Port Macquarie - Hastings Council v Lawlor Services Pty Limited; Port Macquarie - Hastings Council v Petro (No 6) - [2007] NSWLEC 567

Land and Environment Court

of New South Wales

CITATION: Port Macquarie – Hastings Council v Lawlor Services Pty Limited; Port Macquarie – Hastings Council v Petro (No 6) [2007] NSWLEC 567

PARTIES: PROSECUTOR
Port Macquarie – Hastings Council
FIRST DEFENDANT
Lawlor Services Pty Limited
SECOND DEFENDANT
Edmund Petro

FILE NUMBER(S): 50031 of 2006; 50006 of 2007

CORAM: Pain J

KEY ISSUES:
Prosecution :- whether trees destroyed in breach of Tree Preservation Order - whether clearing activity in accordance with permit being a Harvest Management Plan - whether continuing use rights existed to activity the subject of the charge under s109(1)
Prosecution: - joint criminal enterprise - whether a defendant criminally liable for acts of bulldozer driver who was not charged
Prosecution: - whether defendant company/landowner guilty for acts of other defendant because he was "heart and mind" of the defendant company

LEGISLATION CITED: Clean Waters Act 1970 s 16(1)
Environmental Planning and Assessment Act 1979 s 109, s 125
Evidence Act 1995 s 78, s 128
Hastings Local Environmental Plan 2001 cl 20, Dictionary
Native Vegetation and Conservation Act 1997

CASES CITED: Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88;
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114;
Commercial Union Assurance Company of Australia v Ferrcom Pty Ltd (1991) 22 NSWLR 38;
Director-General of Department of Land and Water Conservation v Greentree & Anor [2002] NSWLEC 102;
Director of Public Prosecutions v United Telecasters Sydney Limited (1989 -1990) 168 CLR 594;
Environmental Protection Authority v Caltex (1993) 118 ALR 392 ;
Giorgianni v R (1984 -1985) 156 CLR 473;
Lemworth Pty Limited v Liverpool City Council (2001) 117 LGERA 305;
Lloyd v Snooks (1997) 94 A Crim R 314;
Lloyd v Snooks (1999) 153 FLR 339;
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705;
McAuliffe v R (1995) 183 CLR 108;
Mosman Municipal Council v Waratah Village Partners Pty Ltd [2002] NSWLEC 184;
Osland v R (1998) 159 ALR 170;
Port Macquarie – Hastings Council v Lawlor Services Pty Limited; Port Macquarie – Hastings Council v Petro (No 5) [2007] NSWLEC 362;
Power v Penthill House Pty Ltd (1993) 80 LGERA 247;
R v Tangye (1997) 92 A Crim R 545;
R v Taufahema, (2007) 234 ALR 1;
Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305;
Shepherd v The Queen (1990) 170 CLR 573;
Shire of Perth v O’Keefe [1964] 110 CLR 529 at 535;
Tesco Supermarkets Ltd v Nattrass [1972] AC 153;
Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 75 LGRA 71;
Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366

DATES OF HEARING: 28 - 31 May 2007
1 June 2007
4 - 8 June 2007
12 - 15 June 2007
19 - 21 June 2007

DATE OF JUDGMENT:
21 September 2007

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr I Hemmings
SOLICITOR
Donovan Oates Hannaford
FIRST DEFENDANT
Mr J Maston
SOLICITOR
Falvey Associates
SECOND DEFENDANT
Mr T Hale SC
SOLICITOR
Falvey Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

21 September 2007

50031 of 2006, 50006 of 2007 Port Macquarie – Hastings Council v Lawlor Services Pty Limited, Port Macquarie – Hastings Council v Petro (No 6 )
JUDGMENT

1 Her Honour: Both Defendants are charged separately with an offence under s 125 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in that between approximately 1 July 2006 and 8 August 2006 the Defendants caused trees at Lot 186 DP754405 Herons Creek Road, Herons Creek NSW (the property) to which the Hastings Tree Preservation Order 2003 (the TPO) applied to be destroyed contrary to the provisions of cl 20 of the Hastings Local Environmental Plan 2001 (the LEP).

2 The particulars specified in both summonses are:

The Defendant caused the destruction through the use of a bulldozer of at least 1000 trees spread over a 28 hectare area of the Property without development consent or the permission of Port Macquarie-Hastings Council.

3 The person who bulldozed the trees the subject of the charge, Mr Lindsay, was not charged and gave evidence in the Prosecutor’s case. Lawlor Services Pty Ltd was the owner of the property at the time the offence was committed. It is alleged to be guilty because Mr Petro, who is also charged, was the “heart, mind and will” of Lawlor Services Pty Ltd when the offence was committed. The legal basis of the charge against Mr Petro is that he engaged in a joint criminal enterprise with Mr Lindsay to cut down trees over 3m in height which is in breach of the TPO. Both Defendants have pleaded not guilty.

Relevant legislation

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

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

5 The Prosecutor is taking action under cl 20(4) of the LEP which provides:

A person must not ringbark, cut down, top, lop, remove or wilfully destroy a tree to which a tree preservation order applies without development consent or the permission of the Council or unless authorised to do so by or under an Act.

Summary of evidence

6 In brief, the Prosecutor relied on the written evidence of Council officers Mr Owens and Mr Rock. Part of two affidavits of Ms Davine, Council officer, were relied on and she also gave extensive oral evidence. Part of an affidavit of Council officer Mr Hanlon was relied on and he also gave extensive oral evidence. Various documents exhibited to the Council officer’s affidavits were also tendered in evidence. The bulldozer driver, Mr Lindsay, gave extensive oral evidence. The captain of the local rural fire service Mr Hagney, and logging contractors Mr Lewis, Mr Toms and Mr Bartlett gave oral evidence. The Defendants relied on the oral evidence of Mr Parish, the previous owner of the property. Additional documents such as the contract for the sale of land to Lawlor Services Pty Ltd, one of the Defendants, were also relied on.

7 According to the affidavit of Mr Owens, Planning Manager of the Council, sworn 4 September 2006, Lot 186 is owned by Lawlor Services Pty Ltd and is 53.9ha. It is wholly contained in the Port Macquarie-Hastings Local Government Area. The 23ha northern portion of the property is zoned 4(a) Industrial under the LEP. This is the area of the property the subject of these charges.

8 Lot 186 is bounded by the North Coast Railway to the east and Herons Creek Road to the west, as depicted on Exhibit A. The dividing line between the southern portion of rural zoned land and the industrial zoned land is a notional line across the property which follows the direction of Logans Crossing Road. The evidence on the property boundaries is clear although I note there are discrepancies regarding the area of the industrial land as identified in the summons (28ha), the affidavit of Mr Rock (23ha) and an affidavit of Ms Davine (30ha). I do not think those discrepancies in the evidence are material.

9 There is extensive evidence concerning the events leading up to the tree removal and the tree removal the subject of these charges.

Mr Parish

10 The Court heard oral evidence from Mr Parish that as he was selling the property to Lawlor Services Pty Ltd he wished to have logged and sold the “loggable” timber on the property. This was included as a special condition of the sale. The contract for sale of the property to Lawlor Services Pty Ltd is in evidence and was dated 17 February 2006. The transfer took place in March 2006. Mr Parish had applied for the Harvest Management Plan (the HMP) from the Council after the logging contracting company, Heron’s Creek Timber Company, suggested that he do this. The application is dated 19 July 2005. He had not previously applied for a HMP for logging on the property and was not aware that he needed approval. Further evidence from Mr Parish concerning the arrangements made as part of the sale of the property whereby he did not undertake any post logging clean up is set out at par 96.

Mr Lewis

11 Mr Lewis gave evidence that three men were involved in the logging, himself and another, Robert Toms, cutting the timber and a third person taking the timber away. They started logging on 9 March 2006 and continued for six weeks to two months. Mr Lewis selected the trees to be logged and cut them down and Mr Toms operated the machine called a skidder.

12 Logging commenced "right up on the southern point of the private property", as far south as the railway line where there was a powerline running through. A railway line also formed the eastern boundary of the area logged. To the north, the loggers worked as far as the old homestead on the private property. They logged both to the north and south of Logans Crossing Road. They could not find much millable timber towards the southern end of the powerline, between the powerline and the road that is the boundary of the property to the south.

Mr Bartlett

13 Mr Bartlett gave evidence that he was in charge of the logging operation. He thought that logging started around 3 March 2006 and continued for about six weeks. He went on to the site about three or four times, while two workers were there at all times. He stated that logging went as far north as about half a kilometre below the Boral mill at Herons Creek and to the south, they logged about a kilometre along the road to where the property ends and the road and the railway line make a “V”. Mr Bartlett thought this road was probably Logans Crossing Road, and stated that it runs directly north to south on the edge of the property.

14 Mr Bartlett was shown a document from Duncan's Holdings, a company connected to Boral Timber (which received the timber) listing delivery docket numbers and intake dates for log loads and woodchips from the Parish property (exhibit U). Based on that document Mr Bartlett stated that the first load of logs from the property was delivered to Boral on 13 March 2006 and the last on 3 May 2006. In cross-examination, Mr Bartlett was shown an invoice issued to Boral Timber by Bundook Pty Ltd (Mr Bartlett’s company) which set out the date of work, the type of service and the fee, inter alia (exhibit V). Mr Bartlett agreed that this document showed that work was invoiced on 25 May 2006. This indicated that 25 May 2006 could have been the last date of logging on the property, but he could not be sure because the document did not say "Parish" to identify where the timber came from. In re-examination he stated he had no logging work in the period up to 25 May 2006 other than the logging on the Parish property.

Mr Toms

15 Mr Toms stated that he is involved in the timber industry and drives a skidder. He stated that logging commenced on the property on about 9 March 2006 and continued for about six weeks. Mr Lewis would fell the tree, while his work involved driving up to the log to pick it up and driving back out. He stated that he knocked over some timber doing this.

16 The logging at the property started at the south end of the block, just north of the powerline. The loggers worked from the south to the north. The property that was logged was the land between the railway line which runs north to south and a road that runs in the same direction. At the southernmost point of that property, there is a viaduct for the road over the railway line. Mr Toms thought that road was called Herons Creek Road. That road was at the end of Logans Crossing Road, about 1.5 km from the Boral Mill. The northernmost point of the logging was the old cottage, the westernmost point was the road and the easternmost point was the railway line.

17 In cross-examination, Mr Toms was shown a statement he had prepared in conjunction with the Council. He agreed that the area logged was in the industrial zone to the north of Logans Crossing Road. Mr Toms stated that they also logged the area beyond that to the south, although this was not stated in the document or his affidavit. He stated that they logged just beyond the power lines in the southern part of the property. He agreed that he had not told the Council that he had logged south of Logans Crossing Road.

Mr Hagney

18 Mr Hagney, captain of the local rural fire service, gave oral evidence that on 10 July 2006 he attended the site with Mr Eddie Petro. Mr Petro asked Mr Hagney to view the site “in relation to reducing any hazard that might be there, any fire hazard that might be there”. He stated “Mr Petro asked me was the fire brigade would be interested in reducing the fire hazard by burning”. Mr Hagney replied that “ we could be interested after any necessary approvals were obtained”. Mr Hagney suggested that if approvals were given “they wouldn’t burn as they were on the ground, they would have to be pushed up into manageable heaps before they could be burnt”.

