Minister for Planning v Moolarben Coal Mines Pty Ltd - [2010] NSWLEC 147

No judgment structure available for this case.

Reported Decision: 175 LGERA 93

Land and Environment Court

of New South Wales

CITATION: Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147

PARTIES:
PROSECUTOR
Minister for Planning
DEFENDANT
Moolarben Coal Mines Pty Ltd

FILE NUMBER(S): 50073 of 2009

CORAM: Craig J

KEY ISSUES: ENVIRONMENTAL OFFENCES :- breach of s 125(1) of the Environmental Planning and Assessment Act 1979 - clearing of vegetation and erection of boundary fence - cleared vegetation included an ecologically endangered community - development in breach of approval granted for coalmining activities under s 75D of the Environmental Planning and Assessment Act 1979 - sentencing considerations - plea of guilty - harm to the integrity of the planning system by failing to seek approval before carrying out work.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979
Fines Act 1996
Mining Act 1992
Threatened Species Conservation Act 1995

CASES CITED: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 at [71]; (2006) 145 LGERA 234
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 at [72]; (2006) 146 LGERA 349
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Council of Camden v Tax [2004] NSWLEC 448; (2004) 137 LGERA 368
Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337
Hoare v The Queen (1989) 167 CLR 348
Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271
Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289
R v Dodd (1991) 57 A Crim R 349
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLER 383
Veen v The Queen (No 2) (1988) 164 CLR 4645

DATES OF HEARING: 7 April 2010

DATE OF JUDGMENT:
11 August 2010

LEGAL REPRESENTATIVES:
PROSECUTOR
I S Lloyd QC with M D Seymour (Barrister)
SOLICITORS
Holding Redlich Lawyers
DEFENDANT
S A Duggan (Barrister)
SOLICITORS
Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

CRAIG J

11 August 2010

50073 of 2009 MINISTER FOR PLANNING v MOOLARBEN COAL MINES PTY LTD
JUDGMENT

1 HIS HONOUR:

The defendant has entered a plea of guilty to a charge that between 8 December 2008 and 13 May 2009 it committed an offence contrary to s 125 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The offence was committed when, in the course of carrying out development approved as a ‘project’ under Pt 3A of the EPA Act, the defendant cleared an area of about 4.1 hectares of vegetation, the clearing of which was not sanctioned by the approval that had been granted to it by the Minister.

2 A sentence hearing having been held, the task of the Court is to impose the appropriate penalty for the offence to which the plea of guilty has been entered.

3 Section 125(1) of the EPA 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.”

4 As I have indicated, the offence was committed by the defendant in the course of carrying out a project within the meaning of Pt 3A of the EPA Act. Section 75D, which is found in Pt 3A, provides as follows:

75D Minister’s approval required for projects

5 It is by reason of the obligations imposed upon the defendant by s 75D that the provisions of s 125(1) of the EPA Act are engaged in the present case.

The project

6 On 20 December 2005, the defendant sought approval from the Minister for the establishment and operation of coalmining activities on a large tract of land near Ulan, located in the Central Tablelands of New South Wales. The land which was the subject of the project application included land now held by the defendant under a mining lease granted under the Mining Act 1992 and known as Mining Lease 1606 (ML1606).

7 The activities for which approval was sought involved the conduct of three open-cut coal mines, an underground coal mine and the establishment of associated infrastructure and facilities. It proposed the extraction of up to 12 million tonnes of coal per annum, the establishment of a coal handling and preparation plant capable of producing up to 10 million tonnes of product per year as well as the establishment of a rail spur and rail loop in order to transport product from the mine site. The estimated project cost was $220M. The project is known as the Moolarben Coal Project.

8 Conditional approval to the project was granted by the Minister for Planning on 6 September 2007, pursuant to s 75J of the EPA Act (the approval). The terms in which that approval was granted were as follows:

“I approve the project application referred to in schedule 1, subject to the conditions in schedules 2 to 5.

prevent, minimise, and/or offset adverse environmental impacts;
set standards and performance measures for acceptable environmental performance;
require regular monitoring and reporting; and
provide for the ongoing environmental management of the project.”

9 Condition 1 of Sch 2 to the approval imposed the following obligation upon the defendant:

“1. The proponent shall implement all practicable measures to prevent and/or minimise any harm to the environment that may result from the construction, operation, or rehabilitation of the project.”

10 Sch 3 to the approval imposed a number of conditions upon its implementation and operation under the heading “specific environmental conditions”. Condition 41 in Sch 3 is as follows:

“41. Within 12 months of this approval, the Proponent shall make suitable arrangements to:

11 Between November 2008 and June 2009, the development approval was modified by the Minister on three occasions, following requests from the defendant so to do. Those modifications effected some change to the area of land upon which the project was to be carried out. However, of present significance, those three modifications did two further things. First, they expanded the definition of the “Environmental Assessment” (the EA) by which the ambit of permitted activities was to be identified. It did this by extending the number of reports describing the project under the definition of the expression “EA”. Secondly, the third modification increased the area of land required to be transferred in accordance with condition 41(a) from 130 hectares to 135 hectares. The effect of the changed definition to the EA meant that condition 2 in Sch 2 to the approval then read:

12 Subsequently, there was a fourth modification to the approval, that modification being approved by the Minister on 5 October 2009 (modification 4). It will be necessary to address that modification in further detail.

A mining lease dispute

13 Part of the land to which ML1606 related was owned by Ulan Coal Mines Ltd. Apparently, that company was a competitor of the defendant and a dispute arose between them as to the ability of the defendant to exercise its rights under ML1606. As a means of addressing this dispute, the defendant commenced proceedings under the Mining Act in the Mining Warden’s Court at Muswellbrook.

