Chief Executive, Office of Environment and Heritage v Essential Energy

Chief Executive, Office of Environment and Heritage v Essential Energy - [2017] NSWLEC 27 - NSWLEC 2017 case summary — Zoe

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Summons

The Summons filed by the Prosecutor Chief Executive, Office of Environment and Heritage (OEH) on 26 November 2015 contained the following particulars: Particulars: (a) Place of offence Yuraygir National Park (b) Vegetation damaged Including vegetation that comprises or is part of the following vegetation communities as described in Griffith, SJ, (1993) Conservation status of coastal plant communities in northern New South Wales - a review, unpublished report to the NSW National Parks and Wildlife Service: (i) Dry Sclerophyll Forest and Woodland (Eucalyptus pilularis / Angophora costata / Corymbia gummifera / E.planchoniana), and (ii) Dry Sclerophyll Forest and Woodland (Eucalyptus planchoniana), and (iii) Dry Sclerophyll Mallee Forest and Woodland (Eucalyptus planchoniana). (c) Manner of breach The Defendant's contractors or agents cleared and mulched vegetation using a John Deere 6520 Tractor Mulcher. (d) Date on which evidence of the alleged offence first came to the attention of an authorised officer: Evidence of the offence first came to the attention of authorised officer Damian Lett on 27 November 2013.
In addition to the charge to which the Defendant pleaded guilty the Summons also seeks the following orders: 2. That the Defendant be dealt with according to law for the commission of the above offence. 3. An order that the Defendant pay the Prosecutor's costs.
Section 156A(1) of the NPW Act provides: Part 14 Miscellaneous 156A Offence of damaging reserved land (1) A person must not, on or in land reserved under this Act or acquired under Part 11: (a) remove any water other than for purposes authorised by or under any Act or for the purposes of personal use on the land, or (b) damage or remove any vegetation, rock, soil, sand, stone or similar substance, or (c) damage any object or place of cultural value, or (d) cause or permit any removal or damage referred to in paragraph (a), (b) or (c). Maximum penalty: (a) in the case of a corporation - 10,000 penalty units, or (b) in the case of an individual - 1,000 penalty units or 6 months imprisonment, or both.

