembered the conversation about trees in pots.

24 He also told Mr Johnson that development consent was needed at the meeting on the land on 18 April 2006. He had also received the letter from Mr Johnson attaching a letter from a solicitor containing advice. Mr Ryan agreed that what Mr Johnson had said to him about his belief were precisely the things that the solicitor had said to him.

25 On April 18 2006 when Mr Ryan returned to work, numerous staff at the Council spoke to him because work had commenced on the land. He rang Mr Hedge at JPG and told him that he did not agree with his legal opinion and that there should be no further work conducted on the land. In cross-examination Mr Ryan agreed that he does not refer in his affidavit to his statement that work should stop on the land. He did not know why that is not in the affidavit.

26 Mr Ryan was asked in cross-examination if he was familiar with the proposed development that had been approved for the land since these events and he replied that he was. He agreed that he had many discussions with Mr Johnson about the form the development application should take. He was aware that the development application that had been submitted was for a staged development and that the areas that covered the proposed turf farm and plant nursery were the last two stages of the proposed development. He agreed that Mr Johnson had told him in the phone call before Easter (April 12 2006) that the turf farm was for the proposed subdivision on the land.

27 Mr Ryan agreed in cross-examination that the area located in the southeast of the land was nominated as a conservation zone by JPG. It was zoned environment protection 7(d1) under the LEP at that time. He agreed that within the area of the proposed turf farm and tree nursery there were trees shown as growing. In his letter of 19 April 2006 (referred to at par 47(ii) below), Mr Ryan used the word “ancillary” as he was paraphrasing the opinion of Mr Wilcher, solicitor. He agreed that the reference in the letter to “future likely” residential land was there because he considered it was probable that the proposed subdivision would take place.

28 Mr Ryan stated that he had read the letter sent to the Council from Mr Johnson dated 21 April 2006 (reproduced at par 47(iv)) and did not agree with all its contents. He had not replied because it was not his job to do so. He did not agree with statements in the letter that:

… it was the intention of the Johnson Property Group to undertake an agricultural activity on site, namely the potting of trees (ie horticulture) with necessary vegetation removal for that purpose. Mr Ryan concurred that it would not require development consent.

Despite the above matters Mr Ryan advised that he still considered it arguable that development consent would be required but given the proposed use and the imminent rezoning of the land he did not see any problem with development consent being granted.

29 In relation to the telephone discussion with Mr Wilcher, solicitor, at the land on 18 April 2006, Mr Ryan did not agree that when Mr Wilcher had said that whether development consent was required was a “grey area” he had agreed. His opinion was always that the clearing of trees required development consent. The development application for the turf farm, annexed to his affidavit, states it is for the removal of some native vegetation and minor alteration of the surface of the land which would be required for and is ancillary to the proposed agricultural activity. When the Defendants’ counsel asked Mr Ryan if the terms of the development application reflected the discussion he had with Mr Johnson and Mr Wilcher on 18 April 2006, Mr Ryan replied it did not. All that had been said was that a development application was to be submitted.

30 Mr Ryan did not agree that the word “agricultural” was used many times in the conversation on 18 April 2006. He agreed it was used several times as was the word “ancillary”. Further, in recollection of the conversation on 12 April 2006 recorded in his affidavit, Mr Ryan agreed that he had replied to Mr Johnson’s inquiry that turf farming and the nursery for production of trees would probably be defined as “agriculture”.

31 Mr Ryan had extensive discussions with Mr Johnson about the size of lots on the land as these were an important consideration in the rezoning proposal for the land. Mr Ryan had suggested at one stage that 450m2 blocks would be a suitable size for the subdivision of property to the south of the land as a way of mitigating the impact on treed areas. He agreed that Mr Johnson had been opposed to that approach on the land.

32 In re-examination Mr Ryan was asked about the turf farm plan and the fact it showed trees in the turf area and the tree and plant area. That indicated to him an intention to remove the trees as a turf farm would not have any trees, being “fence to fence” turf. He considered the trees were shown as represented on a survey plan which was generated for JPG. He was also asked if he had made a record of the conversation he had with Mr Johnson on 12 April 2006. He had prepared a memorandum on 19 April 2006 which referred to it (exhibit L).

33 Mr Ryan was asked further questions in relation to the memorandum in exhibit L which he stated he had prepared on 18 April 2006. It was dated 19 April 2006 because it was dated the day the machine generated it (the following day). It refers to events on 12 April 2006, after the 18 April 2006 events because he had been in a rush to get it done and report to Ms Gee who was in charge of taking legal action. He did not know why it was not attached to his affidavit. He had not corrected the incorrect date reference in the opening line of “18 March 2006”. It had been locked into the Council’s electronic system on 19 April 2006 and could not be altered.

34 The memorandum dated 19 April 2006, exhibit L, stated, inter alia:

Mr Johnson subsequently made accusations that I gave consent for the removal of trees, in a phone conversation he had with me on 12 April 2006.

Whilst I recall the phone conversation with him, the conversation was around whether or not he would require a consent for turf farming and the establishment of a nursery; both of which could be argued are agriculture and in that zone do not require consent. At no time did I recall him mentioning the removal of any trees or vegetation to establish this matter.

Mr Ripper

35 Mr Mark Ripper swore an affidavit on 22 February 2007 which was read and also gave oral evidence. He lives directly opposite the land and states in his affidavit that he had heard large machinery at 5.55 am on Tuesday 18 April 2006. A neighbour rang him later when he was at work to tell him there was a bulldozer pushing over large trees on the land. He came back and took photographs which he attached to his affidavit.

36 The collection of photographs he took at the land that morning is annexed to his affidavit. Mr Ripper states in his affidavit that he had been shown the aerial photograph (exhibit K5, see par 88) marked with red and blue hatching and that this showed the approximate area in which the trees were felled.

37 In cross-examination Mr Ripper said he had observed a bulldozer parked at the property at 6.15 am on Tuesday 18 April 2006. At 7 am he could not see the machine but heard machinery noise in the distance. Arriving at work at 8 am, he contacted the Council to lodge a complaint about the bulldozer because he was concerned that land clearing might take place. His neighbour called him at 10 am advising that a bulldozer was pushing over large trees at the land. Immediately after this he returned home, arriving there at approximately 10.15 am. He then took photographs until about 11 am, after which he returned to his office at Riverstone. Mr Ripper stated that he would have spent about 30-45 minutes at the land taking photos, during which time he did not see Mr Johnson (of whom he had knowledge, albeit not personally, and could recognise).

38 On the morning of 18 April 2006, Mr Ripper spoke to an unidentified female person at the Council. The complaint he made was that there was a bulldozer “doing some clearing on that property” and he asked whether there was a development application approval for the clearing activity. At the time of making the call to Council, Mr Ripper heard “machinery that sounded like a bulldozer. It’s a quiet, rural area so it’s quite distinctive”. At that stage, he did not know whether the bulldozer was doing any clearing.

Ms Gee

39 Ms Louise Gee, former Director of External Services at the Council, swore an affidavit on 12 February 2007 which was read in part and also gave oral evidence. Ms Gee received a call at about 9 am on Tuesday 18 April 2006 from Mr Johnson, who was making a “courtesy call” to let her know that he would be removing trees on the land. Ms Gee asked him whether he had consent to remove the trees, to which Mr Johnson replied that he had spoken to Mr Ryan, who had advised him that he did have consent. Ms Gee then asked him whether he had a permit from the Department of Environment and Conservation, as the particular block had an endangered ecological community, and removal of vegetation would have required a permit. His reply was that “he had been in contact with them and he was not required to get a permit”. Ms Gee’s understanding was that development consent was required for the removal of native vegetation under the LEP. She had hoped to discuss the matter further with Mr Ryan, but as he was unavailable, she raised her concerns with Council’s then Acting General Manager, Peter Jackson.

40 Ms Gee attended the land on 14 October 2006 with Mr Hall and Mr Sproule, viewing it from Johnston Street without actually entering it.

41 By letter dated 17 November 2006 to Mr Greg Monaghan of Monaghan Surveyors Pty Limited, Ms Gee sought a quote to undertake survey works to certify that the existing road centreline pegs in Johnston Street, Pitt Town were representative of those identified on engineering plans L03017-BONA-DA-304 and L03017-BONA-DA-305, as prepared by Brown Consulting for JPG. These plans are exhibited to the affidavit of Mr Westbrook and were used by him in the surveying process described in his affidavit evidence.

42 In cross-examination Ms Gee agreed that her oral evidence of the conversation she had with Mr Johnson on 18 April 2006 at about 9 am was the general gist of that conversation and not the precise words used. There are no file notes of the conversation attached to her affidavit. She considered that her recollection of the actual conversation and the flow of the conversation was very clear. The conversation had taken only about five minutes, if that. She could not say whether Mr Johnson had said to her “I’ve spoken to Mr Ryan and he told me that I didn’t need consent”. In her affidavit at par 4 to which she was then referred, she stated that Mr Johnson had said “I have spoken with Mr Malcolm Ryan and he said that I did not need approval.” She could not recall any conversation where she had asked Mr Johnson to keep her informed about what was happening on the land.

43 Ms Gee thought the “courtesy” Mr Johnson was extending to her in the call on the morning of 18 April 2006 was providing the Council with information about the activity occurring on the property. What Mr Johnson said to her were words to the effect that Mr Ryan had told him he did not need consent or approval.

44 Ms Gee spoke to Mr Ryan later that day as he was unavailable immediately after her conversation with Mr Johnson. She wanted to talk to him because her understanding of the legislation was different to what Mr Johnson had said. She could not recall, in cross-examination, any reference to “agriculture” or “agricultural activity” or “ancillary” or ancillary agricultural activity.

