Natural Resources Access Regulator v Green Leaf Australia Group Pty Limited; Natural Resources Access Regulator v Xiuming Lin

[2024] NSWLC 2

Local Court

New South Wales

Medium Neutral Citation:

Natural Resources Access Regulator v Green Leaf Australia Group Pty Limited; Natural Resources Access Regulator v Xiuming Lin [2024] NSWLC 2

Hearing dates:

27, 28 and 29 November 2023, 1 December 2023, 22, 23, 26 and 29 April 2024 and 18 June 2024

Date of orders:

25 June 2024

Decision date:

25 June 2024

Jurisdiction:

Criminal

Before:

Nash LCM

Decision:

Verdicts of guilty, and alternative charges dismissed. See pars [644] – [648].

Catchwords:

Crime – alleged offences under the Water Management Act 2000 by a corporate land owner – commercial farming business cultivating tomato, cucumber and ginger crops – alleged use of dams without approval – alleged construction (extension) of dams without approval – alleged carrying out of controlled activities without approval – alternative charges of alleged construction of dams without approval – power of Natural Resources Access Regulator to institute and maintain prosecution proceedings – whether certain charges commenced after statutory time limitation had expired – consideration of rebuttable presumptions under s 367B of the Water Management Act 2000 – consideration of executive liability provisions for company directors under s 363 of the Water Management Act 2000 – consideration of deeming provision in s 91L of the Water Management Act 2000 – consideration of admissibility of evidence on voir dire relating to statutory notices issued to corporation and director under the Water Management Act 2000

Legislation Cited:

Criminal Procedure Act 1986 (NSW)

Crown Proceedings Act 1988 (NSW)

Evidence Act 1995 (NSW)

Interpretation Act 1987 (NSW)

Acts Interpretation Act 1901 (Cth)

National Parks and Wildlife Act 1974 (NSW)

Native VegetationAct 2003 (NSW)

Natural Resources Access Regulator Act 2017 (NSW)

State Records Act 1998 (NSW)

Water Act 1912 (NSW)

Water Management Act 2000 (NSW)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Arnold v Britton [2015] AC 1619

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17

Australian Securities and Investments Commission v King (2020) 270 CLR 1; [2020] HCA

Bell v Tasmania [2021] HCA 42

Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull (No 3) [2019] NSWLEC 165

Commissioner of Taxation v Consolidated Media (2012) 250 CLR 503

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297

Cumberland Council v Tony Younan; Cumberland Council v RonneyOueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145

Harvey v Minister for Primary Industry and Resources (2024) 98 ALJR 168

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Natural Resources Access Regulatorv Bao Lin Pty Ltd [2022] NSWLEC 42

Grant Barnes, Chief Regulatory Officer,Natural Resources Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5

Natural Resources Access Regulator v Littore [2024] NSWLEC 53

Ostrowski v Palmer (2004) 218 CLR 493

Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; 73 NSWLR 241

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Proudman v Dayman (1941) 67 CLR 536

R v A2 (2019) 269 CLR 507

R v Narouz [2024] NSWCCA 14

R v RB [2024] NSWSC 471

Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428

SAS Trustee Corporation v Miles (2018) 265 CLR 137

Somerville v Chief Executive of the Office of Environment and Heritage [2020] NSWCCA 93

Tesco Supermarkets Ltd v Nattrass [1972] AC 153

WaterNSW v Harris (No. 3) [2020] NSWLEC 18

Witheyman v Van Riet [2008] 2 Qd R 587; [2008] QCA 168

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Natural Resources Access Regulator (Prosecutor)
Green Leaf Australia Group Pty Limited (First Defendant)
Xiuming Lin (Second Defendant)

Representation:

Counsel:
Mr M McAuliffe (Prosecutor)
Mr N Carney (First and Second Defendants)

Solicitors:
Crown Solicitors Office NSW (Prosecutor)
JREA Legal (First and Second Defendants)

File Number(s):

2023/00068231, 2023/00068235, 2023/00068247, 2023/00068255, 2023/00068258, 2023/00068266, 2023/00068268, 2023/00068277, 2023/00068281, 2023/00068288, 2023/00068291, 2023/00068294, 2023/00068299, 2023/00068305, 2023/00068307, 2023/00068310, 2023/00068272, 2023/00068289, 2023/00068303, 2023/00068323, 2023/00068332, 2023/00068343, 2023/00068362, 2023/00068369, 2023/00068387, 2023/00068400, 2023/00068410, 2023/00068416, 2023/00068425, 2023/00068445, 2023/00068450, 2023/00068519

Publication restriction:

Nil

table of contents

A. INTRODUCTION

B. LEGISLATION

C. DIRECTIONS OF LAW

D. RELEVANT LEGAL PRINCIPLES

E. EVIDENCE IN THE PROSECUTION CASE

Evidence of Jennifer Davis (Days 1, 2, 3 and 6)

Evidence of Leann Davidson (Day 1)

Evidence of Claire McGarity (Day 2)

Exhibit 34

Evidence of Alexander Martin Stuart (Spatial Analyst) (Days 4 and 5)

Evidence of Dr Lachlan Copeland (Botanist) (Day 5)

Evidence of Mark Bonner (Day 6)

Evidence of Roger Newport (Day 7)

Evidence of Meiqin Chen (Day 7)

F. EVIDENCE IN THE DEFENCE CASE

G. FINDINGS

Time Limitation

Jurisdiction of the Natural Resources Access Regulator to Initiate and Maintain the Prosecution Proceedings

Application of s 392 of the WM Act

Specific Issues

Dam 1A (Charge 5)

Dam 1B (Charge 6)

Dam 4 (Charge 1)

Dam 4 (Charges 7 and 13)

Dam 5 (Charge 2)

Dam 5 (Charges 8 and 14)

Dam 6 (Charge 9)

Dam 7 (Charge 10)

Dams 8A and 9 (Charge 3)

Dam 8A and 9 (Charges 11 and 15)

Dam 8B (Charge 4)

Dam 8B (Charges 12 and 16)

Some Concluding Remarks

Reasons for Findings on the Admissibility of Exhibits 38 to 41

H. VERDICTS AND ORDERS

Judgment

A.   INTRODUCTION

1. Green Leaf Australia Group Pty Limited and Mr Xiuming Lin were each charged with several offences laid by the prosecutor, the Natural Resources Access Regulator, under the Water Management Act 2000 (NSW).

2. In these reasons, where it is appropriate in context, I will refer to the Natural Resources Access Regulator as ‘the prosecutor’. I will also refer to the Water Management Act 2000 (NSW) as ‘the WM Act’.

3. The WM Act provides a comprehensive statutory regime for the sustainable and integrated management of the water sources of New South Wales for the benefit of both present and future generations. It also encourages the sharing of responsibility for the sustainable and efficient use of water between the government and water users (WaterNSW v Harris (No. 3) [2020] NSWLEC 18 at [414]).

4. Mr Lin was a director of Green Leaf Australia Group Pty Ltd at all material times and all sets of proceedings against him, and that company, have been heard together. Sixteen charges were brought against the company, and there were 16 charges also brought against Mr Lin personally.

5. By agreement of the parties, but subject to one matter which I outline later in these reasons, all documentary and oral evidence which was tendered or given at the hearing was taken to have been adduced in each separate proceeding. These reasons are in respect of the determination of all 32 charges.

