Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd

[2025] NSWLEC 48

Land and Environment Court

New South Wales

Medium Neutral Citation:

Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2025] NSWLEC 48

Hearing dates:

17 December 2024

Date of orders:

19 May 2025

Decision date:

19 May 2025

Jurisdiction:

Class 5

Before:

Robson J

Decision:

See orders at [211]

Catchwords:

ENVIRONMENTAL OFFENCES — Prosecution where defendant did not appear in Court — Defendant charged with 20 offences under the National Parks and Wildlife Act 1974 (NSW) and the Biodiversity Conservation Act 2016 (NSW) — Allegation of clearing of native vegetation on land — Offences of harming or picking plants and damaging habitat of threatened species, endangered populations or endangered ecological communities — Where defendant did not obtain the required development consent in activity resulting in damage to habitat — Defendant found guilty of all 20 offences — Proceedings listed to obtain sentence hearing date and directions

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW), Sch 2, Pt 1, Div 2, Pt 2, ss 1.6, 2.2, 2.4, 2.45, 2.8, 12.19, 13.8, 13.29, 13.31, 13.32

Biodiversity Conservation Regulation 2017 (NSW)

Corporations Act 2001 (Cth), s 500

Criminal Procedure Act 1986 (NSW), ss 247F, 247K

Environmental Planning and Assessment Act 1979 (NSW), Pts 4, 5

National Parks and Wildlife Act 1974 (NSW), ss 5, 118A, 118D, 118F, 118G, 159A, 175A, 175C

National Parks and Wildlife Regulation 2009 (NSW), cl 107

Native Vegetation Act 2003 (NSW), Sch 1, Pt 3, ss 12, 14

Threatened Species Conservation Act 1995 (NSW), Sch 1A, s 4

Cases Cited:

Aerotropolis Pty Ltd v Secretary, Department of Planning and Environment [2023] NSWCCA 195

Aerotropolis Pty Ltd v Secretary, Department of Planning and Environment [2023] HCASL 213

Burwood Council v Pan Pac Investments Pty Ltd(No 2) [2019] NSWLEC 29

Cowie v GD Pork Pty Ltd (in liq) (2022) 164 ACSR 631; [2022] WASC 301

Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited(No 2) [2010] NSWLEC 73

Director-General, Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15; (2010) 173 LGERA 366

Orr v LakeCoal Pty Limited [2019] NSWDC 178

R v Filipovic; R v Gelevski (2008) 181 A Crim R 83; [2008] VSCA 14

R v Keydane Pty Ltd (in liq) [2023] QDC 39

Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2023] NSWLEC 4

SKM Services Pty Ltd v Magistrates’ Court of Victoria (No 2) [2019] VSC 856

Sutton v R (1984) 152 CLR 528; [1984] HCA 5

WorkCover Authority (NSW) (Inspector Maltby) v Josef & Sons Contracting Pty Ltd (in liq) [2002] NSWIRComm 226

Category:

Principal judgment

Parties:

Secretary, Department of Climate Change, Energy, the Environment and Water (Prosecutor)
Aerotropolis Pty Ltd (ACN 167 817 692) (Defendant)

Representation:

Counsel:
G Wright SC with T C Spohr (Prosecutor)
No appearance (Defendant)

Solicitor:
Department of Climate Change, Energy, the Environment and Water (Prosecutor)
No appearance (Defendant)

File Number(s):

2022/00173269; 2022/00173270; 2022/00173271; 2022/00173272; 2022/00173273; 2022/00173274; 2022/00173275; 2022/00173276; 2022/00173277; 2022/00173278; 2022/00173279; 2022/00173280; 2022/00173281; 2022/00173282; 2022/00173283; 2022/00173284; 2022/00173285; 2022/00173286; 2022/00173287; 2022/00173288

Publication restriction:

Nil

JUDGMENT

Nature of proceedings and outcome

1. By 20 summonses filed 14 June 2022 by the Secretary, Department of Planning and Environment, now known as the Department of Climate Change, Energy, the Environment and Water (‘prosecutor’), Aerotropolis Pty Ltd (‘defendant’) stands charged with 20 offences against the National Parks and Wildlife Act 1974 (NSW) (‘NPW Act’) and the Biodiversity Conservation Act 2016 (NSW) (‘BC Act’) relating to the alleged clearing of native vegetation from a property located at 203 Greendale Road, Bringelly (‘property’) during the period from 10 April 2016 to 28 May 2020.

2. In summary, there are broadly three categories of offence relevant to each of seven charge periods. First, harming or picking plants, namely, the critically endangered ecological community (‘EEC’) Cumberland Plain Woodland in the Sydney Basin Bioregion (‘CPW’); second, damaging the habitat of an EEC, namely, CPW; and third, damaging the habitat of the Cumberland Plain land snail Meridolum corneovirens (‘land snail’), a threatened species, which occurred by reason of the destruction of CPW, which is the primary habitat of the land snail.

3. It is the prosecutor’s case that the defendant removed vegetation covering 36.8ha of CPW over approximately four years and one month at the property, which was approximately 121.12ha. The clearing was carried out by an employee of the defendant who was directed to do so by a director of the defendant.

4. On 19 August 2024, the defendant’s sole shareholder passed a resolution for the voluntary winding up of the defendant and appointed a liquidator. The appointment was initiated by the defendant’s directors and shareholder on the basis that the defendant was unable to pay all its creditors in full. The liquidator informed the Court that he did not propose to take part in the proceedings, and therefore did not defend the charges on the defendant’s behalf at the hearing which proceeded on 17 December 2024.

5. For the reasons that follow, I find beyond reasonable doubt that the defendant is guilty of the 20 offences as charged and that each matter is to be stood over to 23 May 2025 for directions in relation to sentencing.

Structure of judgment

6. This judgment is structured as follows. I will first provide a precis of the facts that led to the liquidator’s position of not defending the charges. I will then detail the charges, note the statutory framework, and record the elements of each charge and the possible defences. Then, I will provide an overview of the evidence relied upon by the prosecutor including the expert remote sensing and ecological evidence, before dealing with the specific evidence relating to each charge. While I remain conscious that there are 20 discrete offences under consideration, there is a significant factual commonality between the offences in relation to conduct, expert evidence, corporate knowledge and possible defences. As such, to reduce unnecessary repetition, I will make certain primary findings that will be adopted in my consideration of later offences.

7. It is a requirement of a judgment such as this to set out the principles of law that are to be applied. I will do so with as much brevity as is possible. The prosecutor bears the onus of establishing the guilt of the defendant in relation to each charge beyond reasonable doubt. Those words have their ordinary meaning. The matters that the prosecutor needs to establish are the elements of each charge. However, despite the matters proceeding in the absence of the defendant, the prosecutor is not required to prove the truth and reliability of every likely disputed fact or to answer every question that might otherwise be posed concerning the evidence in each case.

8. Although the 20 charges were heard together, each must be considered separately. It would be impermissible to reason that if the prosecutor proved that the defendant committed one offence, the defendant must necessarily have committed another, or the others: R v Filipovic; R v Gelevski (2008) 181 A Crim R 83; [2008] VSCA 14 at [127]. However, in circumstances where the prosecutor has relied upon one body of evidence in respect of the charges, I may nevertheless, in reaching my verdict(s), consider the totality of the evidence in the case as relevant to each charge: Sutton v R (1984) 152 CLR 528; [1984] HCA 5.

Background to hearing

9. Before 19 August 2024, the defendant took an active role in the proceedings including the following steps: first, filing a notice of motion dated 5 August 2022 seeking orders that each of the proceedings was commenced outside the two-year limitation period for the commencement of proceedings; second, seeking leave to appeal to the Court of Criminal Appeal from the decision of Moore J that the limitation period did not expire until 11 June 2022 (Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2023] NSWLEC 4); third, seeking special leave to appeal to the High Court from the decision of the Court of Criminal Appeal dismissing its appeal (Aerotropolis Pty Ltd v Secretary, Department of Planning and Environment [2023] NSWCCA 195); fourth, following the High Court’s decision refusing special leave on 7 December 2023 (Aerotropolis Pty Ltd v Secretary, Department of Planning and Environment [2023] HCASL 213), filing and serving a notice of defence response under s 247F of the Criminal Procedure Act 1986 (NSW) (‘CP Act’) on 3 May 2024; fifth, filing and serving a notice under s 247K of the CP Act on 16 August 2024; and sixth, being represented by the law firm Clayton Utz at various directions hearings in 2023 and 2024.

10. Consequent upon the appointment of the liquidator on 19 August 2024, the proceedings were listed for directions on 6 and 27 September 2024 and 11 October 2024. A notice of ceasing to act was filed by Clayton Utz on 5 September 2024.

Leave of the Court is not required to continue prosecution

11. I accept the prosecutor’s position that leave of the Court is not required to continue a criminal prosecution against a company that is being wound up voluntarily. My reasons may be shortly stated.

12. Until the company is deregistered, it exists and there is no impediment to proceeding to determine the criminal charges and, if warranted, to sentence the defendant. The Corporations Act 2001 (Cth) (‘Corporations Act’) distinguishes between winding up in insolvency by the Court and voluntary winding up. The defendant’s winding up is voluntary.

13. While s 500(2) of the Corporations Act provides that:

After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes[,]

it has been held in a number of first instance decisions that s 500(2) only applies to civil proceedings: WorkCover Authority (NSW) (Inspector Maltby) v Josef & Sons Contracting Pty Ltd (in liq) [2002] NSWIRComm 226 at [7], [22]-[23], [30], [35]; Burwood Council v Pan Pac Investments Pty Ltd(No 2) [2019] NSWLEC 29 at [5], [13]; Orr v LakeCoal Pty Limited [2019] NSWDC 178; Cowie v GD Pork Pty Ltd (in liq) (2022) 164 ACSR 631; [2022] WASC 301 at [25]-[26], [28]; SKM Services Pty Ltd v Magistrates’ Court of Victoria (No 2) [2019] VSC 856.

14. The same approach was taken in R v Keydane Pty Ltd (in liq) [2023] QDC 39 at [12], which stated:

“…that questions of the utility or otherwise of the prosecution are matters for the prosecuting authority, not the Court. The prosecutor submitted that, notwithstanding no penalty may be paid, pursuing such a prosecution and the recording of a conviction (if the charge were proved), would be in the public interest and would serve the purposes of general deterrence and denunciation.”

Background to the defendant

15. The defendant was incorporated on 31 January 2014 and carried on business in property development. Between 31 January 2014 and 22 January 2024, Jomon Varghese was a director of the defendant and thus, was a director at the time of the charged conduct. Mr Varghese was also a former shareholder of the defendant.

16. From 5 February 2015, Sheena Varghese has been a director of the defendant. Ms Varghese was the sole shareholder at the time of the Australian Securities and Investments Commission (ASIC) search dated 20 March 2024.

17. From about 17 June 2015, Ascent Corporation Pty Limited (‘Ascent’) was the owner of the property (having purchased it for $5.2 million). Ascent is a subsidiary of Aerotropolis Group Pty Ltd (‘Aerotropolis Group’). Ascent was registered as a company on or about 17 June 2014.

18. Mr Varghese was at all relevant times a director and the secretary of Ascent. Ms Varghese was also a director of Ascent.

