Penrith City Council v Mathie
[2000] NSWLEC 57
•02/25/2000
Land and Environment Court
of New South Wales
CITATION: Penrith City Council v Mathie and Anor [2000] NSWLEC 57 PARTIES: PROSECUTOR:
DEFENDANTS:
Penrith City Council
Norman Munroe Mathie
Camelot Grange Pty LtdFILE NUMBER(S): 50080 of 1999; 50082 of 1999 CORAM: Talbot J KEY ISSUES: Prosecution :- removal of trees - two defendants in the same interest treated as co-offenders LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A
Rivers and Foreshores Improvement Act 1948
Threatened Species Conservation Act 1995CASES CITED: Lowe v R (1984) 154 CLR 606;
Lovelock v R (1978) 19 ALR 327;
Tiger Nominees Pty Ltd and Anor v State Pollution Control Commission (1992) 75 LGRA 71DATES OF HEARING: 24/02/2000, 25/02/2000 EX TEMPORE
JUDGMENT DATE :02/25/2000 LEGAL REPRESENTATIVES: DEFENDANTS:
PROSECUTOR:
Mrs J C Kelly (Barrister)
SOLICITORS:
Gadens Lawyers
Mr J J Webster (Barrister)
SOLICITORS:
Taylor Kelso
JUDGMENT:
IN THE LAND AND Matter Nos. 50080 and 50082 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 25 February 2000
Camelot Grange Pty Ltd
Defendants
1. HIS HONOUR: In both these matters the defendants are charged that between 29 April and 5 May 1999 on land described in the summons as being at Luddenham, they committed an offence against the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) in that contrary to s 76A of that Act they respectively carried out development without having obtained development consent as required by the relevant environmental planning instrument. On the date of the first return of the summons in each case, on 9 December 1999, the respective defendants entered a plea of guilty.
2. The defendant in matter No 50082 is a company, Camelot Grange Pty Ltd, and the defendant in matter No 50080 is an individual who in effect has the control and management of that company and accepts responsibility for its actions on the subject land on the dates in question.
3. The company has since entered into a contract to purchase the land, but in 1999, when the offences were committed, it had the benefit of what is described as a put option over the land. The distillation of the facts has been greatly assisted by the cooperation between the parties which has resulted in a Statement of Agreed Facts in respect of most of the matters which might otherwise be in issue.
4. It is agreed that the defendant, Mr Mathie, and the company instructed a contractor, Regen Industries Pty Ltd, to carry out work on the land, including the removal of trees, shrubs and undergrowth. Mr Mathie had the necessary authority on behalf of the company to physically instruct Regen Industries on behalf of Camelot. The clearing work was carried out physically by Regen between 29 April and 5 May 1999.
5. It is necessary to go back in time from those events in order to appreciate at least one important background matter, and that is to 30 October 1998, when a meeting took place at the prosecuting council’s offices between, inter alia, Mr Mathie and others representing his and the company’s interests and council officers.
6. It was explained to the council officers that a concept plan had been developed for the site; the concept was discussed and during the course of that discussion at least one council officer made a point that the Threatened Species Conservation Act 1995 (“the TSC Act”) may have an impact on the layout of the proposed development and that a knowledge of the site in relation to species and communities on the land would be necessary. There was a specific reference to an eight part test under the TSC Act and it was agreed by a representative attending the meeting on behalf of the developer that such a test would be arranged.
7. Immediately council officers became aware of the clearing activity, there was a visit to the site. That inspection took place on Wednesday 5 May. There had been a preliminary inspection on the previous day by the council officers. On the later day a telephone conversation took place between Mr Mathie and a Penrith Council officer.
9. Later on that same day a formal conference was convened in the council office. That interview was conducted in a formal fashion and appropriate warnings were given before the question and answer session commenced. Mr Mathie, in his opening remarks at that meeting, said:-8. Mr Mathie was directly forthcoming about the fact that the company was carrying out the work and he explained, in his own words, “We were just clearing up the fairways from the old golf course”.
- We thought it was okay, we were just finding where the old golf course was and we cleaned up the creek.
10. He explained his involvement and the company’s involvement. In that respect there was full disclosure. He accepted full responsibility for the tree-clearing work which had been undertaken; he explained that the proposal for the site is to build a golf course in connection with a 180 lot subdivision; he further told the officers that the intention was to clean up the site so that they could work out the best options for developing it. In the course of doing so, he told the officers that they were initially finding where the old golf course was.