45 The letter sent by Ms Gee to Mr Johnson dated 19 April 2006 (see par 47(iii) below) was written after discussion with Mr Ryan and after she had viewed photographs of the land.

46 Ms Gee could not recall if she had a conversation with Mr Johnson on 19 April 2006 in which she said words to the effect that she did not agree with the view that Mr Ryan expressed. She did not consider she would have said such words.

Series of letters referred to by Mr Ryan and Ms Gee

47 The following letters are attached to the respective affidavits of Mr Ryan and Ms Gee and are set out in date order.

there is nothing in the Hawkesbury Local Environmental Plan which requires Council’s consent to establish the plant nursery… At best, it could comprise agriculture which is permissible without consent… As the removal of native vegetation is completely ancillary to the nursery works, it will also not require consent.

(ii) A letter dated 19 April 2006 to Mr Johnson from Mr Ryan in reply to JPG’s letter of 13 April 2006. The letter states that whereas within the 7(d1) zone agricultural activities can be conducted without Council consent, “clearing of native vegetation” is local development and is defined in the LEP and that this information had been conveyed in November 2005 to Mr Johnson. It was Council’s opinion that the clearing of native vegetation required the submission of a development application and was not ancillary to agriculture. The turf farm plan that accompanied Mr Johnson’s original letter indicated that driveways would be required, the construction of which would effect an alteration to the surface of the land, thereby attracting the requirement of consent under cl 36 of the LEP.

(iii) A “show cause” letter dated 19 April 2006 from Ms Gee to Mr Johnson in relation to “Alleged Unauthorised Removal of Trees at Bona Vista Lot 132 DP 1025876, 18 Johnston Street, Pitt Town”. The letter noted that Council had not granted approval for the removal of trees and clearing of native vegetation and directed that Mr Johnson, as owner of the property, cease all works on the property and show cause.

We refer to your letter dated 19 April 2006 advising that Council is in receipt of information that “clearing and tree removal has been undertaken at the property”. We respond as follows.

On Wednesday 12 April 2006 Mr Johnson telephoned Mr Malcolm Ryan, Director – City Planning and advised him that it was the intention of the Johnson Property Group to undertake an agricultural activity on site, namely the potting of trees (ie horticulture) with necessary vegetation removal for that purpose. Mr Ryan concurred that it would not require development consent.

The telephone conversation was reflected in a letter dated 13 April 2006 confirming the intention to undertake the agricultural activity on the property, and advising that contractors would begin work on 18 April 2006. The letter made it clear that the agricultural use of the land would be restricted to defined areas on the property to ensure that there would be no impact on any important or threatened ecological communities.

In light of the telephone conversation on 12 April 2006 and subsequently on 13 April 2006, the Johnson Property Group considered that activities on site for agricultural purposes could proceed and were commenced.

We were contacted on 18 April 2006 by Malcolm Ryan subsequent to commencing work on site and attended a site inspection with him on 18 April 2006.

During the site inspection on 18 April 2006 Mr Ryan expressed the opinion that the proposed potting of trees would constitute forestry and would require development consent.

We have received confident legal advice from John Webster SC that the proposed potting of trees constitutes agriculture, being horticulture under the Hawkesbury LEP 1989, and not forestry. It is therefore permissible without development consent.

We have also received advice that the clearing of the trees is totally ancillary and subordinate to that dominant agricultural use. In this regard we note that the land to be cleared for the agricultural purpose comprises only about 4% of the total land to be used.

Despite the above matters, Mr Ryan advised that he still considered it arguable that development consent would be required, but given the proposed use and the imminent rezoning of the land, he did not see any problem with development consent being granted.
…

It is evident in the circumstances that the vegetation was removed for the sole purpose of pursuing the agricultural use of the land which does not require consent. Any removal of the tree was undertaken as a totally ancillary and subordinate element of the agricultural purpose and should not itself require development consent.

48 A subdivision plan and a staging plan for lots 14 and 132 (the property), prepared by Brown Consulting (NSW) Pty Ltd Engineers and Managers for JPG, were tendered as exhibit M. Both plans have a “Hawkesbury City Council Development Consent” stamp dated 26 July 2007 printed on them, and were confirmed in Mr Ryan’s oral evidence to be part of “the approved plans”.

Mr Sproule

49 Mr Colin Sproule, Operations Supervisor and Tree Preservation Officer at the Council, swore an affidavit on 12 February 2007 and gave oral evidence. On or about 18 April 2006, Mr Sproule was requested by Greg Hall to attend the land to investigate the removal of trees. When he arrived at the land on 19 April 2006, he parked his vehicle close to the north-eastern corner of the area marked “location of eucalyptus tereticorins removal” on the aerial photograph (exhibit K5, see par 88), a copy of which he had previously seen for the purposes of deposing his affidavit. When he first saw the bulldozer, it was slightly south-west of the south-western corner of the area marked “location of acacia parramattensis removal” (on exhibit K5).

50 Mr Sproule said in oral evidence that, according to his affidavit, he had determined that 13 forest red gums had been felled and pushed into a pile. He stated in oral evidence that he had arrived at that number by counting the trunks and root balls to which they were connected. The trunks were in at least four piles. As the felled trees had green foliage and the bark was moist, Mr Sproule determined that the trees would have been alive at the time they were felled. He had not inspected every tree that had been felled.

51 Mr Sproule recalled in oral evidence that, during a visit to the land with Mr Hall, he and Mr Hall had mapped the general location of the mounds and numbered the mounds with how many trees were in each mound. This map was not put into evidence.

52 In cross-examination, Mr Sproule stated that he had not attempted to ascertain the location from where the felled forest red gums had come. He spent approximately an hour and a half at the property on 19 April 2006. On this occasion he visited the property along with an unidentified Council employee. He did not attempt to find out where the trees came from. He “believed they [the trees] were from the site [the land].” As there was much soil disturbance, Mr Sproule stated that it would have been very difficult, apart from maybe one or two trees, to determine the exact location the trees came from. Mr Sproule presumed those trees came from the land.

53 Mr Sproule orally affirmed his affidavit evidence stating that approximately 200 black wattle trees had been pushed over into a number of piles and corrected the affidavit to say the red gums had been pushed into a number of piles – not a single pile. Mr Sproule had arrived at the count of 200 black wattles the same way he did for the red gums. He admitted this was a difficult exercise, and “very much an approximation”. Mr Sproule had visually estimated the diameter of the black wattles to be 70-100mm.

54 Mr Sproule did not know if Johnston Street (which runs across the northern and eastern boundaries of the land) was a new road, nor whether its construction may have caused the destruction of any of the felled trees. The Defendants’ counsel suggested to Mr Sproule that he had made no attempt to ascertain where the felled black wattles were located on the land. Mr Sproule stated “the general location was fairly obvious from the amount of soil disturbance.”

55 Mr Sproule stated orally that while he agreed that the marked areas on the aerial photograph (annexure C/exhibit K5, see par 88) accurately show the location of the felled trees, he could not say where those trees came from, because he had not ascertained that.

56 He attended the land again on 14 October 2006 with Ms Gee and Mr Hall, and showed Mr Hall the location of the fallen trees.

Mr Hall

57 Mr Greg Hall is a Town Planning Coordinator for the Council. He swore two affidavits on 12 February 2007 and 10 April 2007 and gave oral evidence in chief and was cross-examined. Mr Hall visited the land with Mr Ryan on 18 April 2006 at 12 noon. He noticed shrubs, gum trees with roots intact and black wattles pushed into piles on the land. He noticed that the foliage on those trees was still green, suggesting they had been felled recently. The area in the vicinity where the pile of trees were located showed signs of being recently disturbed.

58 During this visit, Mr Hall saw the idle bulldozer as well as Mr Johnson and Ms Romano. Of the conversation that had taken place between Mr Ryan, Mr Johnson and Ms Romano, Mr Hall noted that nothing particularly significant had been said by anyone such that he needed to include a record of it in his affidavit. He stated he may well have been out of earshot in any event. Mr Hall took photographs (annexure A) and was taken on a tour of the land by car. He could not recall who was driving. Any conversation in the car was of development applications and “bits and pieces along that line” and was not of enough significance to record in his affidavit. The conversation was not hostile, but entirely professional. The drive was around the property, for about 10-15 minutes.

59 In oral evidence, Mr Hall referred to his affidavit where he notes that gum trees had been pushed into a pile on the property. He had not counted the number of trees, but had taken photographs. He had not tried to ascertain where the felled trees came from on the property at the 12 noon inspection. At 3.45 pm Mr Hall made another inspection and took a large number of photographs. He noted two areas of cleared vegetation indicated on a diagram (annexure B), a larger area 190m x 50m (as measured approximately by the Council vehicle’s odometer), and a smaller area where gum trees had been felled and piled up. The blue area on the aerial photograph in annexure F (identical to exhibit K5, see par 88) is the area where the majority of the larger gum trees with their root balls were located. At that time he also drove down Johnston Street with Mr Pleffer, a senior strategic planner at the Council, but did not notice anything significant about the road. Mr Hall provided his notes after the inspection to Ms Toni Johnson, a Geographical Information System Coordinator with the Council, to identify the area where the trees were felled on aerial photographs.

60 Mr Hall noted that on 18 July 2006, Council had received a development application from JPG (annexure D to his affidavit). This development application proposed a “staged subdivision into 225 residential lots with landscaping, new and upgraded roads, site remediation at Bona Vista, Johnston Street”.