14 At a preliminary hearing before the Mining Warden, the parties were directed to confer with a view to negotiating a settlement of the complaints that had been filed by the defendant in that court. The negotiations so ordered proved fruitful and as a consequence an agreement was reached between them and embodied in a document entitled “Access and Operations Agreement” (the Agreement).

15 A copy of that Agreement has not been tendered in these proceedings. However, it is agreed for the purpose of these proceedings that the effect of two provisions of the Agreement are relevant. Clause 6 required that the present defendant fence the perimeter of ML1606. Clause 4.1 of the Agreement required that upon its execution by both parties, the proceedings in the Mining Warden’s Court be discontinued, with each party paying its own costs.

16 Whether, in fulfilment of the latter condition, consent orders were entered in the Mining Warden’s Court is not disclosed in the Statement of Agreed Facts tendered before me. However, it is recorded that proceedings in that court were discontinued following execution of the Agreement, making it unlikely that any orders were made other than recording the discontinuance by consent. It is the action of the defendant in giving effect to cl 6 of the Agreement that has given rise to the commission of the offence to which it has pleaded guilty.

Clearing of land for a boundary fence

17 In fulfilment of what it regarded to be its obligation under cl 6 of the Agreement, on 8 December 2008, the defendant commenced to clear land along the western boundary of ML1606 so as to enable it to erect a stockproof fence along the lease boundary. The Statement of Agreed Facts tendered by the parties indicated that this section of clearing was completed by 10 December. However, correspondence from a company associated with the defendant to the prosecutor in April and May of 2009 states that work associated with the clearing of the western boundary took place in March 2009. The discrepancy between that assertion and the statement clearly made in the Statement of Agreed Facts tendered to me was not explained. It will be necessary to refer to this correspondence a little later in these reasons.

18 Clearing of vegetation along the southern boundary of ML1606 so as to permit the erection of a boundary fence took place between 5 and 9 May 2009 while clearing along the north eastern boundary took place between 11 and 13 May 2009. Each clearing operation involved the use of a D10 bulldozer and a “purpose built tractor – mulcher unit”. This equipment was used to clear a swath of vegetation between 6 metres and 16 metres wide. The width so cleared was to permit ready access along the fence line to facilitate its erection and also to provide a firebreak.

19 The total area cleared along the boundary of ML1606 in this manner was 4.1 hectares. It is accepted by the defendant that of this total area, 0.6 hectares comprised small native shrubs and pasture while 3.5 hectares was land containing native trees. Importantly, within this latter area, approximately 1.3 hectares contained White Box Yellow Box Blakely’s Red Gum Woodland (the EEC), an endangered ecological community classified as such under the Threatened Species Conservation Act 1995.

20 None of this clearing was the subject of any consent or approval given by a relevant statutory authority. Importantly, none of this clearing was sanctioned by the approval granted by the Minister, either in its original form or in its modified form at the time by which the clearing had been completed. Moreover, the clearing had not been the subject of any environmental assessment in any of the assessment reports that had been submitted to the Minister when considering and determining the original project application or any of the two modifications that had been approved by 13 May 2009.

A complaint is made and investigated

21 On 26 March 2009, the Department of Planning received a complaint from a member of the public as to land clearing that had taken place on or in the vicinity of the land which was the subject of ML1606. The substance of the complaint was conveyed to the defendant by email sent to it on 1 April 2009. The defendant, through Moolarben Coal Operations Pty Ltd, an associated company, responded promptly by letter dated 2 April 2009. The letter referred to the dispute between Moolarben and Ulan Coal Mines Limited; it referred to the proceedings before the Mining Warden and ultimately to the Agreement that had been executed. It identified the obligation imposed upon the defendant by the Agreement to fence the boundary of ML1606 and acknowledged that some fence line clearing had already taken place.

22 By letter dated 21 April 2009 from the Department of Planning, it was indicated to Moolarben Coal Operations Pty Ltd that the work which had been carried out required consent under the EPA Act and that, as no such consent had been obtained, it appeared that development had been carried out unlawfully. The letter indicated that the actions of the defendant were being further investigated and any further information which might assist that investigation was requested.

23 In a letter dated 4 May 2009 from the defendant to the Department of Planning, it was reiterated that “certain works were carried out in March this year [sic] to establish the western boundary of Mining Lease 1606”. The letter continued:

“This work was in part-fulfilment of specific directions from the Mining Warden in relation to land access arrangements between Ulan Coal Mines Ltd (UCML) and Moolarben Coal Mines Pty Ltd (MCM), with respect to the granting of ML1606. As indicated … the works under question [sic] involved the clearing of a narrow swath of vegetation to enable the erection of a boundary fence along the western perimeter of ML1606.”

24 The source of the “specific directions from the Mining Warden” referred to in the letter of 4 May 2009 was never identified in evidence before me. As earlier recorded, once the Agreement had been executed by both parties, the Statement of Agreed Facts indicates that proceedings before the Mining Warden were discontinued. The author of the letter of 4 May 2009 perhaps confused contractual obligations, having their genesis in proceedings before the Mining Warden, with directions from the Mining Warden.

25 Attached to the letter of 4 May from the defendant to the Department was an aerial photograph on which the boundary of ML1606 was marked. Also enclosed were three photographs which showed mine lease perimeter boundary clearing that had, to that point in time, taken place. Clearly, the defendant was candid in admitting that clearing work had taken place and identifying its reasons for so doing.

26 The letter of 4 May concluded with the following statement:

“Please let me assure you that the company has no intention of knowingly undertaking work that would in any way contravene or compromise its project approval or other licences. The company is committed to ensuring that all works carried out at the site are carried out in a lawful and environmentally responsible manner. In this regard, if so required by the Department, the company will modify its Stage 1 project approval to rectify the matter in question.”