11. Shortly after the matter came to the notice of Penrith Council, the Water Administration Ministerial Corporation intervened and issued a Remedial Notice pursuant to s 22G of the Rivers and Foreshores Improvement Act 1948 (“the Rivers Act”). This notice reflects the fact that a significant part of the land-clearing had taken place within a creek, Cosgrove Creek, which runs through the site and that some of the trees had been removed within the prescribed distance from that creek. This necessitated consent under the Rivers Act. The Ministerial Corporation adopted a report prepared by Dr Daniel Martens in respect of the site, to order that it be re-mediated in accordance with the Work Practice Plan prepared by Dr Martens.
12. There were over 240 trees removed from the site. As the prosecutor would put it, they ranged in circumference up to 3.42 metres. The evidence shows there was at least one tree which answered the description of a significant tree of that size, namely, having a circumference of 3.42 metres. The evidence shows, nevertheless, that there was a range of trees and that, if anything is to be said in favour of the defendant in that respect, it is more likely than not that the majority of the trees may be described as immature saplings, probably regrowth following clearing at some earlier time. In other words, they were not all mature and significant trees.
13. However, it is clear from the photographs that have been presented to the Court, not only of the site itself, but also aerial photographs before the site was cleared, that a large number of trees have been removed. It is reasonable to say that the extent of removal went beyond what might be described as an exercise in identifying where some fairways may have been at a time when the property was being used for a golf course. The Court is satisfied, however, that the majority of the trees were of a less mature type than that typified by the “very significant tree” which was the subject of specific evidence.
14. The extent of the clearing can be understood by reference to the total area which was treated by the defendants. That is, an area of 2.72 hectares. There is no great dispute that the total area cleared was 2.72 hectares. However, the area within that area that was actually cleared of trees is more likely to have been about one and a quarter hectares. In other words, although the whole area was the subject of a clearing process, that did not involve in each case, in respect of each square metre, the removal of a tree. The trees removed included forest redgum, thin-leaved stringybark and broad-leafed apple. The trees were mulched into small pieces.
15. I have mentioned the fact that the site had been previously developed as a golf course. The company, Camelot, intends to use some of the fairways of that old golf course for a proposed new golf course. Some of the clearing work was in fact in the location of fairways for the proposed holes 2, 3 and 5, as shown in a concept plan for the golf course but, as I indicated a moment ago, the clearing work was such that it was more than simply returning the site to what it might have been previously.
16. Penrith Local Environmental Plan 201, Rural Lands, is the applicable environmental planning instrument under which the land is zoned 1(c) Rural “C”. No development, other than agriculture, is permissible on the site without development consent. No development consent has been granted to the company or Mr Mathie to carry out the works which were in fact carried out, nor has there been any development consent granted to any other person in that respect.
17. It is agreed that some time in May 1999 a council officer told Mr Mathie not to do anything further on the site until he lodged a proper development application. In fact, no development application has since been lodged.
18. In November 1999 the council informed the defendants that before a development application was lodged, further information, including a Species Impact Statement on some affected areas, was required. This reference to a Species Impact Statement is, without going into detail, something more than the eight part document referred to in the earlier meeting.
19. It is accepted by the defendants that the forest redgum and broad-leafed apple, two of the species removed, are among the assemblage of species that characterise the plant community known as the Sydney Coastal River Flat Forest. This is listed as an Endangered Ecological Community in Pt 3 of Sch 1 of the TSC Act. It is only as a consequence of the meeting which took place in October 1998 that it is suggested the defendants had any particular knowledge of the existence of the Sydney Coastal River Flat Forest community on the site.
20. The Court has the benefit of evidence from three experts. There is some conflict between these three witnesses, or at least two of them, in so far as the identification of the type of vegetation on the site prior to the clearing. I do not believe it is necessary to go into the detail of that evidence except to indicate that Theresa Ann James, a flora consultant retained by the council, concluded that the remnant vegetation along Cosgrove Creek generally is of national, state, regional and local conservation significance in view of the endangered nature of the communities, high species diversity, species of regional conservation significance and important values.
21. Ms James did not have the benefit of examining the site prior to the clearing activities and it was necessary for her to contemplate to some extent what the probable floristic composition and condition of pre-clearance vegetation may have been. She was forced to speculate whether or not the vegetation prior to clearance was likely to have been similar to that in the adjacent areas, which she had the opportunity to inspect. I will come back to the other evidence in that regard.
22. The plan proposed by Dr Martens specifies three stages of work which he said should be carried out in accordance with what he determined in May 1999. He carried out an inspection of the cleared areas adjacent to the creek on 6 May.
23. The defendants have caused a significant part of the work recommended in the Work Practice Plan to be completed in each of the first two stages. However, the defendants accept the observation that no recent weed control other than slashing has been carried out following the clearing. Mr Webster, in submissions, indicates that there has been an election to await the outcome of these proceedings and possibly the development application in due course before proceeding further, notwithstanding that a failure to do so means that there is non-compliance with the notice issued under the Rivers Act.
