Merriwa Shire Council v Castlebar Holdings Pty Ltd - [2004] NSWLC 2

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Local Court of New South Wales

CITATION: Merriwa Shire Council v Castlebar Holdings Pty Ltd [2004] NSWLC 2

JURISDICTION: Criminal

PARTIES: Merriwa Shire Council v Castlebar Holdings Pty Ltd

FILE NUMBER:

PLACE OF HEARING: Tamworth Local Court

DATE OF DECISION:
02/20/2004

MAGISTRATE:

CATCHWORDS: Control noxious weeds - St John's Wort

LEGISLATION CITED: Noxious Weeds Act 1993 s 12
Pastures Protection Act 1934 s 81

CASES CITED: King v Tait (Local Government Reports Volume 18 p 190
Daley Industries Pty Ltd v Melacare Industries of Australia P/L (95040213 NSW Supreme Court of Appeal Unreported 19 September 1996.

REPRESENTATION: Mr D MacLean for the Council
Mr J.W Conomos of Counsel instructed by Grae Stewart McKenzie Speed and Stracey Solicitors

ORDERS:

1 Geoffrey Riley (hereinafter referred to as ‘the Informant’), an authorised Officer of the Merriwa Shire Council, instigated proceedings against Casltebar Holdings Pty.Ltd. (hereinafter referred to as ‘the Defendant Company’) alleging that between the 11 December 2000 and 29 January 2002 the Defendant Company failed to control noxious weeds, more particularly St. John’s Wort, in contravention of s12 of the Noxious Weeds Act 1993 (hereinafter referred to as ‘the Act’).

2 The information was amended by consent on the 12 August 2002 to allege that the Defendant Company failed to control St. John’s Wort between the 4 October 2000 and 29 January 2002.

3 St. John’s Wort is a W2 noxious weed and the action required by an owner or occupier is set out in s9 the Act

For a W1 noxious weed, the presence of the weed on land must be notified to the local control authority and the weed must be fully and continuously suppressed and destroyed

For a W2 noxious weed, the weed must be fully and continuously suppressed and destroyed

For a W3 noxious weed, the weed must be prevented from spreading and its numbers and distribution reduced

For a W4 noxious weed, the action specified in the declaration must be taken in respect of the weed.

4 Section 12 of the Act sets out the penalty for failure to comply with the requirement set out in section 9 of the Act and s12 states:-

Maximum penalty: 40 penalty units.

5 Counsel for the Defendant Company made a number of concessions on the first day of the hearing. The Defence conceded the due incorporation of Merriwa Shire Council and the fact that Merriwa Shire Council is the local control authority within the Merriwa Shire for the purposes of the Noxious Weeds Act.

6 It was also conceded that the Defendant Company was an occupier of the land described in the Schedule to the information that was laid by the Informant, and I quote:-

The property known as 1430 Coober Bulga Road, Cassilis, NSW 2329 having an area of approximately 5473.69 ha and comprising inter alia Lot 15 in Deposited Plan 131504, Lots 16,17,18 and 19 in Deposited Plan 131505, Lots 3 and 4 in Deposited Plan 571804 and Lots 16, 19,50 and 64 in Deposited Plan 750741.

7 The Informant went to the Defendant Company’s property on the 4 October 2000 and spoke to a David White. David White described himself as Manager and allowed the Informant to conduct an inspection where he gives evidence that he observed light to medium infestation of St. John’s Wort on the Defendant Company’s property. The Informant said that the weed was in flower and that was the best time to spray.

8 It should be noted at this point that Mr. Conomos, of Counsel, took objection to this evidence being led on the basis that the Prosecution had to prove that David White was either the owner or occupier of the land in accordance with s 45(2)(a) of the Act and I allowed the evidence indicating that Mr. White came within the definition of ‘occupier’, at least at this point in the proceedings

9 At the end of that first inspection the Informant told Mr. White that he would be returning for a further inspection and was told that Mr. White would contact the owner Mr. Maurici.

10 The Informant returned on the 27 October 2000 and again met Mr. White and had a conversation with him about what work if any had been undertaken to suppress the weed. It was obvious that no work had been carried out since his last inspection on the 4 October 2000. As a result of the inspection the Informant handed Mr. White a ‘Noxious Weeds Notice’ and an inspection report.

11 On the 5 December 2001 the Informant gave evidence that he telephoned Mr. Maurici, the Managing Director of the Defendant Company, and had what one would describe as a not very pleasant conversation. The Informant says as a result of the telephone call he received a call from a Tony Caslick and that a date was arranged with him to inspect the subject property. The Informant also prepared and posted a ‘Notice of Entry’ Exhibit 7.