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Statement of agreed facts

The facts are set out in the document entitled Statement of Agreed Facts (SOAF) tendered at the sentencing hearing as follows: 1 Summary 1.1 Essential Energy is charged with, and has pleaded guilty to, a breach of s156A of the National Parks and Wildlife Act 1974 (NPWA) relating to the damage of, by clearing and mulching, certain vegetation communities in the Yuraygir National Park (the National Park) on 29 October 2013, which as particularised in the Summons, was carried out by its contractors or agents, namely, Custom Clearing (the Clearing). 1.2 It is a defence to an offence against s156A of the NPWA if damage was done in accordance with the consent of the Chief Executive of the Office of Environment and Heritage or of a person or body that has the care, control and management of the land concerned. The Clearing and mulching occurred without any consent(s) being granted by the Chief Executive. 1.3 The Clearing involved the clearing of approximately 2.4 km of vegetation along the route of a management trail known as Franklins Boundary trail. Part of the Franklins Boundary trail is located within the National Park and part of it is located outside the National Park on private property. About 1.4 km of the Franklins Boundary trail located within the National Park was cleared on the day of the offence, and it is this clearing that is the subject of the charge. The remaining 1.0 km of Clearing occurred outside the National Park and was not an offence under the NPWA. NPWS staff calculate that the total area cleared was 1.56 ha and that 0.84 ha was cleared within the National Park. The ecologist engaged by Essential Energy considers that only 0.63 ha of vegetation was actually cleared within the National Park. A Map of the National Park and specific areas in question is Annexure A [not included in judgment]. 1.4 A glossary of defined terms is included at Annexure B [not included in judgment]. 1.5 The 2007 Fire Management Plan for Yuraygir National Park states that part of the Franklins Boundary trail is a Category 9 fire trail, which would have been approximately 3-4 metres wide. However approximately 10-15 years ago, NPWS decided that it no longer required this trail for management purposes, and the vegetation was left to regenerate. There is no updated Fire Management Plan. 2 Background 2.1 The National Park 2.1.1 The National Park is 36,512 hectares and extends from Angourie in the north to the township of Redrock in the south. The National Park encompasses about 65 kilometres of coastline and is the largest coastal National Park in New South Wales. Parts of the National Park were gazetted in 1975 (Red Rock and Angourie National Parks) and the National Park was reserved as Yuraygir National Park by Government Gazette No. 10 on 23 January 1980. 2.1.2 The National Park protects large areas of coastal heathland, wetlands and dry sclerophyll forests which provide habitat to large numbers of threatened flora and flora including Ground Parrot, Koala, Spotted Tailed Quoll and arboreal mammals including Yellow-Bellied Glider, Greater Glider, Brush-Tailed Phascogale and Feather-tailed Glider. The coastline adjoining the Park encompasses Sanctuary (no take) zones which form an important part of the Solitary Island Marine Park. There is no direct evidence any of these threatened species were actually harmed by the Clearing. 2.2 Essential Energy 2.2.1 Essential Energy is a State-Owned Corporation established under the Energy Services Corporations Act 1995 and the State Owned Corporations Act 1989. 2.2.2 Essential Energy owns, operates and maintains electricity network infrastructure throughout NSW, operating approximately 95% of the network in NSW. Essential Energy's network spans almost 200,000 kilometres across diverse conditions and terrain. 2.2.3 Under section 8 of the Energy Services Corporations Act 1995, Essential Energy is obliged to, amongst other things: 1) operate a successful and efficient business; 2) exhibit a sense of social responsibility; 3) conduct its operations in compliance with the principles of ecologically sustainable development; 4) exhibit a sense of responsibility towards regional development; 5) operate efficient, safe and reliable facilities for the distribution of electricity and other forms of energy; and 6) be an efficient and responsible supplier of electricity. 2.3 Essential Energy lawfully operates and maintains a powerline which passes above the National Park (the Powerline). The Powerline supplies electricity to the towns of Wooli and Minnie Waters and traverses the National Park in a north-south direction. The Powerline is maintained by Essential Energy. The Powerline crosses the Wooli River approximately 1 km north of the Corduroy Crossing. This Powerline pre-dates reservation of the land as a National Park. Essential Energy maintains a cleared corridor for the purposes of ensuring safety, protecting its assets from damage, and maintaining the Powerline, which is generally located underneath and/or near the Powerline (the Powerline Corridor). 2.4 The Defendant's ecologist visited the northern area of the Powerline Corridor in 2016 and concluded that the vegetation composition was observed to be consistent with that of the Endangered Ecological Community (EEC) Freshwater Wetland. 2.5 The Powerline is the only source of supply for residents and businesses in the Wooli Area and Minnie Water. It is a significant piece of infrastructure, which requires scheduled maintenance, including: 1) Maintenance of the Powerline and equipment, including visual and physical inspection of poles for safety and functionality approximately every four years, with defects rectified if identified; and 2) Maintenance of the vegetation beneath the powerline and in the Powerline Corridor, to ensure that it does not grow in a manner which may interrupt the integrity and/or reliability of the Powerline. The vegetation officer will perform an inspection every two - three years, and vegetation maintenance will be organised if required. 2.6 In addition to scheduled maintenance, emergency maintenance of vegetation, poles, and wires may also be required as and when identified. 2.7 During the events which lead to the Clearing, Essential Energy was performing its duties and functions under the Electricity Supply Act 1995 (NSW) (ESA) ·and State Environmental Planning Policy (Infrastructure) 2007 (NSW) (ISEPP): 2.7.1 Section 45 of the ESA permits a network operator to carry out works comprising the erection, installation or extension of electricity works on public land, and comprising or connected with the alteration, maintenance or removal of existing electricity works on any land. 2.7.2 Section 53 of the ESA permits Essential Energy's electricity assets to continue to occupy the Powerline Corridor, as it is an electricity work which predated 2006. 2.7.3 Clause 41 of the lSEPP permits a network operator to carry out works without consent on land reserved under the NPWA, including where section 53 of the ESA applies to those works. 2.7.4 At all relevant times the provisions of the ESA and ISEPP did not give rise to a defence to the offence the subject of these proceedings. 2.8 The Corduroy Crossing 2.8.1 The Corduroy Crossing is located near the northern end of the Powerline Corridor within the National Park. The Corduroy Crossing is approximately 80 metres wide and is a series of logs laid over a swampy location. It was constructed by Essential Energy in approximately 1961, prior to reservation of the land as a National Park, to allow vehicles and machinery to cross the swamp and access the Powerline spans located south of the Wooli River. 2.8.2 NPWS does not consider it is responsible for maintenance of the Corduroy Crossing. NPWS does not regularly use the Powerline Corridor, although may access it to access other management tracks from time to time. Prior to the Clearing, NPWS had previously expressed this view (ie, that it was not responsible for maintenance of the Corduroy Crossing), including as far back as 2007, to Essential Energy's Vegetation Control Officer, Mr Robert Skaines. Essential Energy does not consider that Essential Energy was responsible for maintenance of the Corduroy Crossing. Essential Energy does not maintain access tracks or bridges in any National Parks. Essential Energy will maintain vegetation only so far as to avoid the track becoming overgrown and creating safety issues with the powerline. 3 Background to the Clearing 3.1 As part of its roles and responsibilities in operating and maintaining the electricity network infrastructure, Essential Energy is required to undertake routine maintenance of vegetation growing within the Powerline Corridor (vegetation maintenance). This is performed to maintain access to the network and avoid vegetation overgrowing and impacting the safety and reliability of the powerline. 3.2 Essential Energy generally engages contractors to perform vegetation maintenance, with work allocated via Work Packs and overseen by the relevant Essential Energy Vegetation Officer for that region. A Work Pack is a written work order which specifies the sections of the powerline where maintenance is to be performed. The distance between each pole is referred to in the Work Pack as a span. One or more spans may be referred to as a sequence. It was the usual practice that Vegetation Officers would allocate work with a written Work Pack, however, although not the subject of any written Essential Energy policy, it was not unusual for work to occasionally be directed verbally to contractors in the field, with a subsequent written record provided. This might occur when, for example, an existing Work Pack was being carried out and Essential Energy employees or contractors identified additional work which needed to be undertaken. Under the contract, and in practice, this may have also occurred when emergency vegetation works were identified. 