Bega Valley Shire Council v Williams

SOLICITORS: Hall and Wilcox (Prosecutor) Kennedy & Cooke (Defendant) File Number(s): 17/330628

Judgment

1. The Defendant Mr Williams has pleaded guilty to a charge under s 125(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) of carrying out development which required consent being clearing of native vegetation without a development consent contrary to s 76A(1)(a) of the EPA Act. The clearing took place in Jiguma Reserve at Pambula Beach on the south coast of NSW. Jiguma Reserve is managed by the Prosecutor Bega Valley Shire Council (the Council).

Environmental Planning and Assessment Act 1979

1. The EPA Act has had its provisions rearranged and renumbered with these changes effective on and from 1 March 2018. Relevant provisions of the EPA Act follow: Part 1 Preliminary … 5 Objects The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, (iii) the protection, provision and co-ordination of communication and utility services, (iv) the provision of land for public purposes, (v) the provision and co-ordination of community services and facilities, and (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and (vii) ecologically sustainable development, and (viii) the provision and maintenance of affordable housing, and (b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment. … Part 4 Development assessment Division 1 Carrying out of development - the threefold classification … 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. (3), (4) (Repealed) (5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development. (6)-(9) (Repealed) … Part 6 Implementation and enforcement … Division 4 Offences 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. (2) Where any matter or thing is by or under the regulations directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by the regulations to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against the regulations. … 125B Maximum penalties for offences against Act: Tier 2 (1) This section applies to an offence against this Act under section 125 (1), other than an offence to which section 125A applies or an offence for which a tier 3 maximum penalty applies. (2) A person who is guilty of an offence to which this section applies is liable to a tier 2 maximum penalty, being a penalty not exceeding: (a) in the case of a corporation: (i) $2 million, and (ii) for a continuing offence - a further $20,000 for each day the offence continues, or (b) in the case of an individual: (i) $500,000, and (ii) for a continuing offence - a further $5,000 for each day the offence continues. (3) However, this section is subject to any provision of this Act that declares a different maximum penalty for a particular offence to which this section applies.

Statement of Agreed Facts

1. The parties agreed the following Statement of Agreed Facts (SOAF) (Exhibit A): At all relevant times, that is, in the period between about 1 July 2016 and about 6 September 2016 1. The defendant, Paul Herbert Williams (Defendant), was the registered proprietor of the property at 68 Coraki Drive, Pambula Beach in the State of New South Wales. 2. The Defendant was leasing the property at 70 Coraki Drive, Pambula Beach. 3. The properties at 68 and 70 Coraki Drive (together, the Properties) are opposite land known as Jiguma Reserve, being Lot 7019 in Deposited Plan 1122193 (Jiguma Reserve). 4. [sic] The State of New South Wales was the registered proprietor of Jiguma Reserve. 4. Jiguma Reserve was within the local government area of Bega Valley Shire Council (Prosecutor). 5. The Prosecutor was responsible for the maintenance and management of Jiguma Reserve. 6. Jiguma Reserve was zoned RE1 Public Recreation under the Bega Valley Local Environment Plan 2013 (LEP). 7. By reason of clause 5.9 of the LEP and clause 5.6 of the Bega Valley Development Control Plan 2013 (DCP), development consent was required for vegetation clearing of any land forming part of Jiguma Reserve (by reason of the fact that the land was zoned RE1 Public Recreational). 8. The Defendant carried out vegetation clearing of land forming part of Jiguma Reserve without obtaining development consent to do so, and for which no development consent was in force, in breach of s 76A(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), which involved the Defendant (a) cutting or breaking vegetation, and (b) poisoning vegetation with the herbicide "Roundup". 9. In carrying out the vegetation clearing described in paragraph 9 above, the Defendant carried out the following actions: a) Cutting and/or breaking sweet pittosporum species; b) Cutting and/or breaking she-oak (casurina) [sic] species; f) [sic] Using "Roundup" to poison pittosporum species; 10. The Defendant carried out some of the vegetation clearing particularised in paragraphs 9 and 10 above on the evening of Tuesday 6 September 2016, when the Defendant entered upon Jiguma Reserve at night for the purpose of breaking vegetation. 13. [sic] The Defendant admits to having carried out clearing of vegetation within a land area not exceeding 250m2. 14. The Defendant admits to causing damage within the areas where he cleared vegetation (as a result of using "Roundup" to the following species: a) berry salt bush species; b) coastal rosemary species. c) toothed daisy bush species; d) woolybutt species (saplings); e) myoporum species; f) native grass species. 15. The Defendant admits to breaking branches on the night of the 6 September 2016. The Defendant admits to having undertaken poisoning and cutting on earlier occasions in or about July 2016.