Mr Lindsay

19 Mr Lindsay, the bulldozer driver, gave oral evidence for the Prosecutor that Mr Bill Armitage contacted him about doing some work on the property. On 13 July 2006, he met with Mr Armitage on the property. Mr. Lindsay had done work for Mr Armitage for quite a few years. Mr Armitage rang Mr. Petro while Mr. Lindsay was present. Mr Armitage said “they wanted it tidied up before they burnt it”. Mr Armitage told Mr. Lindsay to “tidy up the site for the firies”. Mr Lindsay sent the bill for the work to Mr Armitage after the work was done.

20 Mr. Lindsay began work on the site on 18 July 2006. He met Mr Petro for the first time at the property on the day he started work. Mr Petro came to the site for about 15-30 minutes every day he worked. He continued with the work until he was asked to stop work by Ms Davine on the property on 8 August 2006. At that stage the work was nearly complete, requiring only another couple of hours work to be done. He estimates that the work took about 101.5 hours, done over about 12 or 13 days. He worked continuously, not stopping for lunch. He would stop when he noticed Mr Petro. He did all the cleaning up work on the property other than three acres which was done by someone else.

21 Mr Lindsay stated that he was asked to tidy up the heaps of debris and reduce the fire hazard. While the Prosecutor asked him whether he recalled telling Ms Davine that he thought that he would tidy up the heaps, get rid of fire hazard and remove everything other than large trees and he said yes, he qualified the last part of his answer in the next answer in which he referred to “all the spindly oaks”. Parts of the conversation with Ms Davine are set out at par 34. He did not say to her “and remove everything other than the larger trees”. He had done this kind of work for 40 years and he decided where the piles/windrows would go and what trees were pushed over. His job was debris management and he had done a lot of work preparing for burn offs by the fire service. He did not get specific instructions from anyone about what a large tree was. He knew because of his experience that it was trees 10m or 12m or more. He used a bulldozer with a 13 foot blade with a 14 foot rake attached. He was able to manoeuvre accurately with the blade on the front of the bulldozer. He avoided knocking over large trees in doing the work. He stated that because of his experience, he could recognise a damaged tree. He agreed that he was able to recognise the tree of about 3m when he saw one. When asked by the Prosecutor "you're not just going in there willy-nilly trying to push down trees?" Mr Lindsay replied "No, no". He agreed with the Prosecutor that he exercises care in this work and tries to do as little damage as possible. He stated "you don't just go in and bluster everything down. You leave all the trees that you can leave and then just that one that’s really damaged, you think he won't survive, you know, so you take him over".

22 He pushed the heads of the trees cut down and left by the loggers into windrows. He accepted that there were 142 of these windrows. The heads were left in a mess by the loggers and he would push some together to create the windrows. The heads had fallen amongst other trees, some of which were big trees 5m to 10m and some of which were smaller spindly trees and some of these were more than 3m in height. When the head was amongst large trees, many times he would hook the rippers on the back of the bulldozer and pull it out so as not to damage the larger trees which are taller than 8 to 10 metres. That process would knock over some of the smaller spindly trees some of which were more than 3m. If the head was not amongst larger trees but smaller trees, he would push the head out of where it was which would also knock down the odd spindly oak more than 3m in height. Many of the spindly oaks were not more than 3m because they had fire through them every now and again which kills them. As there were tracks made by the loggers everywhere the heads were easy to get to and he did not have to clear many trees to get to them.

23 Trees that were badly damaged by other trees felled by the loggers were also knocked down. These generally had trunk diameters of 8 inches and were about 4m – 4.5m in height. These were trees with several limbs knocked off or that were completely broken off by a falling tree. Mr Lindsay estimated there were about 150 eight-inch trees damaged which he pushed over because he considered they were dangerous or unlikely to survive. There were a few in a large number of the windrows but not in every windrow. Mr Lindsay stated that he could push over trees of about 8 inches in diameter with the rake, but not bigger trees. He could only manoeuvre the rake a limited distance above the ground. To push over bigger trees, he stated that "a tree pusher" would be needed. When he pushed over the larger damaged trees which had smaller spindly oaks around the base of the tree some of these were also pushed over. The odd one of these was more than 3m in height.

24 He estimated there were a couple of 3m or more spindly oaks pushed over for each of the heads that he pushed up into a windrow, with about three to four heads per windrow. He did not agree with the Prosecutor that he undertook parkland clearing, rather he considered he was tidying up after logging.

25 In cross-examination he said he could not be sure how many spindly oaks in excess of 3m he knocked over. He stated that he knocked over the odd one. There could have been five to eight spindly oaks over 3m in some windrows. Knocking them over was unavoidable as they were growing where the heads were.

26 The state of the property when he commenced work was that it was a “mess”. There were a large number of tree heads lying around and several log dumps, which were devastated, meaning completely cleared of vegetation including ends of logs. The log dumps were about 50m by 75m in area. There were about six or eight of these. Snig tracks used to bring the logs to the log dumps radiated out from these. Vegetation on these tracks was pushed over by the logging crews vehicles. The felled logs when connected to the skidder also smash everything in their path and knock vegetation over if pulled sideways. Vegetation was cleared 1m either side along the snig tracks. The snig tracks were estimated to be up to 150m long and about 6m wide. There were 25 to 30 tracks from each log dump and some of these would be connected by other tracks. He tried to use the snig tracks and the tracks connecting these to avoid knocking over any trees. Part of the work included tidying up the debris about 1m either side of the track. Spindly oaks had grown through that material and were knocked down. The odd spindly oak more than 3m in height would have been knocked down.

27 In relation to the state of the property when he arrived to commence work, Mr Lindsay said in cross-examination:

Q. And then you’ve told us about the damaged trees that you observed where they’d been broken off?
A. Yeah.

Q. Were many of those broken trees in the vicinity of tree stumps that you’d seen had been sawed off?
A. Yeah, yeah, they were in the vicinity of that, yeah, where the logging carried out, yeah.

Q. And when you observed what was out on site there were also, were there not, trees that in fact had their heads taken off but had just been left there?
A. Yeah.

Q. Which would suggest to you that they’d been left there because the loggers didn’t think there was commercial value in taking those particular logs?
A. Yeah, yeah, the ones that were broken off, yeah.

Q. Yes, I see, so the ones that they had felled but had got broken in the felling they left behind?
A. No, the log parts didn’t break, the overheads bust up, not the log part.

Q. And then there was also when you were on site you saw some of the slim forest oaks that you’ve described, spindly, you saw the spindly forest oaks?
A. Yeah, yeah.

Q. Some of those had been knocked over during the course of the logging?
A. Yeah, they just drive over them, yeah.

Q. Some of them had been pushed aside by the size of the snigging tracks?
A. Yeah, yep, only beside the snigging tracks but they just drive over the others.

Q. Yes and what you observed there when you got out on site was what you described I think as a complete mess?
A. Yeah, it was a mess.

Q. And it was typical of a pace [sic] logging property?
A. Yeah, I’ve worked on before, yeah.

Q. With trees just smashed everywhere?

A. Yeah.

Prosecutor on Lindsay

28 The Prosecutor submitted on the oral evidence of Mr Lindsay that evidence about the number of trees removed is not entirely clear. However, it is apparent that trees (to which the TPO apply) were removed by him carrying out each of the following components of his work:

(a) pushing up of tree heads where they had fallen amongst trees;

(b) getting into an area to push up the heads:

(d) pushing over damaged trees:

(e) dragging out a tree head

29 During cross-examination by the Defendants’ counsel Mr Lindsay estimated there might be more than five and up to eight spindly oaks over 3m in some windrows. In addition to pushing over the smaller trees, Mr Lindsay also pushed over about 150 “damaged” trees of about 8 inches in diameter. The precise number is difficult to ascertain but Mr Lindsay estimated there were probably four or five or half a dozen (damaged) trees in each pile. These were about 4m high. Mr Lindsay pushed over these trees as they were broken off and “ruined”. Some had limbs broken off by the falling trees during the logging, some were completely broken off on the trunk and some had bark ripped off. Mr Lindsay pushed over trees like this when he found them. Mr Lindsay also stated that there were about three or four stumps of 3 m or more in each pile.

Defendants on Lindsay

30 The Defendants relied on the state of the property as identified by Mr Lindsay as including about six log dumps; each log dump would involve the cleaning up of all vegetation in an area somewhere between 50m x 50m to 75m x 75m; there were snig tracks at least 6m wide and about 150m long and there were 25 to 30 snig tracks radiating out from the log dump. According to the Defendants each log dump required clearing of approximately 2.5ha and the snig tracks were 6m x 150m x 25m, a total of 22,500m2 of cleared area when Mr Lindsay arrived on the property.

31 The main reason spindly oaks were removed was because they had grown through the debris which had to be moved by Mr Lindsay. Most of the spindly oaks were “flat out” being 3m, according to Mr Lindsay. He could tell what size they were because his bulldozer was about 3m high. Mr Lindsay knew from experience what the fire brigade wanted and he decided where the piles of vegetation would be located. He was responsible for the debris management.

32 His evidence was that few of the “spindly oaks” were in excess of 3m in height, relying on his statements that you would get “the odd one” over 3m. Fire went through the property regularly and destroyed them, as was confirmed by the evidence of Mr Parish (see par 112 -115).

33 In her affidavit dated 20 September 2006 Ms Davine stated that her duties include the investigation of alleged breaches of the EP&A Act and breaches of the TPO. Her duties also include the assessment of timber harvesting applications on properties covered by the Council’s TPO. At par 4 of her affidavit worn 20 September 2006 Ms Davine stated:

I say that prior to 3 August 2006, I was already familiar with the Property as a consequence of my work duties in assessing timber harvesting applications. The Property comprises a 53 hectare portion of land, with the northern 30 hectare portion zoned 4(a) Industrial and the southern 23 hectare portion zoned 1(a1) Rural. Annexed and marked “A” is a map which provides an aerial overview of the property. On that map the area that is owned by Lawlor Services Pty Limited is identified by a red boundary. I was aware that prior to a transfer of ownership in March 2006, the Parish family had owned the Property for over 100 years with a long history of it as a timber farm. In 1988, the northern portion of the land was rezoned to 4(a) Industrial but it had continued to be used for timber farming.

34 Ms Davine stated that she attended the property on 8 August 2006, when she had a conversation with Mr Lindsay and took photographs. The conversation as set out in her affidavit dated 20 September 2006 included parts as follows:

Q. What were you asked to do here?

A. Just do what I’m doing now, just tidy up the underscrub and that …

A. About three weeks ago I came and had a look at the job with Billy the property had been logged and the heads were all just left and they just wanted it tidied up.

Q. Are you doing logging as well?

A. No, I’m cleaning up the mess, the heads and that.

Q. In those piles of vegetation there is a lot more than just the heads from the logging, there are also a lot of forest oaks and other trees over 3m in height.

A. Yeah, I was just cleaning up and pushing up all the heads, a few trees probably got knocked down …

35 She attended the property on 9 August 2006 with Mr Hanlon and Mr Owens, when she took photographs. Those photographs were attached to her affidavit sworn 13 October 2006 and became Exhibit N. She attended again on 13 September 2006 with other Council officers, including Mr Hanlon, as part of the Council’s continuing investigations when vegetation in randomly selected windrows was identified and counted.

36 Ms Davine gave oral evidence that she attended the property in May 2006 to inspect it after the logging pursuant to the HMP had been finished. She considered about 1,000 trees had been removed between her inspection in May 2006 of Lot 186 after the logging by the logging contractors pursuant to the HMP had stopped, and when she went to the site on 8 August 2006 following a complaint about tree clearing. On that day she spoke to Mr Lindsay and told him to stop work. The statement that 1,000 trees had been removed was allowed into evidence under s 78 of the Evidence Act 1995 over the objection of the Defendants.