6. For the purposes of these remarks, I will refer to Green Leaf Australia Group Pty Limited as ‘the company’.

7. Where it is appropriate to do so in context, I will refer to the company and Mr Lin collectively as ‘the defendants’.

8. The defendants were charged with offences under Part 3 of Chapter 3 of the WM Act, and each were alleged to have been committed after 1 July 2016. The relevance of this date is explained later. The offences and their particulars, with the exclusion of the prosecutor’s reliance on extended liability, which I will explain later, were identical for each defendant.

9. The charges against the company were as follows (which are set out verbatim from each of the Court Attendance Notices, albeit omitting what is referred to as ‘Annexure A’ in each notice).

10. Charge 1:

Details of Offence

Description of Offence: 

Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

On 24 February 2021.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440.

Short Particulars: 

On 24 February 2021, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), used a water supply work and did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant used a water supply work

On 24 February 2021, a water supply work, being a dam situated on Lot 1013 DP 849050 at the Property (Dam 4), was used by the defendant for the purpose of storing water. Dam 4 was situated at or around GPS coordinates -30.926262 (latitude) 152.946955 (longitude) in the location labelled “Dam 4” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) The defendant did not hold a water supply work approval for that work

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

On 24 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 4.

c) Alternative legal basis to establish liability

In the alternative to the Defendant being in direct contravention of s 91B(1):

i During the said period, Xiuming Lin (the Defendant’s Director) contravened s 91B(1) of the WM Act, in that, he used Dam 4 to store water, being a dam located on the Property at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in circumstances where there was no water supply work approval for Dam 4;

ii In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

11. Charge 2:

Details of Offence

Description of Offence: 

Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

On 24 February 2021.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440.

Short Particulars: 

On 24 February 2021, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), used a water supply work and did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant used a water supply work

On 24 February 2021, a water supply work, being a dam situated on Lot 1013 DP 849050 at the Property (Dam 5), was used by the defendant for the purpose of storing water. Dam 5 was situated at or around GPS coordinates -30.927430 (latitude) 152.950352 (longitude) in the location labelled “Dam 5” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) The defendant did not hold a water supply work approval for that work

On 24 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 5.

c) Alternative legal basis to establish liability

In the alternative to the Defendant being in direct contravention of s 91B(1):

i. During the said period, Xiuming Lin (the Defendant’s Director) contravened s 91B(1) of the WM Act, in that, he used Dam 5 to store water, being a dam located on the Property at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in circumstances where there was no water supply work approval for Dam 5;

ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against

s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

12. Charge 3:

Details of Offence

Description of Offence: 

Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

On 25 February 2021.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440.

Short Particulars: 

On 25 February 2021, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), used a water supply work and did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant used a water supply work

On 25 February 2021, a water supply work situated on Lot 1013 DP 849050 at the Property (Dam 8A and 9), was used by the defendant for the purpose of storing water. Dam 8A and 9 was situated at or around GPS coordinates -30.923685 (latitude) 152.951767 (longitude) in the location labelled “Dam 8A and 9” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) The defendant did not hold a water supply work approval for that work

On 25 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 8A and 9.

c) Alternative legal basis to establish liability

In the alternative to the Defendant being in direct contravention of s 91B(1):

i. During the said period, Xiuming Lin (the Defendant’s Director) contravened s 91B(1) of the WM Act, in that, he used Dam 8A and 9 to store water, being a dam located on the Property at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in circumstances where there was no water supply work approval for Dam 8A and 9;

ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against

s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

13. Charge 4:

Details of Offence

Description of Offence: 

Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

On 25 February 2021.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440.

Short Particulars: 

On 25 February 2021, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), used a water supply work and did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant used a water supply work

On 25 February 2021, a water supply work, being a dam situated on Lot 1013 DP 849050 at the Property (Dam 8B), was used by the defendant for the purpose of storing water. Dam 8B was situated at or around GPS coordinates

-30.923804 (latitude) 152.952075 (longitude) in the location labelled “Dam 8B” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) The defendant did not hold a water supply work approval for that work

On 25 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 8B.

c) Alternative legal basis to establish liability

In the alternative to the Defendant being in direct contravention of s 91B(1):

i. During the said period, Xiuming Lin (the Defendant’s Director) contravened s 91B(1) of the WM Act, in that, he used Dam 8B to store water, being a dam located on the Property at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in circumstances where there was no water supply work approval for Dam 8B;

ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against

s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

14. Charge 5:

Details of Offence

Description of Offence: 

Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act)

Time & Date of Offence: 

Between about 29 December 2019 and about 2 January 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 29 December 2019 and about 2 January 2020, the Defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), constructed a water supply work and did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant constructed a water supply work

Between around 29 December 2019 and 2 January 2020, the defendant constructed a water supply work, in that, the defendant extended the dam wall of Dam 1A situated on Lot 1013 DP 849050 and located at around GPS coordinates

-30.921575 (latitude) 152.946231 (longitude), in the location labelled “Dam 1A” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) The defendant did not hold a water supply work approval for that work

No person, including the Defendant, has ever held a water supply work approval for Dam 1A.

c) Alternative legal basis to establish liability

In the alternative to the Defendant being in direct contravention of s 91B(1):

i.   During the said period, Xiuming Lin (the Defendant’s Director) contravened s 91B(1) of the WM Act, in that, he extended the dam wall of Dam 1A at the Property, being a dam located at around GPS coordinates -30.921575 (latitude) 152.946231 (longitude), within Lot 1013 DP 849050, in circumstances where there was no water supply work approval for Dam 1A;

ii.   In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

15. Charge 6:

Details of Offence

Description of Offence: 

Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act)

Time & Date of Offence: 

Between about 6 October 2016 and about 17 November 2016.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 6 October 2016 and about 17 November 2016, the Defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), constructed a water supply work and did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant constructed a water supply work

Between about 6 October 2016 and about 17 November 2016, the defendant constructed a water supply work, in that, the defendant extended the dam wall of Dam 1B situated on Lot 1013 DP 849050 and located at around GPS coordinates

-30.923143 (latitude) 152.949307 (longitude), in the location labelled “Dam 1B” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) The defendant did not hold a water supply work approval for that work

No person, including the Defendant, has ever held a water supply work approval for Dam 1B.

c) Alternative legal basis to establish liability

In the alternative to the Defendant being in direct contravention of s 91B(1):

i.   During the said period, Xiuming Lin (the Defendant’s Director) contravened s 91B(1) of the WM Act, in that, he extended the dam wall of Dam 1B at the Property, being a dam located at around GPS coordinates -30.923143 (latitude) 152.949307 (longitude), within Lot 1013 DP 849050, in circumstances where there was no water supply work approval for Dam 1B;

ii.   In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

16. Charge 7:

Details of Offence

Description of Offence: 

Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 13 December 2017 and about 1 April 2018.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 13 December 2017 and about 1 April 2018, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), carried out a controlled activity on waterfront land and did not hold a controlled activity approval for that activity.

