Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 7)

[2022] NSWLEC 153

Land and Environment Court

New South Wales

Medium Neutral Citation:

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 7) [2022] NSWLEC 153

Hearing dates:

24 – 27 August, 1 – 4 September 2020, 7 – 11 June and 9 July 2021

Date of orders:

23 December 2022

Decision date:

23 December 2022

Jurisdiction:

Class 5

Before:

Robson J

Decision:

See orders at [489]

Catchwords:

ENVIRONMENT AND PLANNING – Offences – Prosecutions – Six events of clearing native vegetation in contravention of s 12 of the Native Vegetation Act 2003 – Two events of clearing native vegetation in contravention of s 60N of the Local Land Services Act 2013 – 32 summons – Trial – Whether “clearing” – Whether “native vegetation” – Whether each defendant responsible for the clearing – Consideration of statutory defences – Mr Greentree and Auen Grain Pty Ltd found guilty – Proceedings listed to obtain sentence hearing date – Mr Harris and Merrywinebone Pty Ltd found not guilty – Summons stood over for entry of final orders

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW), Pt 13, Div 1, ss 1.6, 12.8, 13.29, 13.31, 14.4

Biosecurity Act 2015 (NSW), ss 7, 11, 15, 386

Land Management (Native Vegetation Code) 2017

Land Management (Native Vegetation Code) 2018

Local Government Act 1993 (NSW)

Local Land Services Act 2013 (NSW), Pts 5A, 5B, Sch 5A, Divs 4, 5, 6, ss 60A, 60B, 60C, 60D, 60G, 60I, 60N, 60Q, 60S, 60ZM

Local Land Services Regulation 2014 (NSW), cl 106

Native Vegetation Act 2003 (NSW), ss 12, 44

Native Vegetation Regulation 2013 (NSW), Pt 6, cll 3, 25, 26, 27, 38, 62

Noxious Weeds Act 1993 (NSW), ss 4, 7

Rural Fires Act 1997 (NSW), s 100C

Cases Cited:

Alphacell Ltd v Woodward [1972] AC 824

Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159

Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314

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

Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229

Director-General, Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; (2009) 172 LGERA 225

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

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris [2019] NSWLEC 187

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 3) [2020] NSWLEC 129

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 4) [2020] NSWLEC 130

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 5) [2021] NSWLEC 6

Walker Corporation Pty Ltd v Director General, Department of Environment, Climate Change and Water (2012) 82 NSWLR 12; [2012] NSWCCA 210

Texts Cited:

Australian Soil and Land Survey Field Handbook (3rd ed, 2009)

Category:

Principal judgment

Parties:

In proceedings 2019/00265264; 2019/00265268; 2019/00265272; 2019/00265276; 2019/00265280; 2019/00265284; 2019/00265288; 2019/00265292
Secretary, Department of Planning, Industry and Environment (Prosecutor)
Auen Grain Pty Ltd ACN 101 059 769 (Defendant)

In proceedings 2019/00265266; 2019/00265270; 2019/265274; 2019/00265278; 2019/00265282; 2019/265286; 2019/00265290; 2019/00265294
Secretary, Department of Planning, Industry and Environment (Prosecutor)
Ronald Lewis Greentree (Defendant)

In proceedings 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293
Secretary, Department of Planning, Industry and Environment (Prosecutor)
Merrywinebone Pty Ltd ACN 000 937 824 (Defendant)

In proceedings 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295
Secretary, Department of Planning, Industry and Environment (Prosecutor)
Kenneth Bruce Harris (Defendant)

Representation:

Counsel:
In proceedings 2019/00265264; 2019/00265268; 2019/00265272; 2019/00265276; 2019/00265280; 2019/00265284; 2019/00265288; 2019/00265292; 2019/00265266; 2019/00265270; 2019/00265274; 2019/00265278; 2019/00265282; 2019/00265286; 2019/00265290; 2019/00265294
S Callan SC with C Hamilton-Jewell (Prosecutor)
S Littlemore QC with P M Lane (Defendants)

In proceedings 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295:
S Callan SC with C Hamilton-Jewell (Prosecutor)
T S Hale SC with D W Robertson (Defendants)

Solicitors:
In proceedings 2019/00265264; 2019/00265268; 2019/00265272; 2019/00265276; 2019/00265280; 2019/00265284; 2019/00265288; 2019/00265292; 2019/00265266; 2019/00265270; 2019/00265274; 2019/00265278; 2019/00265282; 2019/00265286; 2019/00265290; 2019/00265294
Department of Planning, Industry and Environment (Prosecutor)
Austin Giugni Martin Pty Ltd (Defendants)

In proceedings 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295
Department of Planning, Industry and Environment (Prosecutor)
Thomson Geer (Defendants)

File Number(s):

2019/00265264; 2019/00265268; 2019/00265272; 2019/00265276; 2019/00265280; 2019/00265284; 2019/00265288; 2019/00265292; 2019/00265266; 2019/00265270; 2019/00265274; 2019/00265278; 2019/00265282; 2019/00265286; 2019/00265290; 2019/00265294; 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295

Publication restriction:

Nil

TABLE OF CONTENTS

Judgment

Nature of cases and outcome

Introduction

The alleged offences

Outline

The statutory framework and elements of the offences

Native Vegetation Act offences

Local Land Services Act offences

Evidence

Overview

Native Vegetation Act offences

Element (1) – “clearing”

Element (2) – the clearing was of “native vegetation”

Element (3) – no “development consent”

Element (4) – no “property vegetation plan”

Element (5) – responsibility for carrying out clearing

Defences

Offences under the Local Land Services Act

Element (1) – “clearing”

Element (2) – the clearing was of “native vegetation”

Element (3) – the clearing was in a “regulated rural area”

Element (4) – responsibility for carrying out clearing

Defences

Conclusion – all proceedings

Orders

Judgment

Nature of cases and outcome

1. On 26 August 2019, the prosecutor, the Secretary, Department of Planning, Industry and Environment, commenced 32 proceedings by way of eight summonses against each of Auen Grain Pty Ltd (ACN 101 059 769) (‘Auen Grain’); Ronald Lewis Greentree (‘Mr Greentree’); Merrywinebone Pty Ltd (ACN 000 937 824) (‘Merrywinebone’); and Kenneth Bruce Harris (‘Mr Harris’) (collectively, ‘the defendants’) in relation to eight separate land clearing events between December 2016 and January 2019 involving the removal of native vegetation on a property known as “Boolcarrol”, north-west of Narrabri in the State of New South Wales.

2. Due to the timing of the eight alleged clearing events, six charges have been issued against each defendant pursuant to the Native Vegetation Act 2003 (NSW) (‘Native Vegetation Act’) which was repealed on 25 August 2017, and two charges have been issued pursuant to the Local Land Services Act 2013 (NSW) (‘Local Land Services Act’).

3. Each of the defendants has pleaded not guilty to the charges and a hearing has been held.

4. For the reasons that follow, I find beyond reasonable doubt that Mr Greentree and Auen Grain are each guilty of the eight offences as charged and that Mr Harris and Merrywinebone are each not guilty of the eight offences as charged.

Introduction

5. On 3 December 2019, Pain J made orders pursuant to s 29(2) of the Criminal Procedure Act 1986 (NSW) (‘Criminal Procedure Act’) that each of the matters be heard and determined together: Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris [2019] NSWLEC 187.

6. Boolcarrol, the property on which the alleged clearing events took place, occupies over 34,000ha and was at all relevant times owned by Mr Harris and Mr Greentree as tenants in common. Boolcarrol was farmed (which included grazing and farming/cropping) by a partnership commenced on 26 February 2008 and known as “Greentree Farming” comprising, as partners, each of the defendants as follows: Auen Grain 50%, Merrywinebone 48%, Mr Greentree 1%, and Mr Harris 1% – with Mr Greentree being a shareholder and sole director of Auen Grain, and Mr Harris being the sole director of Merrywinebone.

7. Given the interrelationship between the four defendants, where necessary, I will refer to Mr Greentree and Auen Grain as the ‘Greentree defendants’ and Mr Harris and Merrywinebone as the ‘Harris defendants’. The Greentree defendants and the Harris defendants were represented separately.

The hearing

8. On 24 August 2020, prior to the commencement of the hearing, an application was made by the Greentree defendants pursuant to s 247G(3)(e) of the Criminal Procedure Act, that the Court by way of a preliminary hearing (the “voir dire hearing”) give a ruling or make a finding under s 192A of the Evidence Act 1995 (NSW) (‘Evidence Act’), that the purported expert evidence of two witnesses (Paul Spiers and Terrence Michael Mazzer) proposed to be relied upon by the prosecutor, be excluded on the grounds of inadmissibility and/or as warranting discretionary rejection. The application was supported by the Harris defendants and not opposed by the prosecutor.

9. The preliminary hearing proceeded on 24, 25, 26 and 27 August 2020, being the first four days of the nine days initially allocated for the hearing; and on 1 September 2020 (in Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126 (‘Auen Grain (No 2)’)), I determined that the evidence in question satisfied the requirements of s 79 of the Evidence Act, was admissible, and that it ought not be excluded pursuant to s 137 of the Evidence Act.

10. The prosecutor then opened its case on 1 September 2020, being the fifth day of the nine days allocated for the hearing, and thereafter made an application to rely upon further evidence. That application proceeded on 1 and 2 September 2020 and on 3 September 2020 (in Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 3) [2020] NSWLEC 129), I granted leave for the prosecutor to file and rely upon: Amended Notices under s 247J of the Criminal Procedure Act in each of the proceedings to add to the evidence, the affidavits of Leanne Jago, Michael William Brooks, Scott Terrence Drady, Jeremy Black, Michael Cornelius Flynn, and Dr Marco Duretto; a Certificate issued pursuant to s 13.31 of the Biodiversity Conservation Act 2016 (NSW) (‘Biodiversity Conservation Act’); a Certificate issued pursuant to s 50 of the Native Vegetation Act; oral evidence from Daniel Boyce (of Narrabri Shire Council); and an Amended Certificate issued on 20 August 2020 pursuant to s 13.32 of the Biodiversity Conservation Act.