61 Mr Hall attended the land again on 14 October 2006 with Ms Gee and Mr Sproule, but did not actually enter the land, instead making a visual inspection from Johnston Street. During this inspection he made a diagram (annexure C) and took notes of the approximate location of the areas where the trees were felled on the land. The diagram was accomplished by placing tracing paper over an aerial photograph of the land and marking the boundaries of the property and areas where the trees were felled, which were referenced to a series of road chainage pegs along Johnston Street. Mr Hall believes the chainage pegs had been placed on Johnston Street in association with the proposed subdivision of the subject land. The pegs were not present when he visited the property on 18 April 2006.

62 When Mr Hall referred, in oral evidence, to annexure F of his first affidavit (the aerial photograph identical to exhibit K5, see par 88), he stated that the hatching on the photograph was already there when he saw it. He states in his first affidavit that the hatched areas correspond to the areas marked on a drawing he made (annexure C) of the removed vegetation – the approximate locations of the piles of trees at the property.

63 Mr Hall’s second affidavit confirms that, as at 18 April 2006, no development consent had been granted by the Council for the clearing of native vegetation or the felling of trees on the land, nor had any notice been given pursuant to a Council Tree Preservation Order in relation to any trees at the land.

Mr Pleffer

64 Mr Philip Pleffer is a Senior Strategic Planner at the Council. He swore an affidavit on 12 February 2007 and gave oral evidence. On a visit to the land on 18 April 2006 at approximately 3.45 pm, Mr Pleffer assisted Mr Hall in making observations and taking photographs.

65 Mr Pleffer concurred with what was said at par 10 of Mr Hall’s affidavit of 12 February 2007 in relation to the area of land on the property in which the vegetation felling/pushing over occurred (see par 59). The 50m width of the area was an estimate based on observations at the land and later examination of Council’s aerial photos.

66 In relation to the aerial photograph with hatching overlay (annexure A to his affidavit and identical to exhibit K5, see par 88), the red area is approximately the area where Mr Pleffer saw black wattles pushed over. Some trees were still standing on the northern verge of that area, visible in photographs 13 and 20 (annexure A of Mr Hall’s first affidavit). In an area immediately west of the area hatched in red he saw some large eucalypts that had been pushed over lying in at least one pile. Mr Pleffer referred to Mr Hall’s affidavit and the plan annexed to it (annexure B), but, in relation to a number of photographs (annexure A), he was not sure whether the direction in which it was indicated that they were taken is correct.

67 In cross-examination, Mr Pleffer stated that he had used the odometer in the car to take approximate measurements along the road north of the land. Neither he nor Mr Hall had made any attempt to count the number of trees on the land, as that task was up to Mr Sproule. It was not part of Mr Pleffer’s task to try and work out from where any of the felled trees came.

Mr Friend

68 James Friend is a Director and Manager of W J Friend Pty Ltd. He affirmed an affidavit on 26 March 2007 which was read in part and also gave oral evidence. Mr Friend has conducted business with Mr Johnson and JPG for about ten years, ranging from building a subdivision to tree clearing. Before 18 April 2006, W J Friend Pty Ltd was contracted by JPG to do work consisting of clearing, underscrubbing and removal of trees at the land. A week or two “before the work was done”, Mr Friend was called by Mr Johnson to ask him to do the work which involved clearing for a turf farm. Mr Friend was familiar with the land, having been contracted to work there before by JPG.

69 Mr Friend notes in his affidavit that although he could not remember specifically, he believed that in relation to the tree clearing on 18 April 2006 he had gone to the land and had met Mr Johnson there. Mr Friend possessed documents he believed were given to him onsite, including a letter from Herbert, Geer and Rundle Lawyers dated 11 April 2006 (annexure B), a letter from Mr Johnson sent to the Council dated 13 April 2006 (annexure C), a copy of Proposed Turf and Plant Cultivation Plan (annexure D) and a smaller copy of the same plan (annexure E).

70 On meeting Mr Johnson at the land, Mr Friend was informed of Mr Johnson’s intention to clear the vegetation for a turf farm. The area of land to be cleared was that which was marked on the “big plan” as “turf area” and “tree and plant area”. He had this belief from “being onsite and given the plan”.

71 In relation to annexure D of his affidavit (a large plan of the land labelled “Proposed Turf and Plant Cultivation Plan”) Mr Friend confirmed that the writing on this plan was his. He had written at the bottom-right corner: “fenced off, protect trees”. He had written in that corner as he knew there were protected trees there.

72 Mr Friend recalls in his affidavit the aerial photograph annexed to the affidavit of Ms Toni Johnson (annexure C, identical to exhibit K5, see par 88). He believed that “the area in which Mr Johnson told [him] the work was to be done were the areas hatched in blue and red but also extending further to the east, to Johnston Street, and further to the south, occupying the area hatched and marked “Turf Area” in the plans annexures “D” and ‘E’”.

73 Mr Friend could not recall Mr Johnson saying that any particular trees or area in the north-eastern corner should not be cleared, nor could he recall being shown any pegs or marks indicating the boundaries of the land to be cleared. Mr Friend had not enquired of Council or otherwise as to whether the clearing of vegetation there was legal.

74 Mr Friend’s affidavit also annexes two invoices (annexure G) for the hire and return of the bulldozer on 18 April 2006 and 1 May 2006 respectively as well as for fuel and Mr Sorenson’s labour. A remittance advice from JPG, which accompanied the cheque in payment of the invoices, is also annexed. Mr Friend stated that the invoices were sent so that they could be paid, and the reason they were sent was because he believed he was employed “by that particular party”.

75 Mr Friend was shown the photographs annexed to Mr Hall’s first affidavit (annexure A) and stated that the work depicted in the photographs was done by his company, for the reason that he “believed that that’s what was required of the client.” He stated this belief was, again, derived from the onsite meeting and the plan. He stated that the felled trees depicted in the photographs was the result of the work of Mr Sorenson, an employee of the company for over 20 years, who worked under his instruction. Mr Friend could not recall, in oral evidence, word for word the instructions he gave to Mr Sorenson, but they “basically” were “to go to the site and clear this area”. Mr Friend gave Mr Sorenson “the plan and a copy of the letters” (by reference to Mr Sorenson’s oral evidence below, it appears that the plan given to him was the small plan annexed to Mr Friend’s affidavit (annexure E)).

76 Of the work W J Friend Pty Ltd has conducted for JPG in the past, ninety nine percent of the time the work has been done on hourly hire with an employee of W J Friend instructed by JPG on site as to details. Mr Friend has no memory of Mr Sorenson ever failing to comply with instructions for any given work.

77 In cross-examination Mr Friend confirmed that Mr Sorenson was a respected and trusted employee who had worked for him for about twenty years. The usual work arrangements with JPG were to instruct the employee doing the particular job to meet Mr Johnson on the land and then follow his instructions. Mr Friend agreed that that is what he had told Mr Sorenson. Mr Friend had known Mr Johnson for many years before April 2006 and had previously worked for him. Mr Friend had received the large plan and two letters (annexures D, B and C respectively to his affidavit) about five days before 18 April 2006. The letters were copies of the legal advice JPG relied upon and the letter Mr Johnson sent to the Council dated 13 April 2006. He confirmed that that was the meeting referred to in his affidavit at par 5. He agreed he did not have a precise recollection of what was said at the meeting and that he was not at the land on 18 April 2006.

78 In relation to the photographs taken by Mr Hall and annexed to his affidavit, Mr Friend accepted that they had been taken at the land but he did not know from which direction they were taken nor what exactly they represented. Mr Friend had been given general instructions by Mr Johnson to clear the turf farm area but not specific instructions as to which trees or bushes to clear. His understanding was that if there were specific instructions they were to be given onsite to Mr Sorenson.

Mr Sorenson

79 Mr Hans Sorenson is an employee of W J Friend Pty Ltd and his duties involve driving and maintaining machinery, primarily bulldozers. He swore an affidavit on 27 March 2007 most of which was read and gave oral evidence.

80 Prior to 18 April 2006, Mr Sorenson had met Mr Johnson briefly, and had done a few jobs for either him or his company. On 18 April 2006, Mr Sorenson started pushing over trees at 7 am. He started at the north-western corner of the “hatched area marked on the plan” because that was the closest part of that area where he had entered the property. There was a fenceline there, extending south. He stopped at 9 am for a tea break. He did not see anyone else until about 11 am when Mr Johnson and a woman named “Emma” arrived. Mr Johnson spoke to him and while he could not remember what Mr Johnson said precisely, it was to the effect that he was satisfied with the work Mr Sorenson had been doing.

81 Mr Sorenson’s instructions for the work were given by Mr Friend in his office on 17 April 2006. He was told to go to “18 Johnston Street… and start basically pushing down the trees at the property.” He was given a plan, (a copy of which is annexure E in Mr Friend’s affidavit, the small plan of the turf farm area).

82 With regard to his instructions, Mr Sorenson stated in oral evidence that he had been told where to start (“go down along the fence line and start at the first lot of gum trees, start first there along the track”) and that there were certain trees he was “definitely” not allowed to push down. These were “prominent trees… just inside the gate where the machine was parked”. He was then to wait for further instruction from Mr Johnson, who was to come out to see him. Mr Sorenson stated that Mr Friend had indicated on the plan the trees to be knocked over. These were found by going “down along the fence line”, and then following the fence line “till you come to a big group of trees”. When asked by the Prosecutor which fence line, Mr Sorenson indicated on the plan (annexure E to Mr Friend’s affidavit): (transcript p 220, line 43, - p 224, line 8)

Q. Which fence line, sir?
A. The fence line - there was a small track, there was a small - it’s not really a road I suppose, you’d call it a track down to the bottom houses down there.

Q. Is that shown on that plan?

A. Yes, it is, yeah it’s -

Q. … When you said house, you were referring to squares and rectangles on the left hand side of the plan as it faces with north facing up towards the top of the plan. Is that right?
A. Yeah.