37 In the voir dire held to establish whether her opinion had a rational basis (I held that it did) her evidence was that this statement of 1,000 trees was based on the number of windrows (piles) of vegetation (142) and an approximation of the number of trees (10) in each windrow. She considered “trees” meant trees in addition to the heads of trees from logs, pushed down subsequent to the logging. She considered her estimate was conservative. She described what she saw on the property in August 2006 as parkland clearing.

38 Ms Davine also gave oral evidence about the photographs taken of the site by her, annexed to her affidavit of 13 October 2006, which became exhibit N. She explained that some were taken in northern portion of the property on the industrial land. She stated that the some of the photos showed windrows with partly green vegetation in them.

Defendants on Davine evidence

39 Ms Davine’s evidence was criticised by the Defendants on several bases. It was impressionistic because it was not based on any specific tree count of trees more than 3m in height done before the work undertaken by Mr Lindsay, or afterwards, in any comprehensive way. Nor did her estimates of trees knocked down distinguish between trees on the ground left as a result of the logging process and those knocked over by Mr Lindsay. I should infer that the failure to ask her about the height of the trees she had observed in May and the height of the trees missing in August was that had she been asked such a question her answer would not have assisted the Prosecutor’s case, see Commercial Union Assurance Company of Australia v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 – 419. The Court should not infer, as the Prosecutor suggested, that her evidence would have been favourable to the Prosecutor’s case. Her estimate of 1,000 trees does not state how tall the trees were. Her estimate is based on measurements taken by other Council officers of trees in a few of the windrows, and she was only the scribe on the day, writing down what they told her. She did not form her own opinion of the length of any trees in the windrows.

Mr Hanlon

40 Mr Hanlon, the Council’s Tree Assessment Officer, provided an affidavit sworn 18 October 2006, part of which was read, and also gave oral evidence. His duties include the assessment of HMP applications and the investigation of alleged breaches of the TPO. He went to the property on 24 August 2005 following the receipt by the Council of a HMP application from Mr Parish in July 2005. He concluded that the property had been sustainably logged for a long time because he observed stumps on the property and unevenly aged trees.

41 Mr Hanlon went on to the property again in May/June 2006 after logging concluded. He noticed that selective logging had occurred, there were up to six log dumps and snig tracks. There were harvested heads of predominantly blackbutt trees lying in situ on the property. Most of the understorey on the property was intact and there was minimal damage to surrounding trees. Understorey, excluding ground cover, is a second canopy to the trees harvested. The height of the understorey ranged from 2.5m to 6m – 8m.

42 Mr Hanlon did not agree in cross-examination that the property was a “mess”. There were trees destroyed by heads falling and some disturbance to the understorey from the skidder and due to the history of the site, there were many existing snig tracks. He considered that not many trees had been left behind by the loggers. He agreed that he had an impression of the existence of the understorey and did not do any measurements of it in May/June 2006.

43 He went to the property on 3 August 2006 following a complaint and took photographs (which became exhibit T). He observed that most of the understorey that was present at the time of logging and post logging had been cleared. That understorey consisted of casuarina species, forest oak, black she-oak, eucalypt species such as stringy bark, blackbutt, a small amount of tallow wood, and turpentine. He also went to the property on 8 August 2006 with Ms Davine and Ms Fuller, town planner. He drove around the property and Ms Davine took photos. He flew over the property on 11 August 2006 and took aerial photographs. On 22 August 2006 he went to the property with another officer and identified, using a Global Positioning System (GPS), the location of each windrow, and recorded windrows 1 to 82. These were also numbered. On 5 September 2006 the GPS was used to plot windrows 83-119 on the property. On 20 September 2006 the GPS was used to plot the location of windrows 119 -142. A plan showing the location of the 142 windrows is in evidence.

44 On 13 September 2006 he returned to the property with two other Council officers and carried out a transect 20m x 20m in the rural zoned portion, close to where the clearing took place. He then counted the number of trees over 3m in height in that area and recorded 80 trees consisting of forest oak (the majority), stringy bark, blackbutt, bloodwood and turpentine. In oral evidence he stated "the reason why the transept [transect] was carried out was to get an idea of the amount of trees that would have been in the industrial area prior to it being cleared". When asked to describe the difference in appearance between the industrial land after logging but before clearing and the transect, he stated that they were the same and "the understorey was intact comprising mainly of forest oak and young hardwood species from 2.5m – 8m in height".

45 He also selected randomly a windrow in the southern section of the industrial zoned portion of the property, windrow number 2. The trees that could be sighted and measured at the outer edge or on top were identified. This could not include all vegetation as the windrow was made up of heaped trees and vegetation. A list was compiled of the number and measurement of 20 trees ranging from 2.5m to 17m consisting of mostly stringy bark, with some forest oak and bloodwood. Other windrows were also inspected, numbers 31, 104 and 135. Various numbers of trees in excess of 3m were identified, for number 31, four trees, number 104, ten trees and number 135, five trees.

46 Part of Mr Hanlon’s oral evidence involved him viewing photographs he had taken of some of the windrows created by Mr Lindsay, and identifying what he saw in the 13 photographs which were part of exhibit T. His general description of the property was that it was fully underscrubbed with piles of vegetation heaped up with green foliage with trees in excess of 3m in height. A video including voice-over taken of all the windrows on the property was objected to and not allowed into evidence.

Defendants on Hanlon evidence

47 Mr Hanlon’s evidence was criticised by the Defendants as being impressionistic as he was unable to identify in the photographs of windrows in exhibit T, and generally, which trees in the windrows were a result of the logging process in March/April and which were a result of Mr Lindsay’s cleaning up activity. In cross-examination he agreed he did not count any trees or take any notes when he went on the site in May/June 2006. He stated he went there to see if logging had been completed and to the Council’s satisfaction. When he went back on 3 August 2006 and saw a stark change he was comparing the property with the general impression he had when he visited the site in May or June 2006. He did not take any measurements of trees in May 2006.

48 The only specific oral evidence of what was in the windrows was given by Mr Hanlon when viewing the 13 photographs in Exhibit T and he identified very few specific trees by their exact length. Rather he gave his general impression that some trees were more than 3m.

49 There is no evidence to suggest that the assumptions made by Mr Hanlon in selecting the transect in the rural zone where he did were correct, that the transect area was logged to a similar extent to the industrial zoned land and had trees of a similar type and density to the rural land. This submission was based in part on the argument that it was not proved that the loggers logged south of Logans Crossing Road. The Defendants argued that it was not demonstrated that the loggers had logged from the south in the rural zoned area to the north. (I consider the oral evidence of the logging contractors confirms that they logged from south to the north on the property and therefore logged both the rural zoned land and the industrial zoned land. The only area they identify as having fewer harvestable logs was the area south of the powerlines which is at the very southern end of the rural zoned area of the property. This evidence is contrary to a written statement of Mr Toms provided to the Prosecutor where he said he logged north of Logans Crossing Road only).

Findings on evidence

50 The evidence of the logging contractors, Mr Lewis and Mr Toms, is that they undertook the logging of timber from 9 March 2006 to about six weeks later (end of April) in the area to the south of Logans Crossing Road and north up to the old homestead. According to Mr Lewis some trees were knocked over in this process. According to Mr Bartlett’s evidence based on exhibit U the last delivery of logs or woodchips to the Boral timber mill was 3 May 2006. The evidence in exhibit V of an invoice for 25 May 2006 was not ruled out by him. That suggests the logging operations continued beyond April into either early or late May 2006.

51 Mr Hagney from the Rural Fire Brigade states that he gave Mr Petro advice on 10 July 2006 about debris management for the purposes of burning off debris. That advice included reference to obtaining necessary approvals. What these were is unspecified in his evidence.

52 Mr Lindsay commenced work on the property on 17 or 18 July 2006 and continued for 12 days until 8 August 2006. His evidence about the instructions he received from Mr Armitage about tidying up the property for the fire service to burn is set out in detail at par 21. He understood the work was to be done for Mr Petro. His instructions were general and did not indicate whether any particular trees should be knocked over. As set out at par 21 it was up to him how the windrows were made and where and which trees were knocked over by him as part of the process of heaping up tree heads and creating the windrows. The careful approach he took is also identified at par 21, and at par 26 he states that he tried to use existing snig tracks as much as possible.

Evidence of state of property after Mr Lindsay’s cleaning up activity

53 Mr Lindsay’s evidence at par 22-25 about the number of trees over 3m that he knocked over during the twelve days he undertook the cleaning up work was generalised. The only specific estimate by him of the number of trees over 3m in height that he knocked over was approximately 150 damaged trees of about 8 inches in diameter and more than 3m, generally 4m – 4.5m, in height. The number of spindly oaks greater than 3m knocked over is harder to determine. The Prosecutor argued that while the exact number of trees over 3m is difficult to assess the number is large and in the vicinity of the 1,000 trees referred to in evidence by Ms Davine. Ms Davine and Mr Hanlon’s evidence of the number of trees over 3m in some of the windrows and Ms Davine’s overall impression of parkland clearing of about 1,000 trees supports a finding that a large number of trees over 3m were knocked over by Mr Lindsay.

54 The Defendants criticised the accuracy of the evidence of Mr Hanlon and Ms Davine relied on by the Prosecutor about the number of trees more than 3m in height because their evidence does not distinguish between trees felled or knocked over as part of the logging process undertaken by the logging contractors and left on the ground, and those cleared by Mr Lindsay. That criticism is well founded. The count of trees over 3m in the windrows referred to in Mr Hanlon’s affidavit (see par 45) does not state whether any had green foliage on them. While there is evidence from Mr Hanlon and Ms Davine that there were trees with green leaves in the windrows as identified in the photographs in Exhibit T and Exhibit N suggesting they were recently knocked over, there is no evidence about when the trees with green leaves were actually knocked over. I ruled during the hearing such evidence from Mr Hanlon was expert evidence and was inadmissible because no notice of it had been given to the Defendants. Accordingly, there is no accurate evidence of when the trees with green leaves in the windrows were actually or likely to have been knocked over. Trees could therefore have been knocked over during the logging operations in March/April/May 2006 as well as during the work carried out by Mr Lindsay. It is impossible on the basis of that evidence to say when any particular tree was knocked over, other than recently.

55 Mr Lindsay did not consider that the property had been parkland cleared. He considered that he was tidying up the property.

Evidence of state of property after logging by logging contractors

56 The evidence of the state of the property after the logging by the logging contractors from Mr Lindsay as stated in cross-examination is set out at par 26 and 27. He described the property as a “mess” and referred to the snig tracks and log dumps being cleared of vegetation with vegetation pushed to the side. The Defendants argued the area of land cleared in these areas was large, 22,500m2.

57 As set out in the transcript excerpted in par 27, Mr Lindsay was asked by the Defendants’ counsel whether he saw trees which had their heads taken off and left on the ground and he said “yes”. When asked if they had been left there because they did not have commercial value he replied “yeah, the ones that were broken off”. He agreed that there were smashed trees everywhere. There were also clearly a large number of tree heads left on the ground.

58 The Defendants emphasised that there were an unspecified number of trees knocked over as part of the logging operation, that the site was already cleared of vegetation along the snig track and log dumps and Mr Lindsay said only a few spindly oaks knocked over were more than 3m.