27 As will shortly be apparent, the defendant did subsequently take steps to modify the approval so as to reflect both clearing work and the erection of the ML1606 boundary fence. As will also be apparent from my earlier recitation of the dates upon which clearing took place, the letter of 4 May made no reference to the clearing to be commenced the following day along the southern boundary of ML1606 nor the intention to clear land along the north eastern boundary of that lease.

28 Having received the letter of 4 May from the defendant, the Department sought further information as to the location and extent of clearing “undertaken along the western perimeter of ML1606” and the total area of land cleared by these works. The defendant responded by letter from Moolarben Coal Operations Pty Ltd dated 21 May, forwarded to the Department by email. The letter again repeats that clearing was carried out to facilitate the erection of a fence “to secure the ML boundary”. As to the area cleared, the following is stated:

“The area cleared of timber is approximately 1.6 Ha. In addition to this an area of approximately 0.5 Ha of small shrubs and pasture has been cleared on land previously cleared of trees prior to Moolarben Coal Operations taking control of the land.”

29 It will be remembered that by the time of writing this letter, namely 21 May, all clearing activity which is the subject of the present charge had been completed. The discrepancy between the area cleared as stated in the letter of 21 May (a total area of 2.1 hectares) and the total area now accepted by the defendant as having been cleared, namely 4.1 hectares, was not explained. Photographs attached to that letter and showing some areas of clearing by reference to an attached aerial photograph would seem to reflect a recognition that clearing had taken place in those areas which were the subject of clearing between 5 and 13 May 2009.

30 The letter of 21 May concludes with a statement identifying the procedure adopted by the defendant prior to clearing, a statement which is not challenged by the prosecutor. It is as follows:

“In accordance with the approved Environmental Management Strategy Moolarben has developed a Ground Disturbance Permit procedure that includes pre-clearance surveys. Pre clearance surveys were carried out to identify habitat trees and other significant ecological features, in accordance with this procedure, prior to the commencement of clearing. Silt Fencing has been installed, where appropriate, to control run off from disturbed areas.”

The approval is further modified

31 By application made on 12 June 2009, the defendant sought approval for a fourth modification to the approval granted on 6 September 2007. There were several modifications sought in the application, one of them being described as “regularising mining lease boundary fence line clearing”. The modification application was accompanied by a detailed environmental assessment report. Included in that report is reference to the clearing of “a swath of intact native vegetation between 6 and 10 m wide” along the mine lease boundary. The report further indicates that the “Stage 1 project description be updated to specifically include the clearing that was carried out to establish the mining lease boundary fence.”

32 As a result of the clearing, particularly the clearing of the EEC, the environmental assessment report makes a number of recommendations described as “biodiversity impact management measures” which should be adopted. It also recommends that the commitments of the defendant, as contained in the approval, be extended to include a commitment to rehabilitate and revegetate the cleared area along the mining lease boundary so as to enable the cleared EEC to re-establish.

33 The modification application was the subject of an assessment report prepared by two senior officers of the Department of Planning. Under the heading “Consideration”, that report includes the following statements:

“Moolarben has already cleared approximately 3.9 ha of land, including 1.3 ha of EEC/CEEC, to construct the mining lease boundary fence. After considering the merits of this matter the Department considers that it is appropriate for the fence to remain and approval to be given for the prospective use of the fence. However, the Department cannot approve the retrospective construction of the fence.

34 The Department’s assessment report records the admission by the defendant that it did not have approval to undertake clearing. It also records the offer by the defendant of “a biodiversity offset” to compensate for the loss of this vegetation as well as the loss of further vegetation required for the construction of additional facilities that are the subject of the modification application. The conclusion expressed in the report in relation to the biodiversity offset is as follows:

“The Department is satisfied that the implementation of proposed offset strategy would result in a net improvement in biodiversity in the medium - long term. Consequently, the Department has recommended conditions requiring Moolarben to include these areas in the existing offset package required under the Stage 1 conditions of approval. The Department recommends that the Rehabilitation and Offset Management Plan required under the existing conditions of approval be revised to include specific measures to provide adequate long-term management of these areas.”

35 The modification sought by the defendant was granted conditional approval by a delegate of the Minister on 5 October 2009. Among the conditions that it imposed was a new condition 41A which was as follows:

“41A. By the end of December 2010, the Proponent shall make suitable arrangement to:

(a) conserve at least 4 hectares of existing White Box Yellow Box Blakely’s Red Gum Woodland endangered ecological community on Property 24;

(b) conserve and enhance at least 2.6 hectares of regenerating White Box Yellow Box Blakely’s Red Gum Woodland endangered ecological community on Property 24;

(c) revegetate two cleared areas on Property 46 with at least 10 hectares of endangered ecological community; and

36 The modification granted on 5 October 2009 also amended the “statement of commitments” identified in condition 2 of Sch 2 to the approval (see [11] above) by identifying the offset measures required to be undertaken as well as requiring the rehabilitation and revegetation of the cleared area along the mining lease boundary. The need to undertake these additional measures also had the effect that the bond required to be lodged with the Department in accordance with condition 48 in Sch 3 to secure implementation of vegetation offsets had to be increased in amount, as the amount of the bond was to be determined by reference to the full cost of implementing those offsets.

37 The summons by which the present prosecution was instituted was filed in this Court on 3 December 2009.

The defendant’s evidence

38 In addition to material contained in the Statement of Agreed Facts and the various annexures which it incorporates by reference, the material parts of which I have identified, the defendant also relies upon the affidavit evidence of Mr Ian Callow and Mr Steven Peart. Mr Callow is employed by the defendant as a Project Manager Development whose responsibility extends to applications for and implementation of statutory approvals, land acquisitions and mining titles pertaining to the Moolarben Coal Project at Ulan. He referred to the dispute involving Ulan Coal Mines Ltd and its resolution upon execution of the Agreement to which reference has already been made. He identified that Agreement as being the source of obligation upon which vegetation clearing along the boundary of ML1606 took place. Upon becoming aware that approval for that clearing was required under the EPA Act and that approval had not been obtained, it was Mr Callow who gave instructions that such approval for the work that had been undertaken be the subject of the fourth modification application lodged on 12 June 2009.