Council's evidence

1. The Council's tender bundle (Exhibit B) included the following documents: 1. a copy of a vegetation incident report form dated 20 September 2016 submitted to the Council by Mr Freak (Mr Williams' neighbour); 2. a file note by Mr Morrison natural assets officer with the Council (undated); 3. a statement of Mr Freak dated 15 November 2016; 4. a statement of Mr Morrison dated 14 August 2017; 5. a statement of Ms Dixon-Keay vegetation management officer with the Council dated 20 June 2017; 6. a statement of Mr Pearson ranger services coordinator with the Council dated 9 August 2017; 7. a record of interview (ROI) of Mr Williams dated 27 September 2016 (summarised below at [17]-[29]); 8. seven photographs (referred to below as Photograph 1 to Photograph 7) referred to during Mr William's ROI; and 9. five photographs taken by Mr Pearson during an inspection of Jiguma Reserve on 21 September 2016.

Affidavit of Mr Pearson

1. The Council read the affidavit of Mr Pearson sworn 14 September 2017. The state of NSW is the registered proprietor of Lot 7019 DP 1122193 otherwise known as Jiguma Reserve. Jiguma Reserve is managed by the Council. Houses in Coraki Drive Pambula Beach are opposite Jiguma Reserve. Jiguma Reserve comprises sparse to heavy native bush. Mr Williams has at no stage applied for, nor has the Council granted development consent to clear vegetation in Jiguma Reserve.
2. Mr Pearson was informed that on 6 September 2016 a complaint was made to the Council by Mr Freak. Mr Pearson was also informed that on 15 September 2016 Mr Morrison and Ms Dixon-Keay, Ms Evans a senior Landcare coordinator and Mr Freak attended Jiguma Reserve. Annexed to Mr Pearson's affidavit was a file note prepared by Mr Morrison recording that visit, which was provided to Mr Pearson on 31 September 2016 (summarised below at [14]-[15]).
3. On 15 September 2016 Mr Pearson attended a meeting with Mr Freak to discuss the alleged clearing. He assisted Mr Freak to prepare a witness statement of the incident which was annexed to Mr Pearson's affidavit.
4. On 20 September 2016 the Council received a vegetation incident report form from Mr Freak. It described the positioning of trees, shrubs and ground cover and a trail of cut and broken trees in Jiguma Reserve. It identified Mr Williams as being involved in the clearing. A copy of the form was annexed to Mr Pearson's affidavit.
5. On 21 September 2016 Mr Pearson attended Jiguma Reserve with Mr Morrison. He observed a contrast between living and dying vegetation. A number of mature and immature trees had been cut. The leaves of the cut limbs were brown and wilting. A number of trees had been pushed over with the trunk broken or splintered at ground level. Native grasses and low-lying vegetation and bushes were brown and wilting. Mr Pearson annexed five photographs taken on 21 September 2016 of the vegetation described above on 21 September 2016 to his affidavit (see above at [5(i)]).
6. On the same day Mr Pearson went to 68 Coraki Drive Pambula Beach and spoke to Mr Williams. Mr Pearson introduced himself and stated he was investigating a complaint that Mr Williams had cleared vegetation in Jiguma Reserve. Mr Williams responded that he was "…just clearing some overgrown pittosporum from the track." Mr Pearson asked Mr Williams to attend Jiguma Reserve with him and Mr Morrison to show where the clearing took place. Mr Williams went with Mr Pearson and Mr Morrison to Jiguma Reserve and showed them an area which was different to that referred to in [10] above. Mr Williams agreed to attend an interview at the Council's office.

File note of Mr Morrison

1. Mr Morrison's file note (undated) annexed to Mr Pearson's affidavit admitted in part (referred to above at [7]) stated that Mr Morrison had visited Jiguma Reserve on 15 September 2016 with Ms Dixon-Keay, Ms Evans and Mr Freak. He recorded that there was an area of approximately 1,000 m² of brown vegetation and cut shrubs from Coraki Drive to a cliff edge by reference to an aerial image attached to his file note with two areas delineated in red on it (this became the Council's aerial image, see [31] below). This area was approximately 20-30 m wide. Mr Morrison identified a number of species within the cleared area.
2. The file note also recorded that Mr Morrison and Mr Pearson had visited Mr Williams at his house on 21 September 2016. Mr Morrison, Mr Pearson and Mr Williams visited Jiguma Reserve and walked around the area that had been cleared.
3. In the hearing, counsel for Mr Williams objected to two admissions recorded in the file note and made an application under s 4(2) of the Evidence Act 1995 for a limited order to have the Evidence Act apply in respect of these two admissions. I held that s 4(3)(b) of the Evidence Act applied and made a direction that the two admissions could not be relied on by the Council as they would be excluded under s 86(2) of the Evidence Act, being admissions made by a defendant that had not been acknowledged by the defendant as a true record of the admission.