59 The Prosecutor relied on evidence of Mr Hanlon. Mr Hanlon stated that when he viewed the property after the logging in May/June 2006 he observed that most of the “understorey” was present, by which he meant a number of tree species which were not groundcover which formed a second canopy below the trees harvested. It looked typical of land after a sustainable harvesting of loggable timber. He did not undertake any tree counts at that time.

60 The transect evidence of Mr Hanlon at par 44 was relied on by the Prosecutor to demonstrate that the density of trees after logging in the industrial land was similar to that in the transect, which was rural land. His assumptions that:

(i) the industrial land has trees of similar height and density to the rural land before logging;

(ii) the rural and industrial land was logged at a similar intensity;

61 In his evidence in chief he said that he had seen the industrial land after logging and before clearing and it was the same as the transect land. He did not specifically identify why he considered he could make these assumptions as would be required in giving expert evidence by Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 per Heydon JA at [85]. It is demonstrated by the evidence of the logging contractors that they logged on both sides of Logan Crossing Road. The only part of the whole property they identify as having less harvestable timber is the most southern part below the powerline. Mr Hanlon’s second assumption is likely to be correct. It is unknown what the basis for his first assumption is, other than stating he went on the property.

62 Mr Hanlon’s evidence does not prove beyond reasonable doubt which trees over 3m were knocked over as part of the logging process over the property and which were knocked over by Mr Lindsay.

Conclusion

63 There are essentially three categories of vegetation which can be considered in deciding how many trees knocked over by Mr Lindsay were over 3m, damaged trees, the spindly oaks and any remaining trees over 3m not in the first two categories. There is no doubt that Mr Lindsay did knock down some trees over 3m in height. Evidence which satisfies the onus of proof beyond reasonable doubt about the number of such trees is less clear cut.

64 The only specific evidence from Mr Lindsay of the number of trees knocked over was that he considered he had knocked over about 150 trees over 3m and up to 8m which were damaged. It is difficult to reach a final conclusion about the number of spindly oaks that might have been removed but given the widespread presence of these trees across the property so that they were amongst all the tree heads which had to be heaped up it is possible that there were a large number. It is also likely that most were small and under 3m, as Mr Lindsay stated, as they had been burned regularly by Mr Parish to control them, including at the end of last winter (see par 117). While Mr Lindsay stated that he had knocked over the “odd” one over 3m that results in a large number being knocked over across a large area of clearing activity of at least 23ha.

65 Mr Lindsay’s evidence is that there were up to eight small oaks in excess of 3m in a number of the windrows but not all of them. The number of trees more than 3m in height is unclear however it is likely to be several hundred assuming for example that up to 70 (about half) of the windrows have four spindly oaks more than 3m in them. That is a reasonable inference to draw based on Mr Lindsay’s evidence.

66 I am satisfied beyond reasonable doubt that a large number trees in excess of 3m and therefore covered by the TPO (subject to whether the Defendants are successful in proving that the TPO does not apply) were removed by the work carried out by Mr Lindsay on the property during the charge period. In addition to the approximately 150 damaged trees, the majority of these were likely to have been spindly oaks given their location in much of the debris Mr Lindsay had to move. This is an inference that can arise from the evidence of what Mr Lindsay did.

67 The evidence of how many other kinds of trees over 3m, meaning not damaged and not spindly oaks, were knocked over by Mr Lindsay is difficult to weigh up. The evidence of the state of the property after logging and before Mr Lindsay commenced work from Mr Hanlon and Ms Davine is impressionistic. This is not surprising as at that stage they could not have had any idea of the necessity to undertake any detailed assessment of the number of trees on the ground after logging. Mr Hanlon estimated these were few. That is to be contrasted with the evidence of Mr Lindsay that the property was a mess and there were trees “smashed” on the ground everywhere, the number of which is unspecified.

68 Additional evidence relied on by the Prosecutor are the tree counts carried out in a few windrows as identified in the affidavits of Mr Hanlon and Ms Davine. In the affidavit of Mr Hanlon the trees are recorded by name, length/height and diameter at 1400mm in windrows 2, 31, 104 and 135. There is no indication of when the trees identified were knocked over, for example, there is no reference to any of these having green leaves on them. The Defendants did not object to these parts of Mr Hanlon’s affidavit being read because they did not consider they had any probative value in the case, a correct assertion.

69 The only evidence that there were trees with green leaves and therefore recently knocked down is in photographs in exhibit T and exhibit N as identified by Mr Hanlon and Mr Davine respectively in oral evidence. As stated at par 54 I would not allow evidence from Mr Hanlon as to when the trees in the photographs were likely to have been knocked over except to state that this was recent. Given that logging occurred up to early or late May and Mr Lindsay conducted his work in mid to late July and early August this evidence does not rule out the possibility that some or all of the trees in the windrows that were not damaged and not spindly oaks were knocked over in the logging operation. The evidence of the trees in the few windrows identified in Exhibit T by Mr Hanlon was of limited assistance in understanding what was in the individual windrows in the photograph and what was across the site more generally. As submitted by the Defendants, Mr Hanlon did not identify many trees over 3m in the photographs in exhibit T shown to him in his oral evidence.

70 The evidence of Ms Davine that it was her impression that there were 1,000 trees removed did not state how tall the trees removed were. The Prosecutor’s counsel submitted that whenever she said “tree” she meant “tree over 3m to which the TPO applied” but that is not made clear in her evidence. This evidence does not prove to the criminal standard that that was the precise number of trees removed and was not intended to. It was admitted under s 78 of the Evidence Act which provides:

The opinion rule does not apply to evidence of an opinion expressed by a person if:

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

71 As identified in par 37, the basis for her estimate of 1,000 trees was the approximate number of trees over 3m (10) in windrows 2, 31, 104 and 135 referred to in Mr Hanlon’s affidavit. The difficulty with that evidence in failing to identify when particular trees were knocked down is identified at par 54.

72 I do not accept the Defendants’ argument at par 39 that the application of Ferrcom means that I should infer that her evidence on this matter, if asked, would not have assisted the Prosecutor’s case as the Prosecutor submitted. However all that evidence allows the Prosecutor to do is submit that she noticed a large number of trees had been removed between her visits to the property.

73 The Prosecutor has not established beyond reasonable doubt how many more trees over 3m beyond those I have already identified were knocked over by Mr Lindsay in the course of his cleaning up activity.

B. Has the TPO been breached?

74 The Prosecutor must first prove that Mr Lindsay’s action was a breach of the EP&A Act, namely a breach of the TPO.

75 According to the affidavit of Mr Rock, Council officer, dated 18 May 2007, the TPO and its amendment was published in a newspaper circulating in the Prosecutor’s council area. The TPO now states:

3. Basis

This Tree Preservation Order is made under the provisions of

Hastings Local Environmental Plan 2001, and

Environmental Planning and Assessment Model Provisions 1980, as adopted by Hastings Local Environmental Plan 1987, and

Environmental Planning and Assessment Act 1979

…

5. Land covered by the order

Forestry Act 1916; or

…

6. The tree preservation order

(1) a person must not destroy, or cause to be destroyed, a tree to which this tree preservation order applies other than in accordance with the written consent of the council.

(2) For the purposes of this Order a tree is:
(a) a perennial plant or tree which is at least 3 m in height, or
(b) a cycad or mangrove

7. Exemptions:

This Order does not apply to tree removal listed below, although this does not override any other statutory requirement for consent or permission to be obtained:

…

(g)The property is being selectively and sustainably logged in accordance with a Harvest Management Plan that has been approved by Council.

76 The TPO identifies land to which the TPO does not apply in cl 5. The subject property does not fall into any of the areas identified therein. Subject to one defence raised by the Defendants concerning continuing use rights, there is no dispute that the TPO applies to the property unless an exemption applies.

77 The Prosecutor accepts that it must prove that the TPO applies to the property and was made in accordance with cl 20 of the LEP. There is evidence that a TPO has been made pursuant to cl 20(2) of the LEP by resolution of the Council and was published in a newspaper circulating in the Prosecutor’s local government area on 3 December 2003 as required by cl 20(5) of the LEP. The Defendants did not dispute that the TPO was lawfully made.

(i) No consent or permission or authority to remove trees to which TPO applies – whether any development consent issued

78 The Prosecutor must prove that no development consents or other permission of the Prosecutor or authority under the EP&A Act is otherwise available to the Defendants as specified in cl 20(4) of the LEP. There is evidence that no development consent or specific TPO permissions applied to the property at the time Mr Lindsay did his work. The Council maintains a computer system that permits the search of records for development consents, Tree Preservation Order permissions and Harvest Management Plans.

79 No development consents have been issued that would permit the removal of trees on the property. No permits under the TPO had been issued that would permit the removal of trees. Only one HMP had been issued to Parish, the previous owner of the property, by the Prosecutor on 25 August 2005 valid for one year.

Finding that no development consent

80 I accept that the Prosecutor has established beyond reasonable doubt that there are no development consents in force as referred to in cl 20(4) of the LEP.

81 Two defences raised by the Defendants concern whether the work carried out by Mr Lindsay was pursuant to a permission (HMP) under the TPO or was otherwise authorised under the EP&A Act. The first defence is that the work was carried out pursuant to the HMP and was therefore within the exemption in cl 7(g) of the TPO. The second defence is that the work was able to be carried out in reliance on continuing use rights which the owner of the property has the benefit of.

(ii) Whether

permission

issued under TPO - has the Prosecutor proved that work by Mr Lindsay not carried out pursuant to HMP – does exemption in cl 7(g) of TPO apply?

82 The HMP issued by the Council for the property to its previous owner, Mr Parish on 25 August 2005, is in evidence. The HMP provides:

CONDITIONS OF CONSENT

Consent is given to clear vegetation, shown on attached map as provided by the applicant, subject to the following conditions.

1. Forestry operations may only be undertaken in the area/s indicated on the attached map and in accordance with information provided with the application (copy attached).

TIME

SILVICULTURE GUIDELINES

4. Single Tree Selection and Thinning operations must not result in the average Basal Area (measured in the square metres per hectare) of those parts of the forest where harvesting has occurred, excluding buffer strips, being reduced below the area stated in a harvest management plan application.

5. All harvested areas must be managed following harvesting in a manner that ensures:
a. Regeneration of native vegetation species affected by harvesting, and
b. Evidence of return towards pre harvesting forest structure.

83 In the attached Harvest Management Plan Application referred to in Condition 1, the broad forest type to be logged is described as "Coastal Blackbutt Type". Under the heading "Main Native Forest Species to be Harvested", the boxes for Grey Ironbark, Bloodwood, Turpentine, Tallowwood, Red Mahogany, Coastal Blackbutt, Flooded Gum, Sydney Blue Gum have been ticked. "Other Species" is also ticked, with "White Stringybark" listed.

84 Under "Forest Management History", the application states

(i): The site has had a long history of timber harvest, grazing and fire. There is history of at least four timber harvests and light logging continued in each decade. The area has a long history of fire as evidenced by the blackness of many tree bases around the farm.

(ii)

Harvest techniques used: Thinning, Single Tree Selection and Australian Group Selection.

(iii)Years: 1875, 1930, 1950s, 1960s, and 1970s, 1980s, 1990s and 2000

(iv)

Area: Total Area

(v)

Products Taken: sawlogs, salvage logs, poles, girders

(vi)

Total Yield: unknown but significant

(vii)

Method: chainsaw and skidder, tractor & bulldozer

(viii)

Any other comments: forest is at its regular point in the growth cycle & it is due for harvesting.