3.3 At the time of the Clearing, Essential Energy had entered into a contract with Active Tree Services (ATS), for ATS to perform vegetation maintenance on the NSW North Coast. The contract, which the parties entered into in 2011, required, amongst other things: 1) works to be performed by ATS (as described in the Work Packs issued by the Defendant); 2) that ATS obtain approvals before performing vegetation maintenance works, and that ATS employees and subcontractors comply with all relevant environmental legislation. "Approval" is a defined term and its meaning includes any consent, approval or authorisation of any authority having jurisdiction in ·connection with the work under a Work Pack. 3.4 Custom Clearing is a subcontractor to Active Tree Services. Custom Clearing would regularly perform mulching and clearing work on behalf of Active Tree Services. A large proportion of Custom Clearing's work from ATS was to carry out vegetation maintenance on Essential Energy easements. 3.5 Prior to the Clearing, the last occasion that vegetation maintenance works had occurred on or behalf of Essential Energy in the National Park was 2007. These works were contracted to ATS, who had subcontracted the work to Custom Clearing. 4 Events leading to the Clearing 4.1 At the time of the Clearing, an employee of Essential Energy, Robert Skaines, was the Vegetation Officer for the Mid-North Coast region. Robert Skaines had held that position for 9 years at the time of the Clearing. Robert Skaines is no longer employed with Essential Energy. 4.2 In early 2013, Robert Skaines arranged for ATS to undertake scheduled vegetation maintenance of the Powerline Corridor in the Red Rock and Wooli region. Maintenance works around the Red Rock and Wooli region on the north coast were scheduled to occur around March 2013 and November 2013, although there was no particular deadline. The works were contained in Work Pack 205953. The works, which started in the south and worked progressively north, included mulching in the Powerline Corridor in the National Park between September and October 2013. The Work Pack ended in the north at pole 94783, as shown in the diagram at Annexure A [not included in judgment]. The Work Pack did not include all the spans to the end of the power line at Wooli. This was because, in February 2013 when Mr Skaines attended the National Park to scope works in the Powerline Corridor, he found that the Corduroy Crossing was impassable to inspect and scope the northern spans. 4.3 After receiving the Work Packs, ATS then sub-contracted the vegetation maintenance works to Custom Clearing. Custom Clearing had previously been contracted by ATS to undertake vegetation maintenance work on behalf of Essential Energy, both in other areas of the Mid-North Coast, and also previously in the Yuraygir National Park. 4.4 In late September 2013, Custom Clearing advised ATS that there were additional spans not covered under the Work Pack. Also, it was identified that some spans along the Powerline Corridor could not be accessed, specifically those spans located north of the Corduroy Crossing and south of the Wooli Wooli River (the Remaining Spans). This was due to the state of disrepair of the Corduroy Crossing, as vehicles were unable to cross the logs. Active Tree Services relayed this to Essential Energy. 4.5 Visit to Corduroy Crossing 10 0ctober 2013 4.6 On 10 October 2013, Mr Green (of Essential Energy), an employee of ATS (Andy Clark), and employees of subcontractors Custom Clearing (Kelvin McNickle and Troy Wilkinson) undertook an inspection of the Corduroy Crossing. 4.7 At the inspection, Essential Energy decided that the Remaining Spans needed clearing. Obtaining consent would be discussed within Essential Energy, who would notify ATS at a later date. The usual practice was that this consent would be obtained by Rob Skaines as vegetation officer. 4.8 Mr Green discussed the upgrade of Corduroy with his manager, Mr Peter Cady, who advised Mr Green that these works could not be undertaken and to look into other access options. This was because the role of the Vegetation Maintenance team relates to maintaining vegetation on tracks, with a budget allocated for scheduled and emergency vegetation works based on previous years. Larger civil works fall outside the role and budget of this team, and, if approved, would be undertaken by another part of the business, who would obtain internal and external approvals to scope and undertake those works. 4.9 Mr Green directed Mr Skaines that an alternative access route should be identified to access the remaining spans. Mr Green reminded Mr Skaines that NPWS should be consulted concerning an alternative access track, "in order to get them on the same page", in case Essential Energy would need to involve their environmental engineer. Mr Skaines informed Mr Green that he had a contact with NPWS that he deals with, and would communicate Essential Energy's intentions with them. Mr Green offered to assist Mr Skaines with liaising with NPWS, but Mr Skaines declined. Mr Green believed that Mr Skaines would liaise with NPWS and obtain consent from NPWS prior to any clearing, as was usual required practice. 4.10 Visit to Station Creek 16 October 2013 4.11 A second option was to see whether access could be gained via the Station Creek camping ground. 4.12 Mr Skaines and Mr Clark explored this option on 16 October 2013 and found the track to be unusable due to erosion, swamp and National Park barricades. 4.13 On the same day, Mr Clark and Mr Skaines visited the site where Custom Clearing were working within the Powerline Corridor. Kelvin McNickle, Peter McNickle, and Mr Wilkinson of Custom Clearing were present. 4.14 Mr Skaines then phoned Mr Green. Mr Skaines told Mr Green that had been out with Mr Clark and Station Creek was in disrepair and not accessible. Mr Skaines said that Kelvin McNickle knew of an old access track from the easement that linked up with a Google Earth track (ie the Franklins Boundary Trail). Mr Green instructed Mr Skaines to "go have a look at that and see what he finds". 4.15 Directions from Essential Energy 23 October 2013 4.16 On 23 October2013, Mr Clark of ATS phoned Mr Green as the works under the Work Pack were nearing completion. 4.17 Mr Green directed ATS to complete the existing Work Pack and said that a "Vegetation Works Log" ("VWL") was being generated for the unlisted spans and would be prepared by Mr Skaines. Mr Green indicated that any time spent looking for the track was to be recorded against that VWL, and the time spent should be no more than half a day. Mr Green assumed, on the basis of the usual practice, that Rob Skaines would obtain consent from NPWS prior to directing any clearing works be carried out. 4.18 Mr Clark relayed this to Kelvin McNickle and advised that Mr Skaines would be in touch. He told Kelvin McNickle that he should "take a tractor and use it to push a few trees off the line, or go through sandy patches if they're there", and that "Essential Energy will be there on the day to direct you as you go." Mr Clark reiterated to Kelvin McNickle that "they were not to break the soil or do any track maintenance as stated by Shawn on the 10th October". (Note: Essential Energy cannot verify, and therefore are unable to agree, that the conversation in this paragraph took place). 4.19 Visit to National Park management track 28 October 2013 4.20 On 28 October 2013, Robert Skaines contacted Ranger Gina Hart to ascertain whether she was aware of any alternative tracks which could be used to access the Remaining Spans. Ranger Hart informed Robert Skaines that she was not aware of any alternative tracks. 4.21 Ranger Hart's sworn evidence of this conversation is as follows: 4.21.1 Mr Skaines asked: 4.21.2 "Are there any other trails to the east of the Corduroy? We are doing a maintenance run under the easement and the Corduroy is posing an issue again." 4.21.3 Ranger Hart said: 4.21.4 "There are no other trails east of the easement that would access the northern part of the line and fixing up the Corduroy is the only option." 4.21.5 Mr Skaines said Essential Energy did not have any funds to maintain the Corduroy Crossing, as had been discussed in the past regarding this same issue. 4.21.6 Mr Skaines then asked if there was a way around. Ranger Hart told him that there was not. 4.22 In his interview with OEH on 6 February 2014, Mr Skaines indicated that he had a conversation with Ranger Hart around this time in which she informed him there were no alternative access trails, but could not remember the specific contents of this conversation. 4.23 Also on 28 October 2013, Kelvin McNickle scouted the Franklins Boundary Trail for approximately two and a half kilometres, which he thought would intersect with the Google Earth track, eventually reaching the spans north of the Corduroy Crossing. He followed the Franklins Boundary Trail to a point where it appeared that a small 4wd vehicle had also accessed the track before turning around. At that point he also left the track, thinking the track was accessible with some mulching. He did not reach the point of the sand dune. 4.24 Mr Green received a phone call from Mr Skaines. Mr Skaines believed after speaking with Kelvin McNickle that they should be able to get through but wouldn't know until they were progressing through. 4.25 Mr Green made a decision to allow 2-4hrs to assess whether the Powerline Corridor could be accessed via Franklins Boundary trail and "to let him know what they find." 4.26 Mr Skaines told Mr Green words to the effect that "the contractors had walked the track, and it was an option and viable to clear it." Mr Green asked "how long are we looking?" Mr Skaines said "The contractors have said only a couple of hours". Mr Green said words to the effect of "if everything's in place, we're not going to spend days or weeks or anything - nothing like that. We just got to get in there to do the work and then we'll talk further if we need to about creating a permanent access. But, mate, three or four hours at best. If they can't do it in that, we're not doing it at all." 4.27. Mr Green did not ask Mr Skaines to arrange for Custom Clearing to perform slashing or mulching on Franklins Boundary Trail. Mr Green considers it would ordinarily take Custom Clearing 7-8 hours to slash and mulch approximately 500 metres of regrowth vegetation on a powerline corridor. The Franklins Boundary Trail is approximately 12.4 km in length. 