39 There are two further matters of relevance to which Mr Callow deposes. First, he identified the offer by the defendant to provide offset and compensatory areas which became the subject of condition 41A of the approval and indicated that the defendant will meet its obligations under that condition by December 2010. Secondly, he outlined the extent to which the defendant had made financial contribution, in various forms, to the local community, particularly those financial contributions directed to local schools and community projects.

40 Finally, Mr Callow indicated that he was the author of the letter dated 4 May 2009 from the defendant to the Department of Planning. Reference has already been made to that letter (see [23] – [24], [26]). In his affidavit, Mr Callow reiterated that the defendant did not intend to breach the approval given to it and that its breach was inadvertent. None of the evidence given by Mr Callow was challenged by the prosecutor.

41 Mr Peart is employed by the defendant as its Environment and Community Relations Manager, a position to which he was appointed on 9 June 2009. He deposes to the fact that in accordance with both the approval and approvals obtained under Commonwealth legislation, a total area of 1604 hectares of land is to be managed as offset for the Moolarben Coal Project. He identified strategies and times involved in addressing this management task. Some of those offset areas include areas containing stands of the endangered ecological community, 1.3 hectares of which was cleared by the defendant when constructing the mining lease boundary fence.

42 Mr Peart made particular reference to condition 41A of the approval, inserted by modification 4. Setting aside the value of land involved in those offset provisions, he estimated that the cost of complying with the requirements imposed by that condition will approximate $57,524. Again, his evidence was not challenged by the prosecutor.

Purposes of sentencing

43 Section 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) identifies the purposes for which the sentence of an offender may be imposed. Relevantly, those purposes include:

“(a) to ensure that the offender is adequately punished for the offence,

…

(f) to denounce the conduct of the offender,

44 In summary, the sentence of the Court is to reflect the public denunciation of the conduct of the offender. The sentence must ensure that the offender is held accountable for its actions and is adequately punished.

45 Importantly, the sentence of the Court must operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if caught, only light punishment will be imposed. This statement of principle has particular resonance in the context of development carried out in contravention of the EPA Act. The integrity of the system of planning and development control must be upheld. This system depends upon persons taking steps to obey the law by ascertaining when an approval or consent under the EPA Act is required and then obtaining that approval or consent before carrying out development (Pittwater Council v Scahill [2009] NSWLEC 12 at [44] – [46]; (2009) 165 LGERA 289 at 298 – 299).

46 The sentencing purpose of general deterrence identified in s 3A(b) is of particular significance in this matter. So much was submitted by the prosecutor and not gainsaid, in terms, by the defendant. It is a corporation engaged in a multimillion dollar coalmining project, an activity which in all its aspects had the potential to have a very significant impact upon the environment. Corporations engaged in activities of this kind must be reminded of the obligations imposed upon them to ascertain the laws and controls applicable to the carrying out of any activity associated with a particular project in order to ascertain the need for any consent or approval to that activity so that the appropriate environmental assessment can be undertaken before any approval is given to it. The sentence therefore needs to make clear to the community at large that the failure of a corporation to take these steps will be visited with significant financial penalties.

Approach to sentencing

47 It is a fundamental principle of sentencing law that the sentence for an offence reflect and be proportionate to both the objective circumstances of the offence and the subjective circumstances of the defendant. The primary factor to be considered is the objective gravity of the offence; it fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the offence considered in light of its objective circumstances (Veen v The Queen (No 2) (1988) 164 CLR 465; Hoare v The Queen (1989) 167 CLR 348). It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354).

48 Relevant to be considered in determining the objective gravity or seriousness of the offence in the present case, it is appropriate to have regard to the following:

(a) the maximum penalty for the offence;

(b) the objective harmfulness of the defendant's actions;

(c) the defendant's reasons for committing the offence;

(d) the foreseeability of risk of harm to the environment; and

(e) the practical measures to avoid harm and the defendant's control over the cause of harm to the environment.

Maximum penalty

49 The maximum penalty for an offence under s 125 of the EPA Act is provided for by s 126. It is a fine not exceeding $1.1M. That maximum penalty is of great relevance in determining the objective gravity of the offence. As observed by Kirby P (Campbell and James JJ agreeing) in Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698:

“ … the maximum penalty available for an offence reflects the ‘public expression’ by parliament of the seriousness of the offence (citation omitted)”.

50 The maximum penalty provided under s 126 was increased from 200 penalty units to 1,000 penalty units in 1992 and to 10,000 penalty units in 1999. An increase in the statutory maximum sentence is a significant matter to take into account when exercising the sentencing discretion as it reflects a change in the community expectation as to the appropriate sentence (Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271 at [42]).

51 Section 125 of the EPA Act is directed to securing obedience to the statutory scheme of refraining from any action that is forbidden without first seeking and then obtaining any necessary consent or approval, assuming that such consent or approval is lawfully able to be given. Invariably, the step precedent to the granting of any such consent or approval is the need to consider the environmental impact of the activity in contemplation.

52 In the context of a prosecution for removal of some 40 trees from rural land, McClellan J in Council of Camden v Tax [2004] NSWLEC 448; (2004) 137 LGERA 368 at [28] – [29] made observations, apposite to the present case, as follows:

“[28] The necessity for the protection of vegetation in the community is now accepted in virtually every area of the state. Special legislation has been provided in relation to rare species and ecological communities but beyond that legislation … steps have been taken to ensure that in areas where development may be appropriate, decisions with respect to the grant of development consent are taken after regard is had to the value and significance of the vegetation on any parcel of land. As this Local Environmental Plan makes plain, that protection has been extended even to land which is otherwise identified as suitable for rural or rural-related uses.