85 Under “Regeneration Management”, the applicant is required to describe the “regeneration activities planned for each compartment of the harvest area”. The application states:

A key principle of Ecologically Sustainable Forest Management (ESFM) is long-term maintenances of the full suite of forest values of which the provision of adequate and vigorous regeneration is an important component. The silvicultural harvesting techniques applied at harvest will be the main contributors to this. Other post harvest regeneration activities may include the use of ground disturbance by machinery, the application of fire, and debris management. This is particularly applicable in the northern section.

The creation of gaps in the Australian Group Selection System will promote regeneration especially where the existing gaps are extended to provide an area large enough for regeneration to take place.

The area between the gaps will be thinned to promote growth on the remaining stems.

Post harvest the total area should have a regeneration burn. Note: This action is outside the time frame of this application and is dependent upon weather and legal requirements and therefore no timing can be given.

86 Logging pursuant to the HMP was carried out on the property in March, April and early May 2006 as identified in the oral evidence of Mr Lewis, Mr Bartlett and Mr Toms.

Prosecutor’s evidence and submissions

87 The Prosecutor argued that there is evidence to establish that the removal of trees the subject of the charge was not being carried out pursuant to the HMP. As identified in the Prosecutor’s written submissions; logging had occurred about two to three months before Mr Lindsay was on the property; Mr Lindsay went there after logging; Mr Lindsay understood his instructions to be to remove everything other than the larger trees; Mr Armitage told Mr Lindsay that “Eddy asked about the firies to burn and they said they wanted it tidied first”; and Mr Lindsay understood his role was to “tidy up the debris on the site”.

88 Further, the logging pursuant to the HMP had been carried out by Mr Lewis and Mr Toms under the supervision of Mr Bartlett. The removal of trees pursuant to the HMP had been finished by early or late May 2006. The Prosecutor argued that at no time was it suggested to any witness, nor did any witness suggest, that any of the work that was being carried out by Mr Lindsay was pursuant to the HMP. Further, Mr Hanlon, the Prosecutor’s Tree Assessment Officer, inspected the logging to see if it “had been completed to the Council’s satisfaction in relation to the consent of the HMP”. Mr Hanlon’s evidence was that “logging had been done to Council’s satisfaction”.

89 The Prosecutor further argued that there was evidence of the reasons for the work by Mr Lindsay as identified in the affidavit of Ms Davine dated 13 October 2006 at par 5:

“What reason did you decide to clear out at Herrons Creek?”

“Under scrub, not clear.”

(

) “Alright why did you decide to underscrub?”

) “Fire risk purposes and to clean it up.”

“What instructions did you give to Bill Armitage?”

“I told him just to pile up all the rubbish, go through and clean up all the heads and everything, so the Rural Fire Service can burn it, as I had been told by the RFS.”

“… what can you say about the clearing out there?”

“I call it under scrubbing, not clearing. There were no big trees knocked down. Under the Surveying Act, they can under scrub for surveying purposes.”

“… Just one last question, why didn’t you clear the Rural zoned portion of the land if you were concerned about bushfire?”

“You can’t touch rural land and you know we were going to develop the industrial part.”

90 Further on 5 September 2006 Mr Hanlon was approached on site by two persons, including Mr Petro. As part of that conversation: (Hanlon) “ why was the property cleared?” (Petro) “We are under scrubbing for surveying purposes and heaping the piles up for bushfire risk.” Mr Hanlon’s affidavit dated 18 October 2006.

91 That evidence is not consistent with Mr Lindsay’s work being carried out pursuant to the HMP.

Defendants’ evidence and submissions

92 In oral submissions the Defendants submitted that as an HMP had been issued which applied to the property that was the end of the inquiry necessary. The HMP was issued for the property for one year from the date of determination and expired on 25 August 2006. As an HMP was in force for the property at the time the work was done the exemption in cl 7(g) applied.

93 Alternatively, if it is necessary to consider whether the HMP was complied with to determine if the exemption applies, the work by Mr Lindsay alleged to give rise to the offence occurred before the expiry date. Under the terms of the HMP there was no relevant limit on the trees that could be logged or on the clearing of any vegetation on the property. All of the activities carried out by Mr Lindsay on the site met the description of the activities which were mandated by the conditions of consent in the HMP and they all occurred within the one year currency of the HMP. Reliance was placed on the conditions of the HMP which included the application as referred to in Condition 1. A summary of the key paragraphs in the application relied on by the Defendants is set out above in par 82 - 85.

94 The HMP involved more than logging:

“regeneration management”

“the application of fire and debris management”

“Post harvest”

“regeneration burn”

95 These are the activities with which Mr. Lindsay was involved:

“they wouldn’t burn as they were on the ground, they would have to pushed up into management heaps before they could be burnt”

“the firies”

96 In his oral evidence Mr Parish asked his selling agent Mr Bird of LJ Hooker, Laurieton whether there would be any problem if they did an intensive log before the sale. Mr Parish stated that when he sold the property in 2006 he agreed with the buyer that he would log the property and at the conclusion of logging the buyer would take over the property. Mr Bird said he would expect the Parishes to complete the HMP as specified by the Council. The Parishes read it and worked out that to complete the requirements of the HMP was beyond their resources, that is, to go through and “lump all the trees together and burn them down and that sort of thing”. This is the matter referred to in special condition 38 of the contract of sale.

97 The former owner, Mr Parish, caused the logging operations on site to occur, but did not carry out any of the post logging clean up activities required by the conditions of the HMP as identified in the application under regeneration management. The activities of Mr Lindsay being tidying up the debris within the Harvest Management Plan is a hypothesis consistent with the evidence of Mr Parish:

“you can’t leave your rubbish laying on the land, you’ve got to clear your rubbish up”

“The Council insisted that that was part of the thing and I agree that’s good management plans, that you get rid of all the heads of your trees and that so you can plant other trees”

Q. That’s part of the logging process? A. Yeah”

Finding on whether permission under TPO - does HMP apply?

98 I held in Port Macquarie – Hastings Council v Lawlor Services Pty Limited; Port Macquarie – Hastings Council v Petro (No 5) [2007] NSWLEC 362 (Port Macquarie No 5) at [19] that the Prosecutor has the onus of establishing that cl 20(4) of the LEP applies. but that any exemption such as the application of cl 7(g) of the TPO must be proved by the Defendants. It is not therefore for the Prosecutor to negate the application of cl 7(g) of the TPO, rather the Defendants must establish on the balance of probabilities that the exemption applies to Mr Lindsay’s activities; see Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 at 119 per McHugh J:

.. the onus of proof lies on the party alleging that he falls within the qualification, excuse or proviso…

99 While this finding was disputed in final submissions by the Defendants, who relied on Director of Public Prosecutions v United Telecasters Sydney Limited (1989 -1990) 168 CLR 594 at 600-601 to again argue the contrary, I consider my earlier decision is correct. Accordingly the Defendants bear the onus of proving on the balance of probabilities that the activities of Mr Lindsay were carried out under the HMP.

100 The Defendants submitted that once the HMP applied to the property that was the end of the inquiry needed, in other words whether its terms were complied was irrelevant, or alternatively its terms were complied with. Either of those submissions must be supported by evidence that Mr Lindsay’s activities were pursuant to the HMP.

101 As submitted by the Prosecutor there is no evidence that the work conducted by Mr Lindsay was done under the HMP. At the time he was engaged to do the work by Mr Armitage there was no conversation which referred to the work being required by the HMP. In the conversations between Mr Petro and Ms Davine on 22 September 2006, as recorded in her affidavit and identified at par 89 above, there is no mention of the work being carried out pursuant to the HMP. Mr Petro stated to Ms Davine that the work by Mr Lindsay was underscrubbing for surveying purposes and heaping up the piles for burning to reduce bushfire risk.

102 The first time there was any reference to the HMP in relation to Mr Lindsay’s work was when Mr Petro’s counsel raised this defence in the “no case to answer” submission during the hearing. At that stage the argument was based solely on the application of the terms of the HMP. Reliance on those terms, which includes the application under condition 1, is not conclusive of the issue. The fact that the application refers to regeneration activities in broad terms does not suggest that extensive clearing work conducted some one to two months after the logging under the HMP had ceased in early or late May 2006 is work authorised by it. Further, burning is specifically stated not to be within the HMP timeframe.

103 The Defendants called Mr Parish to give oral evidence. The parts of his evidence relied on on this issue are set out in the Defendants’ submissions summarised above at par 96 and 97. The evidence of Mr Parish relied on by the Defendants is not conclusive that the work conducted by Mr Lindsay was pursuant to the HMP. For one obvious reason it cannot be as Mr Parish was the applicant for the HMP not Mr Lindsay or Mr Petro (or Mr Armitage). Mr Parish’s evidence confirms that he did not intend to undertake any of the clean up activity under the HMP. To that end he asked his real estate agent to negotiate condition 38 in the contract for sale of the property to Lawlor Services Pty Ltd. That condition states that “It is also agreed that there is no requirement on the Vendor of the need to clear all trees, or remove any stumps.” That casts no light on the extent to which clean up activities after the logging were conducted pursuant to the HMP by Mr Lindsay on the instructions of Mr Armitage who was in turn instructed by Mr Petro following his meeting with Mr Hagney.

104 There is no evidence that Mr Parish had any contact with Mr Petro, Mr Armitage or Mr Lindsay concerning the HMP and the regeneration activities referred to in the application. Accordingly, Mr Parish’s evidence that what he saw on the property was part of the logging process is not conclusive of that fact.

105 I do not consider the Defendants have established on the balance of probabilities that the exemption in cl 7(g) applies. Accordingly, this defence is not available to the Defendants.

(iii) Whether any other

authorisation

under TPO? Is defence of “continuing use” available?

106 Another defence raised by the Defendants, which they must prove on the balance of probabilities, is that Mr Lindsay’s activities were carried out pursuant to continuing use rights for logging and related activities due to the use of the property as a timber farm. Consequently, his activities were authorised under s 109(1) of the EP&A Act and were not therefore a breach of cl 20(4) of the LEP as the activity was otherwise authorised under the Act. Section 109(1) of the EP&A Act provides:

Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.

(2) Nothing in subsection (1) authorises:

…

(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(3) Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

Defendants’ submissions

107 The Defendants argued that the property the subject of the charge has been used for timber farming/forestry for about one hundred years. Timber farming/forestry is a use for a lawful purpose to which s 109 applies. Since 1988, under the LEP forestry is a permissible use requiring development consent in the industrial zone, hence s 109(1) applies. The Prosecutor stated in submissions that the forestry activity, meaning the logging which was undertaken in March/April 2006 by Mr Lewis and Mr Toms under the supervision of Mr Bartlett, was lawful. It therefore follows that the cleanup work carried out by Mr Lindsay was also lawful.

108 Further, because of continuing use rights for timber farming/forestry it was not in fact necessary for an application to be made for a HMP. Clause 20(4) of the LEP does not apply because the logging in March/April 2006 was authorised by virtue of s 109 and the clean up by Mr Lindsay afterwards is part of the lawful forestry activity.

Evidence

109 To prove continuing use as a timber farm the Defendants relied on the HMP application where a brief history of the use of the property is set out (see par 84) and the affidavit of Ms Davine dated 20 September 2006 par 4 stating the property had been a timber farm for 100 years (set out above at par 33). The oral evidence of Mr Parish, the previous owner of the property, was also relied on as follows.