4.28 Mr Green provided a statement to the Prosecutor in December 2016. In his statement Mr Green noted the following. Mr Green could not recall, if, during that conversation, he asked Mr Skaines whether he had liaised with NPWS. Mr Green assumed that Mr Skaines would not direct the sub-contractors to perform clearing works unless he had obtained consent from NPWS first. This assumption was on the basis that Mr Skaines had held the role as Vegetation Officer for approximately 9 years, and a core task in this role was to obtain consent from NPWS and other landowners prior to directing contractors to perform any clearing. In his role as Vegetation Officer, Mr Skaines would coordinate the vegetation maintenance for approximately 20 Essential Energy maintenance areas each year, and would coordinate approximately 200 vegetation maintenance tasks per area. Mr Green believed that Mr Skaines would not deviate from the usual practice to obtain NPWS consent prior to clearing in a National Park. 5 Clearing of National Park management track 29 October 2013 5.1 Mr Skaines then proceeded to instruct the employees of Custom Clearing to investigate access to the spans via the Franklins Boundary Trail. Mr Skaines has provided a differing account to Kelvin and Peter McNickle of what took place during this conversation, and the location of this conversation. 5.2 The McNickle's account of their instructions from Mr Skaines 5.3 The McNickles have provided the following account of the conversation which took place between themselves and Mr Skaines. 5.3.1 On 29 October 2013, Mr Skaines attended the work site of Custom Clearing. Mr Skaines met with Kelvin and Peter McNickle at the private property fence adjacent to the Powerline and Powerline Corridor. 5.3.2 Mr Skaines and Kelvin McNickle followed Peter McNickle, who was driving a John Deere 6520 Tractor Mulcher, through the private property to the National Park gate. 5.3.3 Mr Skaines told Kelvin McNickle "Shawn [Green] has· not given me a lot of time to do this clearing of the access track, we only have half a day to see if it is an option, to clear this track to the northern side of the Corduroy." 5.3.4 Kelvin McNickle said "It's a hell of a track to clear in half a day." 5.3.5 While Kelvin McNickle talked with Mr Skaines at the start of the track, Peter McNickle started clearing the track with the Track Mulcher. 5.3.6 Mr Skaines began filling out the VWL and told Kelvin McNickle he would leave the VWL in Kelvin McNickle's mailbox when he finished writing it out. 5.3.7 Kelvin McNickle then left. 5.3.8 One hour later, Mr Skaines rang Kelvin McNickle and said he had to return, rather than meet Kelvin in the field, he would put the VWL in Kelvin's letter box. 5.3.9 The subcontractors knew they were in a National Park. Their usual practice was that consents were obtained by Essential Energy and stapled to the Work Pack, which would come through ATS. However, there was no Work Pack in this instance. The contractors assumed that Essential Energy had obtained the relevant consents. They were aware that Mr Skaines had a contact in NPWS that he spoke with. They assumed they would receive the consents when they received the paperwork. 5.4 Mr Skaines' account of the instructions he provided to the McNickles 5.5 Whilst employed with Essential Energy, Mr Skaines provided the following account of the conversations which took place between himself and the McNickles. 5.5.1 On 29 October 2013, Mr Skaines intended to meet with Custom Clearing at Franklins Boundary Trail, however he said he was unable to find the entrance to the track through private property. While he was trying to gain access to meet with Custom Clearing, he heard Custom Clearing's slashing machinery operating. He thought Custom Clearing was clearing under the Powerline, when in fact it was clearing the Franklins Boundary Trail. 5.5.2 Soon after Mr Skaines instead telephoned Kelvin McNickle and informed him that he would leave a VWL in Kelvin McNickle's mailbox. The VWL would contain the instructions for the works to be done. The VWL instructed Custom Clearing to "clear", which Rob intended to mean that they would "mulch under the powerline" and "clear access track if you find an access track". 5.5.3 Mr Skaines indicated to Kelvin McNickle that Custom Clearing should walk the Franklins Boundary Trail to investigate whether they were able to reach all the way to the northern spans. Mr Skaines said he did not give them any instructions to slash vegetation. 5.5.4 Despite the content of the VWL, Mr Skaines says he thought that the McNickles would just find access on the track and would not clear any vegetation. 5.6 The Clearing and Subsequent Events 5. 7 The Clearing was described by Peter and Kevin McNickle as including: 1) "thick tea tree, about 1200 high". 2) "It was mainly just like wattles and - wattles and - and just ferns and - yes, just nothing - nothing major, just anything - anything that was anything over the size of a 20 cent piece was a - was a dead tree that the fire had burnt down and I just moved it to the side". 3) "the biggest stems on (on the cleared vegetation) would have been only about as big as a 20 cent piece" 5.8 The expert evidence filed in the proceedings by the Prosecutor says that the clearing as described by Peter and Kevin McNickle understates the complexity and type of vegetation. The ecologist engaged by Essential Energy considers that the vegetation on Franklins Boundary Trail would have been less dense than the surrounding National Park as it was regenerating from its prior use, particularly in the northern part of the trail, based on visual inspection sometime after the Clearing and aerial photos from prior to the Clearing. 5.9 After clearing approximately 2 km, Peter McNickle came to an impassable sand dune. He rang and reported it to Kelvin McNickle. They had a conversation about what they should do. Peter indicated he would have to use the blade and a winch to get down the dune. Kelvin told him to pull out. 5.1 0 Kelvin McNickle then called Mr Skaines and Mr Clark to advise the track was not a viable option. 5.11 Peter McNickle subsequently left the area. 5.12 Kelvin McNickle later retrieved the VWL from his letterbox. The VWL contained an instruction to "clear access track to end poles on station creek line". This was followed by instructions for mulching under & beside HV line" for each unlisted span. The top of VWL states "mulching slashing HV". The VWL is signed "Rob" and is dated 29 October 2013. A copy of the VWL is at Annexure C [not included in judgment]. 5.13 Mr Clark phoned Mr Green asking that the works be re-tasked to ground lining. There was some confusion as they had been told different things about access on Franklins Boundary Trail. Mr Green was under the impression that the Franklins Boundary Trail was passable to vehicles, as relayed by Mr Skaines on 28 October 2013. 5.14 On 1 November 2013, ATS inspected the Corduroy again and had further discussions with Mr Green. It was decided that the remaining spans along the Powerline Corridor would be cleared using groundline crews. 5.15 Neither Essential Energy, ATS nor Custom Clearing notified NPWS of the clearing of the Franklins Boundary Trail. 6 Discovery of clearing 6.1 On 27 November 2013, Ranger Damian Lett and pest management officer Jeff Thomas of NPWS were conducting a weed program inspection when they discovered clearing on Franklins Boundary trail. 6.2 Ranger Lett left Ranger Gina Hart a voicemail about the clearing, which she accessed on 1 December 2013. 6.3 On 3 December 2013, Ranger Hart phoned Mr Skaines and had the following conversation: Ranger Hart: "Have you had contractors working east of the power line easement? There has been a track cleared with a mulcher on the eastern side of Franklins boundary on park." Mr Skaines: "No I don't know anything about it. How far off the easement is it?" Ranger Hart: "Probably about half a kilometre." Mr Skaines: "That's not under the easement so it wouldn't be us. Maybe it's the landowner." Ranger Hart: "Ok I will check with Ray [Franklin] and see if he knows anything about it." Mr Skaines: "I will check with the contractors and see if they know anything." 6.4 Later-that day, Ranger Hart phoned Mr Skaines again and had a further phone conversation. Mr Skaines told Ranger Hart he had contacted the Essential Energy contractors and had the following conversation: Mr Skaines: "The contractors have been working on the power line easement in that area and it's likely to have been them." Ranger Hart: "What were they doing up there? It is nowhere near the power line easement." Mr Skaines: "I don't know what's gone on,. can we arrange a day to go out and have a look?" 6.5 On 6 December 2013 Mr Skaines, Ranger Hart and a temporary Ranger inspected the old National Parks Management Track. When they reached the point of the sand dune, Mr Skaines made a phone call to Kelvin McNickle. Mr Skaines put the call on speaker and the following conversation occurred: Ranger Hart: "Who told you to clear this trail?" Kelvin McNickle: "Shawn Green told us to find another way around the corduroy, you have half a day." Mr Skaines: "We said find another trail, not clear another trail." Ranger Hart: "But you have cleared a trail on national park without consent." Kelvin McNickle: "It's Essential Energy's job to organise the consents not ours. We presumed they had organised all that." Ranger Hart: "Have far were you proposing to go?" Kelvin McNickle: "'There is a track on google earth that shows the old track where the old powerline used to go, my dad knew the trail". Ranger Hart: "That trail would have to be at least 12km long and it doesn't link up with the old powerline." Kelvin McNickle: "I walked about 2.4km and it looked good but when dad went through and got to this sand dune it looked like there would be too much work needed to get our machines up so he pulled up there." Ranger Hart: "Rob I am going to have to discuss this with my supervisor as there was obviously a breakdown in the consent process." 6.6 Mr Green was not aware of any issue with the clearing of the old National Parks Management Track until he received a phone call from Mr Skaines, while he was on a course in Tamworth between 9 and 13 December 2013. Mr Skaines told him "We've got a problem, we've been into National Parks." 