53 The defendant’s failure to seek and obtain approval prior to clearing of the mining lease boundary undermined the legislative purpose to which I have referred. Had application for approval been made in advance of any clearing, an evaluation of the different ecological values of the areas proposed to be cleared could have been undertaken with vegetation in situ rather than, as happened, retrospective consideration of what the impact might have been. In particular, prospective consideration would have allowed appropriate alternatives to be considered, including the width of vegetation to be cleared. It would have allowed consideration of any adjustment to the line of proposed fencing so as to avoid or reduce loss or damage to those areas which were considered to be particularly sensitive to tree removal, either by reason of their floristics or by reason of the faunal foraging or habitat quality they possessed. The action of the defendant in clearing the boundary fence line as it did, denied the Minister and those advising him of the opportunity to undertake this important evaluative process.

Objective harmfullness

54 As has already been stated, of the total area of 4.1 hectares cleared by the defendant, 3.5 hectares of that area contained stands of native vegetation. Neither in the original application for approval nor in the first three modification applications had the removal of any of this vegetation been identified. Of particular significance is the loss of 1.3 hectares of EEC.

55 It is important to observe that parliament has enacted a specific statutory regime directed to the identification and conservation of endangered ecological communities. That regime is established by the Threatened Species Conservation Act. The objects stated in s 3 of that Act include:

“(a) to conserve biological diversity and promote ecologically sustainable development, and

(b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and
…

(d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and

(e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed,

56 By operation of s 12 of the Threatened Species Conservation Act, an ecological community is eligible to be listed as an endangered ecological community if the Scientific Committee constituted under Pt 8 of that Act forms the opinion that the ecological community “is facing a very high risk of extinction in New South Wales in the near future”. It must therefore be assumed that the EEC located within the area held as ML1606 faced the risk identified in s 12 of the Act. As a consequence, the loss of even 1.3 hectares of EEC assumes even greater significance than that which attends the loss of the remaining native vegetation from the area cleared by the defendant.

57 Tendered in evidence before me was a document by which the parties jointly acknowledged three matters (Exhibit B). Relevantly, the document acknowledges:

“2. (t)he extent of environmental harm resulting from the offending conduct is minimal though no prior environmental assessment was done before the activity was carried out in order to confirm that there would only be minimal harm; and

58 In the course of submissions, paragraph 3 of the Exhibit was explained and qualified. Clearly, actions to be taken by the defendant, assuming they are taken, to comply with condition 41A of the approval could not have an immediate effect in compensating for loss of the EEC. So much was accepted by the defendant who contended that the compensatory effect of work undertaken in accordance with condition 41A would be experienced in the “medium to long term”.

59 It can therefore be concluded from the joint position taken by the parties that there was harm in the short to medium term from the loss of vegetation, particularly the loss of the EEC, with the ecological values incidental to it, albeit that the harm was ultimately assessed by the prosecutor as being minimal.

60 Clearly, the defendant was conscious of the fact that its actions could occasion environmental harm. This is evident from the statement contained in its letter to the Department of Planning of 21 May 2009 in which it identified pre-clearance surveys undertaken by it (see [30] above). Having identified the potential for harm, it must also be recognised that the measures that were, in fact, taken by the defendant, are measures that no doubt contributed to the ultimate determination by the prosecutor that the harm occasioned by the actions of the defendant was “minimal”.

61 While not resiling from the acknowledgement that the environmental harm that resulted from the conduct of the defendant was minimal, the prosecutor submitted that whether approval for the work would have been given had that approval been sought in advance is unknown. There is substance in that submission. I am not satisfied beyond reasonable doubt that had application been made to erect a fence on the approximate line of the boundary of ML1606, it would have been refused. However, I am not satisfied on the balance of probabilities that, had prior consideration been given to the location of this boundary fence, it would have been approved in the precise location in which it has been erected and, more importantly, I am not satisfied that the extent of clearing for such a fence, even if erected in its present location, would have been sanctioned.

62 Reference has earlier been made at [33] to the consideration given to the location of the fence and the extent of clearing in the Department of Planning assessment report prepared in response to the defendant’s modification application of June 2009. As the report makes clear, the authors of that report considered that clearing of a corridor between 7.1 and 16.3 metres wide was excessive, a width of 4 metres being considered appropriate. Had this been the conditional approval given and work undertaken in accordance with it, self-evidently the extent of vegetation loss would have been less than that which has in fact been incurred.

63 Having regard to all of these matters, I find that the commission of the offence did cause actual environmental harm. However, as the prosecutor has accepted that the harm is “minimal”, with short to medium term rather than medium to long term effect, I accept the prosecutor’s concession that the harm occasioned should not be considered an aggravating factor when determining the appropriate penalty to be imposed upon the defendant: cp s 21A(2) of the CSP Act.

State of mind of the defendant

64 An offence against s 125(1) of the EPA Act is a strict liability offence and hence mens rea is not an element of it. However, a strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one which is not so committed (Hardt v Environment Protection Authority [2007] NSWCCA 338 at [53]; (2007) 156 LGERA 337 at 348).

65 Both the material contained in the Statement of Agreed Facts and the evidence of Mr Callow identify why it was that clearing of vegetation took place. It was to fulfil the obligation to fence ML1606 imposed by cl 6 of the Agreement which, in turn, had its genesis in proceedings brought by the defendant under the Mining Act. By reason of that obligation and its genesis, the need for an approval under the EPA Act was not appreciated.