Further Particulars:

a) The defendant carried out a controlled activity

Between about 13 December 2017 and about 1 April 2018, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in the location labelled “Dam 4” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) On waterfront land

At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland.

c) The defendant did not hold a controlled activity approval for the activity

No person, including the defendant, has ever held a controlled activity approval for the said controlled activity.

d) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91E(1):

i. During the said period, Xiuming Lin (the defendant’s Director) contravened s 91E(1) of the WM Act, in that, he removed material, whether personally or by direction, from the Property at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in circumstances where there was no controlled activity approval for the activity;

ii. In the circumstances and by reason of the defendant being the Occupier of the Property during the said period, the defendant is taken to have committed the offence against

s 91E(1) of the WM Act by the application of s 91L(1)(b) of the WM Act.

e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

17. Charge 8 (as amended without objection at the hearing):

Details of Offence

Description of Offence: 

Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 7 November 2019 and about 16 March 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 7 November 2019 and about 16 March 2020, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), carried out a controlled activity on waterfront land and did not hold a controlled activity approval for that activity.

Further Particulars:

a) The defendant carried out a controlled activity

Between about 7 November 2019 and about 16 March 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in the location labelled “Dam 5” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) on waterfront land

At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland.

c) The defendant did not hold a controlled activity approval for the activity

No person, including the defendant, has ever held a controlled activity approval for the said controlled activity.

d) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91E(1):

i. During the said period, Xiuming Lin (the defendant’s Director) contravened s 91E(1) of the WM Act, in that, he removed material, whether personally or by direction, from the Property at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in circumstances where there was no controlled activity approval for the activity;

ii. In the circumstances and by reason of the defendant being the Occupier of the Property during the said period, the defendant is taken to have committed the offence against

s 91E(1) of the WM Act by the application of s 91L(1)(b) of the WM Act.

e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

18. Charge 9:

Details of Offence

Description of Offence: 

Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 7 November 2019 and about 14 February 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 7 November 2019 and about 14 February 2020, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), carried out controlled activity on waterfront land and did not hold a controlled activity approval for that activity.

Further Particulars:

a) The defendant carried out a controlled activity

Between about 7 November 2019 and about 14 February 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.928005 (latitude) 152.950386 (longitude), in the location labelled “Dam 6” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) on waterfront land

At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland.

c) The defendant did not hold a controlled activity approval for the activity

No person, including the defendant, has ever held a controlled activity approval for the said controlled activity.

d) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91E(1):

i. During the said period, Xiuming Lin (the defendant’s Director) contravened s 91E(1) of the WM Act, in that, he removed material, whether personally or by direction, from the Property at around GPS coordinates -30.928005 (latitude) 152.950386 (longitude), in circumstances where there was no controlled activity approval for the activity;

ii. In the circumstances and by reason of the defendant being the Occupier of the Property during the said period, the defendant is taken to have committed the offence against

s 91E(1) of the WM Act by the application of s 91L(1)(b) of the WM Act.

e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

19. Charge 10:

Details of Offence

Description of Offence: 

Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 27 January 2020 and about 15 January 2021.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 27 January 2020 and about 15 January 2021, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), carried out a controlled activity on waterfront land and did not hold a controlled activity approval for that activity.

Further Particulars:

a) The defendant carried out a controlled activity

Between about 27 January 2020 and about 15 January 2021, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.928123 (latitude) 152.951472 (longitude), in the location labelled “Dam 7” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) On waterfront land

At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland.

c) The defendant did not hold a controlled activity approval for the activity

No person, including the defendant, has ever held a controlled activity approval for the said controlled activity.

d) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91E(1):

i. During the said period, Xiuming Lin (the defendant’s Director) contravened s 91E(1) of the WM Act, in that, he removed material, whether personally or by direction, from the Property at around GPS coordinates -30.928123 (latitude) 152.951472 (longitude), in circumstances where there was no controlled activity approval for the activity;

ii. In the circumstances and by reason of the defendant being the Occupier of the Property during the said period, the defendant is taken to have committed the offence against

s 91E(1) of the WM Act by the application of s 91L(1)(b) of the WM Act.

e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

20. Charge 11 (as amended without objection at the hearing):

Details of Offence

Description of Offence: 

Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 14 February 2020 and about 28 July 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 14 February 2020 and about 28 July 2020, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), carried out a controlled activity on waterfront land and did not hold a controlled activity approval for that activity.

Further Particulars:

a) The defendant carried out a controlled activity

Between about 14 February 2020 and about 28 July 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in the location labelled “Dam 8A and 9” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) On waterfront land

At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland.

c) The defendant did not hold a controlled activity approval for the activity

No person, including the defendant, has ever held a controlled activity approval for the said controlled activity.

d) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91E(1):

i. During the said period, Xiuming Lin (the defendant’s Director) contravened s 91E(1) of the WM Act, in that, he removed material, whether personally or by direction, from the Property at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in circumstances where there was no controlled activity approval for the activity;

ii. In the circumstances and by reason of the defendant being the Occupier of the Property during the said period, the defendant is taken to have committed the offence against

s 91E(1) of the WM Act by the application of s 91L(1)(b) of the WM Act.

e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

21. Charge 12:

Details of Offence

Description of Offence: 

Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 14 February 2020 and about 16 March 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 14 February 2020 and about 16 March 2020, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), carried out a controlled activity on waterfront land and did not hold a controlled activity approval for that activity.

Further Particulars:

a) The defendant carried out a controlled activity

Between about 14 February 2020 and about 16 March 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in the location labelled “Dam 8B” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) On waterfront land

At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland.

c) The defendant did not hold a controlled activity approval for the activity

No person, including the defendant, has ever held a controlled activity approval for the said controlled activity.

d) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91E(1):

i.During the said period, Xiuming Lin (the defendant’s Director) contravened s 91E(1) of the WM Act, in that, he removed material, whether personally or by direction, from the Property at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in circumstances where there was no controlled activity approval for the activity;

ii.In the circumstances and by reason of the defendant being the Occupier of the Property during the said period, the defendant is taken to have committed the offence against

s 91E(1) of the WM Act by the application of s 91L(1)(b) of the WM Act.

e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

22. Charge 13:

Details of Offence

Description of Offence: 

Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 13 December 2017 and about 1 April 2018.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 13 December 2017 and about 1 April 2018, the Defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), constructed a water supply work and did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant constructed a water supply work

Between about 13 December 2017 and about 1 April 2018, the defendant constructed a water supply work located at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in the location labelled “Dam 4” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) The defendant did not hold a water supply work approval for that work

No person, including the Defendant, has ever held a water supply work approval for Dam 4.

c) Alternative legal basis to establish liability

In the alternative to the Defendant being in direct contravention to s 91B(1):

i. During the said period, Xiuming Lin (the Defendant’s Director) contravened s 91B(1) of the WM Act, in that, he constructed Dam 4 at the Property, being a dam located at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in circumstances where there was no water supply work approval for Dam 4;

ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

23. Charge 14 (as amended without objection at the hearing):

Details of Offence

Description of Offence: 

Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 7 November 2019 and about 16 March 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 7 November 2019 and about 16 March 2020, the Defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), constructed a water supply work and did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant constructed a water supply work

Between about 7 November 2019 and about 16 March 2020, the defendant constructed a water supply work located at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in the location labelled “Dam 5” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) The defendant did not hold a water supply work approval for that work

No person, including the Defendant, has ever held a water supply work approval for Dam 5.

c) Alternative legal basis to establish liability

In the alternative to the Defendant being in direct contravention to s 91B(1):

i. During the said period, Xiuming Lin (the Defendant’s Director) contravened s 91B(1) of the WM Act, in that, he constructed Dam 5 at the Property, being a dam located at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in circumstances where there was no water supply work approval for Dam 5;

ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

24. Charge 15 (as amended without objection at the hearing):

Details of Offence

Description of Offence: 

Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 14 February 2020 and about 28 July 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 14 February 2020 and about 28 July 2020, the Defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), constructed a water supply work and did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant constructed a water supply work

Between about 14 February 2020 and about 28 July 2020, the defendant constructed a water supply work located at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in the location labelled “Dam 8A and 9” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) The defendant did not hold a water supply work approval for that work

No person, including the Defendant, has ever held a water supply work approval for Dam 8A and 9.

c) Alternative legal basis to establish liability

In the alternative to the Defendant being in direct contravention to s 91B(1):

i. During the said period, Xiuming Lin (the Defendant’s Director) contravened s 91B(1) of the WM Act, in that, he constructed Dam 8A and 9 at the Property, being a dam located at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in circumstances where there was no water supply work approval for Dam 8A and 9;

ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

25. Charge 16:

Details of Offence

Description of Offence: 

Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 14 February 2020 and about 16 March 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 14 February 2020 and about 16 March 2020, the Defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), constructed a water supply work and did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant constructed a water supply work

Between about 14 February 2020 and about 16 March 2020, the defendant constructed a water supply work located at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in the location labelled “Dam 8B” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times.

b) The defendant did not hold a water supply work approval for that work

No person, including the Defendant, has ever held a water supply work approval for Dam 8B.

c) Alternative legal basis to establish liability

In the alternative to the Defendant being in direct contravention to s 91B(1):

i. During the said period, Xiuming Lin (the Defendant’s Director) contravened s 91B(1) of the WM Act, in that, he constructed Dam 8B at the Property, being a dam located at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in circumstances where there was no water supply work approval for Dam 8B;

ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

26. The charges against Mr Lin were as follows (which are set out verbatim from each of the Court Attendance Notices, albeit omitting what is referred to as ‘Annexure A’ in each notice).

27. Charge 1:

Details of Offence

Description of Offence: 

Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act)

Time & Date of Offence: 

On 24 February 2021

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

On 24 February 2021, the defendant, used a water supply work to store water at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant used a water supply work

On 24 February 2021, a water supply work, being a dam situated on Lot 1013 DP 849050 at the Property (Dam 4), was used by the defendant for the purpose of storing water. Dam 4 was situated at or around GPS coordinates -30.926262 (latitude) 152.946955 (longitude) in the location labelled “Dam 4” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) The defendant did not hold a water supply work approval for that work

On 24 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 4.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91B(1):

i. During the said period, Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it used a water supply work, namely Dam 4, to store water, located on the Property at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in circumstances where there was no water supply work approval for Dam 4; and

ii. By reason of the defendant being a director of Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the use of Dam 4, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

28. Charge 2:

Details of Offence

Description of Offence: 

Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act)

Time & Date of Offence: 

On 24 February 2021

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

On 24 February 2021, the defendant, used a water supply work to store water at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant used a water supply work

On 24 February 2021, a water supply work, being a dam situated on Lot 1013 DP 849050 at the Property (Dam 5), was used by the defendant for the purpose of storing water. The Dam was situated at or around GPS coordinates -30.927430 (latitude) 152.950352 (longitude) in the location labelled “Dam 5” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) The defendant did not hold a water supply work approval for that work

On 24 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 5.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91B(1):

i. During the said period, Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it used a water supply work, namely Dam 5, to store water, located on the Property at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in circumstances where there was no water supply work approval for Dam 5; and

ii. By reason of the defendant being a director of Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the use of the dam, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

29. Charge 3:

Details of Offence

Description of Offence: 

Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act)

Time & Date of Offence: 

On 25 February 2021

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

On 25 February 2021, the defendant, used a water supply work to store water at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant used a water supply work

On 25 February 2021, a water supply work situated on Lot 1013 DP 849050 at the Property (Dam 8A & 9), was used by the defendant for the purpose of storing water. Dam 8A and 9 was situated at or around GPS coordinates -30.923685 (latitude) 152.951767 (longitude) in the location labelled “Dam 8A & 9” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) The defendant did not hold a water supply work approval for that work

On 25 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 8A and 9.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91B(1):

i. During the said period, Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it used a water supply work, namely Dam 8A and 9, to store water, located on the Property at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in circumstances where there was no water supply work approval for Dam 8A and 9; and

ii. By reason of the defendant being a director of Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the use of Dam 8A and 9, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

30. Charge 4:

Details of Offence

Description of Offence: 

Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act)

Time & Date of Offence: 

On 24 February 2021

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

On 24 February 2021, the defendant, used a water supply work to store water at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant used a water supply work

On 24 February 2021, a water supply work, being a dam situated on Lot 1013 DP 849050 at the Property (Dam 8B), was used by the defendant for the purpose of storing water. Dam 8B was situated at or around GPS coordinates

-30.923804 (latitude) 152.952075 (longitude) in the location labelled “Dam 8B” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) The defendant did not hold a water supply work approval for that work

On 24 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 8B.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91B(1):

i. During the said period, Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it used a water supply work, namely Dam 8B, to store water, located on the Property at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in circumstances where there was no water supply work approval for Dam 8B; and

ii. By reason of the defendant being a director of Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the use of Dam 8B, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

31. Charge 5:

Details of Offence

Description of Offence: 

Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 29 December 2019 and about 2 January 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440.

Short Particulars: 

Between about 29 December 2019 and about 2 January 2020, the defendant, constructed a water supply work at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 within Lot 1013 DP 849050 (the Property), in that, he extended a dam wall and did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant used a water supply work

Between about 29 December 2019 and about 2 January 2020, the defendant constructed a water supply work, in that, the defendant extended the dam wall of Dam 1A situated on Lot 1013 DP 849050 and located at around GPS coordinates

-30.921575 (latitude) 152.946231 (longitude), in the location labelled “Dam 1A” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) The defendant did not hold a water supply work approval for that work

No person, including the defendant, has ever held a water supply work approval for Dam 1A.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91B(1):

i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it constructed a water supply works, namely, Dam 1A to store water, located on the Property at around GPS coordinates -30.921575 (latitude) 152.946231 (longitude), in circumstances where there was no water supply work approval for Dam 1A; and

ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the construction of Dam 1A, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

32. Charge 6:

Details of Offence

Description of Offence: 

Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 6 October 2016 and about 17 November 2016.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440.

Short Particulars: 

Between about 6 October 2016 and about 17 November 2016, the defendant, constructed a water supply work at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 within Lot 1013 DP 849050 (the Property), in that, he extended a dam wall and did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant used a water supply work

Between about 6 October 2016 and about 17 November 2016, the defendant constructed a water supply work, in that, the defendant extended the dam wall of Dam 1B situated on Lot 1013 DP 849050 and located at around GPS coordinates

-30.923143 (latitude) 152.949307 (longitude), in the location labelled “Dam 1B” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) The defendant did not hold a water supply work approval for that work

No person, including the defendant, has ever held a water supply work approval for Dam 1B.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91B(1):

i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it constructed a water supply works, namely, Dam 1B to store water, located on the Property at around GPS coordinates -30.923143 (latitude) 152.949307 (longitude), in circumstances where there was no water supply work approval for Dam 1B; and

ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the construction of Dam 1B, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

33. Charge 7:

Details of Offence

Description of Offence: 

Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 13 December 2017 and about 1 April 2018.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 13 December 2017 and about 1 April 2018, the defendant, carried out a controlled activity on waterfront land at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a controlled activity approval for that activity.

Further Particulars:

a) The defendant carried out a controlled activity

Between about 13 December 2017 and about 1 April 2018, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in the location labelled “Dam 4” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) On waterfront land

At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland.

c) The defendant did not hold a controlled activity approval for the activity

No person, including the defendant, has ever held a controlled activity approval for the said controlled activity.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91E(1):

i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91E(1) of the WM Act, in that it carried out a controlled activity on waterfront land by removing material at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in the location labelled “Dam 4”, in circumstances where there was no controlled activity approval for the said controlled activity; and

ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the controlled activity, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 363(1) of the WM Act.

e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

34. Charge 8 (as amended without objection at the hearing):

Details of Offence

Description of Offence: 

Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 7 November 2019 and about 16 March 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 7 November 2019 and about 16 March 2020, the defendant, carried out a controlled activity on waterfront land at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a controlled activity approval for that activity.

Further Particulars:

a) The defendant carried out a controlled activity

Between about 7 November 2019 and about 16 March 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in the location labelled “Dam 5” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) On waterfront land

At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland.

c) The defendant did not hold a controlled activity approval for the activity

No person, including the defendant, has ever held a controlled activity approval for the said controlled activity.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91E(1):

i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91E(1) of the WM Act, in that it carried out a controlled activity on waterfront land by removing material at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in the location labelled “Dam 5”, in circumstances where there was no controlled activity approval for the said controlled activity; and

ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the controlled activity, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 363(1) of the WM Act.

e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

35. Charge 9:

Details of Offence

Description of Offence: 

Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 7 November 2019 and about 14 February 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 7 November 2019 and about 14 February 2020, the defendant, carried out a controlled activity on waterfront land at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a controlled activity approval for that activity.

Further Particulars:

a) The defendant carried out a controlled activity

Between about 7 November 2019 and about 14 February 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.928005 (latitude) 152.950386 (longitude), in the location labelled “Dam 6” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) On waterfront land

At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland.

c) The defendant did not hold a controlled activity approval for the activity

No person, including the defendant, has ever held a controlled activity approval for the said controlled activity.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91E(1):

i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91E(1) of the WM Act, in that it carried out a controlled activity on waterfront land by removing material at around GPS coordinates -30.928005 (latitude) 152.950386 (longitude), in the location labelled “Dam 6”, in circumstances where there was no controlled activity approval for the said controlled activity; and

ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the controlled activity, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 363(1) of the WM Act.

e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

36. Charge 10:

Details of Offence

Description of Offence: 

Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 27 January 2020 and about 15 January 2021.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 27 January 2020 and about 15 January 2021, the defendant, carried out a controlled activity on waterfront land at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a controlled activity approval for that activity.

Further Particulars:

a) The defendant carried out a controlled activity

Between about 27 January 2020 and about 15 January 2021, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.928123 (latitude) 152.951472 (longitude), in the location labelled “Dam 7” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) On waterfront land

At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland.

c) The defendant did not hold a controlled activity approval for the activity

No person, including the defendant, has ever held a controlled activity approval for the said controlled activity.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91E(1):

i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91E(1) of the WM Act, in that it carried out a controlled activity on waterfront land by removing material at around GPS coordinates -30.928123 (latitude) 152.951472 (longitude), in the location labelled “Dam 7”, in circumstances where there was no controlled activity approval for the said controlled activity; and

ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the controlled activity, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 363(1) of the WM Act.

e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

37. Charge 11 (as amended without objection at the hearing):

Details of Offence

Description of Offence: 

Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 14 February 2020 and about 28 July 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 14 February 2020 and about 28 July 2020, the defendant, carried out a controlled activity on waterfront land at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a controlled activity approval for that activity.

Further Particulars:

a) The defendant carried out a controlled activity

Between about 14 February 2020 and about 28 July 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in the location labelled “Dam 8A and 9” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) On waterfront land

At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland.

c) The defendant did not hold a controlled activity approval for the activity

No person, including the defendant, has ever held a controlled activity approval for the said controlled activity.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91E(1):

i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91E(1) of the WM Act, in that it carried out a controlled activity on waterfront land by removing material at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in the location labelled “Dam 8A and 9”, in circumstances where there was no controlled activity approval for the said controlled activity; and

ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the controlled activity, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 363(1) of the WM Act.

e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

38. Charge 12:

Details of Offence

Description of Offence: 

Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 14 February 2020 and about 16 March 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 14 February 2020 and about 16 March 2020, the defendant, carried out a controlled activity on waterfront land at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a controlled activity approval for that activity.

Further Particulars:

a) The defendant carried out a controlled activity

Between about 14 February 2020 and about 16 March 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in the location labelled “Dam 8B” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) On waterfront land

At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland.

c) The defendant did not hold a controlled activity approval for the activity

No person, including the defendant, has ever held a controlled activity approval for the said controlled activity.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91E(1):

i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91E(1) of the WM Act, in that it carried out a controlled activity on waterfront land by removing material at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in the location labelled “Dam 8B”, in circumstances where there was no controlled activity approval for the said controlled activity; and

ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the controlled activity, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 363(1) of the WM Act.

e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

39. Charge 13:

Details of Offence

Description of Offence: 

Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 13 December 2017 and about 1 April 2018.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440.

Short Particulars: 

Between about 13 December 2017 and about 1 April 2018, the Defendant, constructed a water supply work at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the Defendant did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant constructed a water supply work

Between about 13 December 2017 and about 1 April 2018, the defendant constructed a water supply work within Lot 1013 DP 849050 at the Property at GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in the location labelled “Dam 4” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) The defendant did not hold a water supply work approval for that work

No person, including the Defendant, has ever held a water supply work approval for Dam 4.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91B(1):

i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it constructed a water supply work, namely Dam 4, to store water, located on the Property at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in circumstances where there was no water supply work approval for Dam 4; and

ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the construction of Dam 4, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

40. Charge 14 (as amended without objection at the hearing):

Details of Offence

Description of Offence: 

Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 7 November 2019 and about 16 March 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 7 November 2019 and about 16 March 2020, the Defendant, constructed a water supply work at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the Defendant did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant constructed a water supply work

Between about 7 November 2019 and about 16 March 2020, the defendant constructed a water supply work within Lot 1013 DP 849050 at the Property at GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in the location labelled “Dam 5” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) The defendant did not hold a water supply work approval for that work

No person, including the Defendant, has ever held a water supply work approval for Dam 5.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91B(1):

i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it constructed a water supply work, namely Dam 5, to store water, located on the Property at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in circumstances where there was no water supply work approval for Dam 5; and

ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the construction of Dam 5, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

41. Charge 15 (as amended without objection at the hearing):

Details of Offence

Description of Offence: 

Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act).

Time & Date of Offence: 

Between about 14 February 2020 and about 28 July 2020.

Place of Offence: 

At or near 2302 Macleay Valley Way, Clybucca NSW 2440

Short Particulars: 

Between about 14 February 2020 and about 28 July 2020, the Defendant, constructed a water supply work at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the Defendant did not hold a water supply work approval for that work.

Further Particulars:

a) The defendant constructed a water supply work

Between about 14 February 2020 and about 28 July 2020, the defendant constructed a water supply work within Lot 1013 DP 849050 at the Property at GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in the location labelled “Dam 8A and 9” on the map of the Property annexed to this Court Attendance Notice and marked “Annexure A”.

b) The defendant did not hold a water supply work approval for that work

No person, including the Defendant, has ever held a water supply work approval for Dam 8A and 9.

c) Alternative legal basis to establish liability

In the alternative to the defendant being in direct contravention of s 91B(1):

i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it constructed a water supply work, namely Dam 8A and 9, to store water, located on the Property at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in circumstances where there was no water supply work approval for Dam 8A and 9; and

ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the construction of Dam 8A and 9, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act.

d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020.

Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

623. Ms Chen gave evidence that more than 5 years ago, the Property experienced a period of drought which impacted the crops. Ms Chen stated that the drought was “really bad” and there “was not even a drop of water in our reservoir”. She stated that plants died which inflicted a financial loss on the company. This was consistent with Mr Lin’s recorded interview in which he said: “…in 2019 it was a really dry year and all the tomatoes put there, there was insufficient water and they died…”.

624. The expert report of Dr Geoff Cresswell is Exhibit 45. It was Mr Cresswell’s opinion that the Property had 2 sources of water: a bore which supplies water that is too saline for irrigation, and rainfall. Dr Cresswell stated:

“There are no rivers or permanent water courses on the property. The only possible way to farm this property is to collect and store some of the water that falls on the land. Local rainfall records suggest that the volume of water falling on the farm is approximately 1,486ML in a wet year and 681ML in a dry year. In reality, less than half of this is available because much of the rainwater soaks into the soil. Only surface flows of water can be collected which are confined to times of heavy and continuous rain.”

626. Dr Cresswell calculated that the annual water requirement for the operations at the Property is a maximum of 154 mega litres. Significantly, Dr Cresswell stated that “[i]t is very clear from this analysis that the viability of the farm depends on having the capacity to capture and store large volumes of rainwater.”

627. Due to the unsuitability of groundwater at the Property, the 2019 drought, and the dependence of the viability of the company’s operations on the ability to capture and store rainwater, I find that the offences can be explained by the defendants’ motivation to construct and extend the various water supply works and controlled activities, in particular those concerning Dams 1A, 1B, 4, 5, 8A and 9.

628. Complementing the evidence of motive is the presence of excavators “suitable for use in earthmoving” on the Property during the charge periods. Mr Newport gave evidence that the company purchased two 8 tonne excavators when the farm was being established in 2013. On 27 February 2015, Mark Bonner photographed an excavator next to Dam 1. Ms Davis also observed and photographed 2 excavators at the Property on 25 February 2021, and on multiple occasions between 2016 and 2020 the company hired excavators suitable for use with earth moving from Tutt Bryant Hire Coffs Harbour. Mr Newport’s evidence was that Mr Lin was the only person with authority to give a direction to hire an excavator.

629. These observations fortify, but do not necessarily justify, my view about the commission of the offences.

Reasons for Findings on the Admissibility of Exhibits 38 to 41

630. During the hearing, various objections were taken to the admission of certain documents into evidence. These are my reasons for how I have determined each of the objections.

631. On day 3, day 5 and day 6 of the hearing, a voir dire was held on the admissibility of the documents which were ultimately tendered as Exhibits 38 to 41, being the notices served on Mr Lin, as well as his responses to the notices, and the recorded interview between officers of the Natural Resources Access Regulator and Mr Lin.

632. As I said earlier, all evidence tendered or given at the hearing, by agreement of the parties, was adduced in each of the 32 separate proceedings. An issue arose, however, regarding the admissibility of the documents comprising Exhibits 38 to 41 (inclusive) insofar as concerned each of the proceedings against Mr Lin in his personal capacity as a director of the company. Objection was not taken to the admission of those documents in each of the various proceedings brought against the company.

633. In particular, it was, first, submitted that the documents were not admissible in the various proceedings against Mr Lin personally because of the content of the warning given in these terms as set out in the subject notices:

“However, if you are a natural person (that is, an individual rather than a company or other incorporated body) you may object to providing information which is required by this Notice, on the ground that the information might incriminate you. You must still provide the information, but it is not admissible in evidence against you in criminal proceedings if you make this objection, except for an offence under section 340A of the WM Act, including the offence of knowingly answering a question falsely or in a way that is misleading in a material respect”.

634. Importantly, the notice also says that the warning is given for the purposes of section 340B of the WM Act.

635. In relation to, secondly, the record of interview, it was submitted that the translation of the caution or warning required under s 340B(3) of the WM Act was incorrect, misleading and therefore unfair to Mr Lin, with the effect that his answers in the interview should not be permitted to be used against him.

636. In this respect, Mr Lin tendered and relied on an expert report of Hongbo Shao which was marked as Exhibit 5 (on the voir dire only). For completeness, I have reproduced the entire content of that report, and I have italicised the answer to each question that was asked in the letter of instruction.

637. In Q12 (at about 08.20 to 09.00 minutes) there are two references made to the English word “dam”.

1. What is the Chinese term/translation for the word “dam” provided by the official interpreter in the video?

The official interpreter used the term equivalent to the English word “pond” in Chinese.

2. Please provide both Chinese Characters and Pinyin (Chinese spelling with English characters).

I understand the word in Chinese used by the official interpreter is “塘” in Chinese character with the spelling “TANG” with the second/rising tone in Chinese pronunciation. For reference, there are usually four tones in Chinese pronunciation of the Chinese character, first/level tone (一声、阴平), second/rising tone (二声、阳平), third/falling-rising tone (三声、上声) and fourth/falling tone (四声、去声).

3. In your opinion, is this translation accurate? If not, why not?

In my opinion, the translation used by the official interpreter is not accurate because the meaning of the word “dam” is significantly different from the word “pond” in Chinese.

4. In Q57 and Q58 (starting at about 37:00 minutes), there are 7 references to the English word “dam”.

1. What is the Chinese term/translation for the word “dam” provided by the female interpreter in the video?

The official interpreter used the term equivalent to the English word “pond” in Chinese.

2. Please provide both Chinese Characters and Pinyin (Chinese spelling with English character).

I understand the word in Chinese used by the official interpreter is “塘” in Chinese character with the spelling “TANG” with the second/rising tone in Chinese pronunciation. For reference, there are usually four tones in Chinese pronunciation of the Chinese character, first/level tone (一声、阴平), second/rising tone (二声、阳平), third/falling-rising tone (三声、上声) and fourth/falling tone (四声、去声).

3. In your opinion, is this translation accurate? If not, why not?

The official interpreter used the term equivalent to the English word “pond” in Chinese. The word “dam” is defined as “a wall or bank artificially built across the river or creek to keep the water back or to hold the water to form a reservoir” while the word “pond” refers to “a relatively small area that holds water which is manually made or a body of water that naturally forms”.