12 The Informant went out to the property again on the 11 December 2001 where he went to the cottage on the property and spoke to a Mr. Wayte. He then undertook an inspection with that person from about 9am to 3pm. During that inspection the Informant gave evidence of fairly heavy infestations of St. John’s Wort. The Informant handed to Mr. Wayte a document, which highlighted the areas that needed control work. See Exhibit 8. The Informant also completed an ‘Inspection Report’ handing a copy to Mr. Wayte. See Exhibit 9.

13 The Informant after indicating to Mr. Wayte that he would be returning at a certain time and would expect control work to be carried out subsequently wrote a letter verifying a change of date. See Exhibit 10.

14 The Informant rang the cottage on the property prior to his next inspection and spoke to a Mr. Simpson. Mr. Simpson told the Informant that..”he was not allowed to do inspection with me and I would have to ring Mr. Maurici.” (Transcript p.16 L10 24/6/03)

15 The Informant says he rang Mr. Maurici and asked , “..if there would be any assistance with me on my property inspection today” and he gives evidence that Mr. Maurici replied, “there’ll be no assistance at all given to you, you can challenge me and I’ll beat you, you’re stupid and you’re a fool.” Mr. Maurici challenges this evidence of the conversation.

16 In any case the Informant says he carried out an inspection of the subject property, took photographs and GPS readings and observed that no control work measures were undertaken. He gives evidence that the St. John’s Wort was at a late stage of flowering. See Exhibits 11 to 17.

17 It must be pointed out at this time that the lack of control measures relates to mechanical and spraying methods of control. As will become clear later on in this judgment Mr. Maurici’s preferred, and in fact I believe it would be conceded, only method of control, was by pasture improvement. (Transcript 25/6/03 p62 L.10-15)

18 The attitude of the Defendant Company in relation to the control of St. John’s Wort on its property is set out in a letter from Mr. Maurici Managing Director, to the Merriwa Shire Council dated 27 February 2002. (Exhibit 21)

19 In that letter Mr. Maurici enclosed a table showing the work done in relation to pasture improvement from 1992 when a plan was formulated to 2001. The dates contained in that Table were amended by Mr. Maurici in evidence in chief and are contained in Exhibit 27. The cost to the Defendant Company of improving pasture from 1994 to 2003 amounts to $866,363. The cost to the Defendant Company of improving pasture from 1994 to 2000 amounts to $587,845 (Exhibit 27)

20 In answer to a number of questions put by Mr. McLean Mr. Maurici agreed that between June 2000 and March 2003 nothing was done in relation to pasture improvement (Transcript p.62 L.45), and finally, Mr. Maurici agreed that the areas notified by the Council as having infestations of St. John’s Wort were located within those areas where attempts at pasture improvement in 1997 failed. (Transcript 25/6/03 p.63 L.5)

21 From a series of questions and answers one gleans the attitude of Mr. Maurici in relation to St. John’s Wort; (Transcript 25/6/03 p.59 L.30-50)

A Of which weed?

Q. On St. John’s Wort?

A. No not particularly.

Q. Did you not concern yourself to even investigate that prospect?

A. No.

Q. You have fastened on the pasture improvement method to the exclusion of all else?

A. Yes.

22 Evidence was given by Michael John Hood, a consultant agronomist, in relation to the efforts undertaken by the Defendant Company in suppressing St. John’s Wort. His conclusions are contained in a report marked Exhibit 28. He opinions at paragraph 20 that,

“…the spot spraying of wort….can only be interpreted as a token gesture towards controlling wort in the region and would have virtually no impact on the overall infestation of wort in the region..It is especially “token” in the area marked 12 on Map 1, where considerably more wort was seen close to the fence on the adjoining property than on the Property, and in the area marked 21 on Map 1 where only light to very light wort was seen on the Property and light wort was also seen on the adjoining property. In addition, the wort in the area marked 8 on Map 1,, is very light and that in the area marked 8 on Map 1 is only light. In only two of the marked areas was there no visible wort on the adjoining property in close proximity to the boundary and in both cases the amount of wort on the Property was light to very light.”

23 Mr. Hood went onto to say in paragraph 21 that,

“..the control of wort in the region can only be achieved by a co-operative approach by all landowners working together at the same time. The most effective way of controlling wort in the region is an integrated program of pasture improvement involving spraying, fertilising and seeding with improved pasture species or indeed in some places seeding with native grass species followed by spot spraying of remnant infestations. Spraying alone will not give permanent control of wort on the Property.”