Q. The next thing you were referring to was what?
A. Well this is the area here.

Q. Indicating?
A. That’s the area.

Q. Indicating the northwest corner of the hatched area?
A. Yeah.

Q. When you say this is the area, what do you mean by that? What are you saying about it?
A. Well this is where I started. I commenced with the gate here and that’s--

Q. Now hang on. The gate you indicated is at the top--
A. Yeah.

Q. --on the northern side but very close to the eastern boundary, is that right?
A. It’s actually--

Q. I apologise, to the western boundary, thank you?
A. It’s down a little bit, yeah.

Q. Yes?
A. Yeah, down a little bit. It’s not like in the corner there, it’s down a little bit.

Q. I’m sorry, it’s down a little bit?
A. Yeah.

Q. It’s in fact--
A. It’s not really indicated there.

Q. --near the first line to the right hand side of the western boundary coming down from the northern boundary, that’s where the gate is?
A. Yeah, it’s not really indicated properly here but that’s where it is, yeah, and then we start at this area here.

Q. Indicating the left hand side, the north western corner on the western side of the hatched area?
A. Yeah.

Q. But what I’m asking you is, what were you told to do?
A. That’s what we were just told to do, to start there. There’s no trees and just to--

Q. Indicating to the west of the north western corner of the turf area?
A. Yeah.

Q. And how far were you to go?
A. That whole area.

Q. Indicating the entirety of the hatched area?
A. Yeah. I wouldn’t get that far in the time - I wouldn’t have got that far in any case and you know, start there and then wait for some further instructions.

Q. And when you say “I wouldn’t have got that far in any case” what do you mean?
A. Well, in the timeframe, the amount of trees that’s there, I would not have - I wouldn’t have cleared more than, you know, a part of it before--

Q. How long would it have taken you to have cleared the trees in the entire of the hatched area, the turf area and tree and plant area?
A. That’s - that could be taking two or three days.

Q. Is that what you understood your job to be?
A. Yeah.

Q. Earlier you referred to Mr Friend saying something about protected trees?
A. Well, the only area I was told not to go to was this area here. This far corner.

Q. Indicating the south eastern corner of the area in the block of land shown on the plan?
A. Yeah.

Q. Which with Mr Byrne I agree is the area known from other documents as the conservation zone?

A. Yeah.

83 Mr Sorenson had been told to push the felled trees into heaps for mulching. He had asked Mr Friend if doing the work was all right, to which he replied it was as far as JPG or Mr Johnson had advised him.

84 Mr Sorenson recalled speaking to Mr Johnson onsite and specified, on the aerial photograph which is annexure C to the affidavit of Mr Hall (exhibit K5, see par 88), where the conversation had occurred. He said it had taken place in the grassed area to the west of the area with trees on it with the blue hatching on it.

85 In cross-examination Mr Sorenson confirmed that Mr Johnson did not arrive on site until 11.30 am and that he had worked since 7 am pushing over trees. In cross-examination he stated: (transcript p 226, line 3, - p 228, line 9)

Q. You then said, “I can’t remember now what he said but he said words to the effect that he was satisfied with the work I was doing”, do you see that there?
A. Yep. I can’t remember from week to week.

Q. Obviously, no, it’s a year earlier you’re talking about you can’t remember?
A. Yeah.

Q. Can I just suggest this to you that Mr Johnson came up and spoke to you?
A. Yeah.

Q. And he said words to the effect, look, there’s a bit of a problem but don’t worry, you’ve done nothing wrong or words to that effect?
A. Yeah, there could be, yeah, there could be, yeah.

Q. There’s a bit of a problem but it’s not your fault or--
A. Yeah, yeah.

Q. He was putting you at ease in a sense?
A. He was quite happy with the job I’d done.

Q. Sure but it wasn’t as if there was a long time. He arrived there and he said to you something like there’s a problem, don’t worry about it but can you switch off the dozer, words to that, and you did switch--
A. Yeah.

Q. Now it was after that that Mr Johnson had said switch it off. Not long after that within maybe half an hour, two people from the council arrived, two men?
A. Yeah.

…

Q. Just one other matter. The document that you’ve been referring to which has got B on the top, that’s the document that Mr Friend showed you and gave you a copy of, is that right?
A. Yeah.

Q. That was a document you were discussing with Mr Friend?
A. Yeah.

Q. The night before you said, I think?
A. Yeah.

Q. That would be on 17 April?
A. Yep.

Q. And that was at the offices of or the place where W J Friends plant is located, is that right?
A. Yep, that’s right, yep.

Q. This conversation that you had with Jim Friend, it wasn’t a particularly detailed conversation. He just said there’s the plan?
A. Yeah.

Q. That’s the general area we’re working about?
A. Yep.

Q. What I want you to do is to go out there. The bulldozer will already be there in the morning?
A. Yep.

Q. Wait until you get the instructions from Mr Johnson?
A. Well, the instructions really was - the main part of the instructions I think was mainly the trees that was protected.

Q. Trees that was protected?

A. To give me the exact position of the - where the trees. But there was plenty of area where I could work, where I didn’t need any instructions, you know, yep.

Mr Westbrook

86 Mr Keith Westbrook, a surveyor for Monaghan Surveyors Pty Limited, affirmed an affidavit on 15 February 2007. He described the survey process undertaken in relation to a request from his supervisor Mr Gregory Monaghan to survey the chainage pegs on Johnston Street by reference to design plans prepared by Brown Consulting (NSW) Pty Limited, attached to his affidavit and labelled as “L03017-BONA-DA-304” and “L03017-BONA-DA-305”. He attended the land on 28 November 2006 and 7 December 2006 and carried out surveys of the existing road chainage pegs by reference to these plans using satellite navigation methods and a “total station theodolite”. The results were compiled into a spreadsheet (annexure A) and sent with a letter to the Council by Mr Monaghan (annexure B). The letter, dated 8 December 2006, verifies that “the locations of the road chainage pegs are representative of those chainages shown on the provided design plans prepared by Brown Consulting (NSW) Pty Ltd and identified as L03017-BONA-DA-304 and L03017-BONA-DA-305”.

Ms Johnson

87 Toni Johnson is a Geographical Information System Coordinator with the Council. She affirmed an affidavit on 12 February 2007. Mr Hall had provided Ms Johnson with data which comprised a diagram showing the boundaries of the land and chainage information as to the location of trees removed and their type (annexure A). On 4 August 2006, Ms Johnson received an email from Mr Hedge of JPG attaching a drawing file (annexure B). This was received in the context of discussions between Council and JPG about details of an historic fence line which was located on land the subject of an application for subdivision which Council had received from JPG.

88 Ms Johnson had prepared two maps, both labelled “Tree Removal Location on Lot 132 DP 1025876 and Lot 14 DP 865977” (annexures C and D; annexure D is identical to exhibit K5). These were printed by her on 6 October 2006 and were based on information provided to her about the location of the felled trees on the property by Mr Hall (annexure A). In compiling the composite photographs/maps with Council software, Ms Johnson overlaid the Council’s aerial photography of the land over the Council’s cadastral data, after which she georeferenced the location of the felled trees into the system (based on data from annexure A), from which the blue and red cross-hatched layer was made. The diagram was georeferenced into the system by lining up the property boundaries on the diagram to the boundaries on the cadastral data. Ms Gee provided Ms Johnson with the information concerning the type of trees within the hatched blue and red areas of “eucalyptus tereticorins” (blue) and “acacia parramattensis” (red). Details of the types of trees felled were also by reference to the chainage references in annexure A. The two map/photograph composites annexed to Ms Johnson’s affidavit are the same with the exception that annexure C also indicates the proposed subdivision planned for the two lots. This information came from the drawing file in annexure B.

Ms Cummings

89 Ms Cummings is a senior planner at the Council. Her affidavit sworn 28 March 2007 was read in part and she also gave oral evidence. Her affidavit identifies the history of the planning instruments which apply to the land, the Hawkesbury LEP and the DCP. The latter was approved by the Council on 15 November 2005. It refers to the retention of significant vegetation and this is shown generally on a development plan at 4-4 of the DCP. The significant trees on the subject site were identified on the development plan as to be retained.

90 In April 2006 subdivision of land zoned 7(d1) was limited to 10 hectares or more. Under Amendment 145 of the Hawkesbury LEP the land had two zonings, one area with a minimum of 750m2 and one with a minimum of 1500 m2. Amendment 145 was made on 18 August 2006. A proposal to further rezone the land to expand the area of land to which Amendment 145 applied and increase the allowable density of lots on the land was received from JPG in August 2006.

91 In a memorandum to Ms Gee dated 14 September 2006 attached to her affidavit commenting on the land clearing at Bona Vista, Ms Cummings states in relation to DA278/06 that:

The subject trees are located on the site plan and do not to be

appear to be affected by the is

DA as they are located on the boundary of the proposed turf area

92 The memorandum does not specify what the subject trees are but it can be inferred these are the forest red gums in issue in these proceedings so these are the significant trees identified in the DCP development plan.

Prosecutor’s submissions
Liability of W J Friend Pty Ltd

93 The felling of trees requires development consent under the LEP. It is development as defined by s 4 of the EP&A Act being use of land and the carrying out of work. The land was zoned 7(d1) Environment Protection (Scenic). All development under that zone apart from agriculture required development consent. The clearing of trees (native vegetation) is not agriculture. It is an independent use of the land and was not ancillary to use for the purpose of agriculture (Lizzio v The Council of the Municipality of Ryde (1983) 155 CLR 211, C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270, Baulkham Hills Shire Council vO’Donnell (1990) 69 LGRA 404). Also under cl 36 of the LEP the clearing of trees on land zoned 7(d1) without development consent was prohibited. The clearing of the trees therefore required development consent by virtue of s 76A of the EP&A Act and has not been obtained. Hence there is a breach of the first limb of s 125.

94 An alternative basis of liability was identified on land zoned 7(d1) where felling of trees without development consent was prohibited by cl 36 of the LEP and any clearing of native vegetation on such land without consent was a breach of s 76A of the EP&A Act and therefore a breach under the first limb of s 125(1).

95 The activities giving rise to the strict liability offence were committed by WJ Friend Pty Ltd (par 4-17 of Prosecutor’s closing submissions) through its employee Mr Sorenson. By its employee, Mr Sorenson, WJ Friend cleared trees from the subject land. Mr Sorenson’s evidence that he cleared trees from the land was not challenged. It was confirmed by:

(i) the evidence of Mr Ripper and his photographs;

(ii) Mr Friend’s identification of his company’s bulldozer in the last of Mr Ripper’s photographs;

(iii) Mr Friend’s identification of the work shown in the photographs as his company’s work;

(iv) In part, by the evidence of Mr Ryan and Mr Hall as to seeing a person wearing a top with the word “Friend” printed on it walking around nearby the bulldozer;

(v) Further evidence of the clearing (although not as to the identity of the person responsible) is to be found in the evidence of Mr Ryan and Mr Hall as to the vegetation they found felled on the morning of 18 April 2006, and by the evidence of Mr Hall’s photographs and Mr Sproule’s examination of the site, together with the evidence from these witnesses as to the indicia that the felling had been recent.

96 Mr Sorenson did the tree clearing in his capacity as an employee of WJ Friend Pty Ltd and for that company. He testified that he was instructed to do so by Mr Friend. Mr Friend confirmed that he had so instructed Mr Sorenson. Mr Sorenson was plainly not on a “frolic of his own”. Accordingly, in clearing the trees Mr Sorenson was doing work done by WJ Friend Pty Ltd.

97 There was no development consent for that activity. This is proved by Mr Hall’s second affidavit (exhibit T, par 63).

98 Accordingly, in more than one way, in clearing the trees from the subject land on 18 April 2006, WJ Friend Pty Ltd committed the offence of doing a thing forbidden to be done by the EP&A Act namely, without consent carrying out development which required consent, contrary to s 125(1) and s 76A.

Liability of Defendants

99 The Defendants are vicariously liable for the conduct of WJ Friend Pty Ltd under the exception to the principle that an employer of an independent contractor is not usually vicariously liable to a third party for acts or omissions of an independent contractor or sub-contractor, in other words, the actions giving rise to the offence were directly authorised. The Prosecutor argued this was supported by:

(i) direct evidence

(ii) inferential evidence

(iii) evidence of admission of guilt

(iv) evidence of motive

100 The direct evidence is found in Mr Friend’s evidence that he was contracted to clear trees in the turf farm area by Mr Johnson. The cleared trees are in that area and were cleared by Mr Sorenson in the four hours he worked on 18 April 2006.

101 The marking of the large plan by Mr Friend of an area of protected trees suggests that Mr Johnson gave instructions for the trees in the south-eastern corner to be preserved but gave no instructions for the trees in the rest of the area to be preserved. Mr Sorenson considered the job would take two or three days which suggests its magnitude.

102 The fact that the invoices from WJ Friend Pty Ltd to JPG were paid gives rise to an inference that the Defendants were satisfied the work contracted for had been done. Only the work actually done was paid for as that was billed on an hourly rate.

103 There is no evidence that either Defendant told WJ Friend Pty Ltd that unauthorised work had been done, despite numerous opportunities to do so following Mr Johnson’s arrival on site on 18 April 2006 or in the letter to the Council dated 21 April 2006. The strong inference arises that the contractor had done what was instructed.

104 Evidence of admission of guilt is contained in the letter of 21 April 2006 in which the Defendants claimed Mr Johnson told Mr Ryan on 12 April that they intended to engage in “necessary vegetation removal”. The terms of the letter otherwise are consistent with the Defendants taking full responsibility for the tree removal undertaken by Mr Sorenson on 18 April 2006.

105 The Prosecutor also made lengthy submissions concerning evidence of motive for the Defendants to arrange for the carrying out of the clearing of trees as this was said to enhance the development potential of the land for a proposed residential subdivision the subject of a development application lodged in July 2006, and a later application for rezoning made in August 2006. As the Prosecutor submitted, correctly, that evidence is not necessary to establish a finding of guilt in this matter.

Mistake of fact

106 In the expectation that the Defendants would raise a defence of honest and reasonable mistake of fact, the Prosecutor submitted that if raised the Prosecutor has the onus of proving beyond reasonable doubt that the Defendants did not honestly believe on reasonable grounds in the existence of facts which would make their acts innocent, see Jiminez v The Queen (1992) 173 CLR 572 at 582-3. The Defendants have an evidential onus of proving they had a positive belief in the relevant facts, inadvertence or lack of belief in particular matters is not enough and the belief must be reasonable, see State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721 at 725G)

107 In any event, the Court could not conclude that the Defendants had an honest belief that their conduct was lawful even if this concerned a relevant mistake of fact because of the evidence of their consciousness of guilt given the letter sent by JPG dated 21 April 2006 in light of the telephone call by Mr Johnson to Mr Ryan on 12 April 2006 and the letter of the defendants dated 13 April 2006 to the Council which did not refer to vegetation removal. Any mistaken belief of fact cannot have been honestly held or, if held, was not on reasonable grounds.

108 There could be no mistake of fact in the absence of an affirmative belief on reasonable grounds that either trees were not removed from the property, the trees were not on land to which the Hawkesbury LEP applied, or that the Council had granted development consent under the LEP.

Mistake of law

109 Any mistake of the effect of a legal instrument such as the Hawkesbury LEP or the proper characterisation of activities by virtue of the LEP was a mistake of law not fact. A mistaken belief that the Defendants were authorised to clear the land or were not breaching the Act is not a defence, Ostrowski v Palmer (2004) 218 CLR 493 per Gleeson CJ & Kirby J at 502, 503, 504, McHugh J at 510-18 inter alia.

110 There is no element of the offence with which the Defendants are charged that they believed they were authorised to do what they did. A mistaken belief that:

(a) the felling of the trees complied with the requirements of the law, or

(b) the felling of the trees was not a breach of the legislation, or

(d) the felling of the trees was not a breach of the legislation because it was authorised by the Act or the LEP, or

(e) the felling of the trees was authorised because it was ancillary to agriculture, or

(f) the felling of the trees was not prohibited by the planning instrument,

111 Reliance on legal advice does not convert a belief in a matter of law into a belief in a matter of fact (Ostrowski per McHugh J at 516-517, OlsenvGrain Sorghum Marketing Board; ex parte Olsen [1962] Qd R 580 at 592)

Defendants’ submissions
Issue 1 – Mr Johnson not synonymous with company

112 The Defendants submitted Mr Johnson was not synonymous with the company. There is insufficient evidence that attributes conduct of one individual to a corporate entity. It is not sufficient to prove that because Mr Johnson is the managing director and has the same name as the company that anything he does is attributable to the company and vice versa. The Defendants admitted that the Prosecutor does not have to prove that every act done in relation to the Bona Vista property by the company is through Mr Johnson.

113 There is evidence that other people, such as Mr Hedge, did things on behalf of the company. For example, Mr Ryan spoke first to Mr Hedge on 18 April 2006 and the solicitor’s letter attached to the letter from Mr Johnson dated 11 April 2006 was addressed to Mr Hedge.

114 The events are over a very short period of time and there is not enough activity involved to allow the Prosecutor to prove that Mr Johnson was the controlling mind of the company in relation to the Bona Vista development and the turf farm proposal. The events commence with a phone call from Mr Johnson on 12 April 2006, a letter from the company signed by Mr Johnson dated 13 April 2006 and the activity on the land on 18 April 2006.

115 The Defendants’ counsel accepted that the case against the company was stronger than against Mr Johnson individually. The issue is whether the same charge can apply to both the company and the individual. There is not enough evidence to support the proposition underlying the prosecution for both Defendants on this basis.

Issue 2 – offence based on direct authorisation cannot apply to both Defendants

116 The Defendants’ counsel argued the Prosecutor cannot rely on direct authorisation of the acts giving rise to the offence for both Defendants. If a party who commits the offence states he/she was authorised to commit this offence by somebody else, only one other person can authorise it not two. The authorisation on the facts of this case cannot come from both the corporate defendant and the individual defendant, it can only arise in relation to one or the other.

117 The key transaction is one conversation between Mr Friend and Mr Johnson and that cannot be attributed to both Defendants. Prosecution on that basis is the first time this situation has arisen in this Court. Other cases have involved a corporation and an individual being charged in relation to the same events but not on the basis alleged here. It is not clear from the transaction whether Mr Johnson was acting in a personal capacity or on behalf of the company. The evidence at its highest establishes that he was acting on behalf of JPG. That was Mr Friend’s understanding of the transaction. The contract, which the Prosecutor relies on as the basis for vicarious liability, with Mr Friend’s company as an independent contractor can only be a contract with one person. This charge can only be sustained for one prosecution. To the extent there was a contractual arrangement with Mr Friend, that arrangement was between him and the company. The basis for the liability of Mr Johnson personally through the conduct of Mr Friend can only be accessorial, in other words that Mr Johnson personally aided and abetted Mr Friend to commit the offence. That basis of liability has been abandoned.

Issue 3 - nature of agreement between Mr Friend and JPG

118 As identified in the Prosecutor’s closing submissions the nature of the instructions given by Mr Johnson to Mr Friend and by him to Mr Sorenson are important in determining whether what Mr Sorenson did at the Bona Vista site was in accordance with Mr Johnson’s instructions. Firstly, it is not entirely clear what Mr Sorenson did apart from the fact that the bulldozer he was driving felled a number of gum trees and wattle trees. There is no clarity in the evidence about where the gum trees were felled. The aerial photograph from 2003 shows the condition of the property at that time. There is no conclusive evidence of exactly where the trees felled were located before they were felled. A more recent photograph would have established this but one is not in evidence. It is not clear on the evidence that the gum trees felled were in the hatched area for the proposed turf farm and plant nursery depicted in the plan provided by Mr Friend.

119 Mr Friend gave Mr Sorenson his instructions (see transcript at p 209-210, 212). The instructions are too vague to support a charge based on direct authorisation of the conduct the subject of the charge. The instructions by Mr Johnson to Mr Friend are very imprecise based on Mr Friend’s evidence. Mr Friend cannot recall the detail now and the usual arrangement was that specific instructions would be given on the land on the day in question.

120 The instructions given by Mr Friend to Mr Sorenson are even more imprecise when he conveyed what he believed them to be to Mr Sorenson. (see p 219 line 35). The words “clearing of trees” was not used by Mr Friend in his evidence. Vegetation does not necessarily mean trees (see also p 208). There is no specific reference by him to cutting or starting to push down trees. When Mr Sorenson refers to “start pushing down trees” in his evidence that is new as those words were not used by Mr Friend.

121 Mr Sorenson stated in cross-examination that Mr Friend said if there were to be specific instructions they would be given on the land when Mr Sorenson was there. The evidence does not make clear whether the large gum trees came from an area inside or outside the proposed turf farm and plant nursery area. There is no evidence that links the chainages identified in Mr Hall’s evidence with the turf farm plan. Nor is there specific evidence on where the gum trees were knocked over in relation to the turf farm area. It is not exactly clear where the first line of trees referred to by Mr Sorenson was. Mr Sorenson had a smaller map than the large one in exhibit D or C which is clearer.

122 Vegetation as a general term does not refer to trees. When Mr Friend referred to vegetation when talking to Mr Sorenson he did not necessarily mean trees. Any ambiguity should be resolved in favour of the Defendants.

123 The Defendants’ actions were consistent with believing that what was done was lawful. Mr Sorenson stated that as Mr Johnson said words to the effect “I am satisfied with the work you are doing” and that no complaint was made, that was some kind of tacit approval. The bill from WJ Friend Pty Ltd was paid.

124 At p 227 of the transcript Mr Sorenson says that Mr Johnson drove up to him immediately on arrival without making an inspection of the property and says words to the effect “there’s a bit of a problem etc…”. Mr Johnson’s attitude on arrival was consistent with the belief that he claims to have had, that nothing was wrong.

125 The evidence of Mr Friend and Mr Sorenson is imprecise and cannot establish to the criminal standard that there was specific authority given by Mr Johnson or JPG to cut down the trees that were cut down.

Issue 4 – whether clearing of vegetation/trees ancillary to agriculture, honest/reasonable mistake of fact

126 The Prosecutor submitted the clearing of trees was not ancillary to use for the purpose of agriculture as it was an independent use of land. The question whether the removal of vegetation was ancillary to agriculture was a question of fact. Agriculture is a use of land which does not require development consent under the LEP. Sections 7 and 36 of the LEP are directed to where the primary or sole purpose of the activity is the clearing of trees. The issue is one of fact.

127 The fundamental question requiring determination is whether on the facts of this case the activity giving rise to the offence was ancillary to agriculture and therefore needed development consent. If I determine as a question of fact that it was ancillary then that is determined in favour of the Defendants and case goes no further. If I hold that activity is not ancillary to agriculture so the Defendants’ belief to the contrary is wrong, that is a mistake of fact, not law.

128 In the circumstances of this case it was an honest and reasonable mistake of fact because the Defendants had canvassed the issue with the Council through Mr Ryan and sought legal advice in relation to it. Their conduct on 12 and 13 April 2006 also suggests their honest and reasonable belief. From 12 April 2006 when the telephone call was made to Mr Ryan by Mr Johnson, to 21 April 2006 when the letter issued from the JPG annexing the development application, the company was keeping the Council informed of what it was doing. The telephone call on 18 April 2006 to Ms Gee from Mr Johnson was to let them know the work was being done that day. The letter dated 13 April 2006 annexed the plan which was the same plan given to Mr Friend by Mr Johnson. The explanation that they considered that what they were doing was lawful is consistent with their behaviour.

129 The issue of whether the LEP requires development consent does not arise. The determination of whether a matter is a question of law or a question of fact, or mixed fact and law was considered in Ostrowski.

130 The issues identified at par 49 in the Prosecutor’s closing submissions (see par 110) do not include the issue of whether the activity of tree clearing (really land clearing) was ancillary to agriculture. But that is the belief at issue in the circumstances of this case. That is the preliminary issue which arises first and therefore the issues of law raised by the Prosecutor in par 49 (par 110) do not arise. The clearing of land for the purpose of the turf farm and plant nursery is ancillary to agriculture.

Admission of guilt

157 The Prosecutor also argued there was an admission of guilt that there was to be tree clearing on the land by the Defendants in the letter of 21 April 2006 to the Council. A substantial part of the letter of 21 April 2006 from Mr Johnson on a JPG letterhead is set out at par 47(iv). That refers to “necessary vegetation removal” in the second paragraph. It does not specifically refer to the clearing of trees. It does not reflect the terms of the telephone conversation with Mr Johnson on 12 April 2006 according to Mr Ryan in two respects. Firstly, Mr Ryan attested in his oral evidence to the effect that there was no reference to vegetation removal by Mr Johnson. Secondly, Mr Ryan’s evidence is that he told Mr Johnson he should put everything in writing to the Council. He did not give advice to Mr Johnson that the tree farming activity did not require development consent. The letter sent by Mr Johnson dated 13 April 2006 deals only with whether development consent was required for the turf farm and that is the focus of the telephone discussion attested to by Mr Ryan.

158 I consider Mr Ryan’s evidence concerning the telephone conversation on 12 April 2006 should be accepted. His recollection appears to be clear. He stated that there was no reference by Mr Johnson to the necessity for the removal of vegetation or trees for the proposed turf farm. Nor did he provide a view on whether development consent was required. Nothing put to him in cross-examination undermined his recollection of that conversation. The letter sent by the Defendant company signed by Mr Johnson dated 13 April 2006 also makes no reference to the intention to clear vegetation and/or trees. I agree with the Prosecutor’s submission that it is surprising that was not included in the letter if it was a matter referred to in the conversation with Mr Ryan.

159 Given Mr Ryan’s firm view that clearing of native vegetation would have required development consent it is unlikely that he would not recall Mr Johnson asking him a question on such an issue. His evidence is also confirmed by the minute he dictated on 18 April 2006 which became exhibit L. This was dictated by him the day after the conversation and is likely to be accurate given its close proximity in time. The relevant text is set out at par 34. Mr Ryan’s belief that the clearing of vegetation would require development consent was also stated in his letter dated 19 April 2006 to Mr Johnson. That letter replied to the letter from Mr Johnson dated 13 July 2006.

160 The statements in the letter of 21 April 2006 sent by Mr Johnson to the Council as to the contents of the telephone conversation with Mr Ryan on 12 April 2006 in terms of there having been a reference to vegetation removal are incorrect. The statements to Ms Gee by Mr Johnson in the telephone call he made to her on 18 April 2006 to tell her that he would be removing trees also suggests he was aware that tree removal was always intended in the turf farm area.

161 I agree with the Prosecutor that there is an implied admission in the letter that the vegetation removal did include the clearing of some trees (black wattles) in the turf farm area given that it was sent after the tree clearing on 18 April 2006. There was also an admission to that effect in the telephone call by Mr Johnson to Ms Gee on 18 April 2006 in which he referred to the clearing of trees. The admission is general only in that the trees to be knocked over are not specified. It does support the evidence of authorisation of Mr Friend to knock over trees in the turf farm area.

162 The direct evidence is sufficient to establish that there was direct authorisation of conduct giving rise to the removal of the black wattle trees but not the forest red gums. It is supported by the inferential evidence and the evidence of admissions made.

163 The exception to the principle that a principal cannot be vicariously liable for the acts of an independent contractor where acts are directly authorised has therefore been established although not in relation to all the trees particularised in the Prosecutor’s case. That exception is identified in Stoneman v Lyons and Kondis as stated in the Prosecutor’s submissions (par 12). Liability on this basis does not appear to have arisen in many criminal cases but can apply as I note below at par 179.

(iii) were Mr Sorenson’s actions in the course of his employment by WJ Friend Pty Ltd

164 I agree with the Prosecutor’s submissions that Mr Sorenson did the tree clearing in his capacity as an employee of WJ Friend Pty Ltd on instructions from Mr Friend. There can be no suggestion he was on a “frolic” of his own (see State of New South Wales v Lepore and Anor; Samin v State of Queensland and Ors; Rich v State of Queensland and Ors (2003) 212 CLR 511 at [40]-[41] per Gleeson CJ). Given that the Prosecutor is relying on direct authorisation I do not consider that the Defendants can be liable for all the actions of Mr Sorenson, however, only for those which are established as being directly authorised. The Prosecutor has not established that the forest red gum trees knocked over were within the turf farm area only that the black wattle trees were.