5. What word in Chinese would be more accurate as a translation for dam, in the context of agriculture?

I would use the word “坝” in Chinese with the pronunciation of “BA” with the fourth/falling tone.

6. Does the Chinese word that was used by the official interpreter have substantially the same meaning as the Chinese word that you may consider is the more appropriate interpretation?

No, the word I would use which in my opinion is the more appropriate interpretation is substantially different from the word used by the official interpreter.

7. Does the more accurate interpretation have the potential to substantially change the question put to Mr Lin?

Given the two words discussed above, namely “Dam” and “Pond” in English, have significantly different meanings, it may extensively affect how Mr. LIN understands the questions from the investigator therefore on how he decides to answer the questions. However, it is Mr LIN’s decision to produce his answers given the context of the questions involving the word in dispute.

8. In Question 13 (at around 10.50 minutes), there are references made to the sections of Water Management Act Mr Lin. Have those section numbers been correctly translated into Chinese? If not, why not?

The investigator said: “It is section 91B, section 60A, section 91E, section 91G and section 345.” There was only one error made by the interpreter where her interpretation was “68A” as opposed to “60A”. I presume it’s because it is easy to be mistaken about the pronunciation of “A” in English with the pronunciation of the number “8/eight” in English. I presume in the interpretation, the interpreter “accidentally” added the word “A” after “68”.

9. In Q19 (starting at about 13:52 minutes), there are references made to the sections of Water Management Act. Have those section numbers been correctly translated into Chinese? If not, why not?

The investigator said “…under section 340A(1) of the Water Management Act 2000….under section 340A(2)…”. There were two error made by the interpreter where her interpretation were respectively “348(1)” as opposed to “340A(1)” and “348(2)” as opposed to “340A(2)”. I presume it’s because it is easy to be mistaken about the pronunciation of “A” in English with the pronunciation of the number “8/eight” in English.

10. Question 19 (at around 13:52 minutes), please translate the Chinese interpretation back into English.

Interpreter: 如果，警告你，如果你没有合法的理由，忽略了，或者是没有回答我的问题的话，

Back translation: If, I warn you, if you do not have any lawful reason, neglect, or do not answer my questions,

Interpreter: 那就按照二千年水管理法案的348（1）条，你就是有罪，违，就是说违，犯罪。

Back translation: Then according to section 348(1) of the 2000 Water Management Act, you are guilty, or breach, that’s to say, breach, commit an offence.

Interpreter: 同时，按照法律的348（2）小，第2小条，如果你回答任何问题呢，是以误导的，或者就是内容上是，就是误导的话，也是，就是说有罪。

Back translation: A the same time, according to section 348 (2), subsection 2, of the law, if you answer any question, in a misleading manner, or in content, is misleading, it’s also, that’s to say guilty.

11. Question 20 (at around 15:30 minutes), please translate the Chinese interpretation back into English.

Interpreter: 你也许可以拒绝回答某个问题，如果回答某个问题可能让你暴露出你触犯了法律。

Back translation: You may be able to refuse to answer a certain question, if answering a certain question may expose you, that you have breached the law.

Interpreter：如果是说你拒绝回答的，你还是要回答，但是你回答的问题呢，就不算是承认了某项事情呢，就是说，不能，就是说对你某，就是说承认你本人做错了什么。

Back translation: If that’s to say, you refuse to answer, you still need to answer, but the questions you answer, do not mean admitting to something, that’s to say, it can’t, that’s to say, to you or some, that’s to say to admit you yourself have done something wrong.

12. Jenna Wang says something in Chinese at around 16.16 minutes, please translate into English what she said?

Please refer to the transcription and translation of the recording from 13’52’’ to 16’47” below:

Q19： I warn you that if you neglect or fail to answer without lawful excuse you are guilty of an offence under section 340A(1) of the Water Management Act 2000. It is also an offence under section 340A(2) to knowingly answer any question that is falsely – any question falsely or in a way that is misleading in a material respect.

Xiuming Lin: Yes.

Translation: 好的。

Q20: Okay. You may, however, object to answering a question on the ground that it might incriminate you. If you do object you must still answer the question but the answer is not admissible in evidence against you personally.

Jenna WANG: 如果不懂的话，你要跟她讲。

Translation: If you do not understand, you need to let her know.

Xiuming Lin: 如果我不懂的，再问你。

Translation：If I do not understand, I will then ask you.

Jenna WANG: 我的意思是说，如果你不能懂翻译的话，你要让她再解释一下。

Translation: What I mean is if you do not understand the interpreter, you need to ask her to explain it again.

Xuming Lin: 你说什么？

Translation: I beg your pardon?

Jenna WANG: 如果你不能懂翻译的话，你要问她。

Translation: If you do not understand the interpreter, you need to ask her.

Xuming Lin: 懂翻译是吧？懂她的意思？

Translation: Understand the interpreter, right? Understand what she means?

Jenna WANG：你要问她。

Translation: You need to ask her.

Xuming Lin: 就是。。。有的时候，比如说，我意思不清楚，我再多问一遍，好不好？

Translation: It’s, sometime, for example, I do not understand the meaning, I’ll ask again, all right?

Jenna WANG: 可以，可以。

Translation: Sure, sure.

Jenna WANG: 我是说。。。（听不清）

Translation: I mean… (inaudible)

Xuming Lin: 嗯，嗯。

Xuming Lin: En, en.

13. Did Mr Lin say anything in response? If so, please translate what he said.

Please refer to the transcription and translation provided in the answer to Question 10 above.

14. Does the interpreter translate what Jenna or Mr Lin was saying to the English-speaking investigator conducting the interview?

In relation to Question 20 recorded in the transcript, the interpreter translated what Mr. LIN said to the investigator and the translation is correctly and completely recorded in the transcript as follows:

A (INT): If I do not quite understand, can I ask it to be repeated again? To be repeated again?

However, the interpreter did not translate what Jenna Wang said to Mr. LIN or what Mr. LIN said to Jenna Wang to the investigator.

638. I earlier recited the content of s 340B of the WM Act, and in particular subclause (3). Mr Lin objected to the admissibility of the subject notices on the basis provided for in s 137 of the Evidence Act 1995 (NSW), which says: “In any criminal proceeding, the court must refuse to admit evidence adduced by a prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

639. Mr Lin also objected to the admissibility of this evidence on the basis provided for in s 138 of the Evidence Act 1995, namely that the warning reproduced above did not accord with s 340B(3) of the WM Act.

640. At the hearing, I said that I found Exhibits 38 to 41 were admissible in the proceedings against Mr Lin in his personal capacity as a director of the company because the probative value of the evidence was not outweighed by any unfair prejudice. I also found that there was no relevant impropriety or contravention of law in respect of the warning or caution set out in the subject notices or as communicated in the record of interview, such as to engage s 138 of the Evidence Act 1995. I said at the hearing that I would give my reasons for these findings when delivering my final decision.

641. I carefully considered the respective submissions of the parties. My reasons for these findings are as follows:

1. First, I find that the subject notices fully complied with the requirements of s 340B(3)(b) of the WM Act as to the content of the required warning.