19. The ultimate holding company of Ascent was Aerotropolis Group, which was registered on 3 January 2017. Mr Varghese was a director and the secretary of Aerotropolis Group. Ms Varghese was also a director of Aerotropolis Group. Aerotropolis Group was the parent company of the defendant, which had the trading name “Aerotropolis Consultants and Developers”.

20. As considered at [168] below, the evidence shows that Mr Varghese sought to develop the property as a “World Trade Centre” due to its position in Western Sydney and he was pursuing a State Significant Development Application.

21. Property records show that the property was sold (approximately two years after the expiry of the last charge period) by Ascent on 21 March 2022 via the mortgagee, Stuart Finance Group Pty Ltd, executing a power of sale under the mortgage to The Austral Brick Co Pty Ltd.

The charges

22. Due to a change in legislation on 25 August 2017, the defendant was charged under two different Acts, the NPW Act and the BC Act. The NPW Act offences of harming or picking plants and damaging habitat were repealed, and new equivalent offences were found in the BC Act.

23. The following table details (and numbers) the 20 charges by reference to the relevant offence provision, the 7 charge periods, and the gravamen of the conduct alleged in each summons.

Proceedings	Provision	Periods	Subject
CHARGE GROUP 1
1	2022/00173269	118A(2) NPW Act	10/04/16 27/08/16	Picked 3.46ha of CPW plants
2	2022/00173270	118D(1) NPW Act	10/04/16 27/08/16	Damaged 3.46ha of land snail habitat
3	2022/00173271	118D(1) NPW Act	10/04/16 27/08/16	Damaged 3.46ha of CPW habitat
CHARGE GROUP 2
4	2022/00173272	118A(2) NPW Act	27/08/16 09/04/17	Picked 5.26ha of CPW plants
5	2022/00173273	118D(1) NPW Act	27/08/16 09/04/17	Damaged 5.26ha of land snail habitat
CHARGE GROUP 3
6	2022/00173274	118A(2) NPW Act	08/07/17 24/08/17	Picked 0.78ha of CPW plants
7	2022/00173275	118D(1) NPW Act	08/07/17 24/08/17	Damaged 0.78ha of CPW habitat
8	2022/00173276	118D(1) NPW Act	08/07/17 24/08/17	Damaged 0.78ha of land snail habitat
CHARGE GROUP 4
9	2022/00173277	2.2(1)(b) BC Act	12/09/17 04/08/18	Picked 4.76ha of CPW plants
10	2022/00173278	2.4(1) BC Act	12/09/17 04/08/18	Damaged 4.76ha of CPW habitat
11	2022/00173279	2.4(1) BC Act	12/09/17 04/08/18	Damaged 4.76ha of land snail habitat
CHARGE GROUP 5
12	2022/00173280	2.2(1)(b) BC Act	04/08/18 05/11/18	Picked 1.15ha of CPW plants
13	2022/00173281	2.4(1) BC Act	04/08/18 05/11/18	Damaged 1.15ha of CPW habitat
14	2022/00173282	2.4(1) BC Act	04/08/18 05/11/18	Damaged 1.15ha of land snail habitat
CHARGE GROUP 6
15	2022/00173283	2.2(1)(b) BC Act	12/03/19 01/07/19	Picked 20.19ha of CPW plants
16	2022/00173284	2.4(1) BC Act	12/03/19 01/07/19	Damaged 20.19ha of land snail habitat
17	2022/00173285	2.4(1) BC Act	12/03/19 01/07/19	Damaged 20.19ha of CPW habitat
CHARGE GROUP 7
18	2022/00173286	2.2(1)(b) BC Act	01/07/19 28/05/20	Picked 1.2ha of CPW plants
19	2022/00173287	2.4(1) BC Act	01/07/19 28/05/20	Damaged 1.2ha of CPW habitat
20	2022/00173288	2.4(1) BC Act	01/07/19 28/05/20	Damaged 1.2ha of land snail habitat

Statutory framework and elements of the offences

24. The charged offences span four offence provisions which are applicable in the following two periods:

Relevant to the period 10 April 2016 to 24 August 2017

1. Harming or picking a plant contrary to s 118A(2) of the NPW Act, which provided at the relevant time:

A person must not pick any plant that is of, or is part of, a threatened species, an endangered population or an endangered ecological community.

…

2. Damaging the habitat of an endangered ecological community contrary to s 118D(1) of the NPW Act, which provided:

A person must not damage any habitat of a threatened species, an endangered population or an endangered ecological community if the person knows that the habitat concerned is habitat of that kind.

…

Relevant to the period 25 August 2017 to 28 May 2020

3. Picking a plant contrary to s 2.2(1)(b) of the BC Act, which provided:

A person who picks… (b) a plant that is part of a threatened ecological community… is guilty of an offence.

…

4. Damaging the habitat of a threatened ecological community contrary to s 2.4(1) of the BC Act, which provided:

A person… (a) who damages any habitat of a threatened species or threatened ecological community, and (b) who knows that it is the habitat of any such species or community, is guilty of an offence.

…

25. The elements of the offences, taking into account relevant statutorily defined terms, are as follows.

NPW Act, s 118A(2)

26. The prosecutor must prove the following elements of each offence under s 118A(2) beyond reasonable doubt:

1. The defendant “picked a plant”; and

2. The plant that was picked is part of a “threatened species, an endangered population or an endangered ecological community”.

27. The expression “pick a plant” was defined in s 5(1) of the NPW Act to include “gather, pluck, cut, pull up, destroy, poison, take, dig up, crush, trample, remove or injure the plant or any part of the plant”.

28. The expression “endangered ecological community” was defined to include an EEC within the meaning of the Threatened Species Conservation Act 1995 (NSW) (‘TSC Act’). CPW was listed in Sch 1A to the TSC Act as being an EEC.

29. An “ecological community” was defined in the TSC Act as meaning “an assemblage of species occupying a particular area”.

30. “Plant” was defined in s 118F of the NPW Act as having the same meaning as in s 4 of the TSC Act, which defined “plant” as meaning “any plant-life that is indigenous to New South Wales, whether vascular or non-vascular and in any stage of biological development, and includes fungi and lichens”.

NPW Act, s 118D(1)

31. The prosecutor must prove the following elements of each offence under s 118D(1) beyond reasonable doubt:

1. The defendant damaged (where “damage” is defined in s 118D(6) as including “cause or permit damage”);

2. Damage to “any habitat of a threatened species” (land snail), “an endangered population or an endangered ecological community” (CPW); and

3. The defendant knew that the habitat concerned was habitat of that kind.

32. Section 5(1) of the NPW Act provided that a “threatened species” has the same meaning as in the TSC Act. Under s 4 of the TSC Act, “threatened species” was defined as including the land snail, which was specified in Pt 1 of Sch 1.

33. As noted (at [28] above), CPW was an EEC.

34. The word “habitat” was defined in s 5(1) of the NPW Act as including “habitat periodically or occasionally occupied by a species, population or ecological community”.

BC Act, s 2.2(1)(b)

35. The prosecutor must prove the following elements of each offence under s 2.2(1)(b) of the BC Act beyond reasonable doubt:

1. The defendant “picked a plant”; and

2. That plant “is part of a threatened ecological community”.

36. The expression “pick a plant” is defined in s 1.6(1) of the BC Act as including “gather, take, cut, remove from the ground, destroy, poison, crush or injure the plant or any part of the plant”.

37. A “threatened ecological community” is defined in s 1.6(1) of the BC Act as including (relevantly) an EEC listed in Sch 2. CPW is listed in Pt 1 of Sch 2. Moreover, a “plant” means “any plant, whether vascular or non-vascular and in any stage of biological development, and includes fungi and lichens, but does not include marine vegetation”, as defined in s 1.6(1).

BC Act, s 2.4(1)

38. The prosecutor must prove the following elements of each offence under s 2.4(1) of the BC Act beyond reasonable doubt:

1. The defendant damaged habitat (“damage” is defined in s 1.6(1) of the BC Act to include “damage caused by removing or relocating any part of the habitat” and “activities that prevent the continued use of the habitat by animals”);

1. The damaged habitat was “habitat of a threatened species or threatened ecological community”; and

2. The defendant did so knowing that it was habitat of any such species or community.

39. A “threatened species” is defined in s 1.6(1) of the BC Act to include (relevantly) an endangered species listed in Sch 1, which included the land snail.

40. A “threatened ecological community” is defined to include CPW (at [37] above).

41. “Habitat” is defined in s 1.6(1) of the BC Act as including “an area periodically or occasionally occupied by a species or ecological community”, and “the biotic and abiotic components of an area”.

Deemed knowledge

42. Both the NPW Act included and the BC Act include provisions which deem or presume a defendant to know that the habitat was habitat of the relevant kind for the purposes of the relevant offences under s 118D(4) of the NPW Act and s 2.4(2) of the BC Act, respectively. Those subsections (as they applied at the relevant times) provided:

NPW Act

118D   Damage to habitat of threatened species, endangered populations or endangered ecological communities

…

(4)   In proceedings for an offence under this section in respect of damage to any habitat of a threatened species, an endangered population or an endangered ecological community, it is to be conclusively presumed that the person knew that the habitat concerned was habitat of that kind if it is established that the damage resulted from an act that:

(a) occurred in the course of the carrying out of development or an activity for which development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or an approval to which Part 5 of that Act applies, was required but not obtained, or

(b)   constituted a failure to comply with any such development consent or approval.

…

BC Act

2.4   Damaging habitat of threatened species or ecological community

…

(2)   A person who damages habitat of a threatened species or threatened ecological community in the course of carrying out any unlawful activity is taken to know that it was habitat of that kind unless the person establishes that the person did not know that it was habitat of that kind.

Possible defences

43. Both the NPW Act contained and the BC Act contain a number of possible defences. The possible defences are summarised below and further considered where necessary later in respect of each charge, noting that the defendant would otherwise bear the onus of establishing a defence to the civil standard of proof. In this judgment I also consider whether any defence may otherwise arise in the defendant’s various responses to the investigator.

NPWAct defences

44. Section 118A(3) of the NPW Act provided that it is a defence to a prosecution for an offence against s 118A if the defendant proves that the act constituting the alleged offence was:

1. Authorised by a “licence” or “certificate” issued under the TSC Act or by a “property vegetation plan” approved under the Native Vegetation Act 2003 (NSW) (‘NV Act’);

2. Essential for the “carrying out of development in accordance with a development consent” under the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) (or other approval under the EPA Act);

3. Authorised to be done by the specified State emergency legislation;

4. Not done for “commercial purposes and was done in relation to a plant that was cultivated by the person as a hobby or was cultivated by another person as a hobby”; or

5. Done in relation to “a plant that was obtained from a person who was authorised to grow and sell it by a licence”.

45. Section 118G(1) of the NPW Act provided for a statutory defence if the defendant proves that the act constituting the alleged offence was one of the activities specified in s 118G. These included clearing of native vegetation that constitutes “a routine agricultural management activity”; a “routine farming practice activity (other than clearing of native vegetation)”; certain activity permitted under the NV Act (such as “clearing of non-protected regrowth”); or any activity prescribed by the regulations made under the NPW Act for the purposes of s 118G.

46. The availability of the defence in s 118G(1) of the NPW Act is entirely contingent on s 118G(4), which provided that s 118G does not apply to land described or referred to in Pt 3 (Urban areas) of Sch 1 to the NV Act. Therefore, if s 118G(4) is established, then the balance of s 118G will not apply.