Parish

110 Mr Parish stated that the property was owned by the Parish family from at least 1931. It had been a timber farm for its entire history. Mr Parish and his father before him felled trees from his father’s time up until the sale to Lawlor Services Pty Ltd on 17 February 2006. Throughout that period trees were felled at the rate of one per month and there was more substantial felling for the cutting down of all millable timber.

111 Two major contracts occurred when his father died in 1960-1962. Mr Parish sold a contract to a power company for electric light poles. At other times there has been a number of bigger cuttings. These were a means of raising money to keep the property going. The 2006 logging was not the biggest job Mr. Parish had done. There were more than the three big logging jobs he mentioned. The whole property was logged in the 1960s.

112 The property was farmed as a blackbutt farm with very small quantities of other species also harvested. Mr Parish planted blackbutt trees and to get maximum output he would control the density of trees by pulling out some and planting other trees where needed to maintain correct density for maximum timber growth. Planting of blackbutts was continuous from 1927 including in 2005 and 2006, up to the sale to Lawlor Services Pty Ltd, see exhibit 3. Mr Parish stated he replanted blackbutts fellrd within 12 months. The trees are planted for suitable spacing and the felled tree rubbish has to be cleared away. Single trees were taken from all over the property.

113 It was the timber company’s idea to approach the Council for an HMP. The Council said it invariably submits an application. Mr. Parish was not aware he needed approval. Mr. Parish told the timber company the Council had assured him it was an ongoing timber farm and no approvals were necessary.

Use of fire

114 Mr Parish has continued his father’s practice of continued burning of combustible material on the property which had no economic value. He kept a strict watch on combustible material because fire (bushfire) can retard blackbutt growth and delay the harvest period by ten years. On average about every two years he would burn off to get rid of the bladey grass, oaks, and other rubbish and leaves to increase blackbutt growth.

115 Oaks (identified as the tree seen in exhibit T) stop blackbutts growing. Mr Parish and his sons tried to minimise the growth of oaks and bladey grass as much as possible. The oaks were “pure rubbish” to him. When fire goes through they “look quite thin” as in the photo (exhibit T).

116 When the property was burnt every two years he was invariably present. On occasions the fire brigade was responsible for the fire. Other times he would do it with gear borrowed from the fire brigade. Burning is seasonal and there are particular time and weather conditions needed and the Rural Fire Brigade needed to be available.

117 The last fire Mr Parish put through the property was towards the end of winter last year. That was the northern section. The year before the southern section was burnt. He always put fire through the property towards the end of winter before the fire restrictions commenced. The fire is to protect the trees (and the house). Always after a big logging exercise, fire is put through the property, subject to the weather pattern. The property was burnt every time it needed to be burnt. A lot of experience is needed to know when and what to do.

HMP terms

118 Mr Parish's evidence confirms the history set out in the HMP application. In particular, it refers to “Forest Management History” and “Harvest techniques to be used”: “Thinning” and “single tree selection” (selective logging). The “previous harvesting operations within the harvest area” (p 9) refers inter alia to the “1950s” and every decade up to and including the “1990s” and “2000”. Page 10 of the HMP refers to the “growth cycle” of the forest being at its “regular point” in that cycle and due for harvest; see par 84.

Conclusion based on facts according to the Defendants

119 The evidence recounted above justifies the following findings of fact according to the Defendants. The whole of the property (Lot 186) has been used at all material times for forestry consisting of and including the planting, growing and nurturing of trees; the general management of the forest including thinning, underscrubbing and rubbish removal; the use of fire by regular application to the whole of the forest. All of these activities have been continuously carried out on the whole of the property.

120 The consequence of these facts is:

(a) There are continuing use rights for the whole of the property for harvesting that was ongoing, both as light logging of individual trees coupled with cyclical major logging exercises, indicates that the whole of the forest was subject to logging, debris management and the application of fire at all times;

No question of abandonment arises because of the continuation of the use;

121 The evidence is consistent in indicating that the post logging activities of windrowing following consultation with the Rural Fire Service, the under scrubbing and clearing of unwanted vegetation were usual activities undertaken on the property. No blackbutt species were said by any witness to have been harmed in any way, and the preparation of the property for the application of fire was wholly within continuing use rights. The defence that Mr Lindsay’s work was conducted pursuant to continuing use rights under s109 is available and the charge against each of the Defendants should be dismissed.

122 The Prosecutor’s case relied on the logging under the HMP being conducted lawfully and that could only be the case if that activity had continuing use rights under s 109(1). Forestry which must include that logging activity by the contractors otherwise needed development consent under the relevant LEP. (The Prosecutor argued to the contrary that the taking of trees which was authorised by the HMP did not require development consent as it was not characterised as forestry, which would have required development consent. It is unnecessary that I resolve this argument).

Prosecutor’s submissions

123 The Prosecutor characterised the use of the property as logging. One use was very infrequent logging over the whole of the property. The other use is on the basis of the logging of one tree per month. Neither of these uses is sufficiently substantial to warrant a finding that either or both together were an independent use. The analogy was drawn with the irregular chopping down of a tree for a fencepost.

124 In relation to the logging of the whole of the property, the HMP states that there was a timber harvest in 1875, 1930 and 2000 and light logging in the decades: 1950s, 1960s, 1970s, 1980s and 1990s. Mr Parish, in his oral evidence, confirmed that the materials and matters set out in the HMP were correct and that the whole property has been logged on at least three occasions. It was logged after the war, so that his father could buy a car. In the 1960’s after his father’s death it was also logged again to raise funds from logging for the surviving brothers. There was logging in 2006 under the HMP. As the evidence of the last logging of the whole of the property before 2006 was in 2000, the rebuttable presumption of abandonment arises under s 109(3) of the EP&A Act. The presumption having arisen the onus falls on the Defendants to rebut it on the balance of probabilities.

148 While Gaudron and Gummow JJ dissented in Osland on another issue (the principle of causation), at [27] they also agreed on the reasoning of McAuliffe v R :

More to the point, principle dictates the conclusion that those who form a common purpose to commit a crime together are liable as principals if they are present when the crime, or any other crime within the scope of the common purpose is committed by one or more of them. The crime having been committed in accordance with the continuing understanding or arrangement, all are equally guilty as principals regardless of the part played by each. That result follows from the reasoning in

. Indeed, that reasoning would appear not to require presence at the scene of all parties to the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied.

149 For complete clarity I observe that in Osland, the principles stated by Hunt CJ in Tangye were truncated. Principles 1 and 2 are quoted exactly in Osland. Principles 3 and 4 in Tangye at 557 are as follows:

A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.

If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.

150 As submitted by the Prosecutor, joint criminal enterprise is not the same charge as one based on secondary participation based on common purpose or accessorial liability, as the Prosecutor described it. An example of the latter is a charge of “aid and abet” considered in Giorgianni v R (1984 -1985) 156 CLR 473 and "extended common purpose" in R v Taufahema, (2007) 234 ALR 1, both cases relied on by the Defendants in the “no case to answer” submissions. A charge based on accessorial liability requires that the prosecutor prove that the defendant knew of all the facts and circumstances which must be established to prove that the principal committed the offence. That is not the basis on which the Prosecutor has charged Mr Petro.

151 Both Tangye (charges of maliciously inflicting grievous bodily harm and assault) and Osland (charge of murder) concern offences which included mens rea as an element of the offence, unlike this strict liability offence arising under s 125(1) of the EP&A Act. There is reference to having the necessary mens rea in the judgment of McHugh J in Osland at [93] par 147 above. Consequently, the issue arises of whether the common law offence of joint criminal enterprise can apply to a statutory charge under s 125(1) of the EP&A Act where the offence charged is a strict liability offence and mens rea, meaning intention to commit the crime, is not an essential element in proving the offence. In the absence of an intention to commit a crime it is difficult conceptually to conceive of a charge based on establishing knowledge of and reaching an agreement to commit a crime, as the Defendants submitted.

152 Given that the Prosecutor is seeking to have common law criminal liability principles apply to a statutory offence, it is first necessary to consider cases where common law principles of criminal liability for acts committed by others has been applied to strict liability offences. In Tiger Nominees the Court of Criminal Appeal (Gleeson CJ, Mahoney JA and Campbell J concurring) held that as a matter of statutory construction s 16(1) of the Clean Waters Act 1970 may operate to make a master vicariously responsible for the conduct of an employee. In arriving at that conclusion the Chief Justice considered the development of common law principles in relation to the imposition of criminal responsibility as a principal for the acts of others, see page 74. Principles were derived from offences described as “public welfare offences”. Examples he gave were fair trading, consumer protection and environmental protection laws. This was held by his Honour to be an appropriate context for construing legislation on the question of whether Parliament had expressly or by implication created a criminal offence for which a person could be found vicariously responsible. Such statutory offences must be capable of vicarious commission.

153 Principals have been found guilty in this Court based on vicarious liability for acts committed by agents in relation to s 125(1) offences, see Power v Penthill House Pty Ltd (1993) 80 LGERA 247 at 252-254, Mosman Municipal Council v Waratah Village Partners Pty Ltd [2002] NSWLEC 184 at 37-39. As noted in Power v Penthill, s 125 is the only provision creating offences under the EP&A Act.

154 Vicarious liability applying to criminal offences which are strict liability was considered by Lloyd J in Greentree in relation to a charge of illegally clearing native vegetation under the Native Vegetation and Conservation Act 1997. The Defendants relied on this decision because it confirmed the principle that principals are not vicariously liable for the acts of independent contractors. I note that finding is subject to two exceptions identified by Lloyd J at [92]. The Defendants considered this supported their argument that there cannot be liability on the basis of joint criminal enterprise. As noted by Lloyd J in Greentree at [93] the question of whether vicarious liability (in that case) exists “ultimately depends on the circumstances of the case and the proper construction of the relevant statutory provision”.

155 The same reasoning concerning the nature of the statutory scheme which was applied in Power v Penthill to conclude that vicarious liability for s 125(1) offences and in Tiger Nominees to an offence under the Clean Waters Act is also applicable in relation to a charge under s 125(1) based on joint criminal enterprise in my view. The objects of the EP&A Act are.

(a) to encourage:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii) the promotion and co-ordination of the orderly and economic use and development of land,

(iii) the protection, provision and co-ordination of communication and utility services,

(iv) the provision of land for public purposes,

(v) the provision and co-ordination of community services and facilities, and

(vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and

(vii) ecologically sustainable development, and

(viii) the provision and maintenance of affordable housing, and

156 In light of these objects of the legislation the offence under s 125(1) is a “public welfare” offence, as identified in Tiger Nominees. It is a statutory context in which the legislature could contemplate that liability as a principal on the basis of joint criminal enterprise could arise for an offence under s 125(1) of the EP&A Act.

157 The issue then becomes whether this statutory offence is capable of commission on the basis of joint criminal enterprise as identified by the principles in Tangye/Osland. The Prosecutor relied on Lloyd v Snooks as an example of a person being found guilty as a principal for a statutory offence which was strict liability. That case concerned the taking of undersize abalone, a strict liability offence under the relevant legislation. The Tasmanian Supreme Court (Full Court) did not refer to liability on the basis of joint criminal enterprise or to the principles in Tangye and Osland. It did find the defendant liable as a principal for a strict liability offence in circumstances where the evidence did not support a charge of aiding and abetting because there was not sufficient evidence to prove that the defendant was aware of all the essential facts constituting the principal offence as required for a charge of aid and abet. He was directly engaged in the commission of the act in that he pulled up from the sea bags of undersized abalone filled by someone else who prised the undersized abalone off the rocks. The basis for the finding of liability as a principal appears to be that he carried out part of the act constituting the offence. It is not therefore a case of joint criminal enterprise as identified in Osland and Tangye.