24 Finally in conclusion Mr. Hood said,

“Given my opinion of boundary spot spraying in paragraphs 19 and 21 and given that spraying generally will not permanently eradicate wort, and taking into account the nature and terrain of the Property, in my view Castlebar Holdings is acting properly and reasonably in adopting a program of pasture improvement which is the best means of suppressing and destroying wort in the circumstances.”

25 During Cross Examination by Mr. MacLean Mr. Hood was referred to paragraph 14 of his report where he says, inter alia,

“Wort can be controlled by spraying with herbicides, cultivation and plant competition. The use of herbicides will give high levels of control when applied at the correct time of the year when the plants are not stressed. Given that the seeds can germinate for thirty years…follow up applications are required to control new plants and regrowth and without the introduction of competition from other plants such as improved pastures herbicidal control may be short lived. Cultivation will kill wort plants and in addition herbicides are usually used in conjunction with the cropping that usually follows cultivation adding to the control achieved. Most arable areas of Castlebar Holdings are free of wort indicating that these areas have been cultivated and cropped at some time in the past.”

“When you control the weed, you’re creating a vacuum, killing the plants, if you like on the soil surface and plants will invade that. And some of them are weedy plants, and some of them are St. John’s Wort so it will come back if you don’t replace the ground cover with some competitive vegetation. And the whole idea of pastoral improvement is to replace that ground cover with desirable plants.” (Transcript 25/6/03 p.76 L.35-40)

26 It was conceded by the expert Mr. Hood that in relation to the subject infestation of St. John’s Wort there were in effect three methods that could be employed. Herbicide application, pasture improvement or both. (Transcript 25/6/03 p.73 L.35)

27 The Expert Mr. Hood was cross-examined in relation to herbicide sprays. He told the Court that for the herbicide’s to be effective they needed to be applied when they were growing actively. He gave evidence that when he examined the Defendant Company’s property in January 2003 he would not have sprayed them because they were too drought stressed. (Transcript p.72 L20 25/6/03)

28 In relation to the question of drought Mr. Maurici the Managing Director of the Defendant Company gave evidence that,

A. Well the year 1997 was a drought year. ‘98 was a drought year, the drought broke in mid Spring, I think it was October 1998. 1999 and the early part of 2000 were reasonable years and from mid 2000, in fact Autumn 2000, the weather became erratic again and it’s been in profound drought since. We are still in drought. (Transcript 25/6/03 p.53 L.45)

29 There are two issues, in my view, that have emerged for determination by the Court. The first involves the question of entry by Mr. Riley the Informant Weeds Inspector on the subject property and if that question is answered in the affirmative for the Prosecution then the next issue is, does the action the Defendant Company took in relation to the control of St. John’s Wort on the subject property during the relevant period satisfy the Act.

30 Dealing with the first issue. There is no doubt that the Informant has to satisfy the section for his entry onto the subject property to be lawful. The section is clear that for entry to be lawful and notice ‘must’ be given, either orally or in writing of the intention to enter on a day specified to the occupier of the property. Unlike other sections of the Act, for example s40, it does not use the word ‘person apparently in charge’

31 Section 45 provides that;

(2) This section does not require notice to be given:

(a) if entry to the premises is made with the consent of the occupier of the premises, or

(b) if entry is required urgently and the local control authority has authorised in writing (either generally or in the particular case) entry without notice.

32 It is clear that in the present case the Informant entered by virtue of S.45(2)(a) of the Act he having accepted that the person who gave him permission was the Manager of the subject property at that time. The Dictionary to the Act states that an “occupier of land” means;

(b) in the case of Crown lands or lands of the Crown to which no person is entitled to possession, the person having the care, control and management of the lands, or

(c) the trustees of the land, if it is reserved or dedicated for any public purpose, or

(d) if the land consists of a road, street, stock route or reserve under the control of a rural lands protection board, the board, or

(e) any other person designated by the regulations as an occupier of land for the purposes of this definition.

33 I was satisfied that the Informant Mr. Riley was a witness of truth. Any difficulties he had in the witness box were more to do with Counsel’s style of cross-examination than with problems of telling the truth.

34 There is no issue that Mr. Maurici, the Managing Director of the Defendant Company, was not resident on the property. It was conceded by Mr. Maurici that Mr. White was resident on the property. (Transcript 25/6/03 p.60L.20). Mr. Maurici described him as a livestock overseer.

35 Mr. Riley says he had a conversation with Mr. White at the workman’s cottage and asked him if he was the manager and he said he was. I am satisfied that Mr. White comes within the definition of occupier and even if I am wrong, having regard to the evidence, the breach was certainly not deliberate and Mr. Maurici was later served with the proper notice of entry (Exhibit 7) and in those circumstances I would not be prepared to use my discretion and refuse to admit the evidence in terms of s138 of The Evidence Act.