11. On 4 September 2020 (in Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 4) [2020] NSWLEC 130), I admitted documentary material tendered by the prosecutor, produced by the NSW Rural Fire Service (‘RFS’), to which the defendants had objected.

12. The hearing continued on 3 and 4 September 2020, being the last two days of the nine days allocated for the hearing. As the hearing was not completed, it was set down for further hearing commencing on 15 February 2021. On the application of the prosecutor, on 4 February 2021, I vacated the further hearing dates of 15 to 19 February 2021 and set the proceedings down for a further five-day hearing commencing on 7 June 2021: Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 5) [2021] NSWLEC 6.

13. The hearing resumed from 7 to 11 June 2021. As the hearing was not completed, I set the proceedings down for a final hearing day for closing submissions. The hearing was completed on 9 July 2021.

The alleged offences

Clearing events

14. In summary, the charges which relate to eight separate land clearing events are that each defendant:

1. Carried out or authorised the clearing of native vegetation on Boolcarrol contrary to s 12 of the Native Vegetation Act between:

1. 29 December 2016 and 8 May 2017 (‘Northern Clearing Event 1’);

2. 8 May 2017 and 27 July 2017 (‘Northern Clearing Event 2’);

3. 2 July 2017 and 16 August 2017 (‘Northern Clearing Event 3’);

4. 27 July 2017 and 16 August 2017 (‘Northern Clearing Event 4’);

5. 16 August 2017 and 24 August 2017 (‘Northern Clearing Event 5a’); and

6. 27 July 2017 and 24 August 2017 (‘Southern Clearing Event 6a’),

(collectively, the ‘Native Vegetation Act offences’)

2. Carried out or authorised the clearing of native vegetation on Boolcarrol, which is a rural regulated area, contrary to s 60N of the Local Land Services Act between:

1. 25 August 2017 and 18 September 2017 (‘Northern Clearing Event 5b’); and

2. 25 August 2017 and 18 January 2019 (‘Southern Clearing Event 6b’),

(collectively, the ‘Local Land Services Act offences’).

15. All of the charges are strict liability offences. The latter two charges (Northern Clearing Event 5b and Southern Clearing Event 6b) reflect that, on 25 August 2017, the Native Vegetation Act was repealed and s 60N was inserted into the Local Land Services Act.

16. The use of descriptors “Northern” and “Southern” (clearing events) generally reflect the fact that Spring Plains Road runs through Boolcarrol in an east/west direction creating a portion of the property to the north (‘northern area’) and the remainder of the property to the south (‘southern area’). As will be seen, the discrete areas of land alleged to have been cleared are variously referred to in the evidence by reference to named paddocks and numbered “polygons” within the property known as Boolcarrol.

Northern Clearing Event 1

17. This clearing event is the subject of the charges in proceedings 2019/00265266 against Mr Greentree, proceedings 2019/00265267 against Mr Harris, proceedings 2019/00265268 against Auen Grain, and proceedings 2019/00265269 against Merrywinebone.

18. Each charge alleges that, between about 29 December 2016 and 8 May 2017 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 12 of the Native Vegetation Act.

19. The particulars of each charge (with slight variation for each defendant) are as follows:

1. Place of offence: At the property “Boolcarrol”, on or near Lot 1 in DP 128418, Lot 2 in DP 753913, and Lot 100 in DP 842249;

2. Native Vegetation: Included 16 identified species of native vegetation;

3. Manner of breach: Each defendant:

1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 44 of the Native Vegetation Act; and/or

2. (except in relation to Mr Harris), cleared native vegetation by means of machinery including a bulldozer, burning, and ploughing; and/or

3. caused or authorised, by their employees (in relation to Merrywinebone and Auen Grain only), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and ploughing.

Northern Clearing Event 2

20. This clearing event is the subject of the charges in proceedings 2019/00265270 against Mr Greentree, proceedings 2019/00265271 against Mr Harris, proceedings 2019/00265272 against Auen Grain, and proceedings 2019/00265273 against Merrywinebone.

21. Each charge alleges that, between about 8 May 2017 and 27 July 2017 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 12 of the Native Vegetation Act.

22. The particulars of each charge (with slight variation for each defendant) are as follows:

1. Place of offence: At the property “Boolcarrol”, on or near Lot 7 in DP 753913;

2. Native Vegetation: Included 17 identified species of native vegetation;

3. Manner of breach: Each defendant:

1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 44 of the Native Vegetation Act; and/or

2. (except in relation to Mr Harris), cleared native vegetation by means of machinery including a bulldozer, burning, and ploughing; and/or

3. caused or authorised, by their employees (in relation to Merrywinebone and Auen Grain only), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and ploughing.

Northern Clearing Event 3

23. This clearing event is the subject of the charges in proceedings 2019/00265274 against Mr Greentree, proceedings 2019/00265275 against Mr Harris, proceedings 2019/00265276 against Auen Grain, and proceedings 2019/00265277 against Merrywinebone.

24. Each charge alleges that, between about 2 July 2017 and 16 August 2017 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 12 of the Native Vegetation Act.

25. The particulars of each charge (with slight variation for each defendant) are as follows:

1. Place of offence: At the property “Boolcarrol”, on or near Lots 7 and 8 in DP 753913;

2. Native Vegetation: Included 13 identified species of native vegetation;

3. Manner of breach: Each defendant:

1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 44 of the Native Vegetation Act; and/or

2. (except in relation to Mr Harris), cleared native vegetation by means of machinery including a bulldozer, burning, and (in relation the Auen Grain and Merrywinebone) /or (in relation to Mr Greentree), ploughing; and/or

3. caused or authorised, by their employees (in relation to Merrywinebone and Auen Grain only), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and (in relation to Auen Grain) and/or (in relation to Mr Greentree, Mr Harris and Merrywinebone) ploughing.

Northern Clearing Event 4

26. This clearing event is the subject of the charges in proceedings 2019/00265278 against Mr Greentree, proceedings 2019/00265279 against Mr Harris, proceedings 2019/00265280 against Auen Grain, and proceedings 2019/00265281 against Merrywinebone.

27. Each charge alleges that, between about 27 July 2017 and 16 August 2017 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 12 of the Native Vegetation Act.

28. The particulars of each charge (with slight variation for each defendant) are as follows:

1. Place of offence: At the property “Boolcarrol”, on or near Lot 100 in DP 842249;

2. Native Vegetation: Included 12 identified species of native vegetation;

3. Manner of breach: Each defendant:

1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 44 of the Native Vegetation Act; and/or

1. (except in relation to Mr Harris), cleared native vegetation by means of machinery including a bulldozer, burning, and ploughing; and/or

2. caused or authorised, by their employees (in relation to Merrywinebone and Auen Grain only), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and ploughing.

Northern Clearing Event 5a

29. This clearing event is the subject of the charges in proceedings 2019/00265282 against Mr Greentree, proceedings 2019/00265283 against Mr Harris, proceedings 2019/00265284 against Auen Grain, and proceedings 2019/00265285 against Merrywinebone.

30. Each charge alleges that, between about 16 August 2017 and 24 August 2017 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 12 of the Native Vegetation Act.

31. The particulars of each charge (with slight variation for each defendant) are as follows:

1. Place of offence: At the property “Boolcarrol”, on or near Lots 2, 13, 14 and 24 in DP 753913; Lots 14, 37 and 38 in DP 753916; and Lot 6 in DP 128419;

2. Native Vegetation: Included 18 identified species of native vegetation;

3. Manner of breach: Each defendant:

1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 44 of the Native Vegetation Act; and/or

2. (except in relation to Mr Harris), cleared native vegetation by means of machinery including a bulldozer, burning, and ploughing; and/or

3. caused or authorised, by their employees (in relation to Merrywinebone and Auen Grain only), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and ploughing.

Southern Clearing Event 6a

32. This clearing event is the subject of the charges in proceedings 2019/00265290 against Mr Greentree, proceedings 2019/00265291 against Mr Harris, proceedings 2019/00265292 against Auen Grain, and proceedings 2019/00265293 against Merrywinebone.

33. Each charge alleges that, between about 27 July 2017 and 24 August 2017 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 12 of the Native Vegetation Act.

34. The particulars of each charge (with slight variation for each defendant) are as follows:

1. Place of offence: At the property “Boolcarrol”, on or near Lots 34 and 41 in DP 753954; and Lots 69 and 71 in DP 753937;

2. Native Vegetation: Included 17 identified species of native vegetation;

3. Manner of breach: Each defendant:

1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 44 of the Native Vegetation Act; and/or

2. (except in relation to Mr Harris), cleared native vegetation by means of machinery including a bulldozer, burning, and ploughing; and/or

3. caused or authorised, by their employees (in relation to Merrywinebone and Auen Grain only), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and ploughing.

Northern Clearing Event 5b

35. This clearing event is the subject of the charges in proceedings 2019/00265286 against Mr Greentree, proceedings 2019/00265287 against Mr Harris, proceedings 2019/00265288 against Auen Grain, and proceedings 2019/00265289 against Merrywinebone.

36. Each charge alleges that, between about 25 August 2017 and 18 September 2017 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 60N of the Local Land Services Act.

37. The particulars of each charge (with slight variation for each defendant) are as follows:

1. Place of offence: At the property “Boolcarrol”, on or near Lots 2, 12, 13, 14 and 24 in DP 753913; Lots 14, 32, 33, 37, 38, 44, 45 and 68 in DP 753916; Lot 1 in DP 128418; Lot 6 in DP 128419; Lot 2 in DP 546098; and Lot 24 in DP 1221147;

2. Native Vegetation: Included 24 identified species of native vegetation;

3. Manner of breach: Each defendant:

1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 13.29 of the Biodiversity Conservation Act; and/or

2. caused or authorised, by their employees (except in relation to Mr Greentree), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and ploughing; and/or

3. cleared native vegetation by means of machinery including a bulldozer, burning, and ploughing.