Record of interview of Mr Williams

1. Mr Williams was interviewed by Mr Pearson on 27 September 2016 with Mr Morrison also present. Mr Williams stated that he was a company director. He agreed that during the evening of 6 September 2016 he was approached by a person while in Jiguma Reserve. In response to questions about what he was doing on the night of 6 September 2016 Mr Williams stated that he would get "…a bit bored sitting, sitting down" and had decided to remove a pittosporum branch overhanging the walking track from Coraki Drive to Pambula Beach (see below at [17]-[29]). On two previous weekends Mr Williams had trimmed both sides of the walking track.
2. On the night of 6 September 2016 Mr Freak had approached Mr Williams while in Jiguma Reserve and taken a photograph of him. Mr Freak had approached him after hearing noises that sounded like trees being broken. In response to questions about these noises Mr Williams stated that he had cut down a pittosporum branch.
3. Mr Williams stated that he had used "Roundup" (Roundup) approximately three weeks to one month before during the day. Mr Williams was asked whether he had done this three weeks before he had met with council officers or three weeks before he had been approached by Mr Freak. He could not recall and said that it was probably a "couple of months ago".
4. Mr Williams was shown Photograph 1 annexed to Mr Pearson's affidavit sworn 14 September 2017. He stated that he recognised the area within Jiguma Reserve but that it was not near the walking track between Coraki Drive and the clifftop lookout (see [49] below). He agreed that Photograph 1 had been taken by a person standing on the side of the foreshore looking back towards Coraki Drive and showed vegetation that had browned off. Mr Williams agreed that he had visited this area with council officers on 21 September 2016 at which time he had said he used Roundup to "kill-off" plants in that area.
5. Mr Williams was shown Photograph 2 annexed to Mr Pearson's affidavit sworn 14 September 2017 which showed browned-off vegetation with green vegetation in the foreground. He recognised the area in Photograph 2 as that which he had cleared using Roundup. Mr Williams agreed the area was roughly in front of his house. Photograph 3 annexed to Mr Pearson's affidavit sworn 14 September 2017 identified pittosporum, westringia and coastal rosemary that had browned off. Mr Williams agreed that he had caused the browning-off to occur but could not identify the exact areas from that photograph. He agreed that during the inspection on 21 September 2016 he and council officers had walked from Coraki Drive to the cliff line and Pambula Point and he had informed council officers that he had sprayed Roundup in the entire area. He had also cut some other pittosporums using a small pruning saw.

Mr Williams' evidence

1. Mr Williams' tender bundle (Exhibit 1) included the following documents: 1. an expert report authored by Mr Jurskis; 2. the letter of instruction provided to Mr Jurskis from Mr Williams' solicitors dated 30 May 2018; 3. Mr Jurskis' curriculum vitae; 4. character reference from Ms Farrell dated 17 June 2018; 5. character reference from Mr Farrell dated 17 June 2018; 6. character reference from Ms and Mr Keogh (undated); 7. character reference from Ms Evans dated 27 May 2018; and 8. photographs dated 12 March 2018 of Jiguma Reserve and Coraki Drive numbered 1 to 28.

Expert report

1. Mr Williams tendered an expert report authored by Mr Jurskis. Mr Jurskis holds a Bachelor of Science (Forestry). Annexed to the report were a number of photographs of Jiguma Reserve, Mr Williams' house and two aerial images of Jiguma Reserve. The first aerial image was referred to in the hearing and in Mr Jurskis' report as "Figure 1". That image was annexed to Mr Morrison's file note and delineated two areas in red where the alleged clearing took place. "Figure 1" will be referred to as "the Council's aerial image". The second aerial image dated 6 March 2018 was referred to in the hearing and in Mr Jurskis' report as "Annexure A". That image was provided by Mr Williams and delineated three areas in red (referred to below as "Area 1", "Area 2" and "Area 3") where he considered the alleged clearing to have taken place. "Annexure A" will be referred to as "Mr Williams' aerial image". Mr Jurskis visited Jiguma Reserve twice on 4 June 2018 and once on 7 June 2018.
2. Mr Jurskis found that the Council's aerial image did not accurately represent the areas of vegetation that Mr Williams admitted to having cleared. The majority of the area that Mr Williams admitted to clearing was outside the areas depicted in the Council's aerial image. The gross area within which Mr Williams admitted to having cleared was approximately 351 m². Mr Jurskis estimated that the net area affected by Mr Williams' admitted area of clearing was not more than 234 m².
3. A substantial portion of the vegetation that Mr Williams admitted to clearing was not native to Jiguma Reserve. Regeneration of all other damaged species was evident. Mr Williams' actions had a temporary, small and positive impact on Jiguma Reserve.
4. The area adjacent to Coraki Drive is eucalypt forest which grades into low eucalypt forest and melaleuca scrub. There are small areas dominated by native cherry and silvertop ash. The majority of eucalypts in the area are woollybutt. The vegetation condition is generally poor due to the long-term absence of the natural regime of frequent mild fire. There is an unnaturally dense shrub understorey including invasive species such as pittosporum, native cherry, wattles and casuarina. There are many long dead trees. The woollybutt forest had contracted in places giving way to melaleuca scrub. The ability of the remaining woollybutts to regenerate foliage "burnt off" by salt-laden winds was declining. The scrub lacked plant diversity owing to the closed canopy and thick leaf litter. There were continuous areas of bare ground where vegetation had been destroyed by concentrated foot traffic as a consequence of scrub density or deliberate construction of walking trails.

Oral evidence in chief of Mr Williams

1. Mr Williams gave oral evidence and was cross-examined. In evidence in chief Mr Williams was shown a copy of his aerial image. He confirmed that he had created the red lines on the aerial image and that his wife had written the commentary around his aerial image. Mr Williams went into Jiguma Reserve with a tape measure and measured the three areas drawn on his aerial image.
2. Mr Williams initially resided at 86 Coraki Drive. He had then moved to 68 Coraki Drive. During the period July to September 2016 Mr Williams had resided at 70 Coraki Drive due to renovations at 68 Coraki Drive (Mr Williams owned both 68 and 70 Coraki Drive). He now resides at 68 Coraki Drive. Jiguma Reserve is located between Coraki Drive and the Tasman Sea.
3. Mr Williams had uninterrupted views of the ocean at 86 Coraki Drive due to its elevation. During the time he resided at 86 Coraki Drive Mr Williams and his wife had experienced difficulties at that property due to the wind as a consequence of its exposed position. Mr Williams and his wife had in part decided to relocate to 68 Coraki Drive as it was afforded protection from the wind by the large eucalypts in Jiguma Reserve. The eucalypts acted as a windbreak and Mr Williams had not wished to remove them either during his time at 68 or 70 Coraki Drive.
4. In his ROI Mr Williams had told council officers that he had not cut a branch from a casuarina to improve his views of the water. He had also told council officers that this was not his sole intention. Mr Williams had cut down the casuarina branch because it appeared to be dead and he wished to clear up the area. In telling council officers that improving his view was not his sole intention for cutting the casuarina branch Mr Williams had intended to convey that removing the branch would not improve his views at all.
5. Mr Williams had decided to measure the areas himself after receiving the Council's aerial image as he disputed the areas delineated in that image. He had walked around the area with a tape measure with the intention of recording what areas he agreed he had damaged.
6. Mr Williams had determined that the area of "Area 1" was 23 m by 9 m by taking a tape measure into Jiguma Reserve, stepping out the approximate distance on the ground and then measuring the area. He had taken photographs of "Area 1" after he had calculated the areas.

Cross-examination of Mr Williams

1. In cross-examination Mr Williams agreed that although he had offered to make a donation as redress for what he had done he had not yet made the donation. In response to questions about why he had not made the donation Mr Williams stated that he had tried to make a donation to the Council but that it had been rejected. As to why he had not made a donation to Landcare Mr Williams said that he had approached the Landcare coordinator for Bega Mr Stokes who had in turn contacted the Council with the offer of a donation however that was also rejected. Mr Williams agreed it was appropriate that he make some financial recompense for his actions and stated that he offered to make a donation so that the money would be used within the community rather than being provided to the State government.
2. Mr Williams was asked about his experience as a company director. He stated that he had been the director of one company being South Coast Auto Centre Pty Ltd. The company was a Hertz car rental franchise. Mr Williams stated he had several other businesses over a period of approximately 40 years in the rental industry. Mr Williams agreed that he did not have any qualifications in horticulture or botany.
3. In relation to the reference in his ROI (at [24] above) that a friend who was a forester told him that pittosporums were damaging eucalypts in Jiguma Reserve Mr Williams disagreed that his friend was Mr Jurskis who authored the expert report summarised at [31]-[36] above. Mr Williams was shown a copy of his ROI and confirmed again that the friend he had referred to was not Mr Jurskis but was a Mr Mitchell.
4. Mr Williams was asked whether prior to Mr Freak approaching him on 6 September 2016 any other neighbours had confronted him about his clearing. Mr Williams stated he had not been approached by any other neighbours. He agreed that on 6 September 2016 he had taken a handsaw into Jiguma Reserve to cut a pittosporum limb.
5. Mr Williams was shown an email attaching a SOAF and asked to confirm whether it had been prepared by his solicitors on his instruction. He disagreed, saying that it included statements to the effect that he had damaged woollybutt which he had not. Mr Williams agreed that he had instructed his solicitor that he had entered Jiguma Reserve on 6 September 2016 only with the intention of breaking branches. Mr Williams was asked whether his evidence was not that he had both broken and cut branches. He replied that he had partially cut one branch and then broken it. Mr Williams could not recall instructing his solicitor to deny that he cut any branches on 6 September 2016. It was put to Mr Williams that this was a third version of what occurred on 6 September 2016, the first being his instructions to his solicitors that he only broke a branch and did not cut any, the second being in evidence in chief where he cut only one branch and the third being in cross-examination that he partially cut and broke a branch.

References

1. Mr Williams produced a number of references which were in Exhibit 1. Ms Farrell registered nurse at the Canberra Hospital has known Mr Williams since the mid-1990s when both of their families were involved with the PSLSC. Mr Williams actively participated in the PSLSC through voluntary beach patrols, surf rescue and fund raising. Mr Williams and his wife contributed to the PSLSC's George Bass surfboat and ski marathon by providing the fuel required for the support boats for the seven day event. Mr Williams had competed in this event and had given up work and other recreational pursuits to provide water safety to the many competitors. Mr Williams continues to support the PSLSC financially. Ms Farrell was aware of the charge brought against Mr Williams. She stated that Mr Williams had shown contrition and was unlikely to reoffend. He had joined the local Landcare group to make amends for his action. Mr Williams had always been open and honest, this incident being an aberration of his judgement.
2. Mr Farrell, recently retired from his position as a clinical nurse specialist in palliative care with the Bega Valley Health Service, also provided a reference. Mr Farrell has known Mr Williams since approximately 1995 when his family joined the PSLSC. Mr Williams had actively participated in the PSLSC through volunteer beach patrols, after hours rescue call outs, surf carnivals and other competitions. He has assisted with raffles and other fundraising events. Mr Williams and his wife had donated fuel for rescue and competition vehicles, mechanical repairs on vehicles and vehicle registration services amongst other things for some 20 years. Mr Williams had also been involved with an informal group of bicycle riders for at least 10 years. Mr Farrell was aware of the charge and stated that Mr Williams regretted his actions in removing vegetation. The Council has erected a sign across the road from Mr Williams' house stating the consequences for interfering with public vegetation. This has served as a constant reminder of what Mr Williams has done. Mr Williams has joined the local Landcare group to show his contrition and will likely continue his involvement.
3. Mr and Ms Keogh (orthodontist and psychologist respectively) provided a reference for Mr Williams and were aware of the proceedings. Mr and Ms Keogh have known Mr Williams for 10 years as a neighbour and member of the PSLSC. Mr Williams has contributed to the PSLSC since 1995 and was patrol captain for 10 years. He has given up his weekends for six months of each year to contribute to the PSLSC and had remained an active reservist in case of emergency. Paul has contributed financially and through providing fuel for water and land vehicles. Mr Williams has experienced considerable public embarrassment and stress owing to the large sign drawing attention to tree vandalism directly opposite his house. Mr Williams has offered assistance to the Council for rehabilitation of the area and has joined the local Landcare group.

Crimes (Sentencing Procedure) Act 1999

1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) identifies the purposes of sentencing. It states: Part 1 Preliminary … 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community

Objective circumstances

1. In determining the objective seriousness of an offence the Court can consider the following factors as identified in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [110]: the nature of the offence having regard to its place in the statutory scheme, the maximum penalty for the offence, the environmental harm caused by the offence, the defendant's state of mind, the defendant's reasons for committing the offence, the foreseeability of the risk of harm to the environment, the practical measures available to the defendant to avoid harm to the environment and the defendant's control over the causes of the harm.
2. Mr Williams has admitted that he went into Jiguma Reserve, a public reserve, on an unspecified number of occasions in daylight hours in July 2016 to clear and poison pittosporums and what he thought was lantana. He also cut one casuarina tree he believed to be dead. He also admits to going into Jiguma Reserve at night on 6 September 2016 and cutting with a saw and breaking off one pittosporum branch and one casuarina branch.

Nature of offence

1. A fundamental consideration for environmental offences is the extent to which a defendant's conduct offends against the legislative objectives expressed in the offence (R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89]; Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 at [52]). The objects of the EPA Act are set out above in [2]. Mr Williams' actions undermine the objects of the EPA Act.

Maximum Penalty

1. The maximum penalty for an offence is relevant to determining objective gravity in that it reflects Parliament's expression of the seriousness of the offence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 (Kirby P, Campbell and James JJ agreeing). The maximum penalty for the offence under s 125B at the time of the offence was $500,000 for an individual.

Area cleared

1. The extent of vegetation cleared and poisoned with Roundup was disputed. The Council bears the onus of proof beyond reasonable doubt of any factual matters adverse to Mr Williams per R v Olbrich at 281 (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
2. The Council alleged approximately 1,000 m2 was cleared. The evidence relied on was the file note of Mr Morrison prepared in September 2016 summarised above at [14]-[15] and the Council's aerial image. Mr Morrison did not provide an affidavit, a preferable course for a matter of some significance in the case. Reliance on observations in a file note if these are challenged is not alone sufficient to establish a matter beyond reasonable doubt.
3. Counsel for Mr Williams objected to the Council's aerial image which purported to show approximately 1,600 m2 cleared on account of the Council's revised position of 1,000 m2 as the total area cleared. I agree that the two red delineated areas on the Council's aerial image cannot be considered an accurate depiction of the cleared area.
4. Mr Williams' evidence that the affected area consisted of three smaller areas as depicted in the aerial image he prepared in March 2018 (Exhibit 1) which totalled no more than 250 m2 (see SOAF at par 13 and the evidence of Mr Jurskis above in [32]) was not seriously challenged.
5. The Council has not proved beyond reasonable doubt that approximately 1,000 m2 of vegetation was cleared and poisoned in July 2016. Mr Williams' description of the three areas cleared and poisoned not exceeding 250 m2 is accepted.
6. Photograph 1 annexed to Mr Pearson's affidavit sworn 14 September 2017 showed an area of hard-packed ground in Jiguma Reserve. Photographs 23, 25, 26 and 27 in Exhibit 1 identified that there were a number of walking tracks through Jiguma Reserve. These four photographs were adduced to show that the hard-packed ground had not been caused by Mr Williams' actions. Evidence of the walking tracks through Jiguma Reserve was not ultimately relevant given my findings on the area cleared above.

Environmental harm caused by offence

1. The native vegetation affected by the activity giving rise to the offence in July 2016 had varying degrees of environmental value. Pittosporums have very low environmental value. Casuarina trees while common and the other species identified in the SOAF at [3] have greater environmental value in this location.
2. Mr Williams gave extensive evidence in chief about a number of walking tracks running through Jiguma Reserve (see above at [49]). In summary three informal walking tracks were identified by him. One track was from Coraki Drive to Pambula Beach, one from Coraki Drive near Mr Williams' house to a clifftop lookout ("B" to "C") and one going through Jiguma Reserve to join with a Council boardwalk. The walkway track from "B" to "C" was also identified by Mr Jurskis. Counsel for Mr Williams correctly submitted that the hard-packed unvegetated ground in the photographs described above at [51]-[53] was in fact the walking track between Coraki Drive and the clifftop lookout and had not come into existence as a result of Mr Williams' actions.
3. The short-term environmental harm caused by the cutting of several small trees was minimal, with long-term beneficial effect because of pittosporum removal.
4. Short-term harm to plants affected by poisoning occurred in July 2016 as confirmed by the personal observations and photographic evidence of council officers Mr Pearson and Mr Morrison (above at [10] and [14]). Mr Williams admitted in his ROI that he oversprayed and killed plants he was not targeting. In Mr Williams' evidence in chief above at [43], [48] and [52], he also admitted to cutting and spraying plants he thought were lantana but were not.
5. The use of poison particularly an inappropriately strong mix while a breeze was blowing sufficient to affect vegetation not targeted by Mr Williams is the most significant environmental harm caused by the offence in the short term. The affected area of 250 m2 admitted by Mr Williams is not trivial.
6. The environmental harm caused by cutting two branches in Jiguma Reserve on 6 September 2016 was minuscule. The removal of pittosporum plants does not constitute environmental damage according to the evidence of Mr Jurskis given their invasive nature (at [34] above). According to Mr Jurskis' evidence their removal has improved the ecological health of the vegetation in the Reserve. According to Mr Jurskis the state of Jiguma Reserve's vegetation has improved since the clearing event.

Range of plant species damaged

1. The parties had filed separate statements of fact which disputed inter alia the range of species damaged. The parties then produced during the hearing the SOAF set out above at [3]. This only partially resolved the issue of whether the range of species was in dispute. In cross-examination, Mr Williams was shown a draft copy of the defendant's initial statement of facts and disputed that he had cleared woollybutt (see [666] above). Woollybutt appeared in the list of species damaged in the SOAF (at [3] above). In closing submissions counsel for Mr Williams submitted that there was an absence of any measurable effect on plant species or diversity, apparent in the evidence of Mr Jurskis who had completed a comparative study of uncleared areas within Jiguma Reserve and concluded there was no noticeable difference in the range of species between these areas (at [35] above).

Circumstances of the offence

1. It is undesirable that a person deliberately enter public land and interfere with vegetation, no matter how well intentioned, if he or she does not have permission to do so from the relevant public land manager. Preston CJ in Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349; [2006] NSWLEC 47 (Cameron) at [58] (and the authorities cited therein) stated that "[t]he importance of public lands, and the controls on the care and management of public lands, have been recognised repeatedly by the courts…"

State of mind of Mr Williams/reasons for committing the offence

1. The offence against s 125(1) of the EPA Act is one of strict liability and therefore mens rea is not an element of the offence. Mr Williams' state of mind at the time of the offence may increase the objective seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one that is not: Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [42]. Mr Williams cleared and poisoned in daylight on one or more occasions in July 2016. On 6 September 2016 he went into Jiguma Reserve at night to break and/or cut one branch overhanging the walking track because he knew that he should not be on council land. The clearing and poisoning of pittosporums and other small bushes he mistakenly believed were lantana was accepted by him to be done deliberately. Mr Williams' evidence was that he was attempting to target pittosporums which are a weed albeit a native plant (a matter of which I take judicial notice and which is confirmed by Mr Jurskis' report in any event).
2. A defendant's reasons for committing an offence can be relevant in determining the appropriate penalty: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 (Badgery-Parker J, Mahoney JA and Finlay J agreeing); Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 at [92].