7 Remediation works 7.1 Ranger Gina Hart contacted Essential Energy, and it was identified that temporary remediation works should be performed to prevent unauthorised access to the newly cleared Franklins Boundary trail. In consultation with NPWS, Essential Energy paid Custom Clearing to place logs across the opening to the trail (the Temporary Remediation Works). 8 Essential Energy investigations 8.1 Between December 2013 and April 2014 Essential Energy carried out an internal investigation in relation to the Clearing. 8.2 On 8 April 2014, a briefing note was distributed within Essential Energy and to all Essential Energy's contractors. Essential Energy's briefing note stated: The access track using the corduroy was built by Essential Energy 20 years ago and due to being situated in a sensitive wetland area (swamp) remediation to the corduroy is impossible without significant environmental damage and cost associated to Essential Energy as the access track has not been maintained by National Parks. 8.3 Under the heading "what should have occurred" the briefing note stated: In order for vegetation maintenance works to be performed by Essential Energy's vegetation contractors certain minimum requirements need to be met regarding the issue of a work pack. These include the collection within Essential Energy's business systems (currently WASP) of the required task or defect information, followed by the packaging and issue - via established methods, of the workpack along with the provision of any required consents, approvals or other supporting documents to the relevant contractor. Only once these requirements are met, can vegetation clearing work commence. [Emphasis in original] 9 Causes of the clearing 9.1 There were a number of causes of the clearing, including: 1) It was Essential Energy's responsibility to obtain all necessary consent(s) from NPWS prior to its subcontractors performing any clearing. 2) Custom Clearing cleared the track without sighting consents. 3) Active Tree Services failed to obtain any consent for the works, notwithstanding their contractual obligations. 4) Essential Energy staff provided verbal directions concerning accessing the unlisted spans both internally and with external contractors and subcontractors, and as such, no clear record exists of the directions given to employees or Custom Clearing prior to the offence taking place. This created opportunities for instructions to be misunderstood or misinterpreted. A written work pack would have minimised such risks. 5) Mr Green assumed, based on Mr Skaines' comments and Mr Skaines' employment history that he did not require assistance liaising with NPWS and that Mr Skaines would follow the usual procedure of liaising with NPWS prior to directing contractors to perform any clearing. Although he was Mr Skaines' manager, Mr Green did not follow-up with Mr Skaines to confirm that consent from NPWS had been obtained. 6) Based on the need to perform maintenance works on the Powerline Corridor in line with the vegetation maintenance schedule, Essential Energy employees decided to identify alternative access options, although Rob Skaines had been told by Ranger Hart no alternative access options existed. 7) Although the contract between ATS and Essential Energy formally required a written Work Pack to be provided in advance of works, Essential Energy employees instead undertook the informal procedure of giving additional verbal directions to contractors already in the field. 8) The contract required ATS to obtain and provide consents to Essential Energy. Notwithstanding the contract, the usual process was that Essential Energy in fact obtained necessary consents. On this occasion it failed to obtain the necessary consents even though it knew it needed to obtain them to lawfully carry out the Clearing. 10 Environmental Harm 10.1 Pre clearing description of trail and species 10.2 Prior to the clearing, no detailed vegetation surveys or detailed information had been compiled concerning the vegetation of the Franklins Boundary Trail. 10.3 The area in which the vegetation was cleared was the subject of a wildfire in October 2009, four years prior to the clearing. 10.4 In March 2013, OEH Officer Jeff Thomas drove through the National Park past the track junction to the Franklins Boundary trail on his way to another location. From this vantage point, Mr Thomas observed that, as in previous visits: 10.4.1 The Franklins Boundary Trail was in his opinion "well vegetated with a mix of small trees, shrubs and ground cover", while there was a part of the northern section of the trail that was sparsely vegetated. 10.4.2 There was "no obvious vehicle use apart from what appeared to be an intermittently used motorbike track", although the part of the Franklins Boundary Trail in private property "had more regular vehicle use". 10.5 The McNickles have described the vegetation which they cleared above at paragraph 5.7. 10.6 Essential Energy employees had not inspected the Franklins Boundary Trail prior to the Clearing, and they are not in a position to verify Mr Thomas' or the McNickle's observations. The ecologist engaged by Essential Energy considers it is unlikely that the Franklins Boundary Trail would have been a seamless part of the National Park prior to the Clearing, ie, it would have been less dense and diverse than the undisturbed surrounding vegetation. This is because the vegetation on the Franklins Boundary Trail comprised of regrowth. 10.7 Area cleared 10.8 As above, the Clearing involved the clearing of approximately 2.4 km of vegetation along the Franklins Boundary Trail. About 1.4 km of the Franklins Boundary trail located within the National Park was cleared on the day of the offence. The remaining 1.0 km of Clearing occurred outside the National Park. 10.9 Prior to the clearing, Franklins Boundary Trail was approximately 3-4 metres wide. 10.10 The Clearing resulted in clearing of vegetation on Franklins Boundary Trail, and the trail being widened by approximately 1 -1.5m either side. In some areas the clearing created a trail with a width of up to 6 metres. 10.11 NPWS staff calculate that the total area of the track which was cleared was 1.56 ha and that 0.84 ha was cleared within the National Park. Essential Energy considers that only 0.63ha of vegetation was actually cleared within the National Park. 10.12 Species cleared 10.13 The clearing impacted the following three vegetation communities, mapped and described in 1984 by Griffith and Wilson: 1) Dry Sclerophyll Forest and Woodland (Eucalyptus pilularis (Coastal Blackbutt), Angophora costata (Smooth barked Apple), Corymbia gummifera (Red Bloodwood), Eucalyptus planchoniana (NeedleBark Stringybark)), 2) Dry Sclerophyll Forest and Woodland (E. planchoniana), and 3) Dry Sclerophyll Mallee Forest and Woodland (E. planchoniana). 10.14 There are no official records of threatened species being located at the cleared areas. This may reflect the absence of any official flora and fauna surveys at the areas of clearing. However, there are records of threatened species occurring at other locations in the same vegetation communities described in the preceding paragraph, within the National Park. There are more than 70 records of threatened species which occur within 5 km of the cleared areas. There is no direct evidence that any threatened species were actually harmed by the-clearing, nor that any threatened ecological communities were impacted. 10.15 Actual harm caused by the clearing 10.16 The actual harm to the environment caused by the clearing includes: 1) Direct destruction of plants by slashing and mulching. The diversity of species present prior to the Clearing is not definitively known, due to the absence of any prior survey of the Franklins Boundary Trail itself. The initial post clearing site survey investigation showed less diversity of species compared to the undisturbed "pristine" vegetation adjacent to the clearing. Subsequent inspections after the Clearing have showed an increase with time of the number of species which are growing on the cleared area; and 2) Direct removal and/or modification of habitat for fauna. The opening up of the track surface by removing vegetation allows the opportunity for weeds to invade. Six plants of Whiskey Grass (Andropogon virgincus), a highly invasive exotic grass, were found (and removed) on the cleared area on the 26 May 2015 inspection. Whisky Grass is identified in the National Park Plan of Management as a weed of concern, which is being managed in recognition of its invasive potential to prevent its further spread. 10.17 Likely harm caused by the clearing 10.18 Yuraygir National Park has some pre-existing management issues, which the Clearing may have contributed to. These management issues include: 1) Entry of feral species into the National Park. Cleared paths can act as a corridor for feral animals such· as wild dogs and foxes allowing them to disperse over a wider area and be able to access more prey. Wild dog prints have been observed on the track; 2) A relatively easier corridor for unauthorised vehicles to enter the National Park - Unauthorised 4WD access may cause more surface disturbance, potential erosion and damage to vegetation as well as opening up another area to illegal feral pig hunting and weed invasion; 3) A relatively easier corridor for exotic species to enter the National Park. Generally, clearing may cause exotic species to establish more readily, either by seeds being dispersed by wind or on vehicle tyres. 10.19 The Clearing may also have contributed to reduced cover to animals, resulting in behaviour modifications for fauna. The scientific literature describes, generally, the impacts on fauna of clearing corridors through otherwise undisturbed bushland. Generally, these Corridors can act as a barrier to movement of fauna by removing the cover they rely on to protect themselves from predators. 10.20 [deleted] 10.20.1 The ecologist engaged by Essential Energy considers that these impacts would have represented a short term exacerbation of pre-existing management issues in the National Park. 10.20.2 [deleted] 10.21 Potential harm caused by the clearing 10.22 The potential harm caused falls into the following categories: 1) Reduction of biodiversity; and 2) Change and loss of habitat. 10.23 [deleted] The ecologist engaged by Essential Energy considers the potential impacts described at 10.20 will be relatively short term, ie 5-10 years. [deleted]