47. The property was located in the Camden Local Government Area (‘LGA’) during the charge periods. As the evidence proves that the Camden LGA was listed, at all relevant times, as one of the “Urban areas” within the definition in Pt 3 of Sch 1 to the NV Act, I find that the defences in s 118G do not apply.

48. For completeness, I note that s 118G(5) of the NPW Act provided for a regulation-making power, which included the power to make regulations for, or with respect to, “including any specified land or class of land in the operation of subsection (1) that would otherwise be excluded from its operation by subsection (4)” (s 118G(5)(c)).

49. The regulations which applied under the NPW Act at the time of the NPW Act offences included cl 107 of the National Parks and Wildlife Regulation 2009 (NSW), which was a regulation drafted to respond to s 118G of the NPW Act which limited routine farming practice activity by excluding certain activities relating to plants that are part of a threatened species or an endangered population. That clause existed throughout the charge periods and relevantly, that clause did not make any changes to the definition of “Urban areas” as found in the NV Act, such that there is no clause within those regulations which affected the definition of “Urban areas”.

BC Act defences

50. The defences available under the BC Act in respect of charges under ss 2.2 and 2.4 (in Div 2 of Pt 2) comprise, first, acts authorised under other legislation, such as “development in accordance with a development consent” under the EPA Act, “authorised” under the Local Land Services Act 2013 (NSW), Rural Fires Act 1997 (NSW) or other legislation (as per s 2.8); second, acts authorised by a “biodiversity conservation licence” (as per s 2.10); and third, any additional defences provided for by the regulations (as per s 2.9).

51. The Biodiversity Conservation Regulation 2017 (NSW) sets out a range of specific defences in Div 2.2. Clause 2.17 provides for a defence to the picking of a protected plant on any land if the person charged establishes that: “(a) the plant was grown or cultivated on the land, and (b) the person is a landholder of the land or had the consent of the landholder to pick the plant.” As will be seen, I find that this defence did not apply because the vegetation concerned in the present circumstances was not “grown or cultivated” on the land, but rather, it was native vegetation that was indigenous to NSW (as per the evidence of Peter Jobson, an information botanist, in his affidavit of 28 March 2024 (at Annexure C)).

Evidence

52. The prosecutor relied upon extensive expert and lay evidence (comprising over 5,000 pages) in support of the charges. The prosecutor read the affidavits of Sarah May Burke affirmed 10 June 2022; Raymond Leslie Giddins affirmed 10 June 2022 and 5 April 2024; Justin Pinson affirmed 5 April 2024; Paul Joseph Mills sworn 5 April 2024; Teneka Hogan affirmed 5 April 2024; David Black affirmed 24 April 2024; Catherine Louise James affirmed 10 June 2022 and 5 April 2024; Michael Sheather-Reid affirmed 14 June 2022 and 8 April 2024; Stephanie Ann Clark affirmed 10 June 2022 and 5 April 2024; Peter Jobson affirmed 28 March 2024; Lindsay Robert Holmes affirmed 5 April 2024; and Leo Watts affirmed 5 April 2024.

53. In addition to the affidavits read, the prosecutor relied upon the following evidence:

1. Statutory report to creditors prepared by the liquidator dated 18 November 2024 (‘Ex A’);

2. Certificate of Evidence pursuant to s 13.31(2)(a) of the BC Act dated 5 April 2024 (that the defendant was a landholder of the property) (‘Ex B’);

3. Certificate of Evidence pursuant to s 13.31(2)(h) of the BC Act dated 5 April 2024 (that CPW is an EEC) (‘Ex C’);

4. Certificate of Evidence pursuant to s 13.31(2)(h) of the BC Act dated 5 April 2024 (that the land snail is an endangered species listed in the TSC Act) (‘Ex D’);

5. Certificate of Evidence pursuant to s 13.31 of the BC Act dated 5 April 2024 (that certain persons, including Raymond Leslie Giddins, are authorised officers and that no development consents, approvals to clear native vegetation, permits or authorisations, or bushfire certificates, licences or certificates, were issued or in force in relation to the property during the charge periods) (‘Ex E’);

6. Certificate of Evidence pursuant to s 13.32 of the BC Act dated 5 April 2024 (that 51 orthorectified digital aerial photographs are approved images and depict the location and boundaries of the property) (‘Ex F’);

7. Exhibit RFS-1 to the Affidavit of Justin Pinson dated 5 April 2024 (‘Ex G’);

8. Exhibit LW-01 to the Affidavit of Leo Watts dated 5 April 2024 (‘Ex H’);

9. Exhibit MSR-02 to the Affidavit of Michael Sheather-Reid dated 8 April 2024 (‘Ex J’);

10. Exhibit DB-1 to the Affidavit of David Black dated 24 April 2024 (‘Ex K’);

11. Exhibit RG-2 to the Affidavit of Raymond Leslie Giddins dated 5 April 2024 (‘Ex L’); and

12. Exhibit RG to the Affidavit of Raymond Leslie Giddins dated 10 June 2022 (‘Ex M’).

54. The evidence included extensive directed records of interview (conducted pursuant to s 12.19 of the BC Act) of Jomon Varghese dated 3 June 2021 and Dean Amjah dated 25 February 2021 (Ex M), and lengthy email correspondence primarily between Mr Varghese and Mr Amjah (Ex L).

Overview of evidence

55. It is the prosecutor’s case that the defendant removed vegetation covering 36.8ha over the combined charged period of more than four years at the property. The clearing which included CPW was carried out by an employee of the defendant, Dean Amjah, who was directed to carry out the clearing by Jomon Varghese, a company director.

56. The prosecutor maintains that proof of the clearing comes in part from a directed interview carried out by Mr Amjah, in which he made admissions to the conduct. In addition, the prosecutor submits that extensive contemporaneous email communications between Mr Amjah and Mr Varghese demonstrate the directions given by Mr Varghese to Mr Amjah to conduct the clearing.

57. In order to prove when the clearing occurred, and how much vegetation was cleared, the prosecutor relies upon evidence in the form of “Aerial Imagery Interpretation” from two expert witnesses: Leo Watts, in a report dated 5 April 2024; and Catherine Louise James, in three reports dated 8 March 2022, 10 June 2022 and 5 April 2024 which detail that vegetation was removed, the extent of that removal, and its approximate timing.

58. To establish the kinds of vegetation removed and the impacts, the prosecutor relies on expert ecological evidence, first, from Michael Sheather-Reid, in reports dated 10 June 2020 and 8 April 2024, in which Mr Sheather-Reid details the vegetation in the area and characterises the vegetation by reference to its statutory description; and second, Stephanie Ann Clark, a malacologist (snail expert), in reports dated 9 June 2022, 16 November 2022 and 5 April 2024, in which Dr Clark identifies the species of snail (being the land snail) which she found in the cleared areas as well as its habitat. The prosecutor relies on the five certificates of evidence noted at [53] above.

Factual background

59. The following factual background which I find established by the evidence provides context for each of the discrete charges.

60. As at 19 November 2015, the property was covered in mid-dense to dense tree canopy with tree crowns of varying sizes. The tree coverage was over most of the northern two thirds of the property. The southern third of the property consisted of pockets of more open and sparse tree canopies. The property contained a relatively high proportion and coverage of native species, namely the ecological community being CPW which is known to occur within the Camden LGA.

61. CPW is characterised as an assemblage of native plants and typically comprises an open tree canopy, a near-continuous groundcover dominated by grasses and herbs, sometimes with layers of shrubs and/or small trees. The species characterising CPW are listed in Mr Sheather-Reid’s supplementary report (Ex J, at (33)). Peter Jobson, an information botanist at the National Herbarium of NSW, deposes that they are each native or indigenous species (being established at the time of European settlement).

62. In or around 2015, Mr Varghese recruited Mr Amjah to carry out works on the property. He employed him as a farmhand. Mr Amjah's duties included feeding livestock, maintaining the cattle yards, and building and maintaining fencing on the property. He worked on the property several days a week and the defendant paid his wages. At least between 3 May 2016 and 28 May 2020, Mr Amjah was the defendant’s employee.

63. During the course of his employment, Mr Varghese regularly gave instructions to Mr Amjah either in person, via telephone, or by email, directing Mr Amjah to carry out tasks on the property which included clearing vegetation. Extracts from the extensive email communications, and the directed records of interview of each of Mr Amjah and Mr Varghese, will be further referenced in my consideration of each of the charges.

64. Mr Amjah carried out clearing by tractor, bulldozer and/or by slashing native groundcover. The defendant reimbursed Mr Amjah for the costs of operating the tractor including fuel costs.

65. The clearing undertaken by Mr Amjah on the defendant's behalf involved picking native vegetation, including species forming part of CPW. Although frequently referred to as “clearing” in the evidence, the conduct involved cutting, destroying, removing from the ground or digging up and/or injuring the plants, all being forms of “picking” (as defined in the NPW Act and the BC Act).

66. In or around October 2015, Mr Varghese purchased a tractor from “Camden Machinery”. In or around December 2015, Mr Varghese sent email correspondence to Mr Amjah to confirm that he was in the “final stage of purchasing the Tractor & Mulcher”. Mr Varghese requested Mr Amjah’s date of birth, so that he could complete insurance forms confirming the details of the person who would be the main driver of the tractor.

67. In or around 11 December 2015, Mr Amjah sought approval from Mr Varghese to purchase a chainsaw whilst he was “figuring out the most efficient way to clear the land”. In recommending the purchase of a chainsaw, Mr Amjah told Mr Varghese in an email (Ex L, at p 1,387) that:

“- it is the most efficient way to remove the larger tree stumps from clearing the land, which if left in the ground can lead to vehicle damage

- it would allow a much safer option to clear some of the slightly taller trees which can become a very dangerous task when pushing them over with the tractor

- it would allow for clearing of close together trees where it is too crowded to use the tractor.

- it would also allow me to cut up the larger pieces of wood resulting in more efficient and easier transport with the tractor

- it will reduce workload for the tractor, meaning less wear and tear.

- it also is a great tool to have for fencing if ever required for that in the future”.

68. On or around 16 December 2015, Mr Varghese confirmed that he had made a payment to “Camden Mower Chainsa[w]” for the purchase of a chainsaw and other accessories (Ex L, at p 1,389).

69. In or around January 2016, Mr Amjah sent emails to Mr Varghese confirming, among other matters, that he had been “clearing the thick areas of blackthorn and gum tree saplings ...”. Mr Amjah sent to Mr Varghese a photo of very thick bush cleared, which he said was “much improving the livestock carrying potential of the land” (Ex L, at p 1,393).

70. On or about 16 February 2016, Mr Amjah sent emails to Mr Varghese confirming that he had purchased a “spare blade for the mulcher on the tractor, [in case] one of the blades gets dull ...”. Mr Amjah provided Mr Varghese with an invoice for the spare blade from “Camden Machinery”. On the same day, Mr Varghese provided a remittance invoice to Mr Amjah which stated that an account in the name of “Aerotropolis Pty Ltd” had paid $82.00 to “Camden Machinery” (Ex L, at p 1,406).