2. Secondly, to the extent s 340B(3)(a) of the WM Act was relied upon to impugn the warning, I find that this is misplaced. Section 340B(3)(a) of the WM Act does not prescribe the content or form of the required warning, but rather regulates the distinct circumstances where the person themselves objects to furnishing information or answering questions on the grounds of self-incrimination.

3. Thirdly, properly construed, s 340B(3)(a) of the WM Act also does not require that the warning inform the person that they must object to each separate question that may be asked of them by the investigating authority.

4. Fourthly, I am satisfied that the text of the warning was not confusing. It was submitted that the warning was not clear about the time at which a person may object to providing information or answering questions. I find that when the whole of the text is read and understood, it is clear that the person is told that they must object to providing the information at the time of answering the notice. The warning goes on to say that the person must still provide the information, but it is not admissible if criminal proceedings are brought against the person. In other words, the warning clearly distinguishes between the time when the notice must be answered or responded to (and hence when objection must be made), and the time of any later criminal proceedings. In other words, the warning clearly tells the person that they have a right to object to providing the information when answering or responding to the notice itself, and that if the objection is made and the information is provided, then the evidence is not admissible in court.

5. Fifthly, I find that there was no confusion or unfairness arising from the distinction drawn in the warning between corporate and personal liability, which is expressly recognised in s 340B(3) of the WM Act.

6. Sixthly, as to the absence of a Chinese Mandarin translation of the warning in the second notice (Exhibit 39), the notice was issued to the company, and required the company to nominate its corporate representative. Section 340B(3) of the WM Act does not apply to corporate entities, and in any event, I accept that it was appropriate to issue the notice in English only. Further, the notice (and the warning contained within it) was in the same terms as that set out in the notice comprised in Exhibit 38, which was translated to Chinese Mandarin.

7. Seventhly, for the same reasons I have set out above, I find that the notice comprised in Exhibit 40, being the notice requiring Mr Lin to answer questions at a specified time and place, contained a warning which complied with s 340B(3)(b) of the WM Act and was not misleading or unfair. To the extent there was no Chinese Mandarin translation, I note that at the interview Mr Lin was assisted by an interpreter and was fully and appropriately cautioned and warned on that occasion.

8. Eighthly, as to the adequacy and content of the English to Chinese Mandarin translation of parts of the recorded interview with Mr Lin, I further find that no part of the translation led to any danger of unfair prejudice to Mr Lin. It was said that the warning or caution at the start of the interview was not properly translated from English to Mandarin Chinese so that Mr Lin was therefore misled about his legal rights, however, in my view, this submission had no merit. The translation adequately and properly communicated to Mr Lin his legal rights and obligations under s 340B of the WM Act. Further, the warning or caution was not communicated in an intimidatory way, nor was the fact of a potential offence against s 340A of the WM Act if Mr Lin did not, without lawful excuse, neglect or fail to answer questions or provide relevant information. The plain terms of s 340A of the WM Act were read to Mr Lin in a matter-of-fact way, in respect of which there could be no reasonable cause for complaint.

9. Ninthly, as to the use of the word ‘pond’ in the translation communicated to Mr Lin, in circumstances where the discussion concerned ‘dams’ built on the Property, the substance of the subject matter of the discussion was always clear, including having regard to the fact that during the interview, express references were made to the aerial photograph showing the geographic features of interest to the investigator. There was I find, therefore, no danger of unfairness in the translator using the word ‘pond’ to describe the dams that were the subject of the discussions.

642. For these reasons, I find that the notices (and the warning or caution set out therein), and the circumstances of the recorded interview with Mr Lin, fully complied with s 340B(3) of the WM Act. No other contraventions of law were established. Further, there was no danger of unfair prejudice in the use of that evidence in the proceedings against Mr Lin in his personal capacity, such as to justify the exclusion of the evidence under s 137 of the Evidence Act 1995.

642. Considering these findings, it was unnecessary to address s 138 of the Evidence Act 1995 because none of the evidence, in my view, was obtained improperly, or in contravention of an Australian law (or in consequence of any impropriety or contravention).

H.   VERDICTS AND ORDERS

644. For the foregoing reasons, I enter the following verdicts in the proceedings concerning the company:

1. In proceedings 2023/00068231 (charge 1), a verdict of ‘guilty’.

2. In proceedings 2023/00068235 (charge 2), a verdict of ‘guilty’.

3. In proceedings 2023/00068247 (charge 3), a verdict of ‘guilty’.

4. In proceedings 2023/00068255 (charge 4), a verdict of ‘guilty’.

5. In proceedings 2023/00068258 (charge 5), a verdict of ‘guilty’.

6. In proceedings 2023/00068266 (charge 6), a verdict of ‘guilty’.

7. In proceedings 2023/00068268 (charge 7), a verdict of ‘guilty’.

8. In proceedings 2023/00068277 (charge 8), a verdict of ‘guilty’.

9. In proceedings 2023/00068281 (charge 9), a verdict of ‘guilty’.

10. In proceedings 2023/00068288 (charge 10), a verdict of ‘guilty’.

11. In proceedings 2023/00068291 (charge 11), a verdict of ‘guilty’.

12. In proceedings 2023/00068294 (charge 12), a verdict of ‘guilty’.

645. For the foregoing reasons, I enter the following verdicts in the proceedings concerning Mr Lin:

1. In proceedings 2023/00068272, a verdict of ‘guilty’ (charge 1).

2. In proceedings 2023/00068289, a verdict of ‘guilty’ (charge 2).

3. In proceedings 2023/00068303, a verdict of ‘guilty’ (charge 3).

4. In proceedings 2023/00068323, a verdict of ‘guilty’ (charge 4).

5. In proceedings 2023/00068332, a verdict of ‘guilty’ (charge 5).

6. In proceedings 2023/00068343, a verdict of ‘guilty’ (charge 6).

7. In proceedings 2023/00068362, a verdict of ‘guilty’ (charge 7).

8. In proceedings 2023/00068369, a verdict of ‘guilty’ (charge 8).

9. In proceedings 2023/00068387, a verdict of ‘guilty’ (charge 9).

10. In proceedings 2023/00068400, a verdict of ‘guilty’ (charge 10).

11. In proceedings 2023/00068410, a verdict of ‘guilty’ (charge 11).

12. In proceedings 2023/00068416, a verdict of ‘guilty’ (charge 12).

646. The following sets of proceedings laid the alternative charges, and therefore, in circumstances where I have found the principal offence proved, each of the charges in the following sets of proceedings against the company is withdrawn and dismissed:

1. Proceedings No. 2023/00068299 (charge 13).

2. Proceedings No. 2023/00068305 (charge 14).

3. Proceedings No. 2023/00068307 (charge 15).

4. Proceedings No. 2023/00068310 (charge 16).

647. The following sets of proceedings laid the alternative charges, and therefore, in circumstances where I have found the principal offence proved, each of the charges in the following sets of proceedings against Mr Lin is withdrawn and dismissed:

1. Proceedings No. 2023/00068425 (charge 13).

2. Proceedings No. 2023/00068445 (charge 14).

3. Proceedings No. 2023/00068450 (charge 15).

4. Proceedings No. 2023/00068519 (charge 16).

648. Directions for a sentencing hearing will now need to be made in consultation with the parties.

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Decision last updated: 08 July 2024