[6]

Affidavit of Mr Warren filed 10 February 2017

Mr Warren is an ecologist who was engaged by the Defendant to provide expert evidence in relation to the environmental impacts of the clearing incident and the ecological environment at Corduroy Crossing. Exhibited to Mr Warren at the time of swearing his affidavit was a folder of documents which became Exhibit 1 in these proceedings. The folder contained letters of instruction for Mr Warren, his curriculum vitae, an expert report prepared for the purposes of these proceedings dated October 2015 and aerial photographs showing historical images of the Franklins Boundary Trail (the trail) between 2004 and 2016. Exhibit 1 also contained correspondence between Mr Warren and solicitors for the Defendant detailing the outcome of inspections of the cleared trail and surrounding area.
Mr Warren deposed that he has been practising as an ecological consultant for nearly 30 years and has particular expertise in Australian east coast wetland, heath and forest ecology. He conducted three inspections of the trail after the offence date. The first occurred on 27 October 2015 and resulted in an expert report dated October 2015 which was exhibited to the affidavit. Mr Warren's second inspection occurred on 5 November 2015 in conjunction with representatives from the National Parks and Wildlife Service (NPWS), OEH and the Defendant. Mr Warren recorded his observations from this inspection and actions that the parties agreed were appropriate to restore the trail to a vegetated condition. The third inspection occurred on 23 March 2016 and also included employees of the Defendant. Mr Warren recorded his observations of the cleared trail, the Corduroy Crossing and powerline corridor.
In Mr Warren's opinion the environmental harm caused by the clearing was minimal and short term. The trail had been regenerating from a 2009 bushfire and previous use as a management track prior to the clearing. At the time of clearing it would have contained patches of small trees, shrubs and groundcover but remained distinct from the surrounding landscape. Historical aerial photographs and observations of mulch on the trail indicate that northern portions of the trail in particular would have appeared quite bare. The clearing has set the regeneration process back and the trail may take 5-10 years of regrowth before it resembles the adjacent uncleared vegetation.
In Mr Warren's opinion no medium or large trees or trees with hollows were removed. He also reported that there was no evidence that any native fauna died as a result of the clearing. The clearing would not have significantly exacerbated issues with introduced flora and fauna as the trail was relatively sparse beforehand. The trail was not substantially more open to unauthorised access by four wheel drivers as a result of the clearing. In his opinion, two years after the clearing occurred flora and fauna species diversity has substantially returned.
I note that the Prosecutor has not called any ecological evidence and does not seek to cavil with any of Mr Warren's conclusions.

[7]