71. On 4 March 2016, Mr Amjah sent email correspondence to Mr Varghese, stating, “I have been focusing on clearing an area in the front section of the property that had severe gumtree regrowth ...”. On 7 March 2016, Mr Varghese sent email correspondence to Mr Amjah confirming that he was “planning to visit the property on Wednesday”, 9 March 2016 (Ex L, at p 1,411). Throughout the charge periods, Mr Amjah continued to correspond with Mr Varghese (among other things) confirming his progress of clearing on the property.

NPW Act charges

Charges 1, 2 and 3 (Charge Group 1)

72. Adopting the detail in the table (at [23] above), Charges 1, 2 and 3 allege that between about 10 April 2016 and about 27 August 2016, the defendant (through its servant, Mr Amjah) carried out clearing on the property involving the “picking of plants” that were part of an EEC (namely, CPW) and damaged the habitat of CPW and the habitat of the land snail.

73. The area over which vegetation, including native vegetation, was cleared during this period was approximately 3.46ha (Ex H, at (121)-(122)). The clearing involved removing areas of groundcover, single trees and small clumps of trees.

74. From December 2015, Mr Varghese and Mr Amjah exchanged regular email communications regarding the clearing of vegetation on the property and the most efficient means of doing so (by Mr Amjah at Mr Varghese’s instructions) (Ex M, at p 3,892). They discussed “the most efficient way to remove the larger tree stumps from clearing the land” and a “safer option to clear some of the slightly taller trees which can become a very dangerous task when pushing them over with the tractor” (Ex M, at p 3,940). They discussed “clearing of close together trees where it is too crowded to use the tractor” (Ex M, at p 3,940).

75. On 22 January 2016, Mr Amjah informed Mr Varghese that he was clearing vegetation including “gum tree saplings” (Ex L, at p 1,393). The emails at this time included photographs of the areas that Mr Amjah “had worked on” at various times.

76. On 30 April 2016, Mr Amjah sent email correspondence to Mr Varghese which, among other things, confirmed that he worked 23 hours at the property in the week of 26 to 29 April 2016, and that he had not taken any progress photos as Mr Varghese had “visited the property yesterday” (Ex L, at p 1,427). I find that the inescapable inference arises here, and elsewhere in the evidence, that Mr Varghese visited the property from time to time and viewed the clearing and would have seen the clearing in progress and the kinds of vegetation being destroyed.

77. In particular, I find that Mr Varghese would have seen trees knocked over, root balls and roots on fallen logs, marks on trunks which were consistent with trees being pushed over by machinery (such as blade marks), live foliage and bark on fallen eucalypts indicating they were alive when felled, and machinery tracks along the ground (such as what Mr Giddins saw when he visited the property in August 2020) (Giddins affidavit, 10 June 2022 at (19)).

78. Between 29 April 2016 and 27 August 2016, Mr Amjah provided regular email correspondence to Mr Varghese, confirming the hours he worked each week and the clearing he had carried out on the property (Ex L, at pp 1,427-1,462). For example, on 25 June 2016 at 12.55pm, Mr Amjah wrote to Mr Varghese (Ex L, at p 1,445):

“Dear Jomon,

This week I have continued to clear the difficult trees with the chainsaw as the tractor is still at Camden machinery, as they found an issue with the gearbox that they suspect was faulty in the building process and are fixing under warranty.

Below are photos of the size trees I have been removing.

Thank you, kind regards, Dean”[,]

to which Mr Varghese replied on 28 June 2016 at 11.25am, stating (Ex L, at p 1,445):

“Dear Dean,

Transferred $825 to your account.

Regards,

Jomon”[,]

which included a receipt of bank transfer from “Aerotropolis Pty Ltd” to “Dean Cameron Amjah” dated Tuesday, 28 June 2016 at 11.24am.

79. Mr Amjah said, in emails sent on 16, 23 and 29 July 2016, that he was continuing to remove “small to medium sized trees with the tractor”. On 5 August 2016, he said he was continuing to clear “small trees and blackthorn”. On 13 August 2016, he reported to Mr Varghese that he was “focused on further mulching the flat areas of small trees and shrub” (Ex L, at pp 1,449-1,456).

80. Mr Varghese regularly replied to Mr Amjah's email correspondence and attached remittance advices, which stated that an account in the name of “Aerotropolis Pty Ltd” had paid amounts to Mr Amjah, in payment for Mr Amjah’s work on the property (Ex L, at pp 1,427-1,462).

81. Leo Watts, a spatial information and remote sensing expert, in his report (Ex H), gave the following evidence which relates to all the charges:

1. He analysed images relating to 30 consecutive time periods commencing in 2015 to determine whether changes in vegetation had or had not occurred on the property. At (67)-(76) of Ex H, he explained his use of aerial photography and satellite images, which were orthorectified and georeferenced. He explained that orthorectification is a process making it possible to merge imagery taken from multiple perspectives or aerial sensors into a common map coordinate system to enable a comparison between imagery.

2. He described the basis of his identification of vegetative land cover types, including trees, understorey plants, areas of groundcover/grass and bare earth, tracks and areas of cleared land which he did by reference to a consideration of tone, colour, shapes, patterns and textures (Ex H, at (101)-(105)). In particular, he stated that:

1. Trees are visible with regard to their irregularly shaped canopies, darker canopy tone and green colour, coarse canopy features and the indication of their vertical height profile above ground by the shadows they cast.

2. Understorey exhibits sufficient variations of the same attributes to differentiate them from trees and can be covered in shadow from taller tree canopy due to their lower height profile.

3. Groundcover is typically light green in colour, has mottled but smoother texture and patterns when compared to surrounding wooded vegetation, and casts no shadows. (Both understorey and groundcover are “plants” within the meaning of the NPW Act and the BC Act.)

4. Cleared land has a sandy/brown colour, much finer texture, regular and linear patterns indicative of a manmade activity, and is visually starkly different from the surrounding vegetation. It has a more uniform texture and colour than vegetation. Examples of the differences are set out in various images in his report (Ex H, at (106)-(111)).

3. He used an imagery data software called “Nearmap” and aerial digital camera imagery to determine and measure the areas in which vegetation changes occurred. He checked the spatial accuracy of the images, using the Nearmap imagery to assess the accuracies of other datasets given the high spatial accuracy of Nearmap imagery datasets (Ex H, at (79)).

4. He opined in relation to each image that he analysed by image date in a chronological fashion, commencing with the image dated 19 November 2015. Of relevance to the various charge periods, his analysis commenced with the image dated 16 June 2016 (Ex H, at (121)). The specific areas of clearing determined by Mr Watts in relation to each charge are recorded in the “Subject” column in the table at [23] above.

5. For Charge 1, Mr Watts opined that 3.46ha of vegetation was cleared between 10 April 2016 and 16 June 2016. As will be seen, Ms James (whose evidence is considered below) identified that clearing commenced somewhat later than Mr Watts’ opinion, being from 29 April 2016 (using a Nearmap image dated 29 April 2016 in her first report (at p 14)). The prosecutor sought leave, which I granted on 17 December 2024 (Tcpt, 17 December 2024, p 2(23-29)), to amend the charge dates in relation to Charges 1, 2 and 3 to commence from 10 April 2016 (rather than 29 April 2016). This amendment is consistent with the additional Nearmap imagery to which Mr Watts had access.

6. The total areas of vegetation cleared from 19 November 2015 to 4 April 2021 (as well as over all the charge periods) are recorded in a table in Mr Watts’ report (Ex H, at (20)). Mr Watts explains (at (16)) that the greatest amount of clearing (which he states includes “picking” as defined in the NPW Act and the BC Act) took place between 12 March 2019 and 2 July 2019, being in the sixth charge period (being Charges 15, 16 and 17 considered later in this judgment) (which is consistent with Ms James’ opinion).

82. Catherine James, a remote sensing scientist, gave the following evidence:

1. She used various aerial and satellite images prepared by the Spatial Imagery Services Team (within the Department of Planning and Environment as it then was) and placed these images on a secure server for collection as a data package which were orthorectified or georeferenced, enabling her to relate features from each date on all the imagery.

2. The dates of the various high resolution aerial images contained in Table 2 of her report of 8 March 2022. Using the “ArcGIS” software, she created polygons around areas where she observed vegetation change from one image to another. She was able to estimate the clearing areas and size for each timeframe, using the area calculation tools in ArcGIS. She was able to discern individual tree removal and measure the length of trees laying on the ground or piled. She could also observe caterpillar type tracks associated with machinery used to remove vegetation. She excluded from consideration the areas that were cleared where there had already been isolated plants.

3. She observed that there had been previous vegetation disturbance to the southern portion of the property between 1989 and 1991, however, from 1991 to 19 November 2015 there were no significant changes to the extent of the vegetation such that the existing vegetation had continued to grow and increase in density over that time; that the first vegetation damage occurred after 19 November 2015 by the slashing of short woody vegetation; that the first signs of mechanical alteration to vegetation and ground surface appeared from 19 February 2016 to 10 April 2016; and that vegetation clearing continued regularly through to 28 May 2020, with the largest clearing event occurring between 12 March 2019 and 1 July 2019. She used the image dated 19 November 2015 as the “baseline” for her assessment.

4. Her opinion as to the total area from which vegetation was cleared in each time period (at Table 1 of her report dated 8 March 2022) is broadly consistent with that of Mr Watts.

5. She observed machinery tracks, scraping of the ground surface, piling of trees measuring between 3m and 16m in length generally. Some images showed a large machine present on the property.

6. She estimated the percentages of woody vegetation canopy present in each polygon before the clearing date (by reference to the description found at Table 3, at p 9 of her report dated 8 March 2022), as follows:

•   “Closed or dense” tree cover means more than 80% crown cover;

•   “Mid dense” tree cover means 50% to 80% crown cover;

•   “Sparse or open” means 20% to 50% crown cover;

•   “Very sparse” means 0.25% to 20% crown cover; and

•   “Isolated plants” means less than 0.25% crown cover.

7. She did not form a conclusion as to whether or not the vegetation removed was native vegetation, but only that it was a type of vegetation, using the definition of “native vegetation” in s 60B(1) of the Local Land Services Act 2013 (NSW), being “trees (including any sapling or shrub or any scrub), … understorey plants, … groundcover (being any type of herbaceous vegetation), … [and] plants occurring in a wetland”. She noted that this is consistent with the definitions of “plant” in the NPW Act and the BC Act. She also clarified that when she referred to clearing, she was using the definition of “picking” in the NPW Act.

83. Michael Sheather-Reid, an ecologist, gave evidence as follows:

1. He conducted a field assessment including an initial inspection of the property on 14 August 2020 to ascertain the likely extent of the clearing, the vegetation communities present and to undertake floristic (20m x 20m) plots, involving taking an inventory of floristic species in each sample point. He then used the BioNet PCT determination tool (which is a web application for identifying plants) to ascertain a botanical match against the listed plant community types (‘PCTs’). Before he visited the property, he undertook a desktop review of aerial images from 2015 and 2020 obtained from Nearmap to identify key areas of obvious vegetation removal.

2. He conducted subsequent inspections on 12 and 13 April 2022 to undertake a further three plots for comparison in non-impacted areas and to do a site-wide assessment of regeneration (a regrowth assessment) within the property. This allowed a qualitative assessment of the presence or absence of native vegetation, indicating what was present previously, or regrowth from soil seed banks. His report (Ex J) contained numerous photos of “recent clearing and log piles” (at, for example, (51)).

3. He determined that the PCT at the time of the clearing of vegetation in all charge periods was Cumberland Shale Hills Woodland, which are PCTs 3319 and 3320 (formerly called PCTs 850 and 849). This is CPW, an EEC. He stated that there are limited differences between those two PCTs, with PCT 849 occupying the flatter topography and PCT 850 containing the species Acacia implexa (hickory/lightwood wattle). He considered that all vegetation on the property most likely conformed to PCT 850 (now known as PCT 3319) given the presence of Acacia implexa, and stated (at Ex J, (76)) that this PCT “is part of the threatened ecological community Cumberland Plain Woodland in the Sydney Basin Bioregion which is listed as a critically endangered ecological community under the [BC Act]”.

4. The plants cleared were in the form of mature plants in the canopy, subcanopy, shrub and ground layers. In his opinion, mostly mature native vegetation was cleared (at Ex J, (76), (78)).

5. He classified the quality of the native vegetation affected by the clearing by reference to the level of regeneration of native vegetation (at Ex J, (13), (65)), which is indicative of the plant species’ diversity and the extent of previous native vegetation. The categories were very high quality CPW, high quality CPW, moderate condition CPW, and low (or “grazed and highly managed”) CPW. He opined that approximately 44.06ha of native vegetation was impacted by the clearing; that 12.65ha was “high quality” and 1.40ha was “very high quality”; and that 19.16ha was “moderate condition” (at Ex J, (67)). He considered that approximately 75.3% of impacted areas were “moderate” to “very high quality” CPW (at Ex J, (70)).

6. African Olive is not native vegetation and is highly distinctive from other vegetation types. While significant stands of African Olive were targeted during clearing, particularly in the northeast portion of the property, the clearing was not solely focused on weeds and “involved large scale clearance of native vegetation of which African Olive would have been a component of the understorey”.

7. While Mr Sheather-Reid did not give an opinion about the extent of the clearing for each charge period, he is of the view that Ms James underestimated the total area of impacted native vegetation, as explained in his report (at Ex J, (55)­(56), (69)). He estimates that over 44.06ha of CPW (including its habitat) has been disturbed and damaged from 29 August 2015 to 3 August 2020 (at EX J, (54)), compared with Ms James’ total estimate of 34.6ha (from 19 November 2015 to 28 May 2020).

84. In relation to all charges the subject of this judgment, I am satisfied beyond reasonable doubt, based on the evidence of Mr Watts, Ms James, and Mr Sheather-Read, that vegetation was cleared (and thereby picked and damaged) in the areas (and to the extent) identified by Mr Watts, and that the vegetation was part of an EEC.

85. Moreover, I find that the aerial (and other) photographs themselves (in addition to their interpretation by the experts) show that clearing has taken place. Given the overlap between the charges, and to avoid unnecessary repetition and, in particular, in relation to both the primary clearing charges (being Charges 1, 4, 6, 9, 12, 15 and 18) and the habitat-related charges (being Charges 2, 3, 5, 7, 8, 10, 11, 13, 14, 16, 17, 19 and 20), I find beyond reasonable doubt that in relation to each charge, the nature and extent of the clearing as stated by Mr Watts, as I have noted above (and will later repeat in terms of the area cleared in relation to each charge), has been undertaken.

86. Subject to matters to be later considered, and based upon the above evidence, in relation to Charge 1, I am satisfied beyond reasonable doubt that the defendant “picked a plant” that was part of an EEC in the period 10 April 2016 to 27 August 2016.

87. I am also satisfied beyond reasonable doubt that the defendant (through Mr Varghese) gave ongoing instructions to Mr Amjah to undertake the clearing which “picked a plant” that was part of an endangered or threatened ecological community. For the reasons recorded at [200]-[207] later in this judgment and noting that the subject offences against the NPW Act and the BC Act are ones of strict liability and attract the principles of vicarious liability, I find that the liability of the defendant is either direct or vicarious. I am also satisfied that the clearing was not authorised by any licence or certificate or carried out under any relevant development consent, nor was it authorised by any relevant legislation.

88. In further considering the possible defences in relation to each of the charges which I have noted earlier, I remain conscious that the defendant did not appear at the hearing. As such, I have taken care to consider and review the extensive email communications between Mr Varghese and Mr Amjah, the extensive records of interview of both Mr Varghese and Mr Amjah (and the written responses provided by Mr Varghese to investigators), and have considered whether these communications or statements would be capable of establishing a defence and, in particular, whether there would have been a lack of knowledge that the relevant habitat cleared involved CPW and/or the land snail (particularly with respect to Charges 2, 3, 5, 7, 8, 10, 11, 13, 14, 16, 17, 19 and 20). I find, for the reasons noted at [43]-[51] and in the following paragraphs, that no defence has been, or could have been, made out under s 118G of the NPW Act or s 2.8 of the BC Act.

89. In relation to each of the charged offences, I am satisfied that the evidence confirms that no development consent, approval or licence (from Camden Council, NSW Rural Fire Service, Local Land Services, or any other authority) was in force authorising any clearing on the property. I rely upon the certificate issued under s 13.31 of the BC Act (Ex E) that no approvals, certificates, orders or other documents specified in the certificate were issued or given or in force in respect of the property in the period 10 April 2016 to 28 May 2020. These include any development consent and any other potentially relevant approvals under the EPA Act, the Local Land Services Act 2013 (NSW), the Rural Fires Act 1997 (NSW), the former Threatened Species Conservation Act 1993 (NSW), and the NV Act. I find that the clearing was undertaken without any applicable approval or permission (Hogan affidavit, of Camden Council, at (8)), and was (in relation to the charged offences against the BC Act) therefore an “unlawful activity”.

90. Regarding Charges 2 and 3, given my findings in relation to the above actions in relation to Charge 1, and for the reasons that follow, I find beyond reasonable doubt that the defendant also damaged the habitat of an EEC, namely CPW, and the habitat of a threatened species, namely the land snail, in the knowledge that the habitat was habitat of that kind. The relevant damage was the removal or relocation of the habitat or part of the habitat and by causing or permitting such damage.

91. Mr Sheather-Reid gave evidence (Ex J) that the clearing resulted in damage to the habitat of CPW by reason of the removal of native vegetation (which is a biotic component of CPW); the removal of on-ground logs; the dead standing trees; the destruction of foraging resources; the likely disturbance to surface soils; and the affectation of microclimate. As recorded above, he estimates that over 44.06ha of PCT 850 (now, PCT 3319), including its habitat, has been disturbed and damaged during a timeframe that includes all of the charge periods (noting that the prosecutor discretely relies on, and I find, the particular dates and areas affected as opined by Mr Watts).

92. Mr Sheather-Reid explains that the habitat of CPW comprised the soils, soil moisture, microclimate, and geology upon which CPW is located, in association with the preferred altitude and rainfall ranges for this community to persist. He states that the habitat features affected by the clearing were the soils, the microclimate, and the soil moisture.

93. Stephanie Clark, a malacologist (mollusc expert), in her three reports dated 9 June 2022, 16 November 2023 and 5 April 2024, gave the following evidence in relation to the presence and habitat of the land snail:

1. The land snail is found primarily in CPW of the Cumberland of Western Sydney, though it is also found on the edges of other vegetation communities that directly adjoin CPW such as Castlereagh lronbark Forest, all of which are listed as “endangered ecological communities” under the BC Act. As the land snail is only found in specific habitats, its presence is indicative of the vegetation community present. Its presence “can reliably be used as a predictor of the presence of Cumberland Plain Woodland as its primary habitat” (report of 16 November 2022, at (6)).

2. The CPW EEC is not only made up of plants, but it also includes all the animals, fungi and other organisms that live in this community. She states that the land snail has evolved over millennia to be dependent on the habitat that the CPW plant community provides, and that it is reasonable to assume both CPW and the land snail were present at the property well before the European settlement of Australia. She states that any damage to CPW such as removal, relocation (such as pushing the felled vegetation into piles) or crushing by heavy machinery used to form piles of cleared vegetation will affect the population of land snails that would have been living within the area cleared.

3. She visited the property on 12 April 2022 and took specimens of the land snail from two different areas of the property. She states that the species resides in the ground layer of the plant community and it can be found in the leaf litter layer, buried in the soil, under logs, bark, rocks, in grass clumps and under non­natural debris such as cardboard. If the species is present at a site, empty shells are typically not hard to find in some form from whole shells to parts of shells.

4. She states that any clearing that directly affected the amount of CPW present on the property would have directly affected both the amount of suitable habitat present for the land snail and the population of the land snail occurring there. For example, the removal of logs would have exposed any individuals sheltering under the logs to being crushed or attacked by predators. The use of heavy machinery would have crushed any individuals living in the path of the machinery or buried them under tonnes of debris pushed into piles.

1. She opines that the habitat of the land snail was adversely affected (given that she maintains that any clearing that affected the amount of CPW would have directly affected the land snail and its habitat).

94. Mr Giddins, an authorised officer of the Department of Planning and Environment who concluded the investigation into the clearing on the property, gave evidence that he collected specimens of the land snail when he visited the property on 13 and 14 August 2020.

95. The fact that the land snail is an endangered species is the subject of a certificate issued under s 13.31(2)(h) of the BC Act by Louisa Clark, Director, Greater Sydney Region, Biodiversity Conservation Division, Department of Climate Change, Energy, the Environment and Water (Ex D).

96. Section 118D(4) of the NPW Act provided (in a manner similar to s 2.4(2) of the BC Act) that for offences under s 118D relating to damage to any habitat, it is to be conclusively presumed that the person knew that the habitat concerned was habitat of that kind if the damage occurred in the course of carrying out development for which development consent was required under the EPA Act but was not obtained.

97. For the purpose of s 118D(4) (in relation to the NPW Act (habitat) offences, being Charges 2, 3, 5, 7 and 8), as I have noted above, I find beyond reasonable doubt that the damage to habitat occurred in the course of carrying out an activity for which development consent under Pt 4 of the EPA Act, or an approval to which Pt 5 of the EPA Act applies, was required but was not obtained. I am satisfied as follows:

1. Clause 5.9 of the Camden Local Environment Plan 2010 prohibited clearing of any tree or other vegetation to which a development control plan applied without the authority of a development consent, or a permit granted by Camden Council. Camden Council Development Control Plan 2011 prescribed certain kinds of trees and vegetation for the purpose of cl 5.9 (see B1.5), however it contained the following:

“Note: If a tree(s) or vegetation is, or forms part of an identified threatened species, endangered ecological community or habitat of a threatened species (flora or fauna) within the Camden LGA, consideration of their size is irrelevant. The preservation of the threatened species community takes precedence.”

2. Section 12 of the NV Act prohibited the clearing of native vegetation except in accordance with a development consent granted in accordance with the NV Act, for which s 14 of the NV Act provided that Pt 4 of the EPA Act applied.

3. In these circumstances, development consent was required but not obtained, so that for each of the NPW Act (habitat) offences it is “conclusively presumed” that the defendant (considered with my subsequent findings next in this judgment in relation to corporate knowledge) had the relevant state of knowledge.

Corporate knowledge

98. Further, in respect of the offences relating to damaging habitat of a threatened species, threatened ecological community and/or an endangered ecological community (being Charges 2, 3, 5, 7, 8, 10, 11, 13, 14, 16, 17, 19 and 20 in the table at [23] above), it is necessary to establish that the defendant, a corporation, knew that the habitat was habitat of the relevant kind, namely of an EEC.

99. Both the NPW Act provided and the BC Act provide that the state of mind of a defendant corporation is proved by establishing the state(s) of mind of employees and agents, respectively, in s 175C of the NPW and s 13.8 of the BC Act. Both sections are identical in their drafting and provide:

Evidence as to state of mind of corporation

(1)   Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.

(2)   In this section, the state of mind of a person includes:

(a)   the knowledge, intention, opinion, belief or purpose of the person, and

(b)   the person’s reasons for the intention, opinion, belief or purpose.

100. Based on the presumption of knowledge provided for in s 118D(4) of the NPW Act (noted at [42] above), I consider that the conclusive presumption of knowledge in s 118D(4) (and in relation to the BC Act (habitat) offences to be considered later in this judgment, the equivalent “taken to know” presumption in s 2.4(2) of the BC Act) provides a sufficient basis for finding this element is satisfied.

101. As outlined above, development consent was required for the clearing of CPW and this was not obtained (Hogan affidavit, 5 April 2024, at (8) and Ex E), such that for the NPW Act (habitat) offences it is “conclusively presumed” that the defendant had the relevant state of knowledge (and in relation to the BC Act (habitat) offences, the defendant is “taken to know” that it was habitat of the relevant kind).

102. Apart from the deemed knowledge under the NPW Act (which I consider is determinative in relation to the “habitat” offences), for completeness I also find that there is a body of direct evidence from which it may be inferred that the defendant acting through its director, Mr Varghese, and its servant, Mr Amjah, had actual knowledge that the vegetation to be cleared was native vegetation in that:

1. In the contemporaneous email correspondence, Mr Varghese and Mr Amjah discussed that the property contained “gum trees” and “eucalypts”;

2. Mr Amjah sent Mr Varghese many photos of the vegetation he was clearing;

3. On 25 May 2019, Mr Amjah specifically informed Mr Varghese that the property contained endangered CPW;

4. After 25 May 2019, Mr Varghese continued to instruct Mr Amjah to clear the vegetation and habitat from which I infer that Mr Varghese held this knowledge throughout the periods of clearing. As such, I accept the prosecutor’s submission and find that it is not necessary to prove the defendant knew the nomenclature of the EEC (which is a scientific and legal categorisation), but rather it must be established that the defendant knew it was protected native habitat;

5. Mr Varghese visited the property and saw the vegetation and Mr Amjah’s emails referred to Mr Varghese's visits; and

6. Statements made by Mr Amjah, in his directed record of interview carried out on 25 February 2021 admitting to clearing, and state that he was instructed by Mr Varghese to fell trees and that he “did not do anything he did not instruct me to do” (Q&A 292-295). This comment was made when Mr Amjah was shown a photo of a Eucalyptus moluccana.

103. In making my findings above, I am aware of various statements made by Mr Varghese during his directed interview carried out on 3 June 2021, in which he told investigators that to his knowledge it was not “a conservation area” or a “critical habitat” (Q&A 307), and that Council had advised him that “there is no Cumberland Plain Woodland” (Q&A 833). He also said Council had indicated as much when providing a fire map, stating that there was “no woodland” and “only category 2 grassland” (Q&A 836-842). However, he gave the following responses when asked the following questions:

“842. ... But there's nothing in there that says there's no Cumberland Plain Woodland?

A   I don't know.

Q    Okay. All right. Is there anything further you wish to say about the matter?

A   No.”

104. Mr Varghese’s record of interview is further considered at [193] below. I find, based upon the whole of the evidence in relation to his instructions to, and dealings with, Mr Amjah, that a number of his responses to questions about CPW and about his knowledge of the vegetation, could not be true.

105. I also note that the evidence shows that the owner of the property, Ascent, sought a section 149 Certificate in relation to the property (through Mr Varghese as the applicant). That certificate, dated 7 February 2017, listed the planning instruments applicable to the property and indicated that the property appeared to be partially bushfire-prone land. As outlined later in this judgment (at [192]), Mr Varghese sought to rely upon this certificate to seek to justify the clearing in his directed interview with investigators.

106. Given the above (and for reasons stated later in this judgment) in relation to each offence the subject of this judgment, I find beyond reasonable doubt that the defendant, through the knowledge of either Mr Amjah or Mr Varghese, knew that it was habitat of the relevant kind. Further, I consider that this element is nevertheless satisfied beyond reasonable doubt by reference to the statutory deeming provisions in s 118D(4) of the NPW Act and s 2.4(2) of the BC Act.

107. I find beyond reasonable doubt that in relation to Charges 2 and 3, the defendant by clearing the vegetation, damaged the habitat of a threatened species, being the land snail (Charge 2), and the habitat of an EEC (Charge 3), and that at the time of each offence the defendant knew that the habitat concerned was habitat of the relevant kind.

Charges 4 and 5 (Charge Group 2)

108. Charges 4 and 5 (similarly to Charges 1 and 2) allege that between about 27 August 2016 and 9 April 2017, the defendant, through its servant, Mr Amjah, carried out clearing on the property involving the “picking of plants” that were part of an EEC, namely CPW, and damaged the habitat of the land snail. There was no charge, during this period, for damage to the habitat of CPW.

109. The evidence of Mr Watts, considered earlier at [81], establishes that the total area over which vegetation, including native vegetation, was cleared during this period was approximately 5.26ha. The clearing involved removing areas of groundcover, understorey plants, areas of very sparse density tree coverage and numerous single trees, clumps of trees, and several larger single trees. He identifies that from 27 August 2016 to 25 November 2016, an area of 3.26ha of vegetation was cleared; from 25 November 2016 to 23 January 2017, an area of 0.84ha was cleared; and that from 23 January 2017 to 9 April 2017 an area of 1.16ha was cleared. He gave a detailed analysis of the changes visible on the images.

110. Between 27 August 2016 and 5 April 2017, similarly to the earlier charge period, Mr Amjah continued to engage in regular email correspondence with Mr Varghese, confirming the hours that he worked each week and the clearing he had carried out on the property (Ex L, at pp 1,463-1,595). I have considered this correspondence along with all the correspondence referred to in my consideration of each of the charges.

111. During this period, Mr Varghese again regularly attached remittance advices which stated that an account in the name of “Aerotropolis Pty Ltd” had paid amounts to Mr Amjah, in payment for Mr Amjah's work on the property. Ms Varghese replied to Mr Amjah when Mr Varghese was “overseas” on 26 September 2016.

112. Mr Varghese also advanced plans to develop the property commercially during this period.

113. On 9 September 2016, Mr Amjah told Mr Varghese that he was “beginning clearing an area of the invasive olive”, which indicates that they distinguished between various types of vegetation and/or trees. Photos sent to Mr Varghese included eucalypt trees.

114. On 19 May 2017, Mr Varghese gave Mr Amjah an instruction to apply herbicide to trees on the property “to dry them out” (Ex L, at p 1,607).

115. In relation to Charges 4 and 5, I accept (and do not repeat) my findings at [87] above.

116. By the above actions and the continuing conduct of clearing evidenced in the progressive aerial imagery evidence, and accepting and not repeating the evidence of each of Mr Watts, Ms James, Mr Sheather-Reid and Dr Clark, I find beyond reasonable doubt that the defendant, through the conduct of its director, Mr Varghese, and its servant, Mr Amjah, first, undertook clearing which involved the “picking of plants” that were part of an EEC; and second, by the same conduct, damaged the habitat of a threatened species (the land snail) and that for the reasons I have given at [98]-[107] above, the defendant knew that the habitat was habitat of the relevant kind.

117. The damage was the removal or relocation of the habitat or part of the habitat and by causing or permitting such damage. I find beyond reasonable doubt that the defendant’s director, Mr Varghese, through his correspondence and attendances, directed Mr Amjah to damage the habitat of the land snail by instructing him to clear trees and other vegetation that form part of the land snail’s habitat, namely CPW.

118. Noting the reasons and findings set out above and my finding at [208] in relation to the defendant’s corporate knowledge in relation to Charge 5, I am not satisfied that any defence to either Charge 4 or Charge 5 could be made out on the balance of probabilities.

Charges 6, 7 and 8 (Charge Group 3)

119. Charges 6, 7 and 8 allege, respectively, that between about 8 July 2017 and 24 August 2017, the defendant through its servant, Mr Amjah, carried out clearing on the property involving the “picking of plants” that were part of an EEC, namely CPW, and damaged the habitat of CPW and damaged the habitat of the land snail.

120. The total area over which vegetation, including native vegetation, was cleared during this period was approximately 0.78ha (Ex H, at (130)). The clearing involved removing areas of groundcover, understorey plants, and open and sparse density tree coverage.

121. Between 14 July 2017 and 19 August 2017, similarly to earlier email intercourse, Mr Amjah sent regular email correspondence to Mr Varghese, confirming the hours he worked each week and the clearing he had carried out on the property (Ex L, at pp 1,635-1,670).

122. During that period, Mr Varghese regularly replied to Mr Amjah’s email correspondence and attached remittance advices which stated that an account in the name of “Aerotropolis Pty Ltd” had paid differing amounts to Mr Amjah, in payment for Mr Amjah’s work on the property.

123. Mr Varghese visited the property from time to time including in the last week of June 2017, as stated in an email to him from Mr Amjah dated 1 July 2017 (Ex L, at p 1,631).

124. On 19 August 2017, Mr Amjah emailed Mr Varghese stating, among other things, that he had “focused on clearing the first area to the right as you enter the second paddock, pushing all the small trees into the gully for easy burning at a later date” (Ex L, at p 1,670).

125. In relation to Charge 6, for the reasons I have given above in relation to Charge 1, I find beyond reasonable doubt that the defendant “picked a plant” that was part of a threatened species or an EEC.

126. In relation to Charges 7 and 8, I find beyond reasonable doubt that by the above actions, details of which are not repeated, between about 8 July 2017 and about 24 August 2017, the defendant damaged the habitat of an EEC, namely CPW, and damaged the habitat of a threatened species, namely the land snail. The damage was the removal or relocation of the habitat of CPW and the habitat of the land snail, or part of those habitats, and by causing or permitting such damage. I rely on the evidence previously considered as relevant to the present charges including my finding that the defendant’s director, Mr Varghese, directed the defendant’s servant, Mr Amjah, to undertake the clearing which damaged the habitat of CPW and the habitat of the land snail by instructing him to clear trees and other vegetation that form part of the said habitats, and for the reasons I have given at [96]-[97] above in relation to the absence of the required development consent, I find that the defendant was aware that the habitat was that of an EEC and that of a threatened species.

127. In relation to each of Charges 6, 7 and 8, I repeat my consideration and findings at [200]-[208] in relation to the defendant’s direct and vicarious liability and corporate knowledge and repeat my findings that I am not satisfied that any defence could be made out.

BC Act charges

Charges 9, 10 and 11 (Charge Group 4)

128. Charges 9, 10 and 11, respectively, allege that between about 12 September 2017 and 4 August 2018, the defendant through its servant, Mr Amjah, carried out clearing on the property involving the “picking of plants” that were part of a threatened ecological community, namely CPW, and damaged the habitat of CPW and the habitat of a threatened species, namely the land snail.

129. The total area over which vegetation, including native vegetation, was cleared during this period was approximately 4.76ha (Ex H, at (131)-(134)). This comprised 2.03ha from 12 September 2017 to 19 December 2017, 0.59ha from 19 December 2017 to 24 January 2018, 1.40ha from 24 January 2018 to 10 May 2018, and 0.74ha from 10 May 2018 to about 4 August 2018.

130. The clearing involved removing from the ground numerous areas of groundcover, plus small and larger single trees and clumps of trees of varying sizes, as well as understorey plants and one area of dense tree coverage (Ex H, at (134)(i) and (k)).

131. Similarly to the email intercourse noted earlier and throughout this judgment, between 16 September 2017 and 4 August 2018, Mr Amjah continued to provide frequent email correspondence to Mr Varghese confirming the hours he worked each week and the clearing he had carried out on the property “as usual”, frequently stating he was “continuing clearing” the small trees and plants (Ex L, at pp 1,965-2,023).

132. Mr Varghese regularly replied to Mr Amjah’s email correspondence and attached remittance advices, which stated that an account in the name of “Aerotropolis Pty Ltd” had paid differing amounts to Mr Amjah in payment for Mr Amjah’s work on the property.

133. On 23 December 2017, Mr Amjah informed Mr Varghese that his clearing had “joined larger areas together”, and on 6 May 2018, Mr Amjah stated he had “resumed clearing, focusing on the olives and small trees in the second paddock” (whereas, on 7 October 2017, he was focusing on the “timely removal of all of the small-medium size trees”) (Ex L, at pp 1,941, 1,701).

134. On 16 December 2017, Mr Amjah informed Mr Varghese that he was “continuing with clearing as usual” and that spraying had a “much higher kill rate” than the fast-acting herbicides, meaning less wear on the mulcher (Ex L, at p 1,856).

135. On 19 May 2017, Mr Varghese provided an explicit instruction to Mr Amjah to use herbicides to “the trunk of trees to dry them out” (Ex L, at p 1,607).

136. On 11 March 2018, Mr Amjah told Mr Varghese he had “continued clearing further in the second paddock, linking a newly cleared area to the established open areas” (Ex L, at p 1,897).

137. On 24 March 2018, Mr Amjah said he was continuing clearing small trees and African Olive plants into the areas surrounding the recently opened up dam, “leaving the mature gum trees intact”. Throughout this period, Mr Amjah’s emails repeated the words “have continued clearing”. I accept the prosecutor’s submission, and find, that this shows an awareness of the distinction between trees and Mr Varghese being aware of the need to protect gum trees, at least when it came to “mature” ones.

138. In relation to Charge 9, I find beyond reasonable doubt that the defendant, through its servant, Mr Amjah, carried out clearing on the property involving the “picking of plants” over the area determined by Mr Watts which were part of a threatened ecological community as opined by Mr Sheather-Reid. I make these findings based on the expert evidence which I have summarised above and my consideration of the extensive email intercourse between Mr Varghese and Mr Amjah and the obvious clearing that was undertaken by Mr Amjah.

139. As I have noted above, I am satisfied that the defendant does not have any defence in respect of any of the charges under ss 2.2(1)(b) and 2.4(1) of the BC Act as I find that the conduct constituting the clearing was not authorised under any other legislation including a development consent or approval under the EPA Act, any authorisation under the Local Land Services Act 2013 (NSW), the Rural Fires Act 1997 (NSW), or any other legislation, or authorised by any biodiversity conservation licence. Although, as I have noted above, the Biodiversity Conservation Regulation 2017 (NSW) provides for a range of specific defences, I find that none of these can arise, as the vegetation removed was not “grown or cultivated” but was, as per the evidence of Mr Jobson, native vegetation that was indigenous to NSW.

182. Mr Amjah said that Mr Varghese paid him as a “normal employee” (A247), and bought a tractor for the farm with a bucket and slasher (A231) which Mr Amjah used to fell the trees on Mr Varghese's instructions. Mr Amjah also used a Caterpillar D6 bulldozer (A183-187).

183. In relation to the period when most of the clearing took place (in 2019), Mr Amjah said Mr Varghese instructed him to do that (A174).

184. In relation to his dealings with the Rural Fire Service (‘RFS’), Mr Amjah said that they contacted him a “little while after” he started working on the property to arrange a time to inspect the property (A140). They then visited the property to inspect it for fire hazards (A146). Mr Amjah hopped in their car and they drove “all the way around” the property (A128-130). The RFS officers were in uniform and put their own lock on the farm gate (A125). Mr Amjah thinks they were from Cobbitty RFS. They were interested in preventing fires from occurring, but they did not give Mr Amjah any instructions (A156). They just wanted to look at the potential fire hazards (A157). They just said to look after the property (A148).

185. In terms of storms on the property, Mr Amjah said that over the five years there may have been “a small handful” of trees felled by storms and that he contacted Mr Varghese when those things happened (A216). He always called Mr Varghese when he was unsure of anything and Mr Varghese would instruct him regarding what to do (A194).

186. On 3 June 2021, Mr Varghese was interviewed under compulsion by investigators. In summary, he said that:

1. He hired Mr Amjah as the property manager;

2. One or two weeks afterwards, Mr Amjah called him and said that RFS officials came to the property and told him to clear the regrowth and to put fire breaks in and that they would be putting their own lock in the chain to allow them to inspect the property to ensure there would not be any fire threats (Q&A 423). He said that this occurred in November 2015;

3. Mr Amjah asked him to either rent or buy a tractor so that he could fix the dam and clear the regrowth, as Mr Amjah “asked for the direction from the RFS officials. To that I agreed” (Q&A 427). Mr Varghese said he did this to reduce the fire threat (Q&A 428);

4. He received from Council a section 149 certificate and “one of the concerns which I identified was that it is a bush fire prone area, so that has to be managed” (Q&A 429). It was necessary to protect the farm from fire and “protect the animals and things from fire”;

5. The RFS officials’ names were Graham and Peter from Cobbitty RFS (Q&A 434-435), but he did not speak to the RFS himself (Q516) and only got information from Mr Amjah (Q517);

6. He discussed the clearing with Mr Amjah in one phone call (Q&A 446) and Mr Amjah “made follow up calls”, but “we didn't discuss much about it” (Q&A 451);

7. Clearing commenced in 2015 (Q&A 470) and they received the instruction from RFS officials in December or November 2015 (Q&A 471). They bought the tractor and mulcher (Q473);

8. He thinks the reason for the need for the fire breaks is that there were a lot of fires in December and January 2019, and he said: “I think that may be the reason for to make more fire breaks so that it will not be spreading” (Q486);

9. Mr Amjah had told him that the RFS officials visited the property. When asked how many times, he said that he did not know but “occasionally he mentioned that they visited” (Q496). At this point in the interview, Mr Varghese referred to a “big storm” and that trees have “fallen down” (Q&A 497-498; 507). When asked if he was suggesting that about 40ha of trees had been felled by storms, he said that he did not have any idea (Q501). He said that the RFS officials “directed” Mr Amjah to “make the fire breaks” and so it may be “a combination of both” (Q511), but then said he did not know [what caused the trees being felled] (Q512);

10. He agreed that he had not been issued with any hazard reduction orders by the RFS (Q519);

11. The information from Mr Amjah about the RFS dated from his memories of 2015 (Q524);

12. He asserted that “you need to have the regrowth cleared” (Q526). It then was put:

“Q 527   Sure.

A   And make fire breaks. So that, okay, the fire will not be spreading.

Q 528   All right.

A   To avoid the fire and avoid it from spreading.

Q 529   Yeah.

A   So that's, that's the one which he communicated to me.

Q 530   All right. So, but that's - so you've got it direct from Dean?

A   Yeah.

Q 531   But from nobody else?

A   Yeah.

Q 532   So, Dean, Dean (indistinct) - we've interviewed Dean and he's told us the RFS said that they gave some general concerns about fire hazard but nothing specific about the property.

A   Yeah.

- - -

Q 542   - - - so you haven't been given any official direction by the RFS at all?

A   Me?

Q 543   But you or Ascent Corporation hasn't been given any official direction by the RFS. Nothing in writing.

A   No.

Q 544   Nothing saying you must clear this because of the fire hazard

A   No, no, no.”

13. It was put to Mr Varghese that he had not in fact cleared the fire hazard as the piles of vegetation were still on the property. Mr Varghese replied that Mr Amjah told him that the fire official had said it could be burned in winter as part of the fire hazard reduction. (Q559) This was also said by the RFS in 2015 (Q&A 560, 562);

14. He understood Mr Amjah was an experienced farm manager with experience of managing of 400-acre farm and that’s why “we hired him” (Q569);

15. He denied giving Mr Amjah specific instructions about what to clear (Q572). He did not remember giving him anything specific by way of instructions (Q573);

16. He is new to Australia, but Mr Amjah was the expert in managing farms “and identifying the different kinds of trees and other things” (Q576-578);

17. He does not know the difference between eucalyptus and olives (Q586) (see FN [154]). Some of Mr Amjah’s emails were put to him including an email dated 13 May 2019, stating: “Hi, Jomon, this week I have focused on strictly gum tree regrowth removal for bush fire prevention as discussed” (Q588). When asked if he understands what Mr Amjah meant by gum tree regrowth, he said, “I didn’t”. He said that he does not understand the difference between gum trees which are native and olives (Q597);

18. He said that he did not suggest to Mr Amjah the processing of piles (of trees) or “permit anything to do” with that (Q&A 618-623). When shown an email from him to Mr Amjah dated 16 May 2019 asking him to arrange removal of the regrowth piles “on a regular basis” (Q631), he said it referred to the “big storm” in 2016 causing trees to fall down (Q639);

19. In response to his (Mr Varghese’s) email of 10 June 2019 instructing Mr Amjah to “clear as much as possible during this period” (Q677-680), Mr Varghese suggested this meant “clearing of regrowth and putting fire breaks – that direction from the RFS people” (Q683-684). This exchange then took place:

“685   Okay. We've just established the RFS haven't given you any formal direction.

A   Yeah.

Q   So, all you've got is one conversation from the RFS from 2015.

A   No. They were regularly visiting the property.

Q   Have you got evidence of that?

A   Dean must telling

Q   Dean says that they visited the property regularly?

A   Yeah.

Q   We issued the RFS with a Notice as well. They have no record of contacting you about the property.

A   No. They didn't contact me.

Q   Well - - -

A   I never, I never, I never had any conversation with them.

Q   - - - they don't even have any record of attending in 2015.

A   Yeah.”