158 The principles in Osland and Tangye are directed to crimes in which mens rea is an essential element of the crime. On a strict application of the principles in Tangye as adopted in Osland the absence of mens rea as a necessary element of a strict liability offence means that such an offence cannot be committed on the basis of a joint criminal enterprise as identified in those cases. This is because the necessary agreement to commit a crime does not arise, because no intention to commit a crime need be proved to establish guilt in the case of a strict liability offence. The Defendants’ argument that knowledge of the intention to commit a crime is necessary to enable there to be an agreement that it be committed is certainly an argument open on reading the principles in Osland and Tangye. If the principles in Osland and Tangye must be applied unmodified then I agree with the Defendants that there is not a charge of joint criminal enterprise open for this strict liability offence.

159 Applying the principles in Tangye and Osland, the Prosecutor did submit that the evidence establishes that Mr Petro knew that trees greater than 3m were being destroyed by Mr Lindsay in breach of the TPO but this was not the primary argument of the Prosecutor nor the case which the evidence was directed to. While the Prosecutor relied on the principles in Osland/Tangye without modification its main argument was that provided it established that Mr Petro agreed with Mr Lindsay that Mr Lindsay do the clearing up activity, and Mr Petro participated by his presence when the clearing up activity occurred and trees over 3m were knocked over by Mr Lindsay in doing that work, that is sufficient to prove joint criminal enterprise in the context of this strict liability offence. The only necessary intention about which there had to be agreement was that clearing up work was to be carried out by Mr Lindsay. The application of these principles in the Prosecutor’s argument, albeit by implication, is that the agreement that must be proved is not an agreement to commit a crime per se only to do the act which constituted the strict liability offence. If I assume that the principles of joint criminal enterprise can apply to a strict liability offence in this way, an agreement to commit an act which constitutes a crime, and participation in that act by presence during it, need be proved. There is no need to prove an intention to commit that act as a crime in order to establish the offence.

2. Is the charge proved against Mr Petro?

160 I now need to decide if Mr Petro is criminally liable as charged.

Firstly, applying a modification of principle (2) in Tangye as discussed in the preceding paragraph, the Court must be satisfied beyond reasonable doubt that the evidence shows that there was an understanding or arrangement amounting to an agreement between Mr Petro and Mr Lindsay to carry out an act (which did or could give rise to a strict liability offence), namely knocking over a tree or trees over 3m. Secondly, applying a modification of principle (3) in Tangye the Court must be satisfied beyond reasonable doubt that the evidence shows that Mr Petro participated in that act by his presence and encouragement of Mr Lindsay (with knowledge of what acts Mr Lindsay was doing). While some cases concerning joint criminal enterprise for mens rea offences have considered that presence at the commission of the crime is not essential, see for example Gummow and Gaudron JJ in Osland at par 146, that is the basis of the charge before me.

161 The evidence relied on by the Prosecutor for agreement and participation is closely linked in the circumstances of this case.

Evidence and submissions relied on by Prosecutor

162 The Prosecutor submitted there is no doubt that Mr Lindsay has committed an offence under s 125 of the EP&A Act, that is, a breach of cl 20 of the LEP in that he has removed trees to which the TPO applies without consent or permission or authorisation. Because this is a strict liability offence it is not strictly necessary for the Prosecutor to prove that either Mr Petro or Mr Lindsay knew that trees in excess of 3m were being removed, provided there is evidence that trees of 3m in height were being removed (as there is). I note that the evidence relied on by the Prosecutor extends beyond that referred to in the particulars set out at par 135 above. Those particulars focus on the presence of Mr Petro during Mr Lindsay's clearing activity only. In final submissions the Prosecutor also relied on events before Mr Lindsay commenced work to argue there was agreement between Mr Petro and Mr Lindsay.

“Agreement”

163 The evidence of agreement between Mr Petro and Mr Lindsay is that although Mr Lindsay was introduced to the property by Mr Armitage he knew he was doing the work for Mr Petro. He told Ms Davine he worked for Mr Petro. Mr Armitage called Mr Petro when Mr Lindsay was in the car looking at the property to see the work he was being employed to do.

164 On every occasion that Mr Petro came to the property, which was from the first day Mr Lindsay started work, Mr Petro spoke to Mr Lindsay and told him “good work, keep going”. Alternatively, to the extent he may not have used the specific words “keep going” he left Mr Lindsay with the impression that he was satisfied with the work that he was doing and that he should keep going. In cross-examination he agreed that he could not remember the precise words used but the impression he had was that Mr Petro said words to the effect that he was doing a good job and should keep going.

165 Mr Petro also provided specific instructions as to the area of property upon which Mr Lindsay was to do his work. He told Mr Lindsay only to clear as far as Logan Crossing Road. Mr Lindsay agreed with the Prosecutor that the work he was doing was “basically just pushing up all the smaller spindly oaks and the younger eucalypt saplings and the undergrowth into piles …”. There is a clear inference from his evidence that Mr Lindsay considered he was told to remove everything other than the larger trees. By the time Mr Lindsay was stopped he had almost finished the extent of the work that Mr Petro had asked him to do.

166 Ms Davine also interviewed Mr Petro, as set out in her affidavit of 13 October 2006. The information she set out includes that Mr Petro is authorised to act for Lawlor Services. Mr Petro organised for someone from the Rural Fire Services to come out to the site. Mr Petro contacted Mr Armitage to have the work carried out. Mr Petro met with Mr Armitage on the site. Mr Petro organised for a Mr Fullford to do some minor works on the property. Mr Petro gave instructions to Mr Fullford for the carrying out of that work. Mr Petro was happy with what was being done on the property. When asked "what they were doing was to your instructions?", Mr Petro said "yes, at the time".

Participation

167 The evidence the Prosecutor relied on is that Mr Lindsay undertook extensive cleaning up work over approximately 12 days over a large site (minimum 23ha) and that Mr Petro visited on all those days for approximately 20 to 30 minutes. There is evidence from two Council officers, Ms Davine and Mr Hanlon, describing the extent of cleaning up they saw when they visited the site after Mr Lindsay had nearly finished his cleaning up activity.

168 The Prosecutor argued that the inference arises on this circumstantial evidence that Mr Petro could not have failed to notice the scale of the cleaning up process undertaken by Mr Lindsay, given his daily visits to the site. When Mr Petro came to the site Mr Lindsay was working. This can be inferred because Mr Lindsay said that he worked all day without stopping. He stated that when Mr Petro came onto the site he “was only tidying up, doing the general work".

Defendants’ evidence and submissions

169 The Defendants argued that in order for the Prosecutor to succeed in proving that Mr Petro was engaged in a joint criminal enterprise with Mr Lindsay it needs to prove firstly that a crime of the wilful destruction of trees was committed by Mr Lindsay. (I have held that there was such a commission). It is necessary that there be proof of:

(i) the existence of a voluntary agreement between Mr Lindsay and Mr Petro for Mr Lindsay to wilfully destroy trees over 3m in height on the property and there is none (if the principles in Tangye/Osland are strictly applied that is correct as identified above at par 158);

(ii) the physical presence of Mr Petro at the time and place at which Mr Lindsay wilfully destroyed a tree or trees in excess of 3m; and

(iii) the participation (meaning presence in this context) of Mr Petro in the commission of the offence.

“Agreement”

170 There is no evidence of any agreement between Mr Petro and Mr Lindsay that Mr Petro would agree and participate with Mr Lindsay in the joint criminal activity of the wilful destruction of trees in excess of 3m and none can be inferred on the evidence. There is no evidence that Mr Petro saw Mr Lindsay cut down a tree or trees in excess of 3m. The only person who could have given such evidence is Mr Lindsay and he did not. The Prosecutor contends that notwithstanding that Mr. Lindsay stopped working when he noticed Mr Petro was present, Mr Petro must have known that Mr Lindsay was wilfully destroying trees in excess of 3m in height (in his presence) because of the obvious number of trees in excess of 3m that had been wilfully destroyed. The evidence does not support any such contention, let alone enable the Court to be satisfied beyond reasonable doubt of such an intermediate fact: see Shepherd v The Queen (1990) 170 CLR 573 at 581.

171 The issue of what trees in excess of 3m in height were wilfully destroyed by Mr Lindsay has to be understood in the context of the number of trees, branches and other debris that was on site after logging by Mr Lewis and Mr Toms. According to the Defendants there is no doubt that ground cover and understorey was cleared by Mr Lindsay but how much of this was greater than 3m in height is unknown.

172 There is no evidence that Mr Petro knew Mr Lindsay would or had wilfully destroyed trees in excess of 3m or that there was any agreement or understanding between Mr Petro and Mr Lindsay that Mr Lindsay would do so. Mr Lindsay was not told by Mr Petro which trees to clear, that was left up to Mr Lindsay. All the evidence shows is that Mr Petro said to Mr Lindsay “good job”, “keep going” or words to similar effect. The Prosecutor argued that it can be inferred that by these words and his presence there was an agreement, but that is not sufficient to prove the existence of an agreement beyond reasonable doubt. Mr Petro’s comments are entirely consistent with him observing the competent forming of windrows for burning, as instructed by Mr Armitage. The only evidence of a specific instruction by Mr Petro to Mr Lindsay is that he told him to only go as far as Logans Crossing Road.

“Presence/participation”

173 The Defendants argued that the Prosecutor must prove beyond reasonable doubt that Mr Petro was present when Mr Lindsay wilfully destroyed a tree in excess of 3m, relying on Shepherd v The Queen (1990) 170 CLR 573. There is no evidence that Mr Petro was present when Mr Lindsay knocked over a tree over 3m. Further, the evidence is that Mr Lindsay stopped work when he noticed Mr Petro was present. As this is a charge under the TPO of the wilful destruction of a tree the Prosecutor must prove that Mr Petro was present when at least one tree over 3m was knocked over. It is irrelevant that the Prosecutor alleges the offence of the wilful destruction of trees took place over 12 days in the absence of that evidence. Mr Lindsay is unable to say if he did knock over a tree over 3m when Mr Petro was present. The Prosecutor’s case is circumstantial and is insufficient to prove beyond reasonable doubt that Mr Petro must have known Mr Lindsay was wilfully, meaning deliberately, destroying trees over 3m because he saw him do it.

Finding on whether Petro liable on evidence

174 The Prosecutor must prove the elements of the charge beyond reasonable doubt. I have set out at par 159 and 160 the possible elements of a charge based on joint criminal enterprise available for a strict liability offence under s 125(1) of the EP&A Act. The acts constituting the actus reus of the actual offender are attributed to the other party, see McHugh J in Osland at [75]. It is necessary that the Prosecutor prove there is an agreement to carry out the act constituting the crime, that is, the knocking over of a tree or trees over 3m (but not the intention to carry out that act as a crime) and participation by presence and encouragement (including knowledge of relevant acts) at the time of the person carrying out the act constituting the crime (according to Tangye), see par 160.

