Chief Executive of the Office of Environment and Heritage v Rinaldo

A threatened species - the squirrel glider 8Section 10 of the Threatened Species Conservation Act states: A species is eligible to be listed as a vulnerable species if, in the opinion of the Scientific Committee (a) it is facing a high risk of extinction in New South Wales in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and (b)i t is not eligible to be listed as an endangered or critically endangered species. 9As noted in par [4] above, squirrel glider is listed in Pt 1 of Sch 2 to the Threatened Species Conservation Act as a vulnerable species. It is also a threatened species as defined under that Act: s 4. A threatened species within the meaning of the National Parks and Wildlife Act 1974 (NSW) is defined as having the same meaning as in the Threatened Species Conservation Act: s 5. 10Squirrel gliders will feed on nectar and pollen from a broad range of trees and shrub species. In 2006, Conacher Travers Pty Ltd (Conacher Travers), a firm of ecological consultants, undertook an ecological survey and assessment study for lot 22. The study area included the adjacent lands totalling 34 hectares. The study documented a range of important flora species within the property which would provide foraging and/or denning/roosting habitat for squirrel gliders. Squirrel gliders were observed within the study area feeding in the flowers of Melaleuca quinquenervia (common name broad-leaved paperbark). The study also documented the presence of three other species, Eucalyptus pilularis (common name blackbutt), Angophora costata (common name smooth-barked apple) and Eucalyptus robusta (common name swamp mahogany) which would provide nectar and pollen to feed squirrel gliders over many months of the year. Swamp mahogany has large flowers which flower in winter. Squirrel gliders favour winter flowering tree species. Blackbutt and smooth-barked apple would also provide important habitat components due to flowering in seasons other than winter. The study concluded that the area of 34 hectares, including and surrounding lot 22, could support the order of 7 - 31 individual squirrel gliders. This is a small but not insubstantial number that is likely to be of considerable significance to the broader local population. 11Squirrel gliders choose trees for denning based largely upon the availability of tree hollows. The trees species they used depends upon which species most frequently have hollows present. It is common ground that trees will take at least 100 years to develop hollows. In 2006, Conacher Travers documented squirrel gliders using for their den sites a number of hollow-bearing trees within the study area such as blackbutt, broad-leaved paperbark and swamp mahogany. 12In 2009, the property was assessed by Travers Bushfire and Ecology (Travers) by staff having previous involvement in the 2006 target survey. Travers again documented a high number of hollow-bearing trees which would provide suitable den sites for squirrel gliders. Travers observed squirrel gliders utilising as their den sites Livistona australis (common name cabbage palm), Lophostemon confertus (common name brush box), Eucalyptus microcorys (common name tallowwood), Eucalyptus fergusonii (common name - ironbark), Eucalyptus canaliculate (common name large-fruited grey gum), broad-leaved paperbark and one dead tree. 13Lot 22 is located close to several other remnants of squirrel glider habitat which have tenuous links to Booti Booti National Park, which is located less than three kilometres from the subject property. There are more than ten remnants of habitat around the Forster residential area and collectively these remnants may contain a local population of about 40 - 60 squirrel gliders. Such a population will have a high probability of extinction over the longer term, but may be able to persist for several decades, or longer if active land management was applied. 14It is common ground that the local population of squirrel gliders in Forster has been exposed to extensive habitat fragmentation which is expected to put the whole population at a high risk of extinction. Continued loss of pieces of habitat here and there (cumulative impact) will eventually push the population over a tipping point that make extinction inevitable. A further concern for squirrel gliders in Forster is the close proximity of residential development to lot 22. It is possible that domestic cats may hunt in these remnants at night and prey on squirrel gliders. House cats are known to regularly prey on sugar gliders and so it is likely they would also take squirrel gliders. Such predation will exacerbate other impacts. 15As noted at [5] above, Mr Lani (and hence also Lampo) knew that the vegetation that was cleared and which is the subject of these charges was habitat of the threatened species squirrel glider. Mr Lani (and hence also Lampo) also knew that the clearing of the vegetation on lot 22 required development consent. 16Moreover, on 9 June 2009, Great Lakes Council held a strategic meeting to resolve a number of long-term planning issues within its local government area. One of the matters was a proposal to rezone lot 22 and the adjoining lot from 1(c) Future Urban Investigation to 7(a1) Environmental Protection. Mr Lani addressed the meeting in his opposition to the proposal.

Habitat of the squirrel glider is damaged 17Mr John Page is an employee of Geoffrey Stewart Constructions Pty Ltd (Geoffrey Stewart). In about May and June 2009, he had been carrying out works for Mr Lani on another property owned by another of Mr Lani's companies, using a 13 tonne Daewoo excavator. At around the end of May 2009, Mr Page received a call from his employer telling him he was to do some work for Mr Lani on the subject property. Apparently a "grab" was required for this work, so Mr Page made up a bracket and welded it onto the machine and then the machine was transported to the subject land. 18On the first day, 12 June 2009, Mr Page carried out work outside the area the subject of these charges. The area the subject of these charges is described in the evidence as Area B and comprises about 1,610 square metres. A map showing the location of Area B on Lot 22 is attached to this judgment. 19On 15 June 2009, Mr Page returned to the property. On this day he cleared the trees in the northern part of Area B. The cleared vegetation consisted mainly of broad-leaved paperbark trees. He did this clearing by pushing over the vegetation that was standing using the excavator. He left the pushed vegetation lying on the ground. Mr Page also cleaned up the vegetation that had already been cleared in the southern part of Area B by pushing it into two piles. Area B was covered in logs before Mr Page carried out any clearing. The logs were everywhere. There was also some lantana in the area. The logs had been either pushed over by a tractor or cut down by a chainsaw or tomahawk. Mr Page dug out a dozen or so stumps form the informal track that links Area B to the main track in that area of the property. Mr Page pushed over vegetation along the sides of the informal track that links Area B to the main track in that area of the property. He did this clearing by pushing over the vegetation that was standing using the excavator. This vegetation consisted mainly of paperbarks. He left the pushed vegetation lying on the ground. 20Mr Page says that he believed the vegetation he cleared was dead but he did not inspect the vegetation to confirm this. Further, he concedes that in clearing patches of vegetation live vegetation can be caught up as an unintended consequence when clearing with an excavator. 21Mr Lani was present at the property on this day and instructed, observed and supervised Mr Page in relation to all the work he carried out. Mr Lani advised Mr Page that he needed the stumps removed because he had hit one whilst operating the tractor on the weekend and they were dangerous. 22Prior to the works neither Geoffrey Stewart nor Mr Page enquired about any approval, permits or consents for the clearing. During the works Mr Page did not make any enquiries of Mr Lani or anyone else about the permissibility of the clearing. 23Geoffrey Stewart generally does not hire out equipment and workers on an hourly basis. Geoffrey Stewart Constructions generally undertakes civil contract work (for example: plans for estates, installation of pipelines) which are projects where they have control over the conduct of the project and receive approved plans prior to completing the work. This case was an exception because Mr Lani was a contract client of Geoffrey Stewart Constructions and therefore his request for machines and an operator at an hourly basis was allowed as an exception to the rule. 24Since the works on the subject property, Geoffrey Stewart has changed its procedures so all employees are instructed that they are not to clear any trees without an approved plan. 25No on site environmental impact assessment was undertaken by Mr Lani or any agent of Lampo prior to the works commencing. No formal environmental impact assessment was undertaken prior to the works commencing. There was no development consent for the works carried out on the property. There were no written directions or instructions provided to any of the workers or agents in relation to the works.

Investigations of the clearing 26On 15 June 2009, Great Lakes Council received a report of heavy machinery being heard operating on the property. This complaint was submitted by a neighbour. 27On 16 June 2009, Mr Greg Pevitt, an investigation and compliance co-ordinator, attended the property. At this time he observed freshly cleared vegetation, including hundreds of trees that had been pushed over and broken. Most of this vegetation was left lying on the ground but there were two piles of vegetation in Area B. Mr Pevitt observed that some of the felled trees had green foliage still attached. The trees included paperbark, she-oak, mahogany and coastal wattles. 28Mr Pevitt saw Mr Lani operating his machine to the south of Area B. Mr Lani refused to answer questions at this time. Mr Lani indicated an appointment could be made if Mr Pevitt wanted to talk to him. 29Investigation by the Council found that: (a) Pile 2 on the western edge of Area B contained: (i) two large stumps; (ii) approximately 65 paperbark trees in excess of 15 metres length. (b) Pile 3 on the eastern side of Area B contained: (i) five paperbark trees; (ii) 23 hardwood logs; (iii) 11 large root stumps. (c) The total number of cleared trees on the ground areas was in excess of 204 trees. 30The amount of vegetation cleared is greater than that listed above, as accuracy of counting was affected by the manner in which the vegetation was stacked and deposited on the ground. 31The clearing impacted predominantly upon broad-leaved paperbark trees. There was no evidence that trees with hollows were removed.

Environmental harm 32There is evidence of environmental harm caused by the clearing. The extent of that harm is a matter in dispute. 33On the question of the extent of environmental harm, evidence was adduced by the prosecutor from Dr Pamela Hazelton, Mr P A Redpath, Mr A J Garside, Associate Professor R L Goldingay and Mr S D Lewer. The prosecutor also sought to rely upon the evidence of Mr B A Summerell, whose evidence I refused to admit on the ground that he was not qualified to give evidence which ought to have been given by an arborist. The defendants relied upon the evidence of Dr D S Robertson. 34Mr Lewer, a regional biodiversity conservation officer of the Office of Environment and Heritage, identified the kind of plant specimens in the area that was cleared and concluded that the vegetation was ""Swamp Mahogany - Paperbark (+/- Swamp Oak) Forest" as the dominant species. He also is of the opinion that this vegetation floristically matched the determination for swamp sclerophyll forest endangered ecological community as listed in Sch 1, Pt 3 of the Threatened Species Conservation Act. 35The prosecutor sought to rely upon the fact that the subject land is swamp sclerophyll forest endangered ecological community as an aggravating factor. However, the defendants have not been also charged with an offence of clearing swamp sclerophyll forest endangered ecological community. Mr C R Ireland, appearing for the defendants, submits that if one were to regard this as an aggravating factor it would infringe the so-called De Simoni principle: The Queen v De Simoni (1981) 147 CLR 383. That case is authority for the principle that, although the sentence (or penalty) imposed on an offender should take account of all the circumstances of the offence, it is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. As Gibbs CJ said in that case (at 389): ... a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. 36Gibbs CJ went on to note the common law principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence, and noted (at 390) the judgment of Darling J in R v Bright [1916] 2 KB 441, who said (at 444 - 445) that the judgment "must not attribute to the prisoner that he is guilty of an offence with which he has not been charged - nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation." 37The prosecutor, however, submits that there is a distinction between not increasing a penalty based on aggravation and not granting leniency on account of the fact that the event as charged amounts to the commission of another offence, relying upon the decision of the Queensland Court of Appeal in R v Dales [1995] QCA 329; (1995) 80 A Crim R 50. In that case the Court summarised the principles which emerge from the High Court in De Simoni, including, relevantly, that an act, omission or circumstance which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration, but the court may not take into account the circumstance that a more serious offence was not charged and increase the maximum penalty to which a person is exposed. The prosecutor submits that an offence of clearing swamp sclerophyll forest endangered ecological community is an offence against s 118D(1) of the National Parks and Wildlife Act and thus attracts the same penalty as the offence of which the defendants have been presently charged, so that this consideration is not excluded by the De Simoni principle. 38The prosecutor also relies upon the fact that the relevant part of the reasoning of the Queensland Court of Appeal in R v Dales was adopted by the New South Wales Court of Criminal Appeal in R v JCW [2000] NSWCCA 209. It was, however, a qualified adoption. Spigelman CJ (Simpson J concurring) at [38] expressly rejected that part of the reasoning in R v Dales in which the Queensland Court of Appeal said, at [25], that an act, omission or circumstance which may not be taken into account may not be considered for any purpose, either to increase the penalty or to deny leniency. In the course of his reasons Spigelman CJ referred, at [61], to the judgment of King CJ in The Queen v Austin (1985) 121 LSJS 181 at 183, in a passage quoted with approval by Olsson J in R v Zahra [1998] SASC 7010 at [18]. Relevantly, King CJ said: If a person is to be punished for conduct which is said to be criminal, generally speaking justice requires that he be charged with it and have the opportunity of defending himself. If he is not charged with it, generally speaking it should not be relied upon as a circumstance of aggravation of some other crime. This, of course, is not a hard and fast rule; everything must depend upon the particular circumstances and, as I have said, it is very much a matter of degree. 39In the present case the plea of guilty has been entered to the charges which are before the Court. In my opinion, the passing reference in the report of an expert witness to the fact that the vegetation within the cleared area is swamp sclerophyll forest endangered ecological community, together with the fact that the prosecutor has not chosen to charge the defendants with another offence against the Act, is not in the present circumstances a sufficiently aggravating factor which justifies an increased penalty. Moreover, it is an element of the offence that the defendants knew that the vegetation was a swamp sclerophyll forest endangered ecological community. There is no such admission in the present case, neither does the prosecutor point to any evidence which establishes beyond a reasonable doubt that the defendants possessed such knowledge. In those circumstances I reject the prosecutor's submission that this is an aggravating factor. 40In considering the extent of the harm caused or likely to be caused, the prosecutor insisted that the whole of an area of 1,610 square metres was clear felled. However, as the defendants contend, this is not the case. It is self evident from the aerial photographs that some vegetation in the form of trees remains standing within the area. This is confirmed by the evidence of Dr Robertson, who stated that perhaps 10 per cent of the trees in that area remains. 41Moreover, I have no hesitation in accepting Dr Robertson's evidence that there is no basis for concluding that any large old trees with hollows were removed. I accept his evidence that the vegetation cleared consisted mainly of broad-leaved paperbark together with some cabbage palm, swamp mahogany and swamp oak - all young trees and many of the trees were already dead as confirmed by the photographs which are in evidence. I thus accept the defendants' submission that the area cleared was only foraging habitat of the squirrel gliders. The area is already regenerating naturally and the damage can be further substantially repaired by implementing the remediation plan described in the orders which will now be made.

Sentencing considerations 42Section 194(1) of the National Parks and Wildlife Act sets out a number of statutory considerations which must be taken into account in imposing a penalty under the Act. It is convenient to consider those considerations which are relevant in seriatim.

The extent of harm caused or likely to be caused by the commission of the offence 43This has been assessed at pars [31] to [41] above.

The significance of the habitat of the threatened species that was harmed 44The gliders in and around the cleared areas are part of a larger breeding population. Dr Goldingay estimated that about three cent of the habitat of squirrel gilders was cleared from the total area of habitat in the Southern Parkway, an area of which lot 22 forms a part. Dr Goldingay's assessment appears, however, to have been based on the whole of the area of 1,610 square metres being clear felled which, as already noted, is not the case. The fact that the area cleared was foraging habitat, together with the fact that the area is already regenerating naturally, suggest that the offence has a relatively low level of seriousness.

The practical measures that may be taken to prevent, control, abate or mitigate the harm 45It is self-evident that the defendants should and could have first undertaken an environmental impact assessment and sought development consent for the works. Mr Lani had acknowledged in written correspondence on behalf of Lampo that the land was within the known range of a population of squirrel gliders. Mr Lani has had some previous experience with the development of land and is familiar with these requirements.

Foreseeability of the harm caused or likely to be caused 46In 2006, the defendants approached an environmental consultant to undertake a flora and fauna survey of the land. They received a draft flora and fauna survey in May 2006 and a further survey in August 2006, which identified the area as squirrel gliders habitat. The harm caused was foreseen by the defendant but disregarded.

Control over causes that gave rise to the offence 47 As noted at par [21] above, the defendants had complete control over the causes of the offence and Mr Lani himself supervised the works.

Whether the offence was committed for commercial gain 48It is an agreed fact that Mr Lani opposed a proposal to rezone the property to 7(a1) Environmental Protection, which would clearly have limited development potential. Moreover, as noted at par [46] above, the defendants had obtained flora and fauna survey of the land, presumably with a view to assessing its development potential. The prosecutor also relies upon the observation of Preston J in Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137, (2009) 168 LGERA 121, (2009) A Crim R 31 at [11]: The clearing of native vegetation from land is invariably undertaken for the purpose of commercial gain. On land used or proposed to be used for purposes of urban or rural residential development, clearing of native vegetation might be intended to remove a perceived impediment, enable an attribute of the land to be realised or better realised (such as views), lessen costs of development or increase density, yield or profits, with the expectation of a concomitant increase in the capital value of the land. 49The prosecutor accepts that these comments were made in the context of an offence under the Native Vegetation Act 2003 (NSW) but submits that those principles equally apply to the offences in this case. 50It can be inferred that the defendants would not spend money in clearing the land unless there was an expectation of commercial gain. An inference, however, is not proof beyond a reasonable doubt. It is settled law that any facts adverse to the interests of the defendant must be proved beyond reasonable doubt: R v Oldbrich [1999] HCA 54, (1999) 199 CLR 270. I am thus not prepared to find, as the prosecutor submits, that the offences were committed for commercial gain.

Sentencing principles 51Apart from the statutory considerations prescribed by s 194 of the National Parks and Wildlife Act, there is a number of other considerations. An important consideration is the purpose of sentencing as stated in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW): 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. 52These purposes overlap, although item (c) is not relevant in the present case.

Objective seriousness 53The most important consideration governing the objective seriousness of an offence is the maximum penalty prescribed by the legislature, which is an expression by the legislature of the seriousness with which it views a particular offence. In the present case the maximum penalty is $110,000 or imprisonment for one year, or both. A maximum penalty is to be given careful attention and is to be used a yardstick, representing the worst possible scenario for the offence: Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [31]. Although the present offences do not fall anywhere near the worst possible scenario, recognition must be given to the fact that the defendants' conduct offended against the legislative object to protect the habitat of threatened species as identified in s 2A of the Act: (1) The objects of this Act are as follows: (a) the conservation of nature, including, but not limited to, the conservation of: (i) habitat, ecosystems and ecosystem processes, and (ii) biological diversity at the community, species and genetic levels, ... 54The offences must, therefore, be regarded as objectively serious.

General Deterrence 55A fundamental purpose of sentencing under s 3A(b) of the Crimes (Sentencing Procedure) Act is the deterrence of other persons from committing similar offences. General deterrence is particularly important: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 354 at 359; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701, (2003) 82 LGERA 21 at 39. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 at [85] and [93]. It is thus appropriate that the penalty to be now imposed includes an element of general deterrence.

Specific Deterrence 56Section 3A(b) of the Crimes (Sentencing Procedure) Act includes specific deterrence as a fundamental purpose of sentencing. In the present case both Mr Lani and the companies that he controls are in the business of development of land and are thus familiar with the need for environmental assessment and development consent. In particular, one of those companies, Lampo, has been a party in two earlier sets of proceeding in Class 4 of this Court's jurisdiction, the first involving its unlawful use of land and the second involving the unlawful clearing and filling of land: Great Lakes Council v Big Island Forster Pty Ltd [2007] NSWLEC 279, Great Lakes Council v Lani & Ors [2007] NSWLEC 681; (2007) 158 LGERA 1. Moreover, in the present case the defendants were aware of the status of the land as habitant of squirrel glider and of its status as a threatened species. I thus accept the prosecutor's submission that the defendants' conduct indicated an altitude disregard towards the system of environment protection legislation and planning control. In other words, they need to be taught a lesson which will, hopefully, discourage them from like conduct in the future.

Denunciation 57A further relevant consideration identified in s 3A of the Crimes (Sentencing Procedure) Act is to denounce the conduct of the offender. As Preston J has previously observed, this is also an important consideration and a court must by its sentence show its denunciation of the crime committed: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [143].

Mitigating Factors 58The court must take into account the fact that the defendants have pleaded guilty: s 22, Crimes (Sentencing Procedure) Act. The plea of guilty was entered at the second mention, which the prosecutor says was not the first available opportunity. The prosecutor submits that a small reduction to the maximum discount applies in this case. I reject the submission. The defendants needed to gain a full understanding of what was alleged against them, including the affidavit evidence that had been filed, and I am prepared to accept their submission that the plea was entered at an early opportunity, which justified a full discount in the penalty of 25 per cent to reflect that fact. 59The defendants have no prior conviction for any environmental offence. As noted at par [56] above, however, the defendants are not novices when it comes to planning and environment protection controls and would have known that their actions could result in action being taken against them. 60The defendants co-operated with the prosecutor following the commission of the offence, which includes the provision of an agreed statement of facts to the extent that it covers matters unrelated to the degree of environmental harm. The extent to which this evidences remorse and contrition, together with the plea of guilty, so as to attract leniency depends to a large extent upon whether it results from a recognition of the inevitable: R v Winchester (1992) 58 A Crim R 345 at 360; Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim 297 at [46]. They have also offered to pay for the preparation and implementation of an appropriate rehabilitation plan for the habitat of the squirrel gliders, which forms part of the orders below. 61Mr Lani had been present in court for the whole of the sentencing hearing. Mr Ireland submits that this is evidence of the defendants' contrition and remorse. I am prepared to take this into account, but as with the plea of guilty, the comprehensive and complete nature of the prosecutor's case and the inevitability of a conviction suggest that the defendants' insight into their offending is law.

Totality 62The separate charges for the same conduct against Lampo and against Mr Lani brings into play the totality principle. This requires the Court to look a the totality of the criminal conduct and impose a penalty which reflects the totality of criminality involved in both offences: Camillieri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 702-703. The penalty which is imposed in this case is in recognition that the two offences are connected since they arise out of the same criminal conduct. 63In this respect, there is, however, one submission of the defendants which must be rejected. Mr Ireland submits that the totality principle also applies as between these two offences and the separate charges brought against Mr Lani and Bombala Investments Pty Ltd (Nos. 50524 of 2011 and 50525 of 2011) which follow. The latter charges, however, although also arising under s 118D(1) and 175B(1) of the Act and also relating to damage to the habitant of the squirrel glider, are offences which occurred on a different property and at a different time to the present offences. They are not so related as to involve the totality principles. For example, a person may commit two speeding offences on successive days. These would be two separate and discrete offences. The totality principle would not apply. So, too, in the present case we have two offences of a like nature, committed on separate occasions and on separate properties. As between them, the totality principle does not apply.

Even-handedness 64In considering the appropriate penalty the court must also have regard to the principle of even-handedness. That is, the sentence to be imposed should be consistent with sentences impose for the same of similar offences in other cases. The defendants rely upon the penalty imposed in Carmody v Broncourts Nominees Pty Ltd [2003] NSWLEC 84, a case which involved a plea of guilty to an offence of damaging koala habitat. The defendant in that case was fined $5,000 and ordered to carry out certain remediation works and ordered to pay the prosecutor's cost of $30,000. In that case, however, the damage consisted of clearing understorey vegetation comprising mainly weeds. There was no damage or harm to any trees - the preferred koala habitat. In the present case, it is the trees themselves, being the habitat of the squirrel glider, which were felled. This case bears little relationship to the facts in Carmody v Broncourts Nominees Pty Ltd. 65The prosecutor relies upon Garret v Freeman (No. 5) [2009] NSWLEC 1; (2009) 164 LGERA 287, another case involving a breach of s 118D(1) of the Act. The defendant in that case was fined $38,000 and $19,000 for two offences, applying the totality principle. Although the basic facts are not very dissimilar from the present case, the defendant in that case pleaded not guilty. Of greater relevance is the associated case of Garret v Port Macquarie-Hastings Council, which was heard at the same time, in which the council pleaded guilty and was fined $26,000, $13,000 and $6,500, again applying the totality principle. In the present case the area of land was somewhat less than the areas cleared in those cases and the penalty to be imposed reflects that fact. 66I have noted the defendants' agreement to carry out a remediation plan. The terms of the orders sought by the prosecutor are, however, disputed. The order now made is appropriate in the circumstances. The defendants also agree to a publication order in the form, annexed to the orders.

Costs 67Although the defendants concede that they are liable to pay the prosecutor's costs, the amount of these costs are not yet known. As noted at par [6] above, the only substantial issue in the hearing and which occupied the greater bulk of the hearing time was the extent of the harm caused to the habitat of squirrel guilder by the defendants' actions. 68Although the difference between the parties was marginal and could only have a marginal effect on the penalty, the defendants' evidence and contentions on this issue were generally accepted by the Court. In these circumstances it is appropriate that the prosecutor should only receive 75 per cent of its costs.

Orders 69In the matter No. 50522 of 2011: Chief Executive of the Office of Environment and Heritage v Lani - (1)The defendant, Rinaldo Lani, is convicted of an offence against s 118D(1) of the National Parks and Wildlife Act 1974 (NSW), by reason of s 175B(1) of that Act. (2)The defendant must pay a penalty in the sum of $20,000. (3)The penalty must be paid into the National Parks and Wildlife Fund pursuant to sections 138 and 139 of the National Parks and Wildlife Act for use by the National Parks and Wildlife Service of the Office of Environment and Heritage of the Department of Premier and Cabinet specifically for mapping and study of the squirrel glider populations in Booti Booti National Park and any Crown land or council controlled land in the Forster area along with the study of the connectivity of these areas within the urban landscape of the Forster area. (4)Within 28 days of the date of these orders, the defendant at his expense and pursuant to s 205(1)(a) of the National Parks and Wildlife Act, shall cause a notice in the form of Annexure "A" to these orders to be placed within the first six pages in the Great Lakes Advocate newspaper at a minimum size of 10 centimetres by 20 centimetres. (5)Within three weeks of the date of these orders, the defendant, pursuant to section 200(1)(d) of the National Parks and Wildlife Act, shall retain consultants with the following expertise, being consultants acceptable to the prosecutor: (a)a bush regenerator; (b)an ecologist; and (c)an expert with special knowledge of the threatened species squirrel glider (Petaurus norfolcensis). (6)Within 11 weeks of the date of these orders, the defendant shall prepare a remediation plan for Area B in the map annexed to these orders relating to the land at lot 22, deposited plan 843479 located near the Southern Parkway, Forster, to include the following: (a)regeneration of cleared vegetation; (b)a timeframe for all actions proposed as part of the remediation plan implementation; and (c)any other actions the consultants deem to be required to remediate the site. (7)Within 12 weeks of the date of these orders the defendant shall provide the remediation plan as produced in accordance with Order (6) above to the prosecutor. (8)No later than 20 weeks after the date of these orders the defendant shall cause the consultants to carry out all works required by the remediation plan and in accordance with the time frame under the remediation plan. (9)The defendant shall provide copies to the prosecutor of all retainers and instructions given to the consultants at the same time as they are given to the consultants. (10)In the event that any or all of the consultants are unable to continue to act pursuant to these orders, they may be replaced by the defendant engaging a replacement consultant acceptable to the prosecutor. (11)Schedule 7 to the Uniform Civil Procedure Rules 2005 is directed to apply to the performance of the duties of the consultants as if they are parties' single expert witness in these proceedings. (12)Notwithstanding Order (11) above, the defendant shall pay the professional fees, costs and expenses of the consultants. (13)The defendant must pay 75 per cent of the prosecutor's costs as determined under s 257 of the Criminal Procedure Act 1986 (NSW). (14)The exhibits may be returned. 70In the matter No. 50523 of 2011: Chief Executive of the Office of Environment and Heritage v Lampo Pty Limited - (1)The defendant, Lampo Pty Limited, is convicted of an offence against s 118D(1) of the National Parks and Wildlife Act 1974. (2)The defendant must pay a penalty in the sum of $10,000. (3)The fine must be paid into the National Parks and Wildlife Fund pursuant to section 138 and 139 of the National Parks and Wildlife Act for use by the National Parks and Wildlife Service of the Office of Environment and Heritage of the Department of Premier and Cabinet specifically for mapping and study of the squirrel glider populations in Booti Booti National Park and any Crown land or council controlled land in the Forster area along with the study of the connectivity of these areas within the urban landscape of the Forster area. (4)Within 28 days of the date of these orders, the defendant at its expense and pursuant to section 205(1)(a) of the National Parks and Wildlife Act, must cause a notice in the form of Annexure "A" to these orders to be placed within the first six pages in the Great Lakes Advocate newspaper at a minimum size of 10 centimetres by 20 centimetres. The said notice may be a single notice published jointly with the defendant Rinaldo Lani in proceedings No. 50522 of 2011. (5)Within three weeks of the date of these orders, the defendant, pursuant to section 200(1)(d) of the National Parks and Wildlife Act must retain consultants with the following expertise, being consultants acceptable to the prosecutor: (a)a bush regenerator; (b)an ecologist; and (c)an expert with special knowledge of the threatened species squirrel gliders (Petaurus norfolcensis). (6)Within 11 weeks of the date of these orders the defendant must prepare a remediation plan for Area B in the map annexed to these orders relating to the land at lot 22, deposited plan 843479 located near the Southern parkway, Forster, to include the following: (a)regeneration of cleared vegetation; (b)a timeframe for all actions proposed as part of the remediation plan implementation; and (c)any other actions the consultants deem to be required to remediate the site. (7)Within 12 weeks of the date of these orders the defendant shall provide the remediation plan as produced in accordance with Order (6) above to the prosecutor. (8)No later than 20 weeks after the date of these orders the defendant shall cause the consultants to carry out all works required by the remediation plan and in accordance with the time frame under the remediation plan. (9)The defendant shall provide copies to the prosecutor of all retainers and instructions given to the consultants at the same time as they are given to the consultants. (10)In the event that any or all of the consultants are unable to continue to act pursuant to these orders, they may be replaced by the defendant engaging a replacement consultant acceptable to the prosecutor. (11)Schedule 7 to the Uniform Civil Procedure Rules 2005 is directed to apply to the performance of the duties of the consultants as if they are parties' single expert witness in these proceedings. (12)Notwithstanding Order (11) above, the defendant shall pay the professional fees, costs and expenses of the consultants. (13)The defendant must pay 75 per cent of the prosecutor's costs as determined under s 257 of the Criminal Procedure Act 1986 (NSW). (14)The exhibits may be returned.

Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd

Chief Executive of the Office of Environment and Heritage Rinaldo (Nino) Lani 71The defendant, Bombala Investments Pty Ltd (Bombala) has pleaded guilty to an offence against s 118D(1) of the National Parks and Wildlife Act in that it caused damage to habitat, not being critical habitat of a threatened species, knowing that the land concerned was habitat of that kind. The defendant, Rinaldo Lani, has likewise pleaded guilty to an offence against s 118D(1) by reason of s 175B(1) in his capacity as a director of Bombala. 72Bombala owns lot 37 in deposited plan 1023220, near the Lakes Way at Forster. Another property, lot 7026 in deposited plan 1051706, is directly adjacent to lot 37 and Pipers Creek and is a Crown Reserve. As noted above, Mr Lani is a director of Bombala. The offences occurred between about 3 July 2008 and 1 July 2009 inclusive when Mr Lani himself, employees, contractors and agents of Bombala carried out clearing and fill activities on the property. A map showing the location of the clearing and fill activities in areas described in evidence as Areas A, B and C is attached to this judgment. The works involved the cutting, pushing, felling, damaging, injury and removal of trees that formed part of the threatened species habitat, the squirrel glider,

Agreed facts 73The following facts are not in dispute. Although a statement of agreed facts was tendered, I have amended the statement where it does not accord with the evidence. As noted in par [13] above, there are more than ten remnants of habitat around the Foster residential area which may collectively contain a local population of about 40-60 squirrel gilders. 74In 2009, the results of the radio-tracking study by Conics - Environment and Climate (Conics) - which included lot 37 in its study area - recorded the occurrence of four widely distributed den sites for the squirrel gliders within the study area. 75Lot 37 is located close to several other remnants of squirrel glider habitat which provide an important corridor function for the population of the squirrel gliders to access the habitats of Booti Booti National Park which is located about five kilometres from the property. 76On or around 2006, there was no fill material on lot 37. There were no piles or fill or flattened out areas of dirt. The area was natural bushland. The land dropped away towards Pipers Creek with a total difference between the highest point and the Creek of about 1.2 metres or so. 77There is no development consent for the fill or clearing activities the subject of these offences. There are, however, two development consents for fill activities on limited areas on lot 37. 78On 7 April 1992, Mr Lani submitted an application to Great Lakes Council to fill and subdivide parts of lot 37, the area described in evidence as Area A. The council had been advised by its planning section to refuse the application and subsequently the application was withdrawn by Mr Lani. 79The application was subsequently amended to propose an application to fill different areas on lot 37. This amended application was approved in conjunction with a specific map identifying areas which could be filled. 80Some time after 1996, a further application was made to the council for approval to deposit fill in areas on lot 37 behind what was then the skate park and is now a retail furniture store. A development consent was granted for this proposal. This area is not within the areas described as areas A, B and C the subject of these charges.

Reports relating to the property 81Mr Lani made a number of development applications for lot 37. As a result, a large number of assessments and reports were prepared as to what development could occur on the property.

Orogen reports 82On 27 August 2007, Orogen Pty Ltd (Orogen) produced a planning report at the request of Woolworths titled "Preliminary Planning Report - Big W Forster, Lakes Way, Forster". It is not in dispute that the defendants possessed a slightly earlier version of the report and the later version had no substantive changes from the earlier version. 83On 12 February 2008, Orogen produced another report at the request of Woolworths titled "Assessment of Vegetation Community Conservation Significance - Big W Forster, Lakes Way Forster". It is not in dispute that the defendants possessed a copy of the report.

Reports coordinated by Coastplan 84The defendants entered into an arrangement whereby Coastplan Consulting Pty Ltd (Coastplan) co-ordinated other consultancy work for them for future development of lot 37. 85On 4 February 2009, Coastplan sent a letter to Bombala advising that Natural Solutions Environmental Consultants would need to carry out a field fauna survey on Piper Creek Precinct land, which included lot 37, in response to a brief which was issued by Great Lakes Council for the Pipers Creek Precinct Local Environmental Study and that radio-tracking would be required if certain threatened species were captured during fauna surveys. Moreover, Coastplan also advised that, as the previous surveys determined the occurrence of at least one threatened arboreal species, namely squirrel gilders, there was a strong possibility that the species will be captured and radio-tracking will be required. 86In May 2009, BWT WBM Ltd Pty produced a report as commissioned by Coastplan titled "Pipers Creek Precinct LES - Stage 1 Preliminary Report". 87On 17 June 2009, Conics, which had since merged and taken over Natural Solutions, produced a report titled "Terrestrial Flora and Fauna Study - South Forster - report for Coastplan Consulting Pty Ltd". The report describes the ecological attributes and identifies the ecological constraints within its study area totalling approximately 24 hectares and including lot 37. 88The report found that the habitat vegetation on lot 37 and surrounding areas supported a breeding population of squirrel gliders which was evidenced by the presence of individuals of varying ages and sexual maturity. These individuals included lactating females and adult males. The report also found that the habitat vegetation on lot 37 and surrounding areas provided a corridor function for the squirrel gliders linking habitats and sub-populations of the species in the local area. A map was attached to the report, showing the location of squirrel gliders captured in the study area.

Rezoning proposal 89In 2003, Great Lakes Council adopted the Foster/Tuncurry Conservation and Development Strategy in which several parcels of land were identified as demonstrating environmental significance and/or an inherent level of development constraints. The approach favoured in the strategy was rezoning of land with conservation value and there was a proposal to rezone part of lot 37 from 1(c) Future Urban Investigation to 7(a1) Environmental Protection. 90On 9 August 2007, Coastplan sent a letter to the council on behalf of Bombala objecting to the proposed rezoning and stating that it would have "the quite drastic implications" in terms of land value and development potential. On 9 June 2009, the council held a strategic meeting and one of the matters was the re-zoning part of lot 37 from 1(c) Future Urban Investigation to 7(a1) Environmental Protection. The part of lot 37 the subject of the proposal covers areas A, B and C. Mr Lani was present at this meeting and addressed the meeting in his opposition to the proposal. The council deferred its decision subject to findings of the ongoing local environmental study and pending further negotiations. On 16 June 2009 and 18 June 2009, the council advised Mr Lani of that decision. 91On 10 July 2009, Coastplan sent a letter to Bombala regarding the proposed re-zoning and advising that it (that is, Bombala) will need to commit to engagement of all of the remaining studies and other matter. 92At the time of the offence, the works the subject of the charged could only be carried out on lot 37 with development consent. Mr Lani and Bombala knew that development consent was required for the works. They also knew and are deemed to have known, that the vegetation cleared by the works was habitat of the threatened species.

The works on lot 37 93The works on lot 37 were carried out by a number of different people on behalf of the defendants over an extended period of time. 94Initially the deposition of fill was focussed on the southern section of the property, being areas B and C. A concerted effort of fill activity occurred in this areas from about late 2008. Whilst not all that activity relates to the matters the subject of these charges some of it does. The fill material deposited at the southern section of the property in this period was mainly just soil. 95After the commencement of fill at the southern end of the property the activity continued at the northern end. At the northern end truck loads of fill were deposited in and around the vegetation in Area A. 96Numerous trucks were observed arriving in that area and dumping the fill. The fill was placed on the natural soil level to a depth of about a metre or more. Mr Lani's bulldozer, which has a blade on the front, was observed being operated in that area. A backhoe was also observed being operated in the area pushing over trees, but not as frequently as the bulldozer. Chainsaws were also heard and seen being operated in that area by people identified as "workers" of Mr Lani. 97In late 2008, Mr Lani was observed overseeing the works and directing and instructing workers on what works were to be done and where the works were to be carried out. 98In particular, Mr Lani was observed in the area whilst: (a)trees that had been pushed over and still had their root ball showing were on the ground and had green foliage on them; (b)felled trees were being chopped up by men using chainsaw; (c)fill was being dumped in the area; (d)fill was being pushed around trees that were still standing in the area. 99Mr Lani was also observed on the property operating his tractor and pushing already felled trees into piles on the ground and operating a bulldozer and pushing soil around. 100It is not in dispute that the amount of vegetation in Area A has reduced since the works commenced in late 2008. The operation was not one of clear felling but it was systematic removal of vegetation from the area. These works continued generally consistently over this period.

Persons involved in carrying out the clearing 101Not everyone who carried out clearing on the property for the defendants could be identified. It is not, however, a fundamental requirement to identify all persons, as Mr Lani and Bombala had complete control over the activities carried out on the property and of the measures that could have been implemented to avoid the offences. The following are indicative of the people involved in carrying out the fill and clearing works, in addition to Mr Lani and on his instructions.

Gordon Haddon Bagust 102Mr Gordon Bagust retired in approximately 2006 but before that ran a business, Gordon Bagust Earthmoving, for about 30 years. The main operation of the business was bulldozer and loader hire. He would operate the machinery and undertake earth works or other works as directed by his clients. Since his retirement, Mr Bagust continues to undertake some work on an ad hoc basis. 103Mr Bagust has carried out works on the property in erratic episodes over 2008 and 2009. On each occasion he has done so at the direction and instruction of Mr Lani. On most occasions Mr Lani was present during the works or would come down soon afterwards to check on what Mr Bagust was doing. In 2008 and up to 23 July 2009, Mr Bagust spread fill out in areas B and C in and around vegetation and in order to flatten out of piles of soil that had been dumped there by trucks and he did so using Mr Lani's bulldozer. On a number of occasions in 2009 and before 23 July 2009, he spread fill out in area A in and around vegetation and in order to spread it out towards the water. He did this by pushing the soil through the trees toward the water to maintain level ground.

John Page 104As noted in par [17] above, Mr John Page is an employee of Geoffrey Stewart. Between about 5 May 2009 and 16 June 2009 he carried out work on the property using a 13 tonne Daewoo excavator. Mr Page took all instructions in relation to the nature and the location of the work from Mr Lani. 105Mr Page's written notes describe his work in Areas B and C as "push fill around trees" [sic] and "push out dead trees and dig out stumps and drag away" [sic]. His expression "push fill around trees" refers to the sand which had been dumped in and around the trees by someone other than Mr Page. His expression "push out dead trees" refers to the trees that were around the sand heap where Mr Page cleared about of dozen she- oak trees. Mr Page believes that the trees were dead from the sand around them. During the clean up of the sand pile Mr Page also cleared grasses and saplings and pushed the trees, stumps and other vegetation into a pile. 106Prior to the works neither Geoffrey Stewart nor Mr Page enquired about any approvals, permits or consent for the clearing. During the works, Mr Page did not make any enquiries of Mr Lani or anyone else about the permissibility of the works. As noted in par [24] above, since then Geoffrey Stewart has changed its procedures so all employees are instructed that they are not to clear any trees without an approved plan. 107Mr Lani concedes that he did not undertake an environmental assessment of the impact of the fill and clearing works before commencing the works. There was no development consent for the works carried and there were no written directions or instruction provided to any of the workers or agents in relation to the works. 108Mr Lani concedes that, in or around 2009, he had a conversation with the manager of Smugglers Cove Caravan Park acknowledging that the putting of soil fill around the tress would kill the trees. 109Mr Lani also concedes that, in or around 2002 or 2003, he had a conversation with the manager of Smuggles Cove caravan park claiming that the land on the foreshore of Pipers Creek was his. There was then protracted correspondence between Mr Lani and the Department of Land prior to the fill and clearing works commencing. In or around 2007, Mr Lani acknowledged that the foreshore area of Pipers Creek was in fact a Crown Reserve and thus was not his property.

Investigations 110On 2 July 2009, Ms Emma Coombs, regional operation officer, and Mr Ben Harrison, then natural resource project officer, of the Office of Environment and Heritage attended the site on an unrelated inspection. At this time, they observed in Area C and the adjoining Crown Reserve a pile of trees that had been pushed over or chain sawed into pieces. The pile contained trees of various sizes. They also observed areas where the root balls of the trees that were still visible in the ground but the trunk and upper part of the trees had been snapped off by force. 111On 7 July 2009, Mr Pevitt, an investigation and compliance co-ordinator, Great Lakes Council, attended the property following a complaint from a neighbour. At this time he observed a person he now knows as Mr Brad Witt, operating a red tractor loading trees onto piles of other trees. Mr Pevitt recognised this tractor as belonging to Mr Lani. Mr Witt said that he started working for Mr Lani since the day before and he was doing pruning and slashing work for Mr Lani. 112On the same day, Mr Pevitt drove further to the north closer to the water along the edge of Pipers Creek. This is a Crown reserve, which adjoins lot 37. Mr Pevitt specifically observed a number of trees lying on the ground, including two she-oaks and six paperbark trees from nine metres in length to 25 metres in length. He saw fresh chainsaw marks on these trees and could smell fresh sawdust. 113Mr Pevitt also observed: (a)a pile containing four she-oaks and 10 paperbarks from 17 to 20 metres in length; (b)a pile containing eight paperbarks up to about 12 metres tall; (c)a pile which had one she-oak and 12 paperbarks from ten to 19 metres in length. 114Mr Pevitt saw that the trees still had green foliage attached and appeared to have been alive at the time they were felled. There was no evidence of the trees being dead before being felled. He also observed that a large amount of fill had been placed in amongst the trees in Areas A, B and C. 115At about 9:47 am on that day Mr Pevitt had a conversation with Mr Lani in words to the following effect: Mr Lani: What's our problem now? Mr Pevitt:What can you tell me about all these trees that have been taken down Nino, did you authorise this? Mr Lani: They're f___ing dead are you blind, the trees are f___ing dead. Can you see? Yes, I done it. Mr Pevitt: Nino I was in a meeting with you and the general manager 2 weeks ago and I told you you can't take down dead trees without consent. Mr Lani:I rang, they want me to put in application, pay money, ok, f___ that. Mr Pevitt: You authorised these trees to be taken down? Mr Lani: Yes some fell over, they're f___ing dead and some have fallen over, they are rotten. Mr Pevitt: Nino some have root balls on them, they have been pushed over. 116Mr Pevitt took a series of photographs of the trees that had been cut down, pushed and piled up, which are in evidence. They show felled species of tree which are known to be used by squirrel gliders and which have root balls still connected. The photographs also depict fill material in Area A extending towards the back of Smugglers Cove and through the vegetation towards Pipers Creek 117On 14 July 2009, Mr Matthew Bell, senior ecologist of Great Lakes Council inspected the property. On that day he took a serious of photographs of the clearing and fill works on lot 7026 which are in evidence. 118On 16 July 2009, Mr Pevitt arranged for a surveyor's map to be made depicting the location of the fill and clearing. 119On 23 July 2009, Mr Stephen David Lewer, regional biodiversity conservation officer, and Mr Ben Harrison, then natural resource project officer, of the Office of Environment and Heritage attended the property. Mr Lewer observed two distinct areas of clearing in Areas B and C in northern part of lot 37 which consisted of areas of bare disturbed ground. Mr Lewer also observed the deposition of fill including around the bases of trees in Areas B and C. The stockpiles he had previously observed on the photographs taken by Ms Coombs had disappeared but he saw fresh blackened ground to suggest that these piles had been burned recently. 120On 12 August 2009, Mr Lewer and Mr Peter Jamieson, head regional operations unit - Hunter Region of the Office of Environment and Heritage, inspected the property in Area C. During this inspection he again saw cleared areas of vegetation and areas of bare disturbed ground as in his previous visit. He noted that some deposition of fill had been levelled out but there were some high areas of fill around the base of trees. Mr Lewer took a series of photographs which are in evidence. 121On 4 September 2009, Mr Lewer and Mr David Bell, regional operation officer of the Office of the Environment and Heritage attended the property to inspect the northern end which is described in evidence as Area A. Mr Lewer observed clearing which occurred in a patch of Melaleuca quinquenervia-livistona Australia- Casuarina glauca forest and the deposition of fill over an extensive area. 122On 23 September 2009, Mr Lewer returned to the property to carry out field vegetation surveys. Mr Lewer conducted three standard floristic/vegetation sampling quadrants in Area C and took a series of photographs. Mr Lewer also conducted six filed assessments of the vegetation stockpiles all approximately located within or adjacent to Area A. Mr Lewer also conducted a hand-held GPS survey of the three cleared areas. 123On 20 May 2010, at about 3:45, whilst undertaking field investigations and soil analysis in a number of areas of the property, the officers of the Office of Environment and Heritage saw a dump truck which arrived at the northern end adjacent to Area A. Mr Bell spoke to the driver of the truck. The driver said that Mr Lani had told him that he could dump the load in the area and he had previously dumped here about seven or eight loads. The driver did not dump that load on that day. Mr Lewer took photographs of this incident. 124On that day, 20 May 2010, Dr Pamela Hazelton conducted soil analyses in Area A. She conducted two test pits and detected fill of depth 15 centimetres and 50 centimetres. 125On 4 April 2011 and 5 April 2011, Ms Sally McInnes Clarke inspected the property and conducted further soil analyses. In Area A, she conducted three test pits and detected fill ranging between 94 centimetres and 140 centimetres. In Area B she conducted two test pits and detected fill on one test pit at a depth of 85 centimetres. In Area C she conducted two test pits and detected fill depths of 100 centimetres and 32 centimetres.

Environmental harm 126There is no doubt that harm was caused to the habitat of the squirrel glider. As with the case against Lampo, the parties were unable to agree on the extent of that harm. As noted early in the hearing, the difference between the parties' contentions on this issue was always going to have only a marginal effect on the penalty. Despite this, the bulk of the hearing time was taken up with a great deal of evidence involving several expert witnesses. 127The evidence established that the trees in and around the cleared areas was habitat for squirrel gliders and the gliders within these areas were part of a larger population. The areas A, B and C described in the evidence were, as noted above, both cleared and felled. The prosecutor has calculated the extent of the clearing as being about 0.682 hectares in Area A, 0.105 hectares in Area B and 0.198 hectares in Area C - a total of 0.99 hectares. The full extent of the clearing is, however, disputed by the defendants. 128As with the case against Lampo, Mr Lewer was of the opinion that the vegetation which was cleared floristically matched the determination for swamp sclerophyll forest endangered ecological community as listed in Sch 1, Pt 3 of the Threatened Species Conservation Act. However, for the reasons outlined in pars [34] to [39] above, I do not regard this fact as an aggravating circumstance. 129It seems to be common ground that the land could be regenerated and that would eventually fully mitigate the present impacts of the clearing upon the gliders, although it may take up to ten years before regeneration occurs to a satisfactory level where gliders would again forage in the area. An appropriate order to achieve this end is included in the orders in this case. 130I do not accept, however, the extent and severity of the clearing alleged by the prosecutor. Not all the trees within the areas have been cleared, as is evidence from the aerial photographs. Moreover, I accept the evidence of Dr Robertson - which is not disputed - that the clearing that has taken place consisted of young trees and tall shrubs which would have provided foraging habitat for squirrel gliders rather than nesting or residence sites. I thus accept the defendants' submission that less than the 0.99 hectares of squirrel gliders habitat asserted by the prosecutor was cleared. 131The prosecutor sought to rely upon the fact that filling was spread over the cleared areas with a consequential detrimental impact upon the vegetation within the squirrel glider habitat. The evidence which the prosecutor sought to lead on this question was not admissible and was rejected on the ground that the prosecutor's expert did not have the appropriate expertise. The prosecutor was thus left with no evidence to support this assertion. 132I conclude that, although the impact of clearing and filling of this land would have had an impact upon the squirrel gliders, the impact did not have the significance asserted by the prosecutor.

Sentencing considerations 133As noted in the prosecutions against Mr Lani and Lampo, there is a number of statutory considerations which must be taken into account in determining the question of penalty under the National Parks and Wildlife Act.

The extent of harm caused or likely to be caused by the commission of the offence 134This has been assessed at [126] to [132] above.

The significance of the habitat of the threatened species that was harmed 135It is not in dispute that the ten or so remnants of squirrel glider habitat around Forster may contain a local population of about 40 to 60 gliders and that there is a high possibility of their extinction over the larger term. The population may, however, be able to persist for decades, or longer, if active land management was applied. The local population at Forster has been exposed to extensive habitat fragmentation. Thus, any loss of remaining habitat must be regarded as significant.

The practical measures that may be taken to prevent, control, abate or mitigate the harm 136I accept as self-evident the prosecutor's submission that an appropriate assessment process would have prevented or at least mitigated the harm caused by the works. The practical measures that could have been taken were to undertake an environmental impact assessment before doing any work and to apply and obtain prior development consent for the works. Mr Lani was well aware that these practical measures could and should have been done, having been involved in two previous cases in Class 4 of this Court's jurisdiction, one of which involved the unlawful clearing of land: Great Lakes Council v Lani; Great lakes Council v Lampo Pty Ltd [2007] NSWLEC 681; (2007) 158 LGERA 1 (in which the Court made injunctive and remediation orders).

Foreseeability of the harm cause or likely to be caused 137The harm caused was entirely foreseeable. In August 2007, the defendants were furnished with a copy of a report produced by Orogen in support of possible rezoning of the land and which identified a threatened plant species and two endangered ecological communities. In February 2008, the defendants were furnished with a further report by Orogen which identified the presence of trees with hollows and which stated that the land would support habitat of a number of threatened species including squirrel gliders. In February 2009, the defendants' consultants sent a letter addressed to Bombala stating that a squirrel glider had been captured in a preliminary survey on the land. In June 2009, the defendants obtained a report in support of the rezoning of three parcels of land, one of which was lot 37, which identified the present of squirrel gliders within the property and their use of the trees on the land. The harm to the habitat of the squirrel gliders was thus not only foreseeable by the defendants but was also disregarded. I consider this to be an aggravating factor.

Control over causes that gave rise to the offence 138As noted at pars [103]; [104] and [115] above, the defendants not only had complete control over the causes of the offence, but Mr Lani personally engaged in some of the work.

Whether the offence was committed for commercial gain 139I repeat what I have said at pars [48] to [50] above. An inference, which I accept, that the defendants may have carried out the work for commercial gain does not amount to proof beyond a reasonable doubt. In applying the relevant principle explained in R v Olbrich, I am unable to make an adverse finding against the defendants on this question.

Sentencing principles 140An additional aggravating factor in the present case is the clearing that was done on lot 7026 was on land which comprises a Crown Reserve. This places the offences in a more serious category than would be the case of the clearing had been confined to privately owned land.

Mitigating factors 141The mitigating factors discussed at pars [58] to [61] above apply equally to the present offences.

Totality 142I adopt what I have said at pars [62] and [63] above. The totality principle applies as between the charges against Bombala and Mr Lani in this matter. For the reasons explained above, the totality principle does not apply as between these offences and those charged against Lampo and Mr Lani's involvement in that matter,

Even-handedness 143For the reason explained at par [64] above, I reject the defendants' reliance on Carmody v Brancourts Nominees Pty. Of greater relevance is the plea of guilty in Garrett v Port Macquarie-Hastings Council, noted at par [64] above. 144As in the matter involving Lampo, the defendants agree to carry out a remediation plan. The form of appropriate orders to give effect to a remediation plan is included in the Court's order.

Costs 145The observations which I have made at pars [67] and [68] above apply equally to the present matter and are reflected in the Court's orders which are now made.

Orders 146In the matter No. 50524 of 2011: Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd - (1)The defendant, Bombala Investments Pty Ltd, is convicted of an offence against s 118D(1) of the National Parks and Wildlife Act 1974 (NSW). (2)The defendant must pay a penalty in the sum of $13,000. (3)The penalty must be paid into the National Parks and Wildlife Fund pursuant to sections 138 and 139 of the National Parks and Wildlife Act for use by the National Parks and Wildlife Service of the Office of Environment and Heritage of the Department of Premier and Cabinet specifically for mapping and study of the squirrel glider populations in Booti Booti National Park and any Crown land or council controlled land in the Forster area along with the study of the connectivity of these areas within the urban landscape of the Forster area. (4)Within 14 days of the date of these orders, the defendant at its expense and pursuant to section 205(1)(a) of the National Parks and Wildlife Act, shall cause a notice in the form of Annexure "A" to these orders to be placed within the first six pages in the Great Lakes Advocate newspaper at a minimum size of 10 centimetres by 20 centimetres. (5)Within three weeks of the date of these orders, the defendant, pursuant to section 200(1)(d) of the National Parks and Wildlife Act, shall retain consultants acceptable to the prosecutor with the following expertise: (a)a bush regenerator; (b)an ecologist; and (c)an expert with special knowledge of the threatened species squirrel glider (Petaurus norfolcensis). (6)Within 11 weeks of the date of these orders the defendant shall cause the consultants to prepare a remediation plan for areas A, B and C on the map annexed to these orders relating to the land being at lot 37 in deposited plan 1023220 and the adjacent Crown Reserve being lot 7076 in deposited plan 1051706 located near the Lakes Way, Forster to include the following: (a) regeneration of cleared vegetation; (b)a timeframe for all actions proposed as part of the remediation plan implementation; and (c)any other actions that the consultants deem to be required to remediate the site. (7)Within 12 week of the date of these the defendant shall orders provide the remediation plan as produced in accordance with Order (5) above to the prosecutor. (8)No later than 20 weeks after the date of these orders the defendant shall cause the consultants to carry out all works required by the remediation plan and in accordance with the timeframe established under the remediation plan. (9)The defendant shall provide to the prosecutor copies of all retainers and instructions given to the consultants at the same time as they are given to the consultants. (10)In the event that any or all of the consultants are unable to continue to act pursuant to these orders, they may be replaced by the defendant engaging a replacement consultant acceptable to the prosecutor to perform the relevant functions under these orders. (11)Schedule 7 to the Uniform Civil Procedure Rules 2005 is directed to apply to the performance of the duties of the consultants as if they are parties' single expert witness in these proceedings. (12)Notwithstanding Order (11) above, the defendant shall pay the professional fees, costs and expenses of the consultants. (13)The defendant must pay 75 per cent of the prosecutor's costs as determined under s 257 of the Criminal Procedure Act 1986 (NSW). (14)The exhibits may be returned. 147In the matter No. 50525 of 2011: Chief Executive of the Office of Environment and Heritage v Lani - (1)The defendant, Rinaldo Lani, is convicted of an offence against s 118D(1) of the National Parks and Wildlife Act 1974 (NSW),by reason of s 175B(1) of that Act. (2)The defendant is fined the sum of $10,000. (3)The fine must be paid into the National Parks and Wildlife Fund pursuant to section 138 and 139 of the National Parks and Wildlife Act for use by the National Parks and Wildlife Service of the Office of Environment and Heritage of the Department of Premier and Cabinet specifically for mapping and study of the squirrel glider populations in Booti Booti National Park and any Crown land or council controlled land in the Forster area along with the study of the connectivity of these areas within the urban landscape of the Forster area. (4)Within 28 days of the date of these orders, the defendant at its expense and pursuant to section 205(1)(a) of the National Parks and Wildlife Act, shall cause a notice in the form of Annexure "A" to these orders to be placed within the first six pages in the Great Lakes Advocate newspaper at a minimum size of 10 centimetres by 20 centimetres. The said notice may be a single notice published jointly with the defendant Bombala Investments Pty Ltd in proceedings No. 50524 of 2011. (5)Within three weeks of the date of these orders, the defendant, pursuant to section 200(1)(d) of the National Parks and Wildlife Act shall retain consultants with the following expertise, being consultants acceptable to the prosecutor: (a)a bush regenerator; (b)an ecologist; and (c)an expert with special knowledge of the threatened species squirrel gliders (Petaurus norfolcensis). (6)Within 11 weeks of the date of these orders the defendant shall prepare a remediation plan for areas A, B and C in the map annexed to these orders relating to the land at lot 37 in deposited plan 1023220 and the adjacent Crown Reserve being lot 7076 in deposited plan 1051706 located near the Lakes Way, Forster, to include the following: (a) regeneration of cleared vegetation; (b)a timeframe for all actions proposed as part of the remediation plan implementation; and (c)any other actions the consultants deem to be required to remediate the site. (7)Within 12 weeks of the date of these orders the defendant shall provide the remediation plan as produced in accordance with Order (6) above to the prosecutor. (8)No later than 20 weeks after the date of these orders the defendant shall cause the consultants to carry out all works required by the remediation plan and in accordance with the time frame under the remediation plan. (9)The defendant must provide copies to the prosecutor of all retainers and instructions given to the consultants at the same time as they are given to the consultants. (10)In the event that any or all of the consultants are unable to continue to act pursuant to these orders, they may be replaced by the defendant engaging a replacement consultant acceptable to the prosecutor. (11)Schedule 7 to the Uniform Civil Procedure Rules 2005 is directed to apply to the performance of the duties of the consultants as if they are parties' single expert witness in these proceedings. (12)Notwithstanding Order (11) above, the defendant shall pay the professional fees, costs and expenses of the consultants. (13)The defendant must pay 75 per cent of the prosecutor's costs as determined under s 257 of the Criminal Procedure Act 1986 (NSW). (14)The exhibits may be returned. LOT 22 DP843479 FORSTER LOT 37 DP1023220 FORSTER PUBLICATION ORDER LANI/LAMPO PUBLICATION ORDER LANI/BOMBALA 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: 18 May 2012