Affidavit of Mr Jenner filed 22 February 2017

Mr Jenner is employed by the Defendant as General Manager of Network Services and has responsibility for the management of field operation resources and the external delivery of contracts. He did not work in this role at the time of the clearing incident. Documents referred to in his affidavit were contained in a folder which became Exhibit 2 in these proceedings.
Mr Jenner deposed that the Defendant had learnt from the clearing incident and took all reasonable steps to reduce the potential for a similar incident in the future. The Defendant cooperated with OEH and NPWS throughout their investigations of the incident. Its employees assisted with inspections of the cleared trail, participated in voluntary interviews, responded promptly to two notices from OEH to provide records and information concerning the clearing and its workplace investigator offered NPWS unsolicited assistance in investigating the clearing. The Defendant also participated in a "Premier's Memorandum Conference" and met with OEH about issues arising from the incident. Soon after the clearing the Defendant arranged for temporary remediation works to be performed to prevent unauthorised access to the trail following consultation with NPWS rangers.
Mr Jenner described the Defendant's investigation of the incident and the rectifications and improvements recommended in the investigation report. The report stated that the factors which led to the clearing were the failure to obtain approval to mulch the trail, poor access to the powerline easement due to the degraded state of the Corduroy Crossing and the absence of a document or guideline to identify how to scope works within national parks. The report recommended that a compliance checklist be developed for vegetation works within national parks and the implementation of a policy which identifies stakeholder consultation and approvals required before works can be carried out within national parks and other environmentally sensitive areas.
The Defendant implemented several actions to ensure that proper procedures are followed prior to works commencing and future unauthorised clearing is unlikely to occur. Some of these actions involved substantial cost and effort. The Defendant updated its written training materials to contractors and employees including a pre-work checklist and a new vegetation management scoping procedural manual. A briefing note dated 8 April 2014 informed contractors and employees of the unauthorised clearing and reiterated the need to obtain consent prior to commencing clearing works in national parks. The Defendant disciplined its contractor, Active Tree Services (ATS), in relation to the actions of its subcontractor. It has ceased to use ATS as its contractor for this part of the network.
The Defendant amended its standard vegetation maintenance contracts to include additional requirements in relation to national park consents and held meetings with existing contractors to ensure consents have been obtained and adhered to.
New procedures were also implemented to assist employees and contractors to identify environmental and compliance risks. The Defendant updated its procedures for identifying whether an environmental impact assessment is required before carrying out works. A briefing note was distributed to employees and contractors on 16 June 2016 which explained the requirement to obtain consent prior to commencing works in a national park and provided some information on preparing a conservation risk assessment. The Defendant now provides contractors with all relevant environmental data layers from its geographic information system (GIS) database to assist identification of national park boundaries.
Mr Jenner considered that the measures implemented have been successful in improving environmental compliance by the Defendant's employees and contractors. A formal review of these measures will be conducted by an internal audit team during the 2017-2018 financial year. Mr Jenner is also overseeing the development of a computer generated method of allocating work packs to contractors intended to remove potential for human error in providing or understanding instructions. Contractors would be able to use their mobile phone or tablet to view their location, read work instructions, view and confirm that approvals are in place and identify national park boundaries, threatened species, environmentally sensitive locations and other information.
Mr Jenner described examples of ongoing cooperation with OEH to identify appropriate responses to the clearing and resolve the issues created by the incident. The Defendant met with NPWS staff on 12 August 2016 to identify options for remediation works and future access to the powerline easement. The Defendant prepared a report which set out options for future access and considers their viability. The report recommended upgrading Corduroy Crossing as the optimal option with fewer environmental impacts and lower cost compared to other measures considered. This upgrade will remove future need for the Defendant or its contractors to create alternative access paths to the powerline corridor within the Yuraygir National Park.

[8]

Affidavit of Mr Nardi filed 22 February 2017

Mr Nardi is employed by the Defendant as General Manager - Safety, Human Resources & Environment and has responsibility for ensuring environmental compliance and supporting environmental policies, initiatives and strategies across the business. This includes implementation of improvements to the Defendant's strategies, policies and procedures in response to the clearing. At the time of the clearing Mr Nardi worked as Manager Regional Operations and was responsible for the operational resources and works delivery teams across the network.
Mr Nardi included in his affidavit a statement of regret. The Defendant deeply regrets the commission of the offence due to the actions of its subcontractor. It takes its environmental obligations seriously and apologises for the disturbance caused to the Yuraygir National Park. The employee involved in the clearing, Mr Skaines, is no longer employed by the Defendant.
Mr Nardi expressed the Defendant's commitment to safety and the environment. The Defendant fully investigated the clearing and responded to the incident as an opportunity to improve its processes and policies and reduce the risk of similar incidents occurring in the future. The proposed upgrade of Corduroy Crossing by the Defendant is estimated to cost between $510,000 and $840,000.
Mr Nardi listed strategies and policies of the Defendant which were aimed at preventing environmental incidents from occurring at the time of the offence. Notwithstanding these measures the Defendant acknowledges that operational errors occurred resulting in the clearing. Through its investigations the Defendant identified improvements to its policies and procedures. Mr Nardi reiterated the changes outlined in Mr Jenner's affidavit above at pars 15-17. As a member of the NSW Distribution Network Service Providers (NSW DNSPs) the Defendant undertook a series of reforms and initiatives to improve its environmental, safety and network performance. These developments address the causes of the clearing incident and ensure alignment with best practice standards adopted by NSW DNSPs.
The Defendant reviewed and enhanced its Health, Safety and Environment (HSE) strategy following the clearing. This included improvements to its environmental management system, development and implementation of a revised HSE Policy, Vegetation Management Plan, Bush Fire Risk Management Plan, Environmental Control Standards, updated behavioural codes of conduct for employees and new HSE governance arrangements. The Defendant also formed a working group of employees which meets regularly to monitor, review and develop initiatives relating to environmental issues and strategies. As part of its HSE strategy the Defendant has also implemented a number of other initiatives to reduce the impact of its activities on the environment.
Mr Nardi provided detail about the Defendant's incident management framework for responding to HSE incidents and its HSE assurance auditing system. The Defendant acknowledges that previous audits did not identify the potential for operational errors which contributed to the clearing. It has taken steps to strengthen this process. Mr Nardi also outlined examples of the Defendant's community engagement.
Mr Nardi deposed that the recording of a conviction in these proceedings may affect NSW Environment Protection Authority assessments of whether the Defendant is a fit and proper entity to hold an environmental protection licence, which it holds across a number of sites. It is also highly likely that the Defendant will be subject to increased insurance costs as a result of a conviction.

[12]

Statutory context

I agree with OEH that the Court may take into account the statutory context in which the offence was committed in determining the objective seriousness of the offence, Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 at [51]-[71] and [168]-[172].
The objects of the NPW Act as set out in s 2A are: (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, and (iii) landforms of significance, including geological features and processes, and (iv) landscapes and natural features of significance including wilderness and wild rivers, (b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to: (i) places, objects and features of significance to Aboriginal people, and (ii) places of social value to the people of New South Wales, and (iii) places of historic, architectural or scientific significance, (c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation, (d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation. (2) The objects of this Act are to be achieved by applying the principles of ecologically sustainable development.
These objects are achieved in part through the creation of a reserve system which makes provision for national parks and historic sites, state conservation areas, regional parks, nature reserves and karst conservation reserves. The purpose of reserving land as a national park is set out in s 30E(1) of the NPW Act: (1) The purpose of reserving land as a national park is to identify, protect and conserve areas containing outstanding or representative ecosystems, natural or cultural features or landscapes or phenomena that provide opportunities for public appreciation and inspiration and sustainable visitor or tourist use and enjoyment so as to enable those areas to be managed in accordance with subsection (2).
OEH submitted that the damaging of vegetation within the Yuraygir National Park and the resulting impacts on the ecosystem are directly incompatible with this purpose. The Defendant's conduct also undermines the integrity of the regulatory system of permits and consents that governs such activity.
The Defendant submitted that the fact the land was located in a national park is a neutral consideration because that was inherent in the nature of the charge. To give added significance or weight under s 21A(2) to a factor that is an element or "inherent characteristic" of an offence offends fundamental sentencing principles, Mansour v The Queen (2011) 209 A Crim R 275; [2011] NSWCCA 28; Elyard v The Queen [2006] NSWCCA 43.
The scheme of the NPW Act which includes s 194(1)(b), considered below, suggests that it is appropriate to consider the objects of the Act and that these are given effect by the creation of national parks with the conservation purposes identified in s 30E when assessing the seriousness of this offence. While not an aggravating factor within the context of s 21A(2) it is a material matter on sentence.