175 I have set out at length earlier in the judgment the evidence concerning the cleaning up activity by Mr Lindsay, including the obtaining of instructions to undertake the work. There is evidence that Mr Lindsay removed trees in excess of 3m although the evidence of the number of trees removed is imprecise. I have made my finding on various issues based on the evidence above at par 50 -71 and those paragraphs should be notionally repeated here as they inform the arguments and my findings on the issue of whether Mr Petro is criminally liable.

Agreement

176 The evidence discloses that at the time he was engaged to do the cleaning up work there were general directions given to Mr Lindsay by Mr Armitage based on Mr Armitage’s conversations with Mr Petro. Mr Lindsay’s understanding of what he was asked to do is set out at par 21. There is no evidence of any specific instruction from anyone to Mr Lindsay about how he should undertake the cleaning up in order to heap up the tree heads in windrows for burning.

177 The principal argument put by the Prosecutor is that Mr Petro in arranging via Mr Armitage for Mr Lindsay to do the cleaning up of debris to enable the fire service to burn off, gave rise to the agreement with Mr Lindsay to carry out the act, which was the crime of breaching the TPO by the wilful destruction of trees. This agreement was further confirmed by Mr Petro’s presence on site when the work was being undertaken.

178 It is insufficient for this charge based on joint criminal enterprise to rely on the agreement that Mr Lindsay was employed to undertake certain cleaning up work which work resulted in trees over 3m being knocked over as evidence that Mr Petro was agreeing that Mr Lindsay knock down trees over 3m. How the cleaning up activity was carried out was left up to Mr Lindsay. That is confirmed by Mr Lindsay’s evidence outlined above at par 21. He heaped up the heads of trees into windrows in a way he thought the rural fire service would be able to burn. He had extensive experience over 40 years in undertaking that work. He undertook his work carefully and tried not to knock down trees. I do not accept the Prosecutor’s submission that Mr Lindsay considered he was told to remove everything other than the larger trees, as I identified above at par 21. I have held that a large number of trees over 3m were knocked down by him, but these consisted of damaged trees and a substantial number of smaller spindly oaks which were located in amongst many of the heads he had to clear up.

179 Further, Mr Petro did not speak directly to Mr Lindsay before commencing work. An inference open on the evidence is that given the wide discretion Mr Lindsay had to do the job and the fact that he had no direct contact, spoken or in person, with Mr Petro until after he had started work, Mr Petro was unaware of what Mr Lindsay specifically intended to do. Accordingly there could be no agreement that Mr Lindsay carry out the activity of knocking over trees over 3m before Mr Lindsay started work as Mr Petro was unaware that any tree over 3m was likely to be knocked over.

180 Mr Petro came onto the property after Mr Lindsay had commenced work on the first day. Precisely when is unknown. The transcript records that when Mr Lindsay gave evidence he first said that Mr Petro said “good job" when he saw him on site. When giving later evidence, Mr Lindsay agreed with the Prosecutor that he had said that on the first day he saw Mr Petro, Mr Petro made the comment “good job, keep going”. In cross-examination by Mr Petro’s counsel, Mr Lindsay agreed he could not remember Mr Petro saying to keep going, only that he was doing a good job.

181 Apart from these conversations, there is no evidence that Mr Petro gave any specific instruction to Mr Lindsay telling him how to do the cleaning up activity apart from telling him not to go beyond Logans Crossing Road. That specific instruction does not confirm any agreement to activity which did result in the wilful destruction of trees over 3m by Mr Lindsay. There is also an inference available from the evidence of Mr Petro attending every day and saying “good job”, regardless of whether he said “keep going”, that he was praising Mr Lindsay for the creation of the windrows, as submitted by the Defendants.

182 It also follows that the Prosecutor has not proved beyond reasonable doubt that there was an agreement between Mr Petro and Mr Lindsay before Mr Lindsay commenced work on 17 or 18 July 2006 that Mr Lindsay undertake cleaning up work which included the act of knocking over trees over 3m. Nor do I consider the evidence supports an agreement based on the conversations he had with Mr Lindsay on the property during the period Mr Lindsay was working there.

Participation(and agreement inferred by presence)

183 In the Prosecutor’s case the evidence of presence by Mr Petro when trees over 3m were being knocked over by Mr Lindsay and consequently his participation, and also agreement inferred by that presence, is circumstantial because there is no evidence that Mr Petro was present when a tree over 3m was knocked over by Mr Lindsay. The Defendant argued that such a finding was an intermediate fact which it was necessary for the Prosecutor to prove beyond reasonable doubt, relying on Shepherd v The Queen in order to succeed. As identified by Dawson J in that case at 579 proof of presence at the crime as an intermediate fact may not always be necessary in order to prove an offence. It may be possible to establish as a matter of inference beyond reasonable doubt from other evidence such as opportunity or motive. It is therefore possible for the Prosecutor to prove participation by Mr Petro if, as the Prosecutor alleges, there is an overwhelming inference that Mr Petro must have been present and aware that trees over 3m were being knocked over despite no evidence that he was present when a tree over 3 m was knocked over by Mr Lindsay.

184 Where reliance is placed on circumstantial evidence the Prosecutor accepted that it bears the onus of negativing any reasonable alternative hypothesis consistent with innocence. The offence of destruction of a tree or trees in breach of the TPO is argued to have occurred over 12 days during which time many trees the subject of the TPO were knocked over. While I have held that it is likely that a large number of trees were knocked over, those consisted of 150 damaged trees which Mr Lindsay considered were dangerous or unlikely to live and numerous spindly oaks, which grew over much of the property on which Mr Lindsay carried out his work, most of which are unlikely to have been much over 3m for reasons stated previously. I have held that the Prosecutor has not proved beyond reasonable doubt how many more trees than in these two categories were knocked over in breach of the TPO (see par 67 -73).

185 The Prosecutor submitted that it must have been obvious to Mr Petro that for the whole twelve days that Mr Lindsay worked trees over 3m were being knocked over, and that that is the only reasonable hypothesis available on the evidence. I have set out above in par 56-62 my conclusions that on the evidence concerning the state of the property after logging in terms of snig tracks and log dump areas being cleared and debris on the ground. Based on that evidence and additional matters considered earlier in the judgment I have made general findings about how many damaged trees and spindly oaks were removed by Mr Lindsay. In the context of clearing of a minimum of 23ha of land after a logging operation across the property I do not consider the inference for which the Prosecutor contends is the only inference open on the evidence. It is also open to conclude by inference on the evidence that it was not obvious to Mr Petro given the state of the property after logging and the nature of Mr Lindsay’s cleaning up activity on the property.

186 An alternative submission not put directly by the Prosecutor is that the circumstances giving rise to agreement (which need not be express, can be inferred and need not arise before the time the crime is committed) and participation occurred at the same time and that this could have occurred at some point or period during the twelve days that Mr Lindsay did the cleaning up work. The particulars of the offence as charged by the Prosecutor is that Mr Petro was agreeing and participating in the acts carried out by Mr Lindsay from the outset of that work. For such an offence to be proved beyond reasonable doubt the Prosecutor would have to identify at what point or period in that twelve days that could be said to have occurred and it has not done so.

187 The circumstantial evidence relied on by the Prosecutor does not prove to the necessary standard that there was participation in the act of knocking down trees over 3m by Mr Petro with Mr Lindsay. As both agreement and participation are necessary elements of the offence of joint criminal enterprise the Prosecutor has not proved that charge against Mr Petro and I consider I should find him not guilty.

D. Criminal liability of Lawlor Services Pty Ltd

188 The Prosecutor submitted that Mr Petro was the heart mind and will of Lawlor Services Pty Ltd relying on Brennan J in Environmental Protection Authority v Caltex (1993) 118 ALR 392 at 416, 417; Tesco Supermarkets Ltd v Nattrass [1972] AC 153 per Lord Reid at page 170.E; Mosman Municipal Council v Waratah Village Partners Pty Ltd at [17]. The evidence relied on was an interview of Mr Laws, a director of Lawlor Services, with Council officer Ms Davine set out at par 4 of her affidavit dated 13 October 2006 and an interview with Mr Petro identified in par 5 of Ms Davine’s affidavit of 13 October 2006. Consequently it was also liable as charged. The Prosector conceded that if Mr Petro was found not guilty then Lawlor Services Pty Ltd could not be found guilty.

189 As I have found that Mr Petro is not guilty of the charge against him, Lawlor Services Pty Ltd cannot be found guilty of the same charge.

CITATION:	Port Macquarie – Hastings Council v Lawlor Services Pty Limited; Port Macquarie – Hastings Council v Petro (No 6) [2007] NSWLEC 567
PARTIES:	PROSECUTOR Port Macquarie – Hastings Council FIRST DEFENDANT Lawlor Services Pty Limited SECOND DEFENDANT Edmund Petro
FILE NUMBER(S):	50031 of 2006; 50006 of 2007
CORAM:	Pain J
KEY ISSUES:	Prosecution :- whether trees destroyed in breach of Tree Preservation Order - whether clearing activity in accordance with permit being a Harvest Management Plan - whether continuing use rights existed to activity the subject of the charge under s109(1) Prosecution: - joint criminal enterprise - whether a defendant criminally liable for acts of bulldozer driver who was not charged Prosecution: - whether defendant company/landowner guilty for acts of other defendant because he was "heart and mind" of the defendant company
LEGISLATION CITED:	Clean Waters Act 1970 s 16(1) Environmental Planning and Assessment Act 1979 s 109, s 125 Evidence Act 1995 s 78, s 128 Hastings Local Environmental Plan 2001 cl 20, Dictionary Native Vegetation and Conservation Act 1997
CASES CITED:	Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; Commercial Union Assurance Company of Australia v Ferrcom Pty Ltd (1991) 22 NSWLR 38; Director-General of Department of Land and Water Conservation v Greentree & Anor [2002] NSWLEC 102; Director of Public Prosecutions v United Telecasters Sydney Limited (1989 -1990) 168 CLR 594; Environmental Protection Authority v Caltex (1993) 118 ALR 392 ; Giorgianni v R (1984 -1985) 156 CLR 473; Lemworth Pty Limited v Liverpool City Council (2001) 117 LGERA 305; Lloyd v Snooks (1997) 94 A Crim R 314; Lloyd v Snooks (1999) 153 FLR 339; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; McAuliffe v R (1995) 183 CLR 108; Mosman Municipal Council v Waratah Village Partners Pty Ltd [2002] NSWLEC 184; Osland v R (1998) 159 ALR 170; Port Macquarie – Hastings Council v Lawlor Services Pty Limited; Port Macquarie – Hastings Council v Petro (No 5) [2007] NSWLEC 362; Power v Penthill House Pty Ltd (1993) 80 LGERA 247; R v Tangye (1997) 92 A Crim R 545; R v Taufahema, (2007) 234 ALR 1; Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305; Shepherd v The Queen (1990) 170 CLR 573; Shire of Perth v O’Keefe [1964] 110 CLR 529 at 535; Tesco Supermarkets Ltd v Nattrass [1972] AC 153; Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 75 LGRA 71; Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366
DATES OF HEARING:	28 - 31 May 2007 1 June 2007 4 - 8 June 2007 12 - 15 June 2007 19 - 21 June 2007
DATE OF JUDGMENT:	21 September 2007
LEGAL REPRESENTATIVES:	PROSECUTOR Mr I Hemmings SOLICITOR Donovan Oates Hannaford FIRST DEFENDANT Mr J Maston SOLICITOR Falvey Associates SECOND DEFENDANT Mr T Hale SC SOLICITOR Falvey Associates