20. He was asked what he meant by “regrowth” and he said, “vegetation that's growing because it was not properly managing” (Q696). He was asked if he had any understanding if regrowth has any different protection in NSW than other vegetation and he said, “I don’t know” (Q697), and “I was told at that time to clear the regrowth and put fire breaks” (A699), “that's the direction” (A700) and “By the RFS. So, that’s why I also used the same terminology” (A701);

21. He agreed he asked for quotes for removing vegetation piles, and one quote quoted a cost of $200,000 (for example, A748-753);

22. He agreed that he instructed Mr Amjah to remove gum trees, but said: “I don’t know the difference between” (A767);

23. When asked why he provided only five emails in response to the statutory notice issued to him to provide “copies of any other correspondence”, whereas Mr Amjah had provided about 150 emails between them, he said, “I provided some samples” (A772);

24. He said he visited the property maybe once or twice or “thrice” in a year (A781). He was busy travelling for his World Trade Centre project (A784); and

25. He named various government departments and agencies that he met with about his project (A817).

Material provided to investigators

192. Prior to his directed record of interview on 3 June 2021, as a result of enquiries made by the investigator, Mr Varghese provided a written response dated 10 September 2020. That response appears to allude to certain defences, which were raised later when he was formally interviewed. In particular, he stated that Ascent had sought and obtained a section 149 Certificate from Camden Council which provided that “extensive agriculture” was permitted without development consent, that the property appeared to comprise “no critical habitat”, and that the property was not in a “conservation area”. Mr Varghese also stated that he had received from Camden Council a “Bushfire Prone Land Map”, which he understood to indicate that the vegetation on the property did not include woodland and only grassland because it was “category 2” vegetation. There is a further reference in relation to the loss of trees due to a “Big Storm” in February 2016.

193. Remaining conscious that the defendant does not appear in these proceedings, apart from my findings otherwise in this judgment in relation to possible defences, I have considered whether any of the matters raised by Mr Varghese in his written responses and in his record of interview raises any defence or similar exculpation. I consider that none of this material raises any form of defence. My reasons may be shortly stated.

194. First, a reading of the section 149 Certificate directs attention to the various instruments that apply to the carrying out of development on the property. These include the Camden Local Environmental Plan 2010, numerous state environmental planning policies, and relevantly, the Camden Development Control Plan 2011. Consideration of any of those documents would have confirmed that development consent was needed to clear land.

195. Second, the parts of the Bushfire Prone Land Map referred to in Mr Varghese's written response, considered along with the section 149 Certificate, do not provide any kind of defence to the conduct which I have found involved extensive clearing on the property. Neither of those documents, being the Bushfire Prone Land Map and the section 149 Certificate, could be seen to permit the clearing undertaken. The Bushfire Prone Land Map does not even purport to indicate that clearing is permissible or otherwise.

196. Third, Mr Varghese appears both in his written responses and his record of interview to place reliance upon the conduct of Mr Amjah “protecting the farm for many fire hazards by managing African Olives, grass regrowth” and the like. A number of other references in Mr Varghese’s written response to the investigator refer to blackthorn, African Olive and other weeds and the likely danger to cattle, however there is no reference to the extent of the clearing which I find on the evidence, was clearly not limited to weeds and the like.

197. Fourth, I accept the submission of the prosecutor that given the extent of the clearing (which was at least 36ha including high quality CPW according to Mr Sheather-Reid, who also opined that “large-scale clearing” had taken place), it cannot be the fact that the amount of African Olive removed would reflect the extent of the clearing which I otherwise find is apparent on the evidence, nor do I accept that the “Big Storm” in February 2016 contributed in any material manner to the loss of vegetation that I have found.

198. Fifth, in the extensive email correspondence between Mr Varghese and Mr Amjah there are numerous references to “clearing”, and although there is some reference to “regrowth”, there is nothing in the material indicating at any stage that Mr Varghese provided instructions to Mr Amjah as to any particular vegetation that should be protected, and as such, there was no limitation at all as to what Mr Amjah was instructed to clear. Moreover, as noted later in this judgment, Mr Amjah, in his directed interview, told investigators that the instruction he had received was to clear, inter alia, “everything”, although Mr Amjah did answer questions stating “[Mr Varghese] did say like big trees to be left … like massive trees” (Ex M, at p 4,634 and A206).

199. Sixth, I also find that Mr Varghese's response (of 18 September 2020) to further enquiries made by the investigator (in which Mr Varghese states that “the Farm Manager is well experienced in running their 400-acre Farm in Cobbitty … and I am new to Farming in Australia, I did not need to give any specific instructions to him. He was taking care of those responsibilities without much instructions and monitoring”) does not sit comfortably with the extensive email correspondence between Mr Varghese and Mr Amjah which provided instructions to Mr Amjah in relation to clearing. Further, I do not accept Mr Varghese's response to the effect that “the only oral advice the Farm Manager received is from the Fire Officials from the RFS” in circumstances where there has been extensive email intercourse in relation to ongoing clearing as referred to in this judgment.

Liability of the defendant

200. As noted earlier in this judgment, offences against the NPW Act and the BC Act are ones of strict liability and attract the principles of vicarious liability. Further, the acts of a director of a company count as the acts of the company because directors represent the company’s mind and will. For the reasons that follow, I find that the liability of the defendant is either direct or vicarious. This finding is supported (in the alternative) by the assumptions of liability that attach to landholders under s 159A of the NPW Act and s 13.29 of the BC Act, which relevantly provided:

NPW Act

159A   Liability of landholder for certain harming and picking offences

In any criminal proceedings for an offence under section 98 or Part 8A, the landholder of any land on which the offence is alleged to have occurred is taken to have carried out the activity constituting the alleged offence unless it is established that:

(a)   the activity was carried out by another person, and

(b)   the landholder did not cause or permit the other person to carry out the activity.

This section does not prevent proceedings being taken against the person who actually carried out the activity.

BC Act

13.29   Responsibility of landholder for activities carried out on the land

(1)   In any criminal or civil proceedings under this Act, the landholder of any land on which an offence or contravention is alleged to have occurred is taken to have carried out the activity constituting the alleged offence or contravention unless it is established that:

(a)   the activity was carried out by another person, and

(b)   the landholder did not cause or permit the other person to carry out the activity.

(2)   This section does not prevent proceedings being taken against the person who actually carried out the activity.

(3)   This section does not apply to an offence under section 2.5 (Dealing in animals or plants) or any other offence excluded by the regulations.

201. Between May 2016 and 28 May 2020, I find that the defendant was a “landholder” within the meaning of s 1.6 of the BC Act on the basis that it was in lawful occupation or possession of the property; and/or had lawful management or control of the property (Ex B, Certificate of Evidence of Louisa Clark pursuant to s 13.31(2)(a) of the BC Act dated 5 April 2024).

202. I find that the defendant’s “management and control” of the property is established by the evidence that it:

1. Paid the wages of Mr Amjah from at least 3 May 2016 to 28 May 2020;

2. Rented and paid for machinery used at the property;

3. Paid for fuel associated with machinery used at the property (Ex L, at pp 1,430, 1,395);

4. Obtained quotes for the removal of vegetation piles from the property;

5. Paid for expenses in relation to the property including insurance, hay, and cattle feed (Ex L, at p 1,540);

6. Carried out activities in preparation for the development of the property; and

7. Managed the farming activities on the property.

203. As I have earlier noted, I find beyond reasonable doubt that the defendant is liable for the activity constituting each of the alleged offences (namely, the “picking of plants” and damage to habit). My reasons may be shortly stated.

204. First, the defendant has direct liability for the acts carried out through the agency of its director, Mr Varghese, and its employee or agent Mr Amjah (who I find carried out the physical acts of picking or clearing vegetation at the direction of Mr Varghese). Alternatively, vicarious liability arises by reason of the directions or instructions for clearing which I find in the evidence were given by Mr Varghese to Mr Amjah, with which Mr Amjah complied: Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited(No 2) [2010] NSWLEC 73 at [264], [311].

205. Second, in relation to the charges under the BC Act, as I have noted above, the defendant was a “landholder” within the meaning of s 1.6 of the BC Act and is therefore taken to have carried out the activity constituting the alleged offences pursuant to s 13.29 of the BC Act: Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15; (2010) 173 LGERA 366 at [354]-[355]. A similar special attribution rule applied under s 159A of the NPW Act (but with no discrete definition of “landholder”). I find the defendant has not, and cannot, establish that first, the activity was carried out by another person; and second, the defendant did not “cause or permit” the other person to carry out the activity.

206. Third, in relation to the charges under the NPW Act, the defendant is taken (pursuant to s 175A of the NPW Act) to have committed the offence, by reason that its director, Mr Varghese, and/or Mr Amjah (the latter in the capacity of employee or servant of the defendant, or otherwise as a person concerned in the management of the corporation, or alternatively, at the direction or with the consent or agreement of Mr Varghese), or any person at the direction of Mr Varghese and/or Mr Amjah, contravened the relevant offence provision.

207. Mr Varghese and/or Mr Amjah caused or permitted damage to habitat of a threatened species and an EEC within the meaning of s 118D(6) of the NPW Act and thereby contravened s 118D(1). As such, they are taken to be the corporation under general principles of attribution but also under s 175C of the NPW Act.

208. I repeat, as considered above, that the (corporate) defendant is deemed to have the requisite mental state for the habitat offences because of the deeming provisions in the NPW Act and the BC Act for the reasons set out at [42]-[51], [98]-[107] above.

Conclusion

209. I have found beyond reasonable doubt that in relation to each of the charged offences, the defendant undertook clearing of an EEC, namely CPW, over a total period of more than four years, which caused damage to the habitat of the CPW and the habitat of the land snail, of which CPW was its primary habitat. In summary:

1. The aerial interpretation evidence in relation to each offence is compelling and is corroborated by three experts (in that Mr Sheather-Reid also undertook aerial interpretation in order to opine on the ecological aspects of the clearing);

1. Mr Amjah confirmed at Q170 of his record of interview that he was directed by the company’s director, Mr Varghese, to clear the property. When asked how much he was directed to clear, Mr Amjah responded, “Everything” (Q177);

2. Contemporaneous photos were taken by Mr Amjah and recorded clearing immediately after it occurred, which were sent to Mr Varghese, together with express instructions to clear the property;

3. Mr Varghese acknowledged, in his interview, that clearing took place (as set out above);

4. The documentation shows the purchase of machinery, which on the available evidence, was acquired for the purpose of clearing; and

5. The company undertook the clearing in order to prepare the property for a large commercial development, by which it desired to turn the property into a renowned “World Trade Centre” in proximity to the future Western Sydney Airport.

210. The proceedings now need to be fixed for a hearing on the sentence to be imposed for each of the offences. I list each matter before the List Judge on Friday, 23 May 2025 for the purpose of fixing a date for the sentence hearing and making appropriate directions to prepare for the sentence hearing.

Orders

211. The orders of the Court are:

In proceedings 2022/00173269:   

1. Aerotropolis Pty Ltd is found guilty of the offence against s 118A(2) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173269.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173270:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 118D(1) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173270.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173271:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 118D(1) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173271.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173272:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 118A(2) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173272.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173273:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 118D(1) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173273.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173274:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 118A(2) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173274.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173275:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 118D(1) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173275.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173276:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 118D(1) of the National Parks and Wildlife Act 1974 (NSW) as charged in proceedings 2022/00173276.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173277:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 2.2(1)(b) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173277.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173278:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173278.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173279:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173279.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173280:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 2.2(1)(b) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173280.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173281:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173281.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173282:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173282.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173283:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 2.2(1)(b) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173283.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173284:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173284.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173285:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173285.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173286:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 2.2(1)(b) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173286.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173287:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173287.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

In proceedings 2022/00173288:

1. Aerotropolis Pty Ltd is found guilty of the offence against s 2.4(1) of the Biodiversity and Conservation Act 2016 (NSW) as charged in proceedings 2022/00173288.

2. The proceedings are listed on 23 May 2025 to obtain a date and make directions for the hearing on sentence.

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Decision last updated: 19 May 2025