66 The plausibility of this explanation can readily be accepted in respect of the clearing of the western boundary of ML1606 which, according to paragraph 32 of the Statement of Agreed Facts, took place between 8 and 10 December 2008. Whilst the reasons for clearing the southern and north-eastern boundaries of the mining lease remain the same as those which founded the clearing in December 2008, the circumstances in which the clearing of those boundaries took place do not attract the same level of “innocence” to the defendant’s explanation.

67 It will remembered that by letter dated 21 April 2009, the Department of Planning had conveyed to the defendant the opinion that the clearing work hitherto carried out was development that required consent (sic) under the EPA Act and that no such consent having been obtained, the clearing work was unlawful (see [22]). The subsequent letters from the defendant did not challenge this assertion. Yet, in the face of the asserted unlawfulness by the Department, clearing along the southern and north-eastern boundaries of ML1606 took place between 5 and 13 May. Moreover, as I have earlier indicated at [27], the letter from the defendant responding to the Department’s letter of 21 April gave no indication that further clearing work was to commence the following day.

68 The circumstances arising from the sequence of events that I have just identified were raised with the defendant in the course of submissions. No “innocent” explanation was offered, it being said that it was “incautious” of the defendant to have proceeded with work once the Department of Planning had indicated the position which it did on 21 April.

69 As an entity conducting a very significant coal mining project, I would have to assume that the defendant is sufficiently well resourced to enable it to secure legal advice. Extracts from the records of the Australian Securities and Investment Commission which were tendered to me, show that the defendant is a wholly owned subsidiary of a public company. Even if it had not initially occurred to those responsible for the defendant’s operations at Ulan that implementing either its contractual obligation or its perceived obligations under the Mining Act also necessitated the obtaining of approval under the EPA Act, once it was on notice that the partial clearing that had been carried was asserted by the Department of Planning to be unlawful, there was no rational reason to believe that further clearing could continue without, at least, seeking legal advice as to its obligations. No evidence of any such advice having been sought was tendered.

70 Objectively judged, the actions of the defendant in May 2009 cannot be considered in the same light as those actions which it took in December 2008. The former bear less favourably upon the defendant than do the latter, a circumstance which bears upon the gravity of the offence which the defendant committed.

Foreseeability of risk of harm to the environment

71 I have already identified the evidence that bears upon the foreseeability that harm might be occasioned to the environment by reason of the actions of the defendant in clearing vegetation as it did. I accept that the measures which it took were directed to reducing the harm that, absent those measures, would otherwise have been occasioned.

Practical measures – control over causes

72 The obvious practical measure that the defendant could and should have taken was to refrain from clearing until approval had been obtained from the prosecutor. This observation is particularly pertinent to the clearing that took place in May of 2009. Although the evidence does not reveal the proportion of the overall clearing that then took place, the fact that it took place in the circumstances that I have outlined, supports the observation that it was both realistic and practical for the defendant to refrain from carrying out the work which was then undertaken. The defendant had complete control over the causes of harm to the environment by the actions which it carried out.

Conclusions on objective circumstances

73 Although the environmental harm occasioned by the commission of the offence may, in the context that I have discussed, be regarded as “minimal”, when taken together with the other factors which I have described, particularly the loss of EEC and the carrying out of further clearing after the Department of Planning had indicated that clearing along the western boundary was unlawful, I consider that the offence should be seen as being of low to medium objective gravity. As the prosecutor submitted, the objective seriousness of the offence is also informed by the circumstance that failure to carry out prior environmental impact assessment of the activity resulted in a lost opportunity “to achieve the(…) four pillars of ecologically sustainable development” (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 at [71]; (2006) 145 LGERA 234 at 246). It is the harm to the integrity of the planning system which lies at the heart of the offence in this case (Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [72]).

Subjective circumstances

74 Section 21A(3) of the CSP Act identifies those mitigating factors to be taken into account when determining the appropriate penalty for an offence. In addition, subsection (1)(c) enjoins the Court to take into account any other “subjective factor that affects the relative seriousness of the offence.”

Lack of prior criminality

75 The defendant does not have any prior conviction for an environmental offence (s 21A(3)(e) CSP Act). In the context of the large-scale development being undertaken by the defendant with the inherent propensity of such a project for environmental harm, the absence of any prior conviction is an important consideration favourable to the defendant. That consideration, however, is tempered somewhat by the fact that implementation of the Moolarben Coal Project is at the early stage of site development, preparatory to the mining and processing of coal.

Prior good character

76 The evidence discloses the defendant to be a good and responsible corporate citizen. The evidence of Mr Callow to which I have earlier referred [39] identifies the nature of substantial contributions which the defendant has made to the local community in the relatively short time during which it has conducted its activities in the Ulan area. Its actions in providing support for projects within the community, most of which were the subject of contribution prior to the commencement of the present proceedings, are actions which engage the provisions of s 21A(3)(f) of the CSP Act in a manner that is favourable to it.

Likelihood of further offending

77 The evidence before me indicates that the defendant is unlikely to commit a further offence of a similar kind to that with which it is presently charged. It has shown itself to be generally aware of the requirement to seek approval for any change of plan in the manner in which its project is to be implemented. This awareness has been demonstrated by the three modification applications which were made prior to the indication that its boundary clearing activities were unlawful. Further, it is recognised that there is a somewhat complex interplay between the provisions of the EPA Act and the Mining Act. The impact of that interplay now appears to be fully appreciated by the defendant, a circumstance which will sound even greater caution to resolve any uncertainties by seeking appropriate advice before any further change in approved activity is contemplated. Again, the evidence of Mr Callow demonstrated this understanding.

Contrition and remorse

78 The evidence of Mr Callow indicated that the actions of the defendant were not undertaken with the intention of breaching the conditions of its approval. That evidence is consistent with the letter written by the defendant to the Department of Planning on 4 May 2009. For reasons earlier indicated, that evidence can be accepted up to a point, although the subsequent clearing actions in light of that letter were not adequately explained. This circumstance notwithstanding, it is clear that the defendant did act in a way that demonstrated its contrition and remorse.