(iv) whether defence of honest and reasonable mistake of fact available (Defendants’ issue 4)

165 The Defendants’ counsel argued that the Defendants’ belief that the activity of clearing vegetation was ancillary to agriculture was an honest and reasonable mistake of fact. That is a defence to the two prosecutions for these strict liability offences. The fundamental question, the Defendants’ counsel argued, is whether the clearing of trees is ancillary to agriculture as a matter of fact. The determination of that fact by the Court determines the outcome of this case in the Defendants’ submissions. Further there is evidence that this was the Defendants’ belief. They had a letter from their solicitor to that effect. The letter written by Mr Johnson dated 21 April 2006 also refers to this belief.

166 Proudman v Dayman (1941) 67 CLR 536 per Dixon J at 540 held that an honest and reasonable mistaken belief in a set of facts will only exculpate an accused if the truth of the belief would mean that no offence was being committed, making the accused’s act innocent. This is described as the common law position which applies in NSW (LexisNexis, Criminal Practice and Procedure New South Wales (at 24 April 2008) [6-600]). The defence applies where if the facts believed by the accused were true the accused would have committed no offence and not some other offence than the one charged; Bergin v Stack (1953) 88 CLR 248 per Fullagar J at 262.

167 In He Kaw Teh v The Queen (1985) 157 CLR 523 it was held that the defendant bears the evidential burden of providing evidence of an exculpatory mistake of fact or pointing to evidence in the prosecution’s case from which such a mistake can be inferred. Once raised the prosecution must prove that the accused did not hold the belief honestly or that it was not reasonable to hold the belief in all the circumstances.

168 In He Kaw Teh Dawson J held that there was no special onus placed on a defendant who relies on the defence of honest and reasonable mistake of fact; “No doubt the burden of providing the necessary foundation in evidence will in most cases fall upon the accused” (at 592).

169 In Ostrowski, the High Court unanimously reversed a decision of the Full Court of the Supreme Court of Western Australia which had set aside the respondent’s conviction for the strict liability offence of fishing for lobster in a prohibited area. The respondent argued that he had made specific enquiries of the regulatory authorities, who had furnished him with incorrect information. Accordingly, the respondent argued he was under an honest and reasonable belief that fishing in the area was not prohibited when in fact it was. Mistake of fact, as relied on by the respondent, was a defence as provided by s 24 of the Criminal Code (WA). Gleeson CJ, Kirby, McHugh, Callinan and Heydon JJ held that the mistake was due to ignorance of the law and the respondent could not rely on s 24 as he had no mistaken belief about any of the elements of the offence. Erroneous advice on the part of the authorities, as McHugh J noted at [53], could not “convert a mistake as to the applicable law into a mistake of fact”. His Honour further noted that:

i]f a defendant knows all the relevant facts that constitute the offence and acts on erroneous advice as to the legal effects of those facts, the defendant, like the adviser, has been mistaken as to the law, not the facts.

170 The Prosecutor submitted that the mistake of fact relied on firstly concerns a mistake of law not fact. No defence therefore arises. Secondly, if it be a mistake of fact, it is not in relation to any of the elements of the offences the subject of the two charges. The elements of the charged offences are that the Defendants authorised the clearing of trees which was in breach of the LEP in two respects, either of which gave rise to a breach. The clearing of trees required development consent in the 7(d1) zone. That is a breach of s 76A of the EP&A Act. As identified in par 93-94 the offence relates to the application of the LEP. A characterisation of that instrument is a mistake of law not fact.

Mistake of law or fact?

171 A mistaken belief in the legal effect of facts known to the accused is a mistake of law and the defence does not apply unless there was a mistake in relation to an element of the offence; Ostrowski.

172 The Prosecutor argued that the mistake of fact did not relate to any of the elements of the offence and could not therefore arise in any event per Ostrowski. This approach is also supported by VonLieven v Stewart; Kemish v Godfrey (1990) 21 NSWLR 52 where the accused mistakenly believed that the act in question was lawful because it was unregulated or because the requirements of the law had been satisfied. This was held to be a mistake of law. No case law is cited by the Defendants to support their argument that the LEP cannot arise in the circumstances where they argue the clearing for the turf farm is ancillary. Either of the two bases relied on by the Prosecutor to establish the breach of the LEP (under cl 7 and cl 9 or cl 36 of the LEP, see par 8, 9) apply to the circumstances of this case. I agree with the Prosecutor that the Defendants’ mistake is one of law based on a given set of facts or beliefs held by the Defendants and falls squarely within the findings in Ostrowski at [59] per McHugh J.

Evidence of belief if mistake of fact

173 If I am wrong and the matters raised by the Defendants’ defence concern a mistake of fact I will also consider the matter on this basis. The Defendants relied on the conversation on 18 April 2006 between Mr Johnson and Mr Ryan. This was said to be relevant to proving Mr Johnson’s state of mind in relation to the events giving rise to the charges which took place on 18 April 2006. The terms of the solicitor’s letter dated 11 April 2006 were also reflected in what Mr Johnson said to Mr Ryan on 18 April 2006. The telephone discussion on 18 April 2006 with the Defendants’ solicitor present by telephone was also relied on as suggesting Mr Johnson had that belief. The letter from Mr Johnson on behalf of JPG dated 21 April 2006 also refers to the clearing being ancillary to agriculture. This evidence does establish that there was an expression of belief by the Defendants on or before 18 April 2006 (the offence date) in reliance on the advice of their solicitor that the clearing of vegetation was ancillary to agriculture.

Evidence of fact?

174 As identified in He Kaw Teh above the Defendants do not have to establish the mistake of fact beyond reasonable doubt but must rely on some evidence to support the existence of such a mistake. The Defendants did not go into evidence and must consequently rely on the Prosecutor’s evidence.

175 The Prosecutor’s evidence does not address the issue and the Defendants did not make submissions about the evidence at all as proving such a fact. It is not self evident whether the extent of the clearing was ancillary to the agricultural use in light of the LEP. The civil cases referred to by the Prosecutor to argue that the use of land for tree clearing was independent of any purpose of development for agriculture and was thus not ancillary to use for the purpose of agriculture were Lizzio, CB Investments Pty Ltd v Colo Shire Council, O’Donnell. In all those cases the relevant court had to determine whether a particular use of land was ancillary to another use and that was a matter of fact and degree that had to be determined in the circumstances of each case. For example, in Lizzio, the use of land for the selling of flowers was held to be an independent use of land from its use for a dwelling house and it was therefore not ancillary and a prohibited use. The only reference to the extent of the clearing is a statement in the letter from Mr Johnson dated 21 April 2006 to the Council that only 4 per cent of the land intended to be used was to be cleared. The solicitor’s letter dated 11 April 2006 refers to nominal clearing. No submission was made in reliance on that evidence. The Prosecutor’s evidence is that approximately 200 black wattles were cleared by Mr Sorenson on 18 April 2006 and he estimated the clearing work required would take two or three days in total.

176 No specific reference was made by the Defendants’ counsel to any evidence to enable me to determine whether the level of clearing contemplated was ancillary to agriculture as a matter of fact and degree. The Defendants’ submissions on the evidence were directed to establishing the Defendants had a belief concerning this fact. No facts have been referred to which could establish that to be the case as a matter of fact and degree. I do not think the Defendants have established to any degree the existence of the facts underpinning the belief relied on in the context of these offences. Accordingly while there is evidence of a belief, the factual basis for such a belief is not established at all by the Defendants.

177 It is also necessary if a mistake of fact is to be relied on that it have sufficient particularity to the offence charged. I do not consider this existed on the limited evidence available. My view in this regard is strengthened by the judgment in State Rail Authority v Hunter Water Board (Gleeson CJ, Cripps JA and Slattery AJ concurring) at 725F – 726B. That case was concerned with an offence of polluting waters under the Clean Waters Act 1970 and held that inadvertence or mere lack of knowledge that a polluting event was occurring or likely to occur, based on a general assumption that everything was in order, would not be sufficient to establish a mistaken belief. A belief in certain facts which, if true, would take the conduct outside the offence requires a positive belief about specific matters which relate to the elements of the particular offence. In this case the Defendants are seeking to rely on a general belief that the clearing of native vegetation including trees was ancillary to the turf farm use which was agricultural. That belief is general and is not related in the evidence to the particular clearing required for the turf farm. I do not consider a sufficiently specific belief in certain facts which, if proved, would mean there was no offence has been established.

178 I do not consider the defence of honest and reasonable mistake of fact is therefore available to the Defendants.

179 No cases in this Court (or other courts) where vicarious liability on the basis of direct authorisation has been found in a criminal context were referred to by the Prosecutor. There are numerous cases where it has been recognised as a basis for criminal liability as the Prosecutor has identified; see EPA v Multiplex at [278]; Director-General v Greentree at [92]; Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at [104] – [106]; Coffs Harbour City Council v Michael John Hickey; Coffs Harbour City Council v Marcus Monroe Hickey [2004] NSWLEC 531 at [52] – [53]. In those cases the exception to a principal not being liable for the acts of an independent contractor on the basis of the exercise of care and control by the principal was being considered. I consider that direct authorisation can be a basis of liability in the circumstances of this matter.

180 It is clear from the evidence that the contractual arrangement giving rise to vicarious liability in this case was between the Defendant company JPG and WJ Friend Pty Ltd. The offence against JPG has therefore been proved beyond reasonable doubt. The issue now arises of whether Mr Johnson can also be found guilty of the same offence.

(iv) Liability of both Defendants on the basis of direct authorisation (Defendants’ issue 2)

181 The Prosecutor argued that both Defendants were guilty of the same offence which was based on direct authorisation of conduct giving rise to the acts the subject of the offences. The Defendants’ counsel argued that both Defendants could not be liable on the same basis as on the facts of the case only one of them authorised the activity. Mr Johnson could only be liable on an accessorial basis and this was not the Prosecutor’s case.