36 In relation to the second issue the obligation imposed on an occupier of land under s 9 of the Act to fully and continuously suppress and destroy has received Judicial interpretation in two cases King v Tait (Local Government Reports Volume 18 p.190) and Daley Industries Pty Ltd v Melacare Industries of Australia P/L (95040213 NSW Supreme Court of Appeal Unreported 19 September 1996).

37 In King v Tait , where it was argued that upon a proper interpretation of the language of s81 of the Pastures Protection Act, 1934, the obligation cast upon a landowner was absolute and unqualified so far as the destruction of rabbits was concerned and that the occupier was liable if any rabbits were found even a single one. The Chief Justice, Sir Lawrence Street, said;

continuously, that is in a manner characterized by continual effort having regard to the object to be achieved.

(

38 The Chief Justice went onto say;

“ So far as the commission of the offence is concerned, the legislature casts the duty of suppressing rabbits upon the occupier of the land irrespective of his circumstances. Nor can an occupier escape liability by adopting some method, which he regards as sufficient for that purpose but which is not a reasonable and accepted method of destroying rabbits in accordance with current, and understood practice. The question whether an offence has or has not been committed does not depend upon the circumstances of the individual, but it depends upon enquiry into and consideration of the steps, which he has in fact taken to suppress rabbits and the methods, which he has used. The circumstances of individual cases must vary infinitely. The nature of the country, the degree of infestation, the particular season, and maybe other factors have to be taken into account in each case when determining whether an occupier has or has not been carrying out his duty….But matters personal to himself by which an occupier may seek to justify his failure fully and continuously to suppress rabbits afford no answer to the charge, although possibly in some cases these circumstances might be given weight when determining the penalty which should be imposed if the breach of duty has been established.”

39 In the same case Owen J said in relation to the obligation imposed by the section;

continuous process, that is to say, not done in fits and starts

40 The Supreme Court of New South Wales in Daley Industries v Melacare Industries of Australia P/L held that the findings in King v Tait, applied equally to the obligation in s12 of the Act although the obligation is to ‘control’ such weeds, not eradicate them. The Court after quoting that part of the Chief Justice’s judgment in King v Tait set out in paragraph 36 of this finding, said;

“So also the mere fact that there are some rabbits or rabbit warrens or rabbit burrows on the land is not conclusive evidence that the occupier has failed in his duty under the Act, although long continued and heavy infestation may be evidence to be taken in to account on the question whether or not he has discharged the obligation cast upon him by the section.”

41 Although the expert Mr. Michael Hood was impressive and I accept that for this type of Country a programme of pasture improvement is much more effective that just spraying, the evidence in relation to the presence of St. John’s Wort on the subject property and that lack of any programme whether spraying, pasture improvement or both, is clear. There was extensive infestation during the relevant period. There was no pasture improvement or any other attempt made to control the infestation on the subject property during the relevant period. The reason given for the lack of any control work was that from 1997 until mid Spring 1998 there was a drought. Further although 1999 and the early part of 2000 were reasonable years the weather then became erratic and the Country has been in profound drought since.

42 Whilst I accept that the Defendant Company undertook a programme of pasture improvement to control the St. John’s Wort and other weeds and that that programme has been successful on other parts of the property the fact remains that for the relevant period nothing was done and in my view having regard to the obligation imposed on occupiers the Defendant Company has breached the section in that there was no continuous action of control during the relevant period or regular activity of control during the relevant period.

43 Therefore I find the Offence proved.

Magistrate.

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Merriwa Shire Council v Castlebar Holdings Pty Ltd [2004] NSWLC 2

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CITATION:	Merriwa Shire Council v Castlebar Holdings Pty Ltd [2004] NSWLC 2
JURISDICTION:	Criminal
PARTIES:	Merriwa Shire Council v Castlebar Holdings Pty Ltd
FILE NUMBER:
PLACE OF HEARING:	Tamworth Local Court
DATE OF DECISION:	02/20/2004
MAGISTRATE:
CATCHWORDS:	Control noxious weeds - St John's Wort
LEGISLATION CITED:	Noxious Weeds Act 1993 s 12 Pastures Protection Act 1934 s 81
CASES CITED:	King v Tait (Local Government Reports Volume 18 p 190 Daley Industries Pty Ltd v Melacare Industries of Australia P/L (95040213 NSW Supreme Court of Appeal Unreported 19 September 1996.
REPRESENTATION:	Mr D MacLean for the Council Mr J.W Conomos of Counsel instructed by Grae Stewart McKenzie Speed and Stracey Solicitors
ORDERS: