Ballina Shire Council v Ian Watson

PROSECUTOR Ms S Duggan SOLI CITORS Clarissa Huegill & Associates Pty Ltd LEGAL REPRESENTATIVES: DEFENDANT Mr F Corsaro SC SOLICITORS Parker & Kissane Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: 1 These are my remarks on sentence of the defendant, Ian Watson, for the offence of carrying out development which required development consent, without having obtained that consent, in breach of s 76A(1) of the Environmental Planning and Assessment Act 1979.

2 The defendant entered a plea of guilty to the charge early in this matter. The prosecutor and defendant agreed a statement of facts. That statement identifies that the defendant carried out the development on two properties at Lennox Head, lot 88 DP 802588 and lot 2 DP 778022, between 1 and 8 June 2004.

3 The development involved the replacement of fencing that resulted in clearing vegetation, including native vegetation, in an area along the southern and part eastern and part western boundaries of lot 88, the removal of trees, including native species, in an area of rainforest vegetation along part of the western boundary of lot 88, and clearing, including by way of poisoning, trees in an area along the southern and part eastern and western boundaries of lot 88, in part, associated with the erection of a fence of a distance of about 285 metres along part of the southern and part of the eastern boundaries of lot 88. Lot 2 is located to the south of lot 88, so that works on the southern boundary of lot 88 also affected part of lot 2.

4 The defendant did not own and has no financial interest in lot 88 or lot 2. Mr and Mrs Dossor own lot 88. Mrs Newton owns lot 2. Mr and Mrs Dossor use lot 88 to run cattle and keep other animals.

5 The defendant is employed by Mr and Mrs Dossor to manage lot 88 and other properties they own. He was thus responsible for arranging work as necessary for the property and maintenance of that lot. Mrs Newton also gave the defendant permission to repair the boundary fence between the lots but did not give permission to the defendant to clear any trees or vegetation on her land.

6 Lot 88 was zoned part 7(l) Environmental Protection (Habitat), part 7(d) Environmental Protection (Scenic/Escarpment), part 1(d) Rural (Urban Investigation) and part 2(a) Living Area under the Ballina Local Environmental Plan 1987. State Environmental Planning Policy 26 - Littoral Rainforests also applied to part of Lot 88.

7 In particular, two of the areas of clearing carried out by the defendant were within a mapped core area and one was within the mapped buffer area under SEPP 26. The part of lot 2 on which the defendant carried out the clearing was zoned 7(l) Environmental Protection (Habitat) and was also within the SEPP 26 area. The clearing of vegetation and the erection of fences on this land required development consent, which the defendant had not obtained.

8 In May 2004, the defendant became concerned that the boundary fences on lot 88 were not stock proof. He decided that the whole of the fencing of that lot required replacement or repair. He arranged for the fence between lot 88 and lot 2 to be replaced and the fence along the western boundary of lot 88 and then the eastern boundary of that lot to be replaced. He did so by arranging an excavation company to replace and renew the fences. This work resulted in native vegetation and trees being destroyed and damaged. When he arranged the carrying out of this work, the defendant did not have development consent, but believed that such consent would be granted on application. He had, however, been informed by various Council officers on five earlier occasions, that development consent was required for any works on the land involving the clearing of vegetation or the erection of fencing and that he was not to carry out such works without first obtaining that consent. He had also been provided with a copy of SEPP 26 and the Council's Vegetation Management Order and associated community information sheet that all indicated that development consent would be required for these works. He made no inquiry of the Council before carrying out the works with respect to the requirements for lodgement of a development application. Whilst he spoke to various Council officers before carrying out the works, he did not indicate in so doing that the purpose of his inquiry was to seek development consent or that the works he proposed involved clearing.

9 The defendant's actions as recorded in the agreed facts involved the carrying out of works without development consent. They were not done with a deliberate intent to breach the law, but were done in disregard of the defendant's obligations under the law.

10 The defendant's actions caused or have resulted in destruction of and damage to a number of native species of vegetation and trees. These had important environmental values because they included littoral rainforest vegetation, which is an endangered ecological community under the Threatened Species Conservation Act 1995, a vegetation corridor providing habitat for twenty five fauna species listed under that Act and numerous individuals of arrowhead vine, listed as a vulnerable species also under that Act. The vegetation that the defendant cleared was also close to other threatened species including coastal fontainea, rough- shelled bush nut and stinking cryptocarya.

11 The harm caused by the defendant's actions continues and, absent remediation, is likely to continue. This is because in the cleared area the regrowth has been predominantly non-native weed species that have invaded the edge of the littoral rainforest on lot 2 for approximately twenty metres. According to the agreed facts the weeds are out competing and smothering the native littoral rainforest species. The weeds are threatening the arrowhead vines seen in this area and are approaching the coastal fontainea on lot 2 posing a direct threat to it. The tree canopy on lot 2 has also now been affected by wind sheer, and three rainforest trees within three metres of the boundary fence have blown down since the works and a further site visit in April 2005 showed evidence of the poisoning.

12 The defendant gave evidence. He is sixty-seven years old. The owners of lot 88 employ him as their manager. He has no interest in lot 88 or lot 2, other than by reason of the fact of his employment. He is paid $20,000 per year in wages. He receives a supplementary pension from Centrelink. His only substantial asset is a house he owns in Ballina and, as part of his employment, he has a right to live in other accommodation owned by the owners of lot 88. He was previously employed by the Aboriginal and Torres Strait Islander Commission and as a ranger in the Northern Territory with responsibility for flora and fauna matters. Prior to this offence, he was not known to the prosecutor.

13 Various references and other documents tendered on his behalf show that before the events of June 2004, the defendant was a person of good character. His work with indigenous peoples was highly valued by both government organisations and indigenous communities and groups, including significant work he carried out as a volunteer, including for the local RSL and the Lennox Head Sport and Recreation Club. In all respects, other than his actions in June 2004, the defendant appears to have been an outstanding member of the community, devoting significant time and energy to assisting disadvantaged groups and peoples.

14 He left the employ of government in the mid 1990's. The records tendered on his behalf indicate the circumstances of his ceasing employment relate to a medical condition from which he continues to suffer. He gave evidence that these proceedings have affected his health in that they have led to a change in his medication.

15 The defendant assured me that he understood that he had done a very foolish and unthinking thing and that he very much regretted it and that it would not happen again. He was willing to be bound by Court order for extensive rehabilitation works over a period of five years and to provide security for that rehabilitation in the sum of $10,000. He also agreed not only to pay the prosecutor's costs of these proceedings, but the prosecutor's costs of proceedings against each of the owners of lot 88 that I dismissed yesterday when the prosecutor offered no evidence against those owners. While those amounts have not been quantified, the prosecutor accepts that the costs burden that the defendant will have to meet will not be insignificant.

16 The prosecutor, understandably, wishes an order for rehabilitation to be made as it has a particular interest in action being taken to rectify the environmental harm that continues today and will not cease, absent rectification, due to the weed invasion. The difficulty is that the proposed orders contemplate the preparation of a rehabilitation plan that the owners of lot 88 have not yet seen. Because of the zoning of the land and operation of SEPP 26, the proposed orders also contemplate that it might be necessary for the rehabilitation works or part of them to be the subject of a development application and the grant of development consent requiring the concurrence of the Director-General of the Department of Planning. Not knowing the likely obligations to be contained in the rehabilitation plan, the owners of lot 88, through their counsel Mr Howard, disclosed to the Court that they had to reserve their position, both with respect to the grant of owner's consent to the making of any development application by the defendant over their land and the carrying out of works in accordance with any such development consent. Lest that position be thought unreasonable, Mr Howard emphasised, as is the fact, that the conditions of any such consent if granted and commenced would presumably bind the owners of lot 88. Absent knowing the scope of these obligations, the owners could not assure the Court that they were content to allow the defendant to implement the orders to which the defendant was willing to consent. Given the open-ended nature of the proposed orders I hasten to observe that I do not consider the owners' position unreasonable.

17 By the close of submissions yesterday three potential positions emerged about these orders. First, that I could determine not to make the orders - in which event I could not take into account the significant obligations over an extended period and the likely associated cost to which the defendant would be subject as contemplated by those orders. Secondly, I could make all of the orders now but require a mention after the completion of the rehabilitation plan so that the owners could inform the Court whether they would consent to the works - in which event I should defer the question of sentence of the defendant until that time and, if necessary, undo part or the whole of the balance of the orders. Thirdly, I could make the orders now, but require a mention after completion of the rehabilitation plan for the same purpose, in which event the prosecutor would accept that. irrespective of the actual outcome at that time, the defendant should be sentenced now on the basis of his agreement to the full terms of the orders. The prosecutor, for the reasons I have stated, preferred the second and third of these options in that order. The defendant, though his counsel, effectively submitted that he would consent to the Court's order but prefer to have the question of sentence determined sooner rather than later.

18 There can be little question that the carrying out of rehabilitation of this land is highly desirable and would be an end that best furthers the objects of the Environmental Planning and Assessment Act. However, there is no rehabilitation plan presently in existence. The defendant does not control the land. The rehabilitation plan may itself involve works that require development consent, which consent is not within the sole control of the Council given the need for the concurrence of the Director-General. Other than the fact of preparation of the rehabilitation plan, I cannot now be satisfied that there is any real likelihood of the defendant in fact being able to implement the plan. These are real problems. I do not think it is appropriate to make orders that the defendant may well not be able to implement irrespective of any capacity to unmake those orders at some later time.

19 In different circumstances, I would be minded to defer the question of sentence to allow preparation of the rehabilitation plan and for the question of the orders and sentence to be determined at that time with a true understanding of the capacity for the orders to be implemented. In this case, however, I have come to the conclusion that there are factors that weigh against this position. The defendant is sixty-seven years old, he suffers from a medical condition that has been affected by these proceedings at least to some extent. The charges relate to works in June 2004. The proceedings were commenced in February 2006. The rehabilitation plan, even in some draft form, does not yet exist. It is agreed that the works might require development consent and that the Council is not necessarily the sole decision maker. The owners, as I have said, have reserved their position. Given that the works required remain undefined, for example, Mr Howard referred to the possibility of fencing to prevent access to various areas with the consequence that the rehabilitation may not be capable of being implemented by the defendant.

20 In all of these circumstances, despite the fact that I accept that the clearing has had ongoing impacts, including weed infestation which clearly should be addressed, I am not satisfied that the proposed orders in this matter are the appropriate means to do so. Accordingly, I think I must proceed to sentence the defendant on the basis that, although he is willing to accept orders for rectification as set out in the proposed orders, he is not in fact in a position to ensure that he can implement those orders.

21 The agreed facts disclose that the clearing the defendant carried out was within a sensitive area containing various endangered species. The clearing, as the photographs annexed to the agreed facts show, caused damage to a not insignificant area of vegetation, including removal of trees and has had impacts on the ecological integrity of this part of what I accept was a larger well vegetated area. The prosecutor accepted that the circumstances by no means placed this in the worse category of case of this type, but that the extent and consequences of the clearing warrant its characterisation as objectively serious.

22 Treating the relevant category of case as one primarily concerned with clearing, I am satisfied that the offence should be seen as a serious one, given the extent and impacts of the clearing in the context set by the objects of the Environmental Planning and Assessment Act with respect to the protection of the environment.

23 I must take into account the maximum penalty for this offence of $1.1 million. I recognise that this maximum penalty applies to all breaches of the Environmental Planning and Assessment Act 1979 of the relevant class and thus covers a potentially vast diversity of circumstances. I also recognise that there is particular significance, as the prosecutor has submitted, to general deterrence in the context of environmental offences. Clearing vegetation, as the facts of this case demonstrate, can have ongoing impacts far wider than the removal of the vegetation itself. The objects of the Environmental Planning and Assessment Act and the environmental protection zones imposed by the local environmental plan, as well as the provisions of the State environmental planning policy, operated together to form a scheme which, amongst other things, about protected vegetation from removal without having obtained development consent. The defendant's acts were in disregard of this scheme, were contrary to the objectives of the scheme and caused direct and indirect impacts to the environment that are not trivial or insignificant.

24 The prosecutor submits that the defendant's acts were wilful and reckless, given the information made available to him on numerous occasions prior to the clearing. The agreed facts, as I have said, record that the offence was one committed in disregard of the defendant's obligations but not with a deliberate intent to breach the law. I think it is also significant and that I need to emphasise that the defendant did not own this land or have any financial interest. I accept that this is not a case where a person, who stood to obtain some commercial or personal advantage - such as removing a perceived potential hindrance to a proposed development, or to make carrying out a development less difficult, or to improve their views or to otherwise obtain some advantage - illegally removed trees and cleared vegetation. The defendant was employed to manage the land. He perceived that the fencing was not effective to retain stock. He did not take appropriate heed of the information he had obtained from the Council and, as Mr Corsaro SC has submitted, he foolishly and unthinkingly carried out the clearing, believing that consent would be granted once an application was lodged.

25 The defendant's history leads me to conclude that this type of conduct was utterly out of character for the defendant and, as I have said, it was not done to benefit the defendant personally or commercially. I must take into account the significant contributions the defendant has made to the community over many years, he now being a person of sixty-seven years of age. Also, he is a man of modest means. I have referred already to his annual income supplemented by a Centrelink part pension in part and also that a house in Ballina is his only substantial asset. In circumstances where he has not been known to the prosecutor before with respect to any breach of the law, where he has agreed to pay the prosecutor's costs of three sets of proceedings, and where, given the evidence and the submissions of both the prosecutor and the defendant's counsel, I have no doubt at all that those costs will be relatively substantial and will impose a significant financial burden on the defendant, I consider these costs also should be seen as part of the defendant's punishment.

26 The prosecutor raised some concern in its submissions about the terms of the defendant's expression to me of his remorse for what he had done and observed that this had not been made at an earlier time. I am satisfied that the defendant does now fully appreciate the extent of his fault in failing to take heed of the information that had been made available to him by the Council officers about the need for him to obtain development consent before he carried out these activities. I accept that the defendant's remorse and contrition is genuine. I accept that he would have been prepared to do what he could do to rectify the harm that he has caused but, as I have already indicated, he was not in a position to ensure me that he was capable of so doing. I also accept the defendant's assurance that he will not be involved in any such action in future. I must take into account all of these factors, including the defendant's means to pay the fine, in addition to the costs order to which he has consented. The punishment must be proportionate to the offence.

27 Having regard to all of these circumstances, including the very significant mitigating factors to which I have referred, I think the offence would attract a penalty of $14,000. I am also satisfied that the defendant is entitled to the full discount of 25% for the utilitarian value of his early entry of a plea of guilty. I do not accept the prosecutor's submissions about this issue, either with respect to the value of the plea on the facts of this matter or the effect on its utilitarian value by reason of the statement of agreed facts having been finalised on the day of the hearing.

28 Mr Watson, I find you guilty of the offence charged and I enter a conviction against you. I order you to pay a penalty of $10,500. I order you to pay the prosecutor's costs of these proceedings and of proceedings 50007 of 2006 and 50008 of 2006 as agreed or as assessed. Therefore, my formal orders are: (1) The defendant is convicted of the offence charged.

(3) The defendant is ordered to pay the prosecutor's costs of these proceedings and of proceedings 50007 of 2006 and 50008 of 2006, as agreed or as assessed.

(4) The exhibits maybe returned. ****************************

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