24. It is further accepted that in so far as stage 3 is concerned, apart from the question of weed control, no trees and shrubs have been planted in order to revegetate the site, as a consequence of the clearing that was undertaken in May 1999.
25. Dr Martens describes Cosgrove Creek as highly degraded and recommends significant re-mediation works to restore the visual and environmental amenity of the site to its former character. He refers to much of the creek bank as occupied by heavy blackberry and lantana growth. He recommends they be cleaned up and that stabilisation works and replanting be undertaken where there are steep banks.
26. According to Dr Martens, the works undertaken adjacent to Cosgrove Creek form part of an overall and necessary creek rehabilitation programme. He describes the revegetation programme as having been highly successful and says that there have been no immediate or long term detrimental effects on channel form or stability. In his opinion, the works that have been carried out to date pave the way for improved visual amenity and increased long term channel stability.
27. There is evidence, however, that there was significant damage to one of the banks of the creek where an excavator crossed the creek in the course of clearing one of the areas in the southern section of the site affected by the clearing operation.
28. As I understand her evidence, Ms James recognises the viability of the Martens’ Work Practice Plan. She suggests nevertheless that it requires review by a person skilled in bush regeneration to incorporate measures to protect biodiversity and protective values of the vegetation and that there should be a greater emphasis on bush regeneration and the establishment of a buffer zone.
29. She described the impacts of the clearing as including a significant loss of tree cover, disturbance and degradation of soil, loss or modification of habitat for local species, including those of particular conservation significance, increased weed infestation and reduction in corridor values. Although the clearance has impacted on areas 1, 2 and 3 described in the evidence, it has not destroyed the natural values of the remnant vegetation. As I mentioned earlier, Ms James does have the disadvantage of not having a pre-clearance understanding of the site from her own observations.
30. Mr Travers is an environmental consultant who has given evidence on behalf of the defendant. He seeks to place in context the alleged loss of the species which I have identified earlier. Mr Travers is fortunate in the sense that he has the benefit of the before and after inspection of the site, having already been engaged to carry out some work and inspect the site on behalf of the defendants.
31. While recognising that many of the indigenous species are potentially vulnerable, he points out that the various surveys and reports which have provided quite significant information about the Cumberland Plain and the Sydney Metropolitan Area, within which this site is located, tend to artificially inflate the significance of the loss, given that the species are found throughout New South Wales and the wider areas which are covered in the overall assessments of matters on a regional basis.
32. As interesting as it might be to fully understand the significance of the particular species that have been removed and their status in the order of things, ultimately it gets down to the fact that the offence that was committed by these defendants was the carrying out of an activity which required consent. That in itself is a relevant matter. The EP&A Act is considered to be an important control in the public interest in New South Wales. The public at large should be sent no other message than that its provisions are to be complied with.
33. What occurred on this occasion had a significant environmental impact. It is those very impacts that the EP&A Act is designed to control. The EP&A Act seeks to establish a process of identification and assessment and generally to see that development is carried out in such a way that impacts on the environment are properly understood and development takes place only after taking all those matters into consideration.
34. Mr Mathie did not enter the witness box.
35. The Court has the benefit of a number of testimonials which Mr Mathie has been able to gather for the purposes of presenting them to the Court. Several of the testimonials express shock and horror at the fact that Mr Mathie has been found to be in this position. One in particular expresses confidence that he is unlikely to be seen to offend against the law in this way again. Nevertheless, the Court must also take into account in sentencing an element that ensures that the individual is reminded in no uncertain way that the law is there to be obeyed.
36. It is not disputed in any real way that Mr Mathie, and presumably that carries through to the company in some way, is of good character. No previous record has been drawn to the attention of the Court.
37. Through his counsel, Mr Mathie has personally apologised for his actions. It is clear from the testimonials, one in particular, that the incident has had some personal effect on Mr Mathie in that he is clearly concerned and contrite about finding himself in this position. The Court has no doubt that that is a proper reflection of the defendant's response to his blatant criminal act.
38. Further corroboration of the contrition of the defendants is shown by the early plea of guilty entered at the first available opportunity. Furthermore, they have cooperated through their lawyers in formulating an Agreed Statement of Facts, thereby reflecting a full and open confession in so far as what occurred and the matters which constituted the commission of the offence. The very first day that they were approached, both as an individual and a company, they cooperated with the council officers. They were frank and open in their responses to the inquiries. No attempt was made to hide the facts or to mislead.
39. As I said earlier, it is not really necessary to reach a final conclusion regarding the significance of the vegetation that was removed in terms of the importance of the species and so on, except to the extent that the culpability of the defendants is manifested in some respects by the early warning that was given about the possible application of the TSC Act at the pre-development application meeting. Irrespective of any other question of significance, the fact is that a very large number of trees have been removed from the site without consent.