Southern Clearing Event 6b

38. This clearing event is the subject of the charges in proceedings 2019/00265294 against Mr Greentree, proceedings 2019/00265295 against Mr Harris, proceedings 2019/00265264 against Auen Grain, and proceedings 2019/00265265 against Merrywinebone.

39. Each charge alleges that, between about 25 August 2017 and 18 January 2019 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 60N of the Local Land Services Act.

40. The particulars of each charge (with slight variation for each defendant) are as follows:

1. Place of offence: At the property “Boolcarrol”, on or near Lots 1, 3, 18, 19, 42, 52, 69, 71, 82 and 83 in DP 753937; and Lot 25 in DP 1221147;

2. Native Vegetation: Included 12 identified species of native vegetation;

3. Manner of breach: Each defendant:

1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 13.29 of the Biodiversity Conservation Act; and/or

2. caused or authorised, by their employees (in relation to Merrywinebone and Auen Grain only), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and ploughing; and/or

3. cleared native vegetation by means of machinery including a bulldozer, burning, and ploughing.

Outline

41. It is necessary for a judgment such as this to set out the applicable legal principles. In relation to each charge, first, the prosecutor bears the onus of proof to establish the guilt of each of the defendants; second, the prosecutor must establish its case beyond reasonable doubt; third, the words within that phrase “beyond reasonable doubt” have their ordinary meaning; and fourth, the prosecutor needs to establish the essential elements of each offence, however the prosecutor is not required to prove the truth and reliability of every disputed fact or to answer every question that might be posed concerning the evidence in each of the cases.

42. For the reasons that follow, I find that each of Mr Greentree and Auen Grain is guilty of each of the Native Vegetation Act offences and each of the Local Land Services Act offences, and that each of Mr Harris and Merrywinebone is not guilty of each alleged offence. In this judgment, in reaching those verdicts, I begin, first, by setting out the statutory framework pursuant to which each of the offences arises and the principles which I have applied; and second, listing the evidence upon which I have relied. My application of the law and findings of fact follow in two substantial parts: first, in relation to the Native Vegetation Act offences; and second, in relation to the Local Land Services Act offences. In each part, I address each element of the alleged offences (outlined at [45] and [70] below) which the prosecutor must prove beyond reasonable doubt and the defences to each act of alleged clearing which the defendants seek to establish.

The statutory framework and elements of the offences

43. Given that the offences are under two slightly different statutory regimes and given that each provided for certain statutory defences an understanding of the statutory framework and the applicable sections is of assistance.

Native Vegetation Act offences

44. Section 12 of the Native Vegetation Act provided:

12   Clearing requiring approval

(1)   Native vegetation must not be cleared except in accordance with:

(a)   a development consent granted in accordance with this Act, or

(b)   a property vegetation plan.

(2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act.

(3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4.

…

45. In relation to the six charges under the Native Vegetation Act, the prosecutor must prove beyond reasonable doubt each of the following elements:

1. “Clearing” (as defined in s 7) occurred on the property;

2. The clearing was of “native vegetation” (as defined in s 6);

3. The clearing was not done in accordance with any development consent granted in accordance with the Native Vegetation Act;

4. The clearing was not done in accordance with a property vegetation plan approved under the Native Vegetation Act; and

5. The defendant carried out, or authorised the carrying out, of the clearing.

46. In relation to element (1), “clearing” was defined in s 7 of the Native Vegetation Act as one or more of the following:

7   Meaning of clearing native vegetation

For the purposes of this Act, clearing native vegetation means any one or more of the following:

(a)   cutting down, felling, thinning, logging or removing native vegetation,

(b)   killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation.

…

47. In relation to element (2), “native vegetation” was defined in s 6 of the Native Vegetation Act, which provided:

6   Meaning of native vegetation

(1)   For the purposes of this Act, native vegetation means any of the following types of indigenous vegetation:

(a)   trees (including any sapling or shrub, or any scrub),

(b)   understorey plants,

(c)   groundcover (being any type of herbaceous vegetation),

(d)   plants occurring in a wetland.

(2)   Vegetation is indigenous if it is of a species of vegetation, or if it comprises species of vegetation, that existed in the State before European settlement.

…

48. Therefore, the prosecutor must prove, first, that the vegetation cleared was (relevantly) trees, understorey, or groundcover; and second, that the vegetation cleared was “indigenous” (that is, it existed in NSW before European settlement, before 26 January 1788.

49. In relation to element (5), there was a deeming provision in s 44 of the Native Vegetation Act which provided:

44   Evidentiary provision

In any criminal or civil proceedings, the landholder of any land on which native vegetation is cleared is taken to have carried out the clearing unless it is established that:

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

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

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

50. The word “landholder” was defined in s 4(1) of the Native Vegetation Act as “a person who owns land or who, whether by reason of ownership or otherwise, is in lawful occupation or possession, or has lawful management or control, of land.”

Defences under Native Vegetation Act

51. As will be seen, in relation to a number of the clearing events, the defendants (primarily through Mr Greentree’s evidence and the Greentree defendants’ submissions) raise defences pursuant to s 12(3) of the Native Vegetation Act (and, as considered later in this judgment, under s 60N(1) of the Local Land Services Act.

52. While Mr Greentree’s evidence will be considered discretely in relation to each clearing event, to provide context for the evidence and submissions, it is appropriate to detail and make some observations in relation to the statutory basis of defences which the defendants seek to rely upon.

53. Section 12(3) of the Native Vegetation Act provided:

12   Clearing requiring approval

…

(3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4.

…

54. The onus of proving a defence contemplated by s 12(3) of the Native Vegetation Act falls upon a defendant seeking to rely upon it on the balance of probabilities. In simple terms, s 12(3) operated as an exception to liability operating in favour of a person who carried out activities which were “permitted” (under Divs 2 or 3) by or “excluded” (by Div 4) from the operation of the Native Vegetation Act: Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15; (2010) 173 LGERA 366 at [222]-[228] (Pain J); Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73 at [225]-[226] (Pepper J).

55. Divisions 2 and 3 of the Native Vegetation Act set out certain activities that did not constitute the clearing of native vegetation and were therefore permitted. Division 4 sets out legislative exclusions that authorised the clearing of native vegetation. These included clearing in relation to: “routine agricultural management activities” (s 11) undertaken to “the minimum extent necessary” (s 22); “non-protected regrowth” (s 19); “certain groundcover” (s 20); the “continuation of existing farm activities” (s 23); “sustainable grazing” (s 24); and clearing excluded under other legislation listed in s 25.

56. In relation to routine agricultural management activities, s 22 of the Native Vegetation Act provided:

22   Routine agriculture management activities

(1)   Clearing for routine agricultural management activities is permitted.

(2)   This section does not authorise any clearing of native vegetation:

(a)   if it exceeds the minimum extent necessary for carrying out the activity, or

(b)   if it is done for a work, building or structure before the grant of any statutory approval or other authority required for the work, building or structure.

57. The term “routine agriculture management activities” (RAMA) was, until 30 June 2017, relevantly defined in s 11 of the Native Vegetation Act as follows:

11   Meaning of routine agricultural management activities

(1)   For the purposes of this Act, routine agricultural management activities mean any of the following activities on land carried out by or on behalf of the landholder:

(a)   the construction, operation and maintenance of rural infrastructure:

(i)   including (subject to the regulations) dams, permanent fences, buildings, windmills, bores, air strips (in the Western Division), stockyards, and farm roads, but

(ii)   not including rural infrastructure in areas zoned as rural-residential under environmental planning instruments or on small holdings (as defined in the regulations),

(b)   the removal of noxious weeds under the Noxious Weeds Act 1993;

…

(i)   any activity reasonably considered necessary to remove or reduce an imminent risk of serious personal injury or damage to property.

(2)   The regulations may make provision for or with respect to extending, limiting or varying the activities that are routine agricultural management activities, and subsection (1) is to be construed accordingly.

58. At the time, a “noxious weed” was defined under the Noxious Weeds Act 1993 (NSW) (‘Noxious Weeds Act’) as “a plant declared by [a weed control order]” (ss 4, 7).

59. While from December 2016 to 30 June 2017, RAMA included the removal of noxious weeds under the Noxious Weeds Act, from 1 July 2017 until the repeal of the Native Vegetation Act on 25 August 2017, subs (1)(b) within s 11 provided:

11   Meaning of routine agricultural management activities

…

(b)   anything done to prevent, eliminate, minimise or manage a biosecurity risk posed or likely to be posed by a pest (within the meaning of the Biosecurity Act 2015) and which is authorised or required by any of the following:

(i)   the mandatory measures under that Act,

(ii)   an emergency order under that Act,

(iii)   a control order under that Act,

(iv)   a biosecurity zone regulation under that Act,

(v)   a biosecurity direction under that Act,

…

…

60. For the purpose of s 11 of the Native Vegetation Act as in effect from 1 July 2017, a “pest” was defined in s 15 of the Biosecurity Act 2015 (NSW) (‘Biosecurity Act’) as follows:

15   Pests

(1)   A pest means a plant or animal (other than a human) that has an adverse effect on, or is suspected of having an adverse effect on, the environment, the economy or the community because it has the potential to—

(a)   out-compete other organisms for resources, including food, water, nutrients, habitat and sunlight, or

(b)   prey or feed on other organisms, or

(c)   transmit disease to other organisms, or

(d)   cause harm to other organisms through its toxicity, or

(e)   otherwise reduce the productivity of agricultural systems or the value of agricultural products, or

(f)    damage infrastructure, or

(g)   reduce the amenity or aesthetic value of premises, or

(h)   harm or reduce biodiversity, or

(i)    do any other thing, or have any other effect, prescribed by the regulations.

(2)   A pest includes any thing declared by the regulations to be a pest for the purposes of this Act.

61. Furthermore, a “weed” was defined as “a plant that is a pest” in s 7 of the Biosecurity Act.

62. In accordance with s 11(2) of the Native Vegetation Act, at all relevant times, Pt 6 of the Native Vegetation Regulation 2013 (NSW) (‘NV Regulations’) sets out additional provisions in relation to RAMA. Clauses 25(1), 26, 27(2) and 38 relevantly provided:

25   Meaning of “rural infrastructure”

(1)   A building, structure or work on land is rural infrastructure for the purposes of section 11 (1) (a) of the Act and this Part only if the building, structure or work is used for the purposes of, or in connection with, an agricultural activity or private native forestry that is being carried out on the land.

…

26   Clearing not to exceed minimum extent necessary

The distances and areas for clearing that are provided for in this Part are maximum distances and areas and do not affect the operation of section 22 of the Act which provides that clearing for routine agricultural management activities is not authorised if it exceeds the minimum extent necessary for carrying out the activity.

27   Infrastructure buffer distances

…

(2)   The construction, operation and maintenance of the following kinds of rural infrastructure are routine agricultural management activities in the Central Region but only if the clearing is carried out within the distance and area specified for that kind of rural infrastructure:

(a)   permanent boundary fence—10 metres either side,

(b)   permanent internal fence—10 metres total width of clearing,

(c)   temporary fence—3 metres total width of clearing,

(d)   road or track—6 metres total width of clearing,

(e)   airstrip—distances and area sufficient to meet civil aviation standards for construction of an airstrip.

…

38   Clearing of invasive species

(1) The Minister may by order declare a species of native vegetation as an invasive species for specified land (or all land in a specified area), or extend the area for which a species is declared as an invasive species, if the Minister is satisfied that:

(a)   the species is within its natural range on the land or in the area specified, and

(b)   the species is densely regenerating or is invading plant communities in which the species does not generally occur, which is causing decline in the structure or composition of the vegetation community.

(2)   The clearing of a declared invasive species of native vegetation, carried out in accordance with any declaration by an order under this clause (and, if the order is subject to any conditions, in accordance with those conditions), is a routine agricultural management activity.

63. In relation to the non-protected regrowth defence, s 19 of the Native Vegetation Act provided:

19   Clearing of non-protected regrowth permitted

(1)   Clearing of native vegetation that is only regrowth, but not protected regrowth, is permitted.

(2)   This section is subject to any exclusion in a property vegetation plan.

64. The term “regrowth” was defined in s 9(2) and s 9(4) of the Native Vegetation Act as follows:

9   Meanings of remnant native vegetation and regrowth

…

(2)   For the purposes of this Act, regrowth means any native vegetation that has regrown since the earlier of the following dates:

(a)   1 January 1983 in the case of land in the Western Division and 1 January 1990 in the case of other land,

(b)   the date specified in a property vegetation plan for the purposes of this definition (in exceptional circumstances being a date based on existing rotational farming practices).

…

(4)   Regrowth does not include any native vegetation that has regrown following unlawful clearing of remnant native vegetation or following clearing of remnant native vegetation caused by bushfire, flood, drought or other natural cause.

65. As noted by Biscoe J in Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159 at [11], the “requirements for the regrowth defence are highly specific”. To rely upon the defence, the native vegetation cleared, first, must be “only regrowth”; second, must have “regrown” following an act or disturbance that caused the regrowth; third, must not have been regrowth following unlawful clearing or a natural cause; fourth, must have regrown since 1 January 1990; and fifth, all (rather than some) of the native vegetation cleared must have been “only regrowth”: Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 at [130]-[144] (Preston CJ of LEC). In Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73 at [227]-[237], Pepper J found that the defendant must demonstrate that the native vegetation did not regrow as a consequence of any unlawful clearing.

66. In relation to a defence based upon clearing of “certain groundcover”, s 20 of the Native Vegetation Act provided:

20   Clearing of certain groundcover permitted

The clearing of native vegetation that comprises only groundcover is permitted if:

(a)   the vegetation comprises less than 50% of indigenous species of vegetation, and

(b)   not less than 10% of the area is covered with vegetation (whether dead or alive), and

(c)   those percentages are calculated in accordance with the regulations.

67. Clause 62 of the NV Regulations provided:

62   Clearing of groundcover—calculations

(1) The percentages referred to in section 20 of the Act are to be calculated in accordance with the following methodology:

(a)   the percentages are to be calculated by the landholder in a scientific and objective manner that is appropriate to the area proposed to be cleared and the species of vegetation that are present,

(b)   the calculation can only be made at the time of year when the proportion of the amount of indigenous vegetation in the area to the amount of non-indigenous vegetation in the area is likely to be at its maximum.

(2)   The landholder must retain for at least 5 years after the clearing of native vegetation that comprises only groundcover a record of the calculation carried out for the purposes of this clause, consisting of:

(a)   a map showing the area that was the subject of the calculation, and

(b)   a record of the season in which the calculation was made, and

(c)   a statement as to how the calculation was made, and

(d)   photographs that clearly show the type of groundcover in the mapped area, taken at the time the calculation was made.

…

68. In relation to clearing for the purposes of fire management or relating to bushfire debris clean-up, s 25 of the Native Vegetation Act provided:

25   Legislative exclusions

This Act does not apply to the following types of clearing of native vegetation:

…

(b)   any clearing authorised under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act,

(c)   any clearing carried out in accordance with a bush fire management plan under the Rural Fires Act 1997,

…

Local Land Services Act offences

69. Section 60N(1) of the Local Land Services Act provides:

60N   Unauthorised clearing of native vegetation in regulated rural areas—offence

(1)   A person who clears native vegetation in a regulated rural area is guilty of an offence unless the person establishes any of the following defences:

(a) that the clearing is for an allowable activity authorised under Division 4 and Schedule 5A,

(b) that the clearing is authorised by a land management (native vegetation) code under Division 5,

(c)   that the clearing is authorised by an approval of the Panel under Division 6,

(d) that the clearing is authorised under section 60O (Clearing authorised under other legislation etc).

(e) that the clearing is the carrying out of a forestry operation authorised under Part 5B (Private native forestry).

…

70. In relation to the two charges under the Local Land Services Act, the prosecutor must prove beyond reasonable doubt each of the following elements:

1. “Clearing” (as defined in s 60C) occurred on the property;

2. The clearing was of “native vegetation” (as defined in s 60B);

3. The clearing was in a “regulated rural area” (as defined in s 60D); and

4. The defendant carried out or was responsible for the clearing (noting the deeming provision in s 13.29 of the Biodiversity Conservation Act).

71. In relation to element (1), “clearing” is defined in s 60C of the Local Land Services Act as follows:

60C   Meaning of “clearing” native vegetation

For the purposes of this Part, clearing native vegetation means any one or more of the following:

(a)   cutting down, felling, uprooting, thinning or otherwise removing native vegetation,

(b)   killing, destroying, poisoning, ringbarking or burning native vegetation.

72. In relation to element (2), “native vegetation” is defined in s 60B of the Local Land Services Act as follows:

60B   Meaning of “native vegetation”

(1)   For the purposes of this Part, native vegetation means any of the following types of plants native to New South Wales:

(a)   trees (including any sapling or shrub or any scrub),

(b)   understorey plants,

(c)   groundcover (being any type of herbaceous vegetation),

(d)   plants occurring in a wetland.

(2)   A plant is native to New South Wales if it was established in New South Wales before European settlement. The regulations may authorise conclusive presumptions to be made of the species of plants native to New South Wales by adopting any relevant classification in an official database of plants that is publicly accessible.

…

73. Clause 106 of the Local Land Services Regulation 2014 (NSW) (‘LLS Regulations’) provides that, for the purposes of Pt 5A of the Local Land Services Act, a species of plant may be conclusively presumed to be native to NSW if it is listed on the official database of flora, “New South Wales Flora Online”, maintained by the Royal Botanic Gardens and Domain Trust (‘Trust’) and published on the website of the Trust, unless listed on the database as an introduced species.

74. Therefore, the prosecutor must prove, first, that the vegetation cleared was (relevantly) trees, understorey or groundcover; and second, that the vegetation cleared was “native” (that is, it was established in NSW before European settlement, that is, before 26 January 1788).

75. In relation to element (3):

1. A “regulated rural area” is an area of NSW to which Pt 5A of the Local Land Services Act applies and which is “category 2-regulated land”: s 60D of the Local Land Services Act;

2. Part 5A applies to any area of NSW, except areas which have been carved out by s 60A of the Local Land Services Act;

3. Category 2-regulated land means land designated as category 2 on the “native vegetation regulatory map”: s 60D of the Local Land Services Act;

4. A native vegetation regulatory map is prepared and published under Div 2, to be published on a government website: s 60D and s 60G(5) of the Local Land Services Act;

5. Transitional arrangements which apply until maps are prepared and published are set out in s 60F of the Local Land Services Act – a “certificate” can be issued which designates that land is, relevantly, category 2-regulated land pursuant to the criteria within s 60I.

76. In relation to element (4), s 60ZM of the Local Land Services Act provides that s 13.29 of the Biodiversity Conservation Act (being within Pt 13, Div 1 of the Biodiversity Conservation Act which concerns criminal proceedings) applies to the Local Land Services Act. Section 13.29 of the Biodiversity Conservation Act provides:

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.

…

77. The word “landholder” is defined in s 1.6 of the Biodiversity Conservation Act as “a person who is the owner of land or who, whether by reason of ownership or otherwise, is in lawful occupation or possession, or has lawful management or control, of land.” The same definition of “landholder” appears in s 60D of the Local Land Services Act.

Defences under Local Land Services Act

78. Section 60N(1)(a) to (d) of the Local Land Services Act provides for certain defences to a person who clears native vegetation in a regulated rural area. Those defences require consideration of the following:

1. Whether the clearing is for an allowable activity under Div 4, as listed in Sch 5A of the Local Land Services Act, being “clearing only to the minimum extent necessary” for the authorised purpose (cl 7, Sch 5A);

2. Whether the clearing is authorised by a land management (native vegetation) code under Div 5 of Pt 5A where “notice of clearing” must have been given to Local Land Services (s 60X) and Local Land Services may have issued a certificate confirming the proposed clearing before clearing is carried out under the code (s 60Y);

3. Whether the clearing is authorised by an approval of the Native Vegetation Panel under Div 6 of Pt 5A; and

4. Whether the clearing is authorised under s 60O, that is, clearing is authorised under other legislation as listed in s 60O including emergency firefighting or bushfire hazard reduction work under the Rural Fires Act 1997 (NSW).

79. Division 4, s 60Q(1) of the Local Land Services Act states that “Schedule 5A sets out the clearing of native vegetation in regulated rural areas for allowable activities that is authorised without any approval or other authority under this Part for the clearing”.

80. Schedule 5A details several “allowable activities” and the circumstances in which they allow the clearing of native vegetation, including how maximum distances for clearing are measured (cl 5) and a provision that clearing is only authorised to the minimum extent necessary (cl 7).

81. Schedule 5A, cl 3(b) provides that Boolcarrol (as part of the local government area of Narrabri) is located in the “Central Zone”.

82. Part 2 (“Clearing for allowable activities – general”) and Pt 3 (“Clearing for rural infrastructure”) of Sch 5A set out the following relevant allowable activities, and rural infrastructure:

13   Imminent risk

Clearing of native vegetation that is reasonably necessary to remove or reduce an imminent risk of serious personal injury or damage to property.

…

29   Definition of “rural infrastructure”

(1)   For the purposes of this Schedule:

(a)   infrastructure is a building, structure or work, and

(b)   rural infrastructure is infrastructure of a kind referred to in this clause that is used for the purposes of, or in connection with, an activity that is being carried out in a regulated rural area or other area of the State to which Part 5A of this Act applies, but only if the activity may be carried out without development consent or State significant infrastructure approval under the Environmental Planning and Assessment Act 1979.

(2)   In the Western and Central Zones (other than on small holdings), infrastructure includes (but is not limited to) the following—

(a)   fences, roads, tracks, irrigation channels or pipelines, stock or domestic water supply pipelines, soil conservation earthworks, cut lines for stock movement, bore drains, drains to water storages, telephone lines or cables, power lines or cables or areas for movement of large machinery,

(b)   shearing, machinery, grain, hay or similar sheds, stock handling facilities, dams, ground tanks, windmills, bores, pumps, tanks or water points.

The infrastructure is limited to stationary infrastructure, and does not include any moveable component of infrastructure that extends the area of operation of the infrastructure when it is used.

…

30   Clearing for construction, operation or maintenance of rural infrastructure allowable

The clearing of native vegetation for the construction, operation or maintenance of rural infrastructure on land if—

(a)   the infrastructure is rural infrastructure in the relevant Zone or holding in which it is located, and

(b)   the clearing does not exceed the maximum distance of clearing authorised by this Part in relation to the rural infrastructure.

31   Maximum authorised clearing for rural infrastructure

The maximum distance of clearing for rural infrastructure that is authorised by this Part is as follows—

…

(b)   in the Central Zone (except on small holdings and for temporary fences)—30 metres,

…

…

33   Stockyards

Clearing for stockyards is not authorised by this Part if the stockyard can reasonably be placed on another part of the landholding that does not require the clearing of native vegetation or that is category 1-exempt land.

83. Division 5 of the Local Land Services Act relevantly provides:

60S   Authorised clearing by landholders under codes

(1)   The clearing of native vegetation in a regulated rural area is authorised without any approval or other authority under this Part if it is clearing carried out by or on behalf of the landholder in accordance with a land management (native vegetation) code under this Division.

…

(3) Clearing of native vegetation authorised by Division 4 and Schedule 5A is not subject to a land management (native vegetation) code despite anything to the contrary in the code.

(4)   A land management (native vegetation) code does not permit clearing or any other activity—

(a)   without an approval or other authority required by or under another Act or another Part of this Act, or

(b)   in contravention of any provision of or made under another Act or another Part of this Act, or

(c)   if the regulations so provide, without the consent of all landholders or other persons with a specified interest in the land.

84. During the period from 25 August 2017 to 8 March 2018, the Land Management (Native Vegetation Code) 2017 (‘2017 Native Vegetation Code’) was in force and, in the period from 9 March 2018 to 18 January 2019, the Land Management (Native Vegetation Code) 2018 (‘2018 Native Vegetation Code’) (which applies to southern Clearing Event 6b) was in force.

85. Noting that the following provisions within Pt 2 (“Invasive Native Species”) of the 2017 Native Vegetation Code were identical in effect to those within the 2018 Native Vegetation Code (where amendments were grammatical), the 2018 Native Vegetation Code provided as follows.

86. Division 1 permits “low impact clearing of identified invasive native species” from a treatment area in circumstances where notice of clearing has been given to the Local Land Services, or the Local Land Services has issued a voluntary code compliant certificate; where the methods of clearing are likely to result in minimal disturbances and otherwise in accordance with the conditions in cll 21-29. Division 2 permits “moderate impact clearing of identified native species” from a treatment area in circumstances where the Local Land Services has issued a mandatory code compliant certificate, to the minimum extent necessary and otherwise in accordance with the conditions in cll 26-30.

87. Sub-clauses 47(1)(a)-(c) of the 2017 Native Vegetation Code and the 2018 Native Vegetation Code authorised clearing of “native trees and shrubs that have regrown since 1 January 1990, other than trees and shrubs that…”:

“(a)  have regrowth following unlawful clearing, or

(b)   have regrown following clearing caused by bushfire, flood, drought or other natural cause, or

(c)   have regrown after clearing under Part 2 or Part 3 of this Code.”

88. In addition, Pt 4, Div 2 of each code authorised clearing of native vegetation consistent with the continuation of a land management activity (defined as any management of or impacts on native vegetation, including clearing, undertaken for an agricultural purpose) lawfully undertaken at any time between 1 January 1990 and commencement of the Local Land Services Act (cl 52 of each code) in circumstances where the Local Land Services had issued a mandatory code compliant certificate for the intended clearing (cl 53 of each code) and where the clearing did not exceed clearing consistent with the activity (cl 56(1) of each code), was only carried out on the area on which clearing consistent with the activity was carried out (cl 56(2) of each code), and the clearing caused no more than minimal disturbance to soil and groundcover, unless consistent with the activity (cl 56(3) of each code).

89. Part 5, Div 2 of each code permitted the clearing of native vegetation that consisted only of groundcover after notification of intended clearing was provided to the Local Land Services or the Local Land Services have issued a certificate (cl 70 of each code). Noting that the provision within the 2017 Native Vegetation Code is identical in effect (where amendments were grammatical) cl 69 of the 2018 Native Vegetation Code authorised the clearing of native vegetation that consisted of groundcover of which less than 50% of vegetation cover was native species and not less than 10% of the treatment area was covered with (alive or dead) vegetation, each calculated by the landholder in a scientific and objective manner at the time of year when the proportion of groundcover is likely to be at its maximum and where the groundcover has not been significantly disturbed in the preceding six months. The landholder must retain a record of the calculation carried out for at least five years after the clearing.

90. In addition, s 60O of the Local Land Services Act provides that the clearing of native vegetation in a regulated rural area is authorised, relevantly, under the following other legislation:

…

(d)   Rural fires authorisation

The clearing was—

(i) an emergency fire fighting act or emergency bush fire hazard reduction work within the meaning of the Rural Fires Act 1997, or

(ii) bush fire hazard reduction work to which section 100C (4) of the Rural Fires Act 1997 applies or vegetation clearing work under Part 4, Division 9 of that Act.

…

(g)   Biosecurity authorisation

The clearing was an authorised action for the purposes of section 386 of the Biosecurity Act 2015.

91. Section 386 of the Biosecurity Act provides:

386   Planning and other requirements in relation to authorised actions

(1)   Authorised actions may be taken on land despite any requirement for an approval, consent or other authorisation for the work made by the Environmental Planning and Assessment Act 1979, Part 5A of the Local Land Services Act 2013, the Biodiversity Conservation Act 2016, the National Parks and Wildlife Act 1974 or any other Act or instrument made under an Act.

(2) An environmental planning instrument under the Environmental Planning and Assessment Act 1979 cannot prohibit, require development consent for or otherwise restrict the taking of any authorised action.

(3) Part 5 of the Environmental Planning and Assessment Act 1979 does not apply to or in respect of any authorised action that is—

(a)   authorised or required by or under an emergency order, or

(b)   required by a biosecurity direction that is given in the case of an emergency, or

(c) taken by an authorised officer under Division 4 of Part 8 in the case of an emergency.

(4)   In this section—

authorised action means—

(a)   any action that is required to discharge a biosecurity duty arising because of the presence or suspected presence of biosecurity matter in a part of the State in which it is prohibited matter, or

(b)   any action authorised, required or taken under—

(i)    the mandatory measures, or

(ii)   an emergency order, or

(iii)   a control order, or

(iv)   a biosecurity zone regulation, or

(v)    a biosecurity direction, or

(vi)   a permit, or

(c) any action taken by an authorised officer under Division 4 of Part 8.

92. The meaning of “biosecurity matter”, as defined within s 10 of the Biosecurity Act, includes “any part of an animal, plant or living thing, other than a human” (subs (b)).

93. The definition of “pest” and “weed” under the Biosecurity Act are noted at [60] and [61] above.

94. Section 60P provides:

60P   Limitation on planning instruments requiring consent for clearing only

(1)   An environmental planning instrument under the Environmental Planning and Assessment Act 1979 (other than a State environmental planning policy or so much of a local environmental plan that adopts a mandatory provision of a standard instrument under that Act) may not be made to require development consent or other authorisation only for the clearing of native vegetation in an area of the State to which this Part applies. Any such requirement in an environmental planning instrument has no effect.

(2)   This section does not affect the imposition of conditions relating to the clearing of native vegetation on a development consent of any other kind.

Evidence

95. I now proceed to give an overview of the evidence relied upon by the parties. I shall return to relevant aspects of the evidence in greater detail throughout the judgment.

96. The prosecutor tendered a bundle of documents (Exhibit A) containing:

1. “Evidentiary Certificates” being: Certificate dated 22 August 2019 (issued under s 60F(5) of the Local Land Services Act signed by Jeremy Black) certifying that Boolcarrol is category 2 regulated land for the purposes of the Local Land Services Act; Certificate dated 18 August 2020 (issued under s 50 of the Native Vegetation Act signed by Sarah Carr) certifying that each defendant is a landholder (as defined in s 4 of the Native Vegetation Act) of parcels of land comprising the property known as Boolcarrol; and a Certificate dated 18 August 2020 (issued under s 13.31 of the Biodiversity Conservation Act signed by Sarah Carr) certifying that each defendant is a landholder (as defined in s 1.6 of the Biodiversity Conservation Act) of parcels of land comprising the property known as Boolcarrol, and that the species of plants listed in an attached schedule are “native to New South Wales”;

2. “Partnership Documents” being: Partnership Agreement dated 25 February 2008 (between Auen Grain Pty Ltd, Merrywinebone Pty Ltd, Kenneth Harris and Ronald Greentree); Appointment dated October 2017 of Managing Partner to Greentree Farming; Greentree Farming Full Schedule of Assets for the period 1 July 2016 to 30 June 2017; and a document titled “GFT machinery listing”;

3. Transcript dated 7 August 2019 of “Interview with Kenneth Harris” conducted by Scott Beaumont (investigator); email dated 16 June 2019 from Ken and Mandy Harris of Avondale Agriculture to D Brown of Greentree Farming titled “Follow up”; and a map of Boolcarrol dated 22 January 2019 titled “Greentree Farming Partnership Annexure A showing Areas of Interest A, B, C and D”;

4. Photographs dated 31 August 2017 taken by Scott Drady at inspection locations described as waypoint 52 and waypoint 53;

5. Various documents of the Rural Fire Service including: “Detailed Reports”, “Situation Reports”, texts, notes and maps variously dated from 18 February 2017 to 18 May 2018;

6. A map of Boolcarrol and Milton Downs showing paddock names.

7. “Property information” including a map of Boolcarrol with a cadastral list of lots, NSW Land and Property Information and NSW Land Registry Services “Title Searches” variously dated from 31 March 2008 to 20 August 2019, showing Kenneth Bruce Harris and Ronald Lewis Greentree as tenants in common in equal shares of parcels of land the subject of the proceedings;

8. Various documents relating to “Company information” including Australian Business Register details and Australian Securities and Investments Commission extracts dated from 28 June 2018 to 14 February 2019;

9. Two notices issued by the Office of Environment and Heritage under s 12.8 of the Biodiversity Conservation Act to Ronald Greentree dated 15 March 2018 and 20 March 2019 to provide information and/or records; and responses thereto dated 6 April 2018 and 10 May 2019; and “Stop Work Order Notices” issued by the Office of Environment and Heritage to each of Ronald Greentree and Kenneth Harris dated from 1 September 2017 to 12 March 2018; and

10. Material under the heading “Limitation Date” including an email dated 4 September 2017 from David Minehan to INFO Environment titled “Report on clearing of Native Vegetation on property ‘Boolcarrol’ north of Wee Waa”; an email dated 5 April 2018 from Stephen Naven to Greg Campbell titled “Hazlet search for Boolcarrol”; and two extracts from the Environment Protection Authority database dated 5 September 2017.

97. In addition, the prosecutor read the following affidavits (some of which were only read in part):

1. Affidavit of Bradley Thomas Wade sworn 21 August 2019;

2. Affidavit of Scott Anthony Beaumont affirmed 20 August 2019;

3. Affidavit of Gregory Dean Campbell affirmed 21 August 2019;

4. Affidavits of Paul Spiers affirmed 20 August 2019 and 23 August 2019;

5. Affidavit of Terrence Michael Mazzer affirmed 21 August 2019;

6. Affidavit of Jeremy Martin Black affirmed 19 August 2020;

7. Affidavit of Michael Cornelius Flynn affirmed 26 August 2020; and

8. Affidavit of Scott Terrence Drady sworn 11 August 2020.

98. The prosecutor also relied upon two expert reports of Mr Spiers (a remote sensing scientist) (Exhibit G, “Northern report” and Exhibit H, “Southern report”); an extract from the transcript of evidence given by Mr Spiers on 24 August 2020 (at the voir dire hearing); two expert reports of Mr Mazzer (an ecologist and zoologist) each dated 20 August 2019 (Exhibit O, “Northern report”, and Exhibit P, “Southern report”); an extract from the transcript of evidence given by Mr Mazzer on 24 August 2020; various maps and aerial photos; email correspondence; and the expert report of Dr Marco Duretto.

99. Oral evidence was given by Mr Spiers, Mr Mazzer, Greg Murie, Ms Jago, Dr Duretto, Mr Black, Mr Campbell, and Michael Brooks.

100. The Greentree defendants called oral evidence from Mr Greentree and tendered various photographs (identified as Exhibits 1 to 10) referred to by Mr Greentree in his evidence. Mr Greentree was cross-examined.

101. The Harris defendants tendered a collection of documents shown to Mr Mazzer in cross-examination in relation to plant community types, and profit and loss statements for Merrywinebone for the years 2016, 2017, 2018 and 2019.

Overview

102. I now move to consider the discrete elements of the offences as noted at [45] and [70]. I will deal, first, with the Native Vegetation Act offences (including the elements and defences) and then with the Local Land Services Act offences. Given that the offences relate to eight separate alleged clearing events within a period from December 2016 to January 2019 under two separate (but not dissimilar) legislative schemes, there is considerable overlap in the evidence (particularly the expert evidence – and various of the defences raised). As such, and conscious that each offence requires discrete consideration, I will attempt to contain unnecessary repetition.

Native Vegetation Act offences

Element (1) – “clearing”

Expert evidence

103. The first element of each of the charges which must be proved beyond reasonable doubt is that “clearing” (as defined in s 7 of the Native Vegetation Act (at [46] above) and s 60C of the Local Land Services Act (at [71] above) occurred at the locations particularised in each of the charges.

104. To prove that the clearing occurred in relation to each offence, the prosecutor relies primarily on the evidence of Mr Spiers, a remote sensing scientist, who in his two reports (one dealing with the northern area and the other with the southern area) details his opinion in relation to clearing in respect of each of the charges based on examination and interpretation of successive aerial photographs and satellite images relating to changes in vegetation on Boolcarrol including the removal of trees, shrubs and groundcover.

105. Given that the defendants submit that the Court would not accept Mr Spiers’ evidence, and although I summarised Mr Spiers’ evidence and dealt with the initial global objections in Auen Grain (No 2) at [12]-[22] and [50]-[75] respectively, given the further evidence and submissions made at the substantive hearing, an understanding of Mr Spiers’ evidence is required. I will, first, provide an overview of Mr Spiers’ evidence and consider the defendants’ respective submissions in relation thereto; and then consider the evidence of ‘clearing’ in relation to each event which will necessarily involve consideration of the evidence of Mr Greentree and other witnesses. To the extent that various defences are raised, I will consider those after my consideration of the discrete elements.

106. In preparing his reports, Mr Spiers imported geographic and cadastral information (which he confirmed against hard-copy maps) into a mapping program known as “ArcGIS” and then drew property boundaries and recorded various features (including fencelines and roads) over the relevant area. With this geographic information, and using imagery search and retrieval tools to identify “SPOT5 Sentinel” and “Planet satellite” images (obtained orthorectified from the NSW Office of Environment and Heritage (‘OEH’) server and Planet image server), Mr Spiers identified 30 aerial photographs and satellite images over areas of the northern clearing events and 34 aerial photographs and satellite images over the southern clearing events, which Mr Spiers used for his analysis. The date of each of the images was verified by reference to their metadata and by looking at Google Earth to validate each of the images. Further processing enabled him to view each of the images “as a three-dimensional stereoscopic image” using a stereoscopic monitor.

107. To achieve an “optimum viewing scale”, Mr Spiers ‘zoomed’ the images such that each pixel contained within the digital image corresponded to one pixel of the display used to view the image. He then used a “swipe function” to compare these images – a process which he states involves the “swiping” of layers of images over each other.

108. By using “techniques of change analysis”, which involved the observation of characteristics of ground surface cover in images, Mr Spiers stated that he was able to identify features through a combination of the following characteristics:

“a.   Colour or tone. The reflection of light from the object(s) to be identified, in various shades of grey in the black and white photographs and images and different colours in the coloured photographs and images.

b.   Texture. This refers to grouped objects that are too small or too close together to create distinct patterns such as tree crowns in a forest canopy and individual plants in a field.

c.   Pattern and shape. This refers to the spatial arrangement of discrete objects and the distinctive pattern they form. The patterns can be natural showing irregular patterns such as drainage channels as appearing in natural systems or regular patterns associated with anthropomorphic intervention such as cultivation.”

109. Mr Spiers stated that he was able to observe the following characteristics by viewing the three-dimensional version of aerial photographs and digital stereoscopic images:

“a.   trees and shrubs, appear upright, standing vertically above the ground surface;

b.   low shrubs, even those less than one metre high, show some degree of height above the ground surface;

c.   trees and shrubs have an almost complete canopy when viewed in aerial photographs. The canopy blocks the view to the ground surface. In addition, the canopy is grey to black in black-and-white aerial photographs or of varying coloured tones in colour aerial photographs, absorbing light and indicating the presence of green leaf material.

d.   in some aerial photographs, the time of photography may be either earlier in the morning or later in the afternoon when the sun is not directly overhead. Shadows are cast by the taller vegetation. Canopies with live leaf material appear close to full, even for eucalypts. For vegetation without living canopies, the skeletal patterns of the bare branches can be identified.

e.   in some circumstances, if the trees or tall shrubs are well separated on the edge of a cleared area, the features of the supporting stems can also be determined.

f.   although the vertical appearances of tree and shrub vegetation are exaggerated in the three-dimensional view of the aerial photographs, the relative differences in heights can be determined. Terms such as upper-storey, mid-storey and lower-storey are used to separate the different layers of tall, medium and short vegetation.”

110. In relation to the northern area, Mr Spiers drew digital lines using the ArcGIS mapping program to form 59 “polygons” which he opines reflect discrete areas of tree removal. These polygons were “drawn to generally match the edges of the tree cover, but other factors were considered such as terrain, slope and the background image that the line was drawn over.” Similarly, in relation to the southern area, Mr Spiers drew digital lines using the ArcGIS mapping program to form 18 “polygons”. Although Mr Spiers numbered these polygons on an aerial image which became Exhibit K, as explained later in this judgment, in circumstances where there is an inconsistency in how Mr Mazzer and Mr Spiers numbered polygons in the southern area, the evidence was largely presented to the Court by reference to aerial imagery which became Exhibit R in relation to the northern area (annexure A to this judgment) and Exhibit S in relation to the southern area (annexure B to this judgment), which each show the location (and numbering) of the polygons.

111. Mr Spiers excluded from his conclusions in relation to clearing, clearing that appeared to be part of clearing for routine agricultural activities, such as areas along boundary fences and internal access tracks.

112. In interpreting each of the images, Mr Spiers makes discrete observations in relation to each alleged clearing event in which he describes the vegetation changes that he identified from each image (including patterns consistent with cultivation; absences indicating tree removal and ash heaps from burning; felled trees; and vegetation). He stated that he could identify individual tree removal (in high resolution imagery); removal of groups of trees (in lower resolution imagery); cultivation; and the difference between clearing of regrowth and remnant vegetation.

113. Having determined the polygons and having related those polygons to aerial images of the property, Mr Spiers identified six separate “events” (numbered 1, 2, 3, 4, 5a and 5b) in the northern area and two separate events (numbered 6a and 6b) in the southern area which resulted in changes to the vegetation on the property comprising a total area of 872ha in the northern area and 390ha in the southern area, and opined that the trees, shrubs and groundcover which he identified as being removed by these events were observed to be present in the images taken in 1989.

114. The defendants made detailed objections to the admission of Mr Spiers’ evidence (and, as considered later in this judgment, the evidence of Mr Mazzer, an ecologist and zoologist) at the voir dire hearing, and, in Auen Grain (No 2), I admitted the reports and noted that further objection would later be taken to discrete matters in those reports.

115. The Greentree defendants and the Harris defendants made further submissions in relation to the weight to be attributed to the evidence of both Mr Spiers and Mr Mazzer.

116. The Greentree defendants submit that Mr Spiers’ evidence was of such poor quality, that Mr Spiers could not have been able to observe any change other than changes in shape due to blurring and darkness; that it could not be accepted as proving contentious matters beyond reasonable doubt and that, in light of deficiencies in his images and the absence of any confirmation by “ground truthing”, the images would be given such limited weight (even if the reports were otherwise admissible) because of their failure to do anything other than detect an apparent change in vegetation and not the cause of the change.

117. The Greentree defendants submit that Mr Spiers has not considered any inference in relation to change in vegetation other than “clearing”, such as the locations being on the fringe of clumps downwind from bushfire (which may have been indicative of spot fires ignited by blown embers) and which (according to the evidence of Mr Greentree) may have been cleared by way of the swept path of farm machinery in a cropping field.

118. The Greentree defendants submit that Mr Spiers is not an independent expert where he is wholly dependent upon the prosecutor for his living; that he displayed a tendency for advocacy in his oral evidence; that he had never provided a report that did not favour his employer’s case; that the mark of Mr Spiers’ success was “assisting his employer to obtain convictions”, indicating bias and a misconception of his expert duty; and, as such, Mr Spiers’ expert reports are sufficiently partisan as to deny them the weight essential to prove to the criminal standard.

119. The Greentree defendants note that Mr Spiers was not a member of any professional body in his reported discipline; had not undertaken any study or training to obtain qualifications since 1987; was not involved in any academic research in the field of land clearing or remote sensing; and had not been engaged in any peer review process.

120. The Greentree defendants submit that an example of Mr Spiers’ lack of objectivity was a readiness to identify all change as a result of clearing and refers, by way of example, to polygons (south) 10 and 11, where other evidence (given by Mr Greentree) was that in this area there was building waste and rubble where Mr Spiers identified a vegetation change but attributed it to clearing.

121. The Harris defendants adopt the Greentree defendants’ submissions and submit that Mr Spiers failed to disclose the critical reasoning process which led him to conclude that large areas of Boolcarrol had been cleared during the relevant periods of time and that Mr Spiers conceded (in his evidence) that this part of his reasoning was missing. They submit that in determining the clearing Mr Spiers identified occurred on particular lots or parcels of land, he “merely” assumed the data on the OEH server he relied upon to create property boundaries was correct.

122. The Harris defendants submit that the Court would interpret the aerial photographs for itself and could not determine nor conclude on the criminal onus that any clearing occurred on any particular lots or parcels of land the subject of the charges against the Harris defendants.

123. In response to the defendants’ submissions, the prosecutor submits that Mr Spiers had at all times properly disclosed his employment relationship; he adhered to the Expert Witness Code of Conduct; he recognised his overriding duty to the Court; he disclosed the material he relied upon and his reasoning in forming his opinions; and the Court would not accept that there was any evidence to suggest he lacked objectivity or has deviated from his obligation of independence.

458. I also accept Mr Mazzer’s evidence that the groundcover in the area adjacent to the clearing of Area of Interest D (in the southern area of Boolcarrol) was “almost entirely composed of native species”, was present since 1990, and could not be considered regrowth. For these reasons, I find that the groundcover in polygons (south) 4 – 9 existed prior to 1990 and could not be considered “regrowth” for the purposes of a defence under s 60S of the Local Land Services Act and cl 47 of the 2018 Native Vegetation Code.

459. To the extent that Mr Greentree stated that he ploughed saplings in the area of Southern Clearing Event 6b, for the following reasons I am not satisfied that this clearing was undertaken for this purpose, as opposed to expanding farming activities, or that it was authorised clearing of native trees and shrubs that had regrown since 1990 for the purpose of cl 47(1)(a)-(c) of the 2017 Native Vegetation Code.

460. I accept Mr Spiers’ evidence and find that the trees, shrubs and groundcover that he observed were removed in this area were present in the imagery of 22 June 1989, and that it was not until the imagery dated 16 September 2017 that he observed clearing of groundcover in the southern portions of polygons (south) 2 and 3 (being polygons 2 and 3 on Exhibit K), and that the later imagery dated 30 October 2017 through to 24 November 2018 showed clearing (including of groundcover) in polygons (south) 2 and 3 and 5 – 16 (being polygons 2 – 8 and 10 – 18 on Exhibit K). I, therefore, find that the “saplings” that were removed existed prior to 1990 and could not be considered “regrowth” for the purposes of a defence under s 60S of the Local Land Services Act.

461. I also accept Mr Mazzer’s evidence that none of the cleared areas in Area of Interest D (in the southern area of Boolcarrol) could be considered to be regrowth in circumstances where remnant tree (and shrub) species he observed adjacent to cleared areas in Area of Interest D were too large and mature to have grown since January 1990 and were “decades to centuries old”.

462. Mr Spiers’ and Mr Mazzer’s evidence is also consistent with Mr Murie’s evidence of native grasses and “a scattering of [old and mature] Rosewood trees, Belah, Cool[a]bah and Box” (Tcpt, 8 June 2021, pp 792(29)-793(21)), within the paddocks “Rosehill 3” and “Rosehill 4” (which Mr Greentree called “Wilsons”: Tcpt, 9 June 2021, p 880(18-36)); a scattering of trees, including old mature Coolabah trees in “Rosehill 2” (Tcpt, 8 June 2021, p 793(13-15)); a scattering of old mature box, Coolabah and a few oak trees in the paddocks “Big Winter” and “Little Winter” (Tcpt, 8 June 2021, p 791(44-50)); and although “Rosehill 1” had little if any timber, the trees there would have been old and mature: Tcpt, 8 June 2021, p 793(13), (21).

463. Mr Greentree gave evidence that polygons (south) 4, 8 and 9 had been cleared of native vegetation for an access road 24 metres wide (Tcpt, 10 June 2021, p 970(30-48)). Although I accept Mr Spiers’ evidence that he excluded from his identification and calculation of the area of clearing anything that he considered to be rural infrastructure, I consider that any clearing for a road is therefore not the subject of the charged clearing event, even if Mr Greentree’s evidence was accepted in circumstances where the clearing of a 24-metre-wide road in polygons (south) 4, 8 and 9 is within the 30m maximum permitted for rural infrastructure under cl 31 (in Sch 5A of the Local Land Services Act), Mr Greentree’s evidence does not explain the clearing which I have found was undertaken in polygons (south) 2 and 3, 5 – 7 and 10 – 16 the subject of Southern Clearing Event 6b.

464. In relation to polygon (south) 7, even accepting Mr Greentree’s evidence that he intended to construct a road through this polygon but did not need to undertake any clearing for the road, in circumstances where there is no evidence of the width cleared for the road (Tcpt, 10 June 2021, pp 971(27)-972(27)), and again accepting that Mr Spiers excluded rural infrastructure from his calculations of clearing and that he observed patterns of cultivation in polygon (south) 7 (being polygon 6 on Exhibit K), I am not satisfied on the balance of probabilities that the intention to construct a road explains by itself, or in combination with any other activity, the clearing of 124ha of vegetation in polygon (south) 7 that I have found was undertaken.

465. In relation to Mr Greentree’s evidence that the loss of vegetation, particularly in relation to polygons (south) 10 – 16, is a result of wind damage or clean-up of wind-damaged vegetation, I do not accept that this on its own, or in combination with the other activities, could explain the scale of vegetation loss the subject of Southern Clearing Event 6b.

466. To the extent that Mr Greentree stated that he ploughed to control weeds in the area of Southern Clearing Event 6b, I find that this evidence does not explain the nature and extent of the clearing. As noted at [90]-[93] above, even if such conduct was an authorised action required to be undertaken (without approval or consent) to discharge a biosecurity duty due to the presence of a biosecurity matter (including a pest or weed), or (as noted at [83]-[86] above) undertaken in accordance with a land management (native vegetation) code, I find that the clearing was not permitted under the provisions of the Local Land Services Act nor has it been established that it was to the minimum extent necessary to remove any weeds for the following reasons. First, Ms Jago gave evidence that there is no record of any certification or authorisation issued under the 2018 Native Vegetation Code for the clearing of vegetation for the purpose of weed control, and that no notification was provided to the Local Land Services of intended clearing; and second, I accept the prosecutor’s submission and find that Mr Greentree’s usual method of weed control (being “tilling”, which is a form of ploughing, as noted at [134] above) was “indiscriminate” in nature.

467. In relation to the submission that the loss of vegetation could be explained by damage caused by bushfires and the “clean-up” of debris thereafter (noting that other than stating that he did clearing in preparation for, the fighting of, and cleaning-up damage after, bushfire, in the area of Southern Clearing Event 6b, taking into account that Mr Greentree only gave evidence of fire damage in polygons (south) 5 and 7 (of 70ha to 100ha caused by bushfire which was ignited by lightning) (Tcpt, 11 June 2021, p 982(42)) and polygons (south) 10 – 16, and Mr Mazzer’s concession that lightning could “take out an individual tree” (Tcpt, 7 June 2021, p 632(11-12)), I am not satisfied that the clearing that I have found was undertaken was caused by, or resulted from, bushfire. Nor am I satisfied that the loss of vegetation is referable to any activities (such as firebreaks, as considered below) which may be authorised or permitted by the Rural Fires Act pursuant to s 60O(d) of the Local Land Services Act. In making these findings, I have again taken into account Mr Greentree’s evidence that not all fires were reported and the evidence of Mr Brooks (noted at [282] above) that while there is a record in the RFS documentary records of three bushfire events at Boolcarrol (only one of which could be described as significant), none of these fires related to the area of Southern Clearing Event 6b, and there is no evidence of a registered bushfire in the area of the relevant polygons.

468. Although Mr Spiers accepted that bushfire may be an explanation for some vegetation clearing (Tcpt, 4 September 2020, p 504(20)), I again accept Mr Spiers’ evidence that (although the imagery did not allow him to observe any patterns consistent with fire at Boolcarrol) any bushfire that may have occurred in the area of Southern Clearing Event 6b would have had “negligible effect on the clearing” based upon what he could determine from the imagery: Tcpt, 4 September 2020, p 505(8).

469. In relation to the suggestion that the loss of vegetation could be explained by preparation for bushfires, whether that be by firebreaks and/or firefighting, I adopt my consideration of the evidence and my findings at [283]-[289] above (where I have considered the provisions of the Local Land Services Act in tandem with those under the Native Vegetation Act). I do not find that a defence has been established on the balance of probabilities in this regard in relation to any of (or any combination of) the creation of firebreaks, firefighting, fire damage, or “clean-up”.

470. Although Mr Greentree denied undertaking clearing in polygons (south) 10 – 16 (Tcpt, 10 June 2021, p 972(35)), he gave evidence that he cleaned-up this area to make it “safe” for the parking of vehicles during harvesting time and bushfire events (Tcpt, 9 June 2021, pp 884(45)-885(13)) and the Greentree defendants submit that Exhibit 4 (which Mr Greentree stated depicts an “old crutching she[a]ring shed and a set of yards that I pushed up into a heap there with a bulldozer” within polygon (south) 11 (Tcpt, 9 June 2021, p 886(3-17))) demonstrates the typical accumulation of debris on Boolcarrol. I am not satisfied, given the extent of the clearing which I have found was undertaken (determined by Mr Spiers to be more than 9ha), that the loss of trees, shrubs and groundcover described by Mr Spiers across the area of Southern Clearing Event 6b was as a result of removal because of an “imminent risk” (s 60Q, Sch 5A, cl 13 of the Local Land Services Act) or to the minimum extent necessary (Sch 5A, cl 7 of the Local Land Services Act).

471. For the above reasons, I find that the defendants have not established any of the defences they have sought to raise (either explicitly or implicitly) in relation to Southern Clearing Event 6b.

472. Apart from my findings above, in relation to all of the Local Land Services Act offences, I repeat my concerns in relation to Mr Greentree’s evidence (and his varied and on occasions inconsistent explanations for, and denials of, the clearing I have found was undertaken) and adopt my observations at [369]-[373] above.

Conclusion on the Local Land Services Act offences

477. For the above reasons, I find beyond reasonable doubt:

1. Ronald Lewis Greentree is guilty of the offence against s 60N of the Local Land Services Act as charged in each of the Local Land Services Act offences.

2. Auen Grain Pty Ltd is guilty of the offence against s 60N of the Local Land Services Act as charged in each of the Local Land Services Act offences.

478. For the above reasons, I find:

1. Kenneth Bruce Harris is not guilty of the offence against s 60N of the Local Land Services Act as charged in each of the Local Land Services Act offences.

2. Merrywinebone Pty Ltd is not guilty of the offence against s 60N of the Local Land Services Act as charged in each of the Local Land Services Act offences.

Conclusion – all proceedings

479. In each of proceedings 2019/00265266; 2019/00265270; 2019/00265274; 2019/00265278; 2019/00265282; 2019/00265290, I find, beyond reasonable doubt, Ronald Lewis Greentree guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged.

480. In each of proceedings 2019/00265286 and 2019/00265294, I find, beyond reasonable doubt, Ronald Lewis Greentree guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged.

481. In each of proceedings 2019/00265268; 2019/00265272; 2019/00265276; 2019/00265280; 2019/00265284; 2019/00265292, I find, beyond reasonable doubt, Auen Grain Pty Ltd guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged.

482. In each of proceedings 2019/00265264 and 2019/00265288, I find, beyond reasonable doubt, Auen Grain Pty Ltd guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged.

483. The above proceedings involving Ronald Lewis Greentree and Auen Grain Pty Ltd now need to be fixed for a hearing on the sentence to be imposed for each offence. I list each matter before the List Judge on 10 February 2023 for the purpose of fixing a date for the sentence hearing and making appropriate directions to prepare for the sentence hearing.

484. In each of proceedings 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265291, I find Kenneth Bruce Harris not guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged and each summons is dismissed.

485. In each of proceedings 2019/00265287 and 2019/00265295, I find Kenneth Bruce Harris not guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged and each summons is dismissed.

486. In each of proceedings 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265293, I find Merrywinebone Pty Ltd not guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged and each summons is dismissed.

487. In each of proceedings 2019/00265289 and 2019/00265265, I find Merrywinebone Pty Ltd not guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged and each summons is dismissed.

488. As the prosecutor requested in relation to Kenneth Bruce Harris and Merrywinebone Pty Ltd that no final orders be made to allow the prosecutor to consider its position in relation to an application pursuant to s 5AE of the Criminal Appeals Act 1912 (NSW) and in circumstances where this was not opposed by the Harris defendants, I stand the above proceedings involving Kenneth Bruce Harris and Merrywinebone Pty Ltd over to 10 February 2023.

Orders

489. The orders of the Court are:

In proceedings 2019/00265266:

1. Ronald Lewis Greentree is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265266.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265268:

1. Auen Grain Pty Ltd is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265268.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265270:

1. Ronald Lewis Greentree is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265270.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265272:

1. Auen Grain Pty Ltd is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265272.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265274:

1. Ronald Lewis Greentree is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265274.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265276:

1. Auen Grain Pty Ltd is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265276.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265278:

1. Ronald Lewis Greentree is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265278.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265280:

1. Auen Grain Pty Ltd is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265280.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265282:

1. Ronald Lewis Greentree is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265282.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265284:

1. Auen Grain Pty Ltd is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265284.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265290:

1. Ronald Lewis Greentree is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265290.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265292:

1. Auen Grain Pty Ltd is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265292.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265286:

1. Ronald Lewis Greentree is found guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged in proceedings 2019/00265286.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265288:

1. Auen Grain Pty Ltd is found guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged in proceedings 2019/00265288.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265294:

1. Ronald Lewis Greentree is found guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged in proceedings 2019/00265294.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2019/00265264:

1. Auen Grain Pty Ltd is found guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged in proceedings 2019/00265264.

2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In each of proceedings concerning Kenneth Bruce Harris, 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265291:

1. Stand each summons over until 10 February 2023 for the entry of orders.

In each of proceedings concerning Kenneth Bruce Harris, 2019/00265287 and 2019/00265295:

1. Stand each summons over until 10 February 2023 for the entry of orders.

In each of proceedings concerning Merrywinebone Pty Ltd, 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265293:

1. Stand each summons over until 10 February 2023 for the entry of orders.

In each of proceedings concerning Merrywinebone Pty Ltd, 2019/00265289 and 2019/00265265:

1. Stand each summons over until 10 February 2023 for the entry of orders.

**********

Annexure A (2098023, pdf)

Annexure B (3472785, pdf)

Decision last updated: 23 December 2022