79 First, it promptly included within the application for modification 4 the clearing works and boundary fence construction which had been undertaken. It retained appropriate experts to prepare a detailed impact assessment of the works that it had undertaken in order that its application could appropriately be assessed. Secondly, it volunteered the substantial offsets, works and undertakings that came to be included in the modified consent as condition 41A and the statement of commitments pursuant to which the project is to be carried out. Thirdly, the offer of offsets that it made was, according to the opinion of its consultant, in excess of the requirements to compensate for the loss of vegetation, particularly EEC, that had been occasioned in the course of boundary clearing. Finally, it accepted that the bond required to be lodged with the Minister to secure compliance with condition 41A and the statement of commitments would need to be increased beyond that which it had already provided. As the evidence of Mr Peart revealed, the estimated cost of complying with condition 41A alone was $57,524.

80 It must also be remembered that modification 4, with its acceptance of obligations outlined in the preceding paragraph, was made and determined before the defendant was charged with the present offence. In light of all these matters, I accept the submission of the defendant that it has demonstrated the contrition and remorse relevant to be considered as a mitigating factor in accordance with s 21A(3)(g) of the CSP Act.

81 Before turning from the topic of contrition, it is necessary to deal with a related submission by the defendant. It submitted that when determining the appropriate penalty, I should reflect, by way of monetary credit, the fact that the offer of offset areas and commitments made by it was substantially in excess of those offsets and works necessary to compensate for the loss of vegetation that it had occasioned. It further submitted that I should reflect in the penalty, by way of credit, the sum of $57,524 as the estimated cost of works and materials necessary to comply with condition 41A.

82 In order to address these submissions, it is necessary to recite the provisions of paragraph (i) of s 21A(3) which identifies as a mitigating factor to be taken into account -

i. the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

made reparation for such injury, loss or damage

83 The prosecutor submitted that the offer of offsets and commitments was no more than a reflection of the fact that the defendant was making reparation for the damage which its actions had occasioned. I accept that submission. It is consistent with the statutory provision. The fact of reparation as a demonstration of remorse is what the statutory provision addresses, not its quantum.

84 Moreover, the assertion that the defendant was “over-generous” in accepting the obligation that should be imposed upon it (assuming it otherwise to be relevant) was not established. While the defendant’s consultants may have held that opinion, those opinions were but part of the material considered in the Department of Planning assessment report when recommending approval of the modification application. Nothing in the evidence tendered before me suggests acceptance by the authors of the report that a greater obligation than was necessary was being imposed upon the defendant or that its offer was “over-generous”.

Plea of guilty

85 The defendant entered a plea of guilty to the offence and it did so upon the first return date of the summons pursuant to which it was charged (s 21A(3)(k) and s 22 of the CSP Act). It is entitled to a discount of 25 per cent for the utilitarian value of this plea (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLER 383 at [419].

Assistance to the prosecutor

86 Conformably with paragraphs (l) and (m) of s 21A(3) and ss 22A and 23 of the CSP Act, I take into account by way of mitigation the extent to which the defendant made disclosures to and co-operated with the prosecutor, once the lease boundary clearing was identified as having taken place unlawfully. By its letter of 21 May 2009 to the Department of Planning, the defendant disclosed its actions, illustrated by the provision of both an aerial photograph and photographs taken at ground level along the route of cleared vegetation. As already recorded, it provided a full environmental assessment of the impact of the works that had been undertaken and ultimately it co-operated with the prosecutor in settling the Statement of Agreed Facts upon which I have relied in preparing this judgment.

Parity

87 According to the researches of the parties and my own researches, the decision of Biscoe J in Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271 is the only case decided by this Court involving an offence under s 125 of the EPA Act by reason of a failure to comply with s 75D. The approval granted by the Minister to Coalpac included a condition which limited the annual tonnage of saleable coal from its colliery. During the year which was the subject of the charge against it, Coalpac Pty Ltd exceeded its annual tonnage by about 80 per cent. Notwithstanding knowledge during the year that the tonnage was likely to be exceeded, a conscious decision was made on behalf of the company to continue production, resulting in the exceedence to which I have referred.

88 It was accepted that there were no identified adverse environmental impacts from breach of the condition and that had a higher production limit been applied for, it is likely to have been the subject of approval. The gravamen of the offence in that case was the lost opportunity for prior environmental assessment and therefore damage to the integrity of the planning system.

89 In the result, Coalpac Pty Ltd was fined $200,000 and ordered to pay costs of $55,000. An early plea of guilty was entered; there was evidence that the company had provided some support to local community organisations; there was co-operation with the prosecutor and it was accepted that the company was genuinely remorseful.

90 While it is necessary to take into account the penalty imposed in Coalpac, the circumstances that pertained in that case indicate it to be a more serious offence than that committed by the present defendant. In particular, the production exceedence in Coalpac was intentional and that intention was maintained for “a significant period of time” (at [55]). Of particular significance in that case was the fact that the breach was committed with the intention of deriving significant increased revenue. In the present case, the defendant derived no direct pecuniary advantage by carrying out the clearing that it did and ultimately has imposed upon itself an additional financial burden.

91 There have been other prosecutions arising under s 125 of the EPA Act founded upon the removal of trees from land in breach of the provisions of Pt 4 of the EPA Act. However, neither party has suggested that any other case involving tree destruction identified a pattern of sentencing by reference to particular characteristics of the offences so charged which would inform an appropriate range within which the penalty, in the present case, would fall. Clearly, the decision in Coalpac identifies an outer limit for present purposes but, as I have indicated, I do not regard the present offence, having regard to all the circumstances, as involving the same level of seriousness.