40. The prosecutor, at the commencement of the hearing, and then in final submissions, formulated an application that the Court make an order pursuant to s 126(3) of the EP&A Act to the effect that the defendants undertake the works set out in the Work Practice Plan of Dr Martens under the supervision of a person who holds a Bush Regeneration Certificate.
41. The latter requirement reflects the evidence of Ms James and the concerns she expressed in relation to what she felt were the shortcomings of the Work Practice Plan. The defendants have agreed to submit to such an order, although Mr Webster suggested it may not be necessary to make both defendants subject to the order. Given that one defendant is a director of the company and the other defendant is the company which owns the site, I think it is appropriate that they both be placed under an obligation to meet the requirements of that order. Their compliance in that respect is a matter which weighs in mitigation.
42. The offence is a serious one. The Parliament has set a maximum penalty of $110,000. The facts of this case, in circumstances where there has been a flagrant disregard of the law, notwithstanding prior discussions with council officers, prima facie demand a penalty in the higher range. That is, something significantly in excess of $50,000. The matters referred to in favour of the defendants justify some mitigation.
43. The Court is prepared to apply the mitigating factors to both defendants who are in a practical sense, although not necessarily in a legal sense, the same personality. Nevertheless, notwithstanding that relationship, the law requires that each be punished separately and on the basis that each committed a separate offence (see discussion in Lowe v R (1984) 154 CLR 606; Lovelock v R (1978) 19 ALR 327; cf Tiger Nominees Pty Ltd and Anor v State Pollution Control Commission (1992) 75 LGRA 71 at 77 - 78).
44. In summary, therefore, the culpability of the defendants is extreme but they have since to some extent made amends by their cooperation and assistance given to the prosecutor in bringing these proceedings to an end in an effective and economic way.
45. I propose to fine each of the defendants the sum of $35,000 and to make an order in the terms drafted by the prosecutor pursuant to s 126(3). I also propose to make an order as to costs in general terms unless it has been agreed.
46. KELLY: No, your Honour, it hasn't been agreed.
47. HIS HONOUR: Mr Mathie, you should stand. In matter No 50080 of 1999, the defendant is convicted of the offence as charged in the summons, the defendant is fined the sum of $35,000, the defendant is ordered to pay the costs of the proceedings as agreed, or if there is no agreement, as determined in accordance with the Land and Environment Court Act 1979 and the regulations. The exhibits may be returned. You may sit down, Mr Mathie.
48. In matter No 50082 the defendant is convicted of the charge as outlined in the summons, the defendant is fined the sum of $35,000, the defendant is ordered to pay the costs in the same terms as in the other matter. The exhibits may be returned. Time to pay?
49. TAYLOR: Time to pay, three months.
50. HIS HONOUR: Nothing to say?
51. KELLY: No, your Honour.
52. HIS HONOUR: I allow in each case three months to pay the fine.
53. KELLY: In relation to the payment of the fine to the council, to the registrar to be paid to the council.
54. HIS HONOUR: I don't think that requires an order, does it?
55. KELLY: I just wanted to ensure that that was the understanding.
56. HIS HONOUR: That was the understanding but that’s all been done by legislation hasn’t it?
57. KELLY: I haven’t had a look at the most recent--
58. HIS HONOUR: Well, if it’s necessary to make an order I will. But I believe it’s now self-executing Ms Kelly.
59. In both matters, the defendant having been found guilty of an offence involving the destruction of trees, in addition to the pecuniary penalty imposed, I direct that the defendant undertake the works set out in Cosgrove Creek Bank Remediation Work Practice Plan Report 99E334JR1, prepared for New Harvest Homes by Dr Daniel Martens of Martens and Associates Pty Ltd, stage 2 subpar (2) and stage 3 under the supervision of a person who holds a Bush Regeneration Certificate. Stage 2, subpar (2) to be completed within three months, maintenance as set out in stage 3 to be carried out for five years.
60. HIS HONOUR: Before I leave that, a Bush Regeneration Certificate, do you understand what it is and there’s no problem with it?
61. KELLY: I understand what it is.
62. HIS HONOUR: Is it some statutory thing that can be defined?
63. Do you both understand what it is, do you want to confer about that? Because I have no idea what it is.
64. KELLY: I think it’s a TAFE certificate, your Honour.
65. TAYLOR: Yes, your Honour.
66. HIS HONOUR: I see, it's a qualification, like a diploma or whatever?
67. KELLY: Yes, I think, from Ryde TAFE which specialises in these matters.
68. HIS HONOUR: I see. They've got a piece of paper, having passed an exam, is that what it is?
69. KELLY: Yes, your Honour.
71. TAYLOR: I think we both understand that, your Honour.70. HIS HONOUR: It doesn’t need to be described as being any particular college or whatever, just leave it at that.
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