182 There are a few cases, referred to by the Prosecutor, where a company and an individual director have been charged with the same offence with liability arising on the same basis; Penrith City Council v 24/7 Waste Bins Pty Ltd & Anor [2002] NSWLEC 186 dealt with an offence arising under ss 76A(1) and 125(1) of the EP&A Act. Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175 dealt with an offence that arose under s 143(1)(a) and s 169(1) of the Protection of the Environment Operations Act 1997 which specifically provided for directors to be held liable in addition to the corporate defendant. Gosford City Council v Beresford and Beresford Concrete Products Pty Ltd [2001] NSWLEC 43 and Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593 dealt with offences by corporate defendants and individual directors under s 16 of the now repealed Clean Waters Act. These cases, with the exception of Gilmour, were all pleas of guilty.

183 Two defendants can be charged with the same offence depending, of course, on the particular offence and the basis of liability. In the cases referred to by the Prosecutor the charge and basis for liability was the same. In this matter I have held the corporate Defendant JPG contracted with WJ Friend Pty Ltd to have the clearing work undertaken on the land. The Prosecutor also argued that Mr Johnson was guilty of the same offence. The basis for his liability as I understand the Prosecutor’s primary argument is different to the company.

184 As I consider in section (vi) below, the primary basis for liability relied on by the Prosecutor in relation to Mr Johnson is that he was the “embodiment” of the company. Mr Johnson’s liability on this basis is grounded in but is separate from the liability of JPG on the basis of the direct authorisation of the conduct giving rise to the actions of WJ Friend Pty Ltd. It is appropriate in those circumstances for the charge against Mr Johnson to be in the same terms as that against the company.

(v) whether individual can be vicariously liable (Defendants’ issue 5)

185 The Defendants argued separately from the previous submission (issue (iv)) that an individual cannot be vicariously liable for the acts of an independent contractor. Vicarious liability arises in this case from a contract between JPG and WJ Friend Pty Ltd. Mr Johnson cannot be vicariously liable in these circumstances because he is not a party to the contract.

186 The basis the Prosecutor argues for the liability of Mr Johnson is that he was the “embodiment” of the company and it is in that capacity that I consider his liability in the next section (section (vi)). I do not consider that the Prosecutor’s case based on this basis for liability requires consideration of whether Mr Johnson is vicariously liable as an individual.

(vi) whether Mr Johnson liable as heart, mind and will of company JPG (Defendants’ issue 1)

187 The Prosecutor argued that Mr Johnson is liable for the same offence as JPG because he was the heart, mind and will of the company, based on Tesco. In considering the liability of an individual acting on behalf of a corporation, Lord Reid stated at 170 that:

[a] living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is an embodiment of the company… and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company’s servant or agent. In that case any liability of the company can only be a statutory or vicarious libility.

Tiger Nominees

EPA v Caltex

188 I consider, contrary to the submissions of the Defendants, that Mr Johnson’s liability on this basis has been established beyond reasonable doubt in this case. Mr Johnson is the sole director of JPG, he instructed Mr Friend to have Mr Friend’s company do the clearing work at the land about five days before 18 April 2006, he called Mr Ryan at the Council on 12 April 2006 to ask his advice, signed the letter sent on 13 April 2006 to Mr Ryan, called Mr Ryan on 18 April 2006 and met him on site, called Ms Gee on 18 April 2006, sent the letter dated 21 April 2006 with the development application to Mr Ryan at the Council and issued the turf farm development application as the owner, and the applicant as the director of the respective companies (Bona Vista Properties and JPG), and sent the letter dated 21 April 2006 to Ms Gee.

189 There is evidence that Mr Hedge carried out duties for JPG. He was contacted by Mr Ryan on 18 April 2006 about the clearing on the land and the solicitors letter attached to the 13 April 2006 letter was addressed to Mr Hedge as he issued the subdivision development application lodged in 2006 on behalf of the applicant, JPG. That does not undermine the strength of the evidence relied on by the Prosecutor in relation to Mr Johnson. It is not necessary to establish that every action carried out by the company was done by Mr Johnson. The fact that events took place over a short space of time is also irrelevant.

190 While the Defendants’ counsel referred to Mosman Municipal Council v Waratah Village Partners Pty Ltd [2002] NSWLEC 184 as a case where far more detailed evidence was relied on to establish whether the actions of an agent were attributable to the company, the facts of that matter were quite different. The actions of an agent were being considered, not a sole director.

Motive

191 Although not necessary to prove the offence, the Prosecutor argued that the evidence enables the inference to be drawn that Mr Johnson deliberately lied about his intentions in relation to land clearing so that he could obtain a benefit as a result of the significant gum trees, in particular, being removed. The Prosecutor relies on the affidavit of Ms Cumming in relation to the greater lot yield which could be obtained on part of the land if the significant vegetation identified in the DCP development plan was removed.

192 The evidence said to give rise to a finding of motive must be weighed in light of the fact that I have found there was not direct authorisation of the removal of the thirteen significant gum trees which Mr Sorenson knocked over. These trees were identified as significant in the DCP and their removal would remove a possible impediment to greater lot yield on the land according to the Prosecutor. As it has not been proved that the Defendants directly authorised their removal however, this cannot form part of the case on motive which the Prosecutor seeks to mount.

193 The turf farm area was to be the final area of the proposed subdivision to be developed. Mr Johnson stated in his letter of 21 April 2006 to Ms Gee that it would be used in conjunction with the earlier stages of the subdivision proposal.

194 Further, and as the Defendants submitted, steps were taken to inform the Council of the work intended to be undertaken on the land in relation to the turf farm area on 13 April 2006 with the letter to the Council and the telephone call on 18 April 2006 to Ms Gee at about 9 am. While I have found that the communication from Mr Johnson on 12 and 13 April 2006 did not disclose to the Council the intention to clear the vegetation in the proposed turf farm area on the land, the call to Ms Gee by Mr Johnson on 18 April 2006 did, albeit purportedly relying on advice which I have held Mr Ryan did not give in the telephone call of 12 April 2006. In these circumstances I do not consider the Prosecutor has made out the case it argued on motive.

Conclusion

195 For the reasons explained above, I find each of the offences with which Mr Johnson and Johnson Property Group Pty Ltd are charged to be proved beyond reasonable doubt. I note that while the elements of the offences have been proved the Prosecutor has not established all the particulars relied on in relation to the offences. The proceedings should be re-listed for further hearing and submissions on penalty and costs.

CITATION:	Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138
PARTIES:	PROSECUTOR Hawkesbury City Council DEFENDANTS Keith Norman Johnson; Johnson Property Group Pty Limited
FILE NUMBER(S):	50027 of 2007; 50029 of 2007
CORAM:	Pain J
KEY ISSUES:	Prosecution :- whether trees felled in breach of Environmental Planning and Assessment Act 1979 - whether defence of honest and reasonable mistake of fact available because felling of trees ancillary to agriculture Prosecution :- whether vicarious liability of the defendants established through direct authorisation of the acts of the subcontractor in felling trees - whether defendant director liable for acts of corporate defendant because he was "heart, mind and will" of company
LEGISLATION CITED:	Clean Waters Act 1970 Criminal Code (WA) Environmental Planning and Assessment Act 1979 s 76A, s125(1) Hawkesbury Local Environmental Plan 1989 cl 5, cl 7, cl 9, cl 36 Protection of the Environment Operations Act 1997 s143(1)(a), s169(1)
CASES CITED:	Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 Bergin v Stack (1953) 88 CLR 248 C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 Coffs Harbour City Council v Michael John Hickey; Coffs Harbour City Council v Marcus Monroe Hickey [2004] NSWLEC 531 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Director-General of the Department of Land and Water Conservation v Greentree & Anor [2002] NSWLEC 102 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175 Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593 Gosford City Council v Beresford and Beresford Concrete Products Pty Ltd [2001] NSWLEC 43 He Kaw Teh v The Queen (1985) 157 CLR 523 Jiminez v The Queen (1992) 173 CLR 572 Kondis v State Transport Authority (1984) 154 CLR 672 Lizzio v The Council of the Municipality of Ryde (1983) 155 CLR 211 Mosman Municipal Council v Waratah Village Partners Pty Ltd [2002] NSWLEC 184 Olsen v Grain Sorghum Marketing Board; ex parte Olsen [1962] QdR 580 Ostrowski v Palmer (2004) 218 CLR 493 Penrith City Council v 24/7 Waste Bins Pty Ltd & Anor [2002] NSWLEC 186 Power v Penthill House Pty Ltd (1993) 80 LGERA 247 Proudman v Dayman (1941) 67 CLR 536 State of New South Wales v Lepore and Anor; Samin v State of Queensland and Ors; Rich v State of Queensland and Ors (2003) 212 CLR 511 State Rail Authority v Hunter Water Board (1992) 28 NSWLR 721 Stoneman v Lyons (1975) 133 CLR 550 per Mason J at 573 Tesco Supermarkets Ltd V Nattrass [1972] AC 153 Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 Von Lieven v Stewart; Kemish v Godfrey (1990) 21 NSWLR 52
TEXTS CITED:	The Macquarie Dictionary, 3rd ed (Macquarie University, Sydney: The Macquarie Library Pty Ltd, 2001 LexisNexis, Criminal Practice and Procedure New South Wales (at 24 April 2008) [6-600]
DATES OF HEARING:	10 December 2007 11 December 2007 12 December 2007 13 December 2007 14 December 2007
DATE OF JUDGMENT:	2 May 2008
LEGAL REPRESENTATIVES:	PROSECUTOR Mr D Buchanan SC SOLICITORS Pike Pike and Fenwick DEFENDANTS Mr P Byrne SC with Mr A Djemal SOLICITORS Herbert Geer and Rundle