Costs

92 The defendant has agreed to pay the prosecutor’s costs in the sum of $55,000.

93 It was submitted on behalf of the defendant that the amount of these costs should be taken into consideration with a commensurate reduction in the amount of the fine to be imposed. This submission was also made in respect of the costs of compliance with condition 41A of the modified approval. I have already dealt with the latter submission and say no more about it.

94 The submission by the defendant as to the costs and the commensurate reduction in the amount of fine to be imposed is a submission of a kind considered by Biscoe J in Environmental Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23 at [187]. For the reasons there articulated at [187] – [189], I reject the defendant’s submission. As was the case in Ramsey, there is no evidence before me to suggest either that the amount which the defendant has agreed to pay by way of costs will impact upon its ability to pay a fine otherwise appropriate to be imposed or that payment of a fine together with costs would impose undue hardship upon it. No submission was made by the defendant expressly invoking the provisions of s 6 of the Fines Act 1996.

Nature of the appropriate order

95 The defendant submits that in the context of the purpose to be served by imposition of a sentence, as that purpose is articulated in s 3A of the CSP Act, it is appropriate, in this case, to make an order of a kind sanctioned by s 126(3) of the EPA Act, in lieu of the imposition of a monetary penalty. Subsection (3) of s 126 provides as follows:

96 By application of those provisions, the defendant submits that it would be appropriate to impose an order in the following terms:

“(a) plant new trees and vegetation in the locations specified in condition 41A and the commitments in Schedule 3 relating to Biodiversity and contained in dot points 6-7 of those commitments contained in Project Approval 05_0117 granted by the Minister for Planning on 6 September 2005 as modified at the date of this Order; and

(b) maintain those trees and vegetation to a mature growth in accordance with the rehabilitation and offset management plan approved in accordance with condition 45 of the said Project Approval;

97 I do not accept that such an order is appropriate in the present circumstances. Properly analysed, the proposed order does no more than mandate compliance with the conditions of the approval, as those conditions have been imposed following modification 4. Those conditions and the need to comply with them operate by their own force, breach of which can be enforced by way of further prosecution or by civil enforcement. An order that requires obedience to a law by which the defendant is otherwise bound hardly gives effect to the purpose of sentencing, as articulated in s 3A of the CSP Act.

98 Moreover, enforcement of the obligations imposed upon the defendant by an order in the terms proposed by it presents difficulty. The approval attaches to the land and not to the defendant. The defendant may therefore divest itself of its title to the land and in so doing it would pass both the benefit of that approval and the burden of compliance with it. However, in the event of so divesting itself of its right to occupy the land, it is not clear to me how it could enforce, as against a successor in title, a right of entry to perform obligations imposed by the proposed order, in particular that imposed by proposed order (b).

Appropriate penalty

99 In the circumstances of this case, it is appropriate that the defendant be convicted of the offence charged and a fine imposed. The defendant did not make any submission against the entry of a conviction. Synthesising both the objective gravity of the offence and the subjective factors which favour the defendant, I consider that the appropriate penalty to be imposed is $100,000 to which a discount of 30 percent should be applied, resulting in a fine of $70,000.

100 The prosecutor seeks an order pursuant to s 122 of the Fines Act that one-half of the fine be paid to it. That order was not opposed by the defendant and accordingly I propose to accede to the prosecutor’s application.

Orders

101 For the reasons which I have articulated, the Court makes the following orders:

1. The defendant is convicted of the offence as charged.

2. The defendant is fined the sum of $70,000.

3. Direct that one-half of the fine imposed by Order 2 be paid to the prosecutor pursuant to s 122 of the Fines Act 1996.

4. The defendant is to pay the prosecutor’s costs in the agreed sum of $55,000.

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Citations

Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147

Most Recent Citation

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15

Misra v Campbelltown City Council [2025] NSWLEC 1744

Secretary, Department of Planning and Environment v Sell and Parker Pty Ltd [2022] NSWLEC 60

Stephen James Orr v Narrabri Coal Operations Pty Ltd; Stephen James Orr v Narrabri Coal Pty Ltd [2021] NSWLEC 85

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14

Statutory Material Cited

5

Pittwater Council v Scahill [2009] NSWLEC 12

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211

Hoare v The Queen [1989] HCA 33

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CITATION:	Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147
PARTIES:	PROSECUTOR Minister for Planning DEFENDANT Moolarben Coal Mines Pty Ltd
FILE NUMBER(S):	50073 of 2009
CORAM:	Craig J
KEY ISSUES:	ENVIRONMENTAL OFFENCES :- breach of s 125(1) of the Environmental Planning and Assessment Act 1979 - clearing of vegetation and erection of boundary fence - cleared vegetation included an ecologically endangered community - development in breach of approval granted for coalmining activities under s 75D of the Environmental Planning and Assessment Act 1979 - sentencing considerations - plea of guilty - harm to the integrity of the planning system by failing to seek approval before carrying out work.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Environmental Planning and Assessment Act 1979 Fines Act 1996 Mining Act 1992 Threatened Species Conservation Act 1995
CASES CITED:	Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 at [71]; (2006) 145 LGERA 234 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 at [72]; (2006) 146 LGERA 349 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Council of Camden v Tax [2004] NSWLEC 448; (2004) 137 LGERA 368 Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337 Hoare v The Queen (1989) 167 CLR 348 Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 R v Dodd (1991) 57 A Crim R 349 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLER 383 Veen v The Queen (No 2) (1988) 164 CLR 4645
DATES OF HEARING:	7 April 2010
DATE OF JUDGMENT:	11 August 2010
LEGAL REPRESENTATIVES:	PROSECUTOR I S Lloyd QC with M D Seymour (Barrister) SOLICITORS Holding Redlich Lawyers DEFENDANT S A Duggan (Barrister) SOLICITORS Sparke Helmore Lawyers