Council has not established that Mr Williams motivated by desire for an ocean view

1. The Council asserts that Mr Williams was clearing in Jiguma Reserve to improve the view from his house which is directly opposite Jiguma Reserve. It must prove a matter adverse to Mr Williams beyond reasonable doubt. The council officer Mr Morrison who attended a site inspection at Jiguma Reserve on 15 September 2016 prepared a file note identifying a large area of poisoned and partially cleared vegetation in Jiguma Reserve opposite Mr Williams' home (at [14] above). I have held above that the Council has not established that approximately 1,000 m2 was cleared and poisoned by Mr Williams in 2016. The 250 m2 Mr Williams admits to harming is opposite his house in Coraki Drive.
2. The Council's officers submitted to Mr Williams in his ROI that he had appeared to create a "view corridor" between Pambula Beach and his property (see Mr Williams' ROI at [26] above). Mr Williams made a partial admission in the ROI, stating that creating a view was not his sole intention in clearing. When Mr Pearson put to Mr Williams that the clearing had improved his view Mr Williams responded that it had only marginally improved his view. In his evidence in chief Mr Williams denied that was his intention, stating that he had intended to clear up Jiguma Reserve (at [40] above).
3. The photographs taken in March 2018 relied on by Mr Williams show good vegetation coverage in the Reserve opposite his house.
4. According to Mr Williams' unchallenged oral evidence before me he moved to 68 Coraki Drive from a more prominent position with good views in order to escape strong winds. The trees in Jiguma Reserve provide protection from the wind. Mr Williams' evidence is supported by his targeting of pittosporum species with very limited cutting of casuarina trees. The other vegetation killed arose from poor poisoning technique using a poison mix of far too much strength. In other words the unchallenged evidence of Mr Williams supports a very poorly executed attempt to clear a weed species in Jiguma Reserve, not to create a view corridor.
5. I do not consider that the Council has established beyond reasonable doubt that Mr Williams was motivated by a desire to improve his view. The kindest description for Mr Williams' deliberate behaviour is that it was misguided. Mr Williams' reasons do not aggravate the seriousness of the offence.

Practical measures to prevent risk of harm

1. Mr Williams could have prevented the risk of harm by refraining from clearing and poisoning vegetation until he obtained the Council's consent to do so, assuming consent to poison would be obtainable about which I make no finding.

Control over causes

1. Mr Williams had complete control over the causes giving rise to the offence and the short-term environmental harm caused.

Conclusion on objective seriousness

1. The circumstances I have found to apply in relation to deliberate behaviour, area cleared, range of species harmed and reasons for the offence result in a finding the offence is at the mid-level of the low range of objective seriousness.

Subjective circumstances

1. Section 21A(3) of the CSP Act identifies a number of mitigating circumstances that can be considered where relevant.

Early plea of guilty (s 21A(3)(k))

1. The summons was filed by the Council on 1 November 2017. The first return date was 2 February 2018 at which time Mr Williams entered a plea of guilty. Mr Williams pleaded guilty at the earliest opportunity. This can be taken into account as a mitigating factor pursuant to s 21A(3)(k) of the CSP Act. Additionally under s 22 of the CSP Act a plea of guilty entitles the Defendant to a discount on sentence between 10-25 percent see R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [152] (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ agreeing); R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142 at [37] (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ agreeing).

Good character (s 21A(3)(f))

1. Pursuant to s 21A(3)(f) of the CSP Act a defendant's good character can be a mitigating factor on sentence. Mr Williams is of good character as demonstrated by the personal references summarised above at [68]-[71]. All were prepared in contemplation of proceedings. The references provided by Ms Farrell, Mr Farrell and Ms and Mr Keogh attest to Mr Williams' active involvement in the PSLSC, noting that he has given his time to beach patrols inter alia and made financial and resource contributions to the club. Ms Evans stated that Mr Williams was an active and valued member of the local Landcare group. All of the references described Mr Williams' contrition and remorse for committing the offence.

Unlikely to reoffend (s 21A(3)(g))

1. I consider Mr Williams is unlikely to reoffend.

Remorse (s 21A(3)(i))

1. A defendant's remorse for committing an offence is a mitigating factor under s 21A(3)(i) of the CSP Act. In September 2016 Mr Williams volunteered that he had undertaken other clearing in Jiguma Reserve before 6 September 2016 to council officers when they visited the site. He did so again in his ROI. He has expressed remorse for his actions. He has attempted to make amends by donating to the Council and Landcare.
2. In evidence in chief Mr Williams gave evidence about his reasons for joining his local Landcare group. When asked whether there was a relationship between his decision to join Landcare and the proceedings Mr Williams responded that it was to influence the Court's decision and to reduce the penalty.
3. While some of his very frank answers in cross-examination suggest an self-serving element in his actions I am prepared to accept Mr Williams is genuinely remorseful.

No prior convictions (s 21A(3)(e))

1. No evidence of prior convictions has been relied on by the Council suggesting that Mr Williams has none.

Pre-trial disclosures and assistance to law enforcement authorities (ss 21A(3)(l) and (m)

1. As already noted Mr Williams admitted to council officers in September 2016 his activities in July unprompted and assisted the Council's investigation.

Deterrence

1. Deterrence is an important factor in sentencing for environmental offences. As held by Preston CJ in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [139]-[140]: The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597 to 598. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at paras 85 and 93 per Lloyd J.
2. Specific deterrence is a principle of sentencing pursuant to s 3A(b) of the CSP Act. It is not a relevant consideration for sentencing Mr Williams.

Denunciation and retribution

1. Denunciation and retribution are purposes of sentencing under s 3A(a) and (e) of the CSP Act. Imposing an appropriate sentence ensures that the purposes of denunciation and retribution are properly addressed. I have taken these factors into account in determining the appropriate sentence for Mr Williams.

Even-handedness

1. The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty, R v Visconti [1982] 2 NSWLR 104 at 107 (Street CJ, Lee and Maxwell JJ agreeing). This principle must always be applied subject to the particular circumstances of the case before the Court, Hoare v R (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Dean, Dawson, Toohey and McHugh JJ); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). A history of sentencing in other cases does not limit my sentencing discretion. The Council did not provide any comparable cases and simply asserted a certain level of penalty was warranted.
2. Several cases where trees have been lopped or removed on public land albeit to obtain a personal benefit, such as maintaining or gaining a view, have been heard by the Court. In Manly Council v Lee [2011] NSWLEC 166 the defendant pleaded guilty to pruning a tree on school grounds and was fined $7,200 and ordered to pay the prosecutor's costs. In Ryde City Council v Xu [2003] NSWLEC 146 the defendant was fined $7,500 for lopping a tree in a public park. In Council v the City of Shoalhaven v Wilson [2015] NSWLEC 93 the defendant was fined $8,400 reduced from $12,000 for an early guilty plea and ordered to pay the prosecutor's costs.
3. Several cases of tree lopping on private land are summarised in Cameron at [105] showing a range of penalties from $5,000 to $68,000. Cameron was an appeal from the Local Court against severity of sentence where the appellant had been fined $10,000 for causing branches dead and alive on a tree on public land to be lopped to improve his view. The appeal was dismissed.
4. None of these cases are particularly helpful given the somewhat unusual circumstances before me of no long-term environmental harm, good intentions of Mr Williams with a relatively large area of vegetation poisoned due to his incompetence.

Should matter be sentenced on basis that should have been brought in the Local Court?

1. Mr William's counsel submitted that he should be penalised as if before the Local Court as recognised in R v Sandford (1994) 33 NSWLR 172; 72 A Crim R 160 at 195; Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [140] and provided a useful analysis in written submissions dated 26 June 2018 sent with leave after the sentencing hearing of how matters below the medium range of objective seriousness would be penalised in a range of $500 to $1,000 in the Local Court.
2. The offence is not trivial or minor however. While it could have been dealt with in the Local Court it is not inappropriate that it has been brought in this Court given the severity of the offence identified by the Council. It is also relevant to note that the Council has failed to establish beyond reasonable doubt factors which would have rendered the offence far more serious in relation to the area cleared and the motive for the clearing. I consider these are relevant to the question of costs.

Costs

1. The Court has broad discretion to award costs in the Council's favour by virtue of s 257B of the Criminal Procedure Act 1986. Mr Williams' counsel opposed such an order on the basis the matter should have been contested in the Local Court given its relatively minor nature which would have resulted in far less legal cost being incurred. As already stated I do not consider commencing the proceedings in the Land Environment Court was inappropriate but nor do I consider that the Council's costs should be payable in full given the lack of success on key aspects of the Council's case. The costs and disbursements are substantial, close to $40,000, according to the Council's solicitor. A limited order will be made that the Defendant pay the Council's costs in the amount of $15,000.

No reliance on Fines Act 1996 s 6

1. I have not been provided with any information about Mr Williams' financial position and whether that has any bearing on his capacity to pay a fine as referred to in s 6 of the Fines Act 1996.

Penalty imposed

1. When sentencing the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a "value judgment as to what is the appropriate sentence given all the factors of the case", Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J). The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant, see Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-473 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-491 (Deane J). The sentence should not exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances", Hoare v R at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ); see also Veen (No 2) at 472, 485-486, 490-491 and 496. In Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority (2017) 228 LGERA 55; [2017] NSWCCA 302 at [35] the Court of Criminal Appeal (Simpson JA, Hulme and Wilson JJ agreeing) expressed concern about applying a two-stage process to sentencing. It appears appropriate to expressly reduce a sentence in relation to an early guilty plea alone if warranted, see Campbelltown City Council v Woolley [2018] NSWLEC 82 at [143]-[144].
2. I consider that in light of the objective and subjective circumstances before me an appropriate penalty is $7,000 which should be reduced by 25% to $5,250.

Orders

1. The Court makes the following orders: 1. The Defendant is convicted of the offence as charged. 2. The Defendant is fined $5,250. 3. The Defendant must pay the Prosecutor's costs in the amount of $15,000. 4. The exhibits are returned.

Amendments 14 February 2019 - Typographical - cover page - hearing dates omitted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2019