[14]

Extent of harm or likely harm caused by offence (s 194(1)(a))

Environmental harm is addressed in the SOAF at [10.1]-[10.23]. It is agreed that approximately 1.4 km of trail was cleared of vegetation along the trail within the National Park resulting in its widening by 1-1.5 m on either side (SOAF at [10.8], [10.10]). Although there was disagreement as to the total area cleared by the Defendant, 0.84 ha or 0.63 ha (SOAF at [10.11]), the parties agreed that this was not an issue that the Court needed to resolve. On either view the clearing was "relatively modest". Mr Warren's opinion is that the potential impacts of the clearing are relatively short term in that it would take 5-10 years for the vegetation to fully regenerate to resemble the adjacent uncleared vegetation (SOAF at [10.23]).
In terms of actual harm, the clearing involved the direct destruction of vegetation by slashing and mulching, including the following three vegetation communities (SOAF at [10.13], [10.16]): 1. Dry Sclerophyll Forest and Woodland (Eucalyptus pilularis (Coastal Blackbutt), Angophora costata (Smooth barked Apple), Corymbia gummifera (Red Bloodwood), Eucalyptus planchoniana (NeedleBark Stringybark)); 2. Dry Sclerophyll Forest and Woodland (E. planchoniana); 3. Dry Sclerophyll Mallee Forest and Woodland (E. planchoniana).
The clearing also involved the direct removal and/or modification of habitat for fauna. It improved the opportunity for weeds to invade the area. Six plants of Whiskey grass (Andropogon virgincus), a highly invasive exotic grass, were found and removed from the cleared area during the 26 May 2015 inspection (SOAF at [10.16]).
The Defendant contends that there is insufficient evidence to make a finding about the state of the trail before the clearing took place. As the Defendant submitted the Prosecutor bears the onus of proof of matters adverse to the Defendant where they are not agreed facts, per R v Olbrich (1999) 199 CLR 270; [1999] HCA 54. It relied predominantly on the affidavit of Mr Warren whose conclusions about the likely state of the trail before the clearing event are summarised above at pars 9-10 based on inspections conducted after the offence date. The Defendant also submitted that it is significant that there is no direct evidence that any threatened species were harmed or impacted by the clearing (SOAF at [10.14]).
Information about the state of vegetation on the trail before the clearing occurred is described in the SOAF at [10.3]-[10.5]. A wildfire affected the area in October 2009. OEH officer Mr Thomas drove past the junction to the trail in March 2013 and observed that it was "well vegetated with a mix of small trees, shrubs and ground cover". He recorded that there were no obvious signs of vehicle use on the trail "apart from what appeared to be an intermittently used motorbike track". The subcontractors who performed the clearing described their work as including a thick tea tree, "mainly just... wattles and... ferns" with stems only as big as a 20 cent piece. Anything over that size was a dead tree burnt by the 2009 wildfire (SOAF at [5.7]). To the extent there is evidence of the state of the trail before the offence the area was regenerating after a fire and was not yet recovered to the extent of mature vegetation elsewhere in the National Park.
According to the SOAF at [10.17]-[10.20] the harm likely to be caused by the clearing may include entry of feral species into the National Park, easier unauthorised vehicle access into the National Park, easier corridor for exotic species to enter the National Park and behavioural modifications for fauna. The SOAF also records the potential for harm in [10.22]. Mr Warren's description of these impacts as short-term exacerbation of pre-existing management issues in the National Park was not disputed.

[16]

Practical measures that may be taken to prevent, control, abate or mitigate harm (s 194(1)(c))

OEH submitted that the Defendant could have done the following to prevent the damaging of vegetation: 1. Taken steps to obtain all necessary consents prior to its subcontractors performing clearing; 2. Required its subcontractors to obtain all necessary consents prior to performing any clearing; 3. Verified that its subcontractors had obtained all necessary consents prior to performing any clearing; 4. Mr Green could have properly supervised Mr Skaines to ensure that he had obtained all necessary consents; 5. Provided clear written instructions to its subcontractors prior to clearing, as opposed to verbal directions; 6. Ceased investigating any alternative access options after being told by Ranger Hart that none existed.
The Defendant submitted that consideration of practical measures ought to take into account the system and safeguards that were already in place at the time of the offence, which I accept. The Defendant had a process for obtaining consent for clearing works, this was an established practice at the corporation and a "core task" of the work of its vegetation officers (SOAF at [4.7], [4.17], [4.28]). There was a system in place for informing contractors of the existence of consent prior to commencing vegetation works through the provision of "work packs" containing required consents (SOAF at [8.3]). Its contractor ATS was contractually required to obtain approvals before performing vegetation maintenance works (SOAF at [3.3(2)]). The Defendant was also entitled to rely on assumptions that Mr Skaines, an experienced vegetation officer, would follow usual practice and procedure by consulting and liaising with NPWS prior to commencing works as this was a core function of his employment (SOAF at [4.9], [4.17], [4.28], [9.1(5)]).
The Defendant addressed the six practical measures suggested by OEH above at par 46 as follows: 1. The omission to obtain consent cannot be pleaded as a matter that increases the objective seriousness of the offence as it is the principle basis of liability for the offence. 2. By the terms of its contract with ATS the Defendant required ATS and its subcontractor Custom Clearing to obtain approvals including necessary consents. 3. Although there is no evidence that necessary consents were sought Mr Green understood that Mr Skaines was communicating directly with Mr Clark of ATS (SOAF at [4.14]). The incident resulted from a genuine misunderstanding or miscommunication about the extent of access work to be performed (SOAF at [4.27]). 4. It cannot be said that Mr Green failed to properly supervise Mr Skaines. The Defendant was entitled to assume that as an experienced vegetation officer Mr Skaines would obtain consent in accordance with usual practice (SOAF at [4.28]). Mr Skaines declined an offer from Mr Green to assist in liaising with NPWS (SOAF at [4.9]). It is reasonable to interpret Mr Green's words "if everything's in place" in SOAF at [4.26] as referring to the obtaining of consent. 5. Although the usual practise of providing and completing a "work pack" prior to commencing works was not followed, the observations made above in (d) apply. Mr Green understood that a vegetation works log would be generated by Mr Skaines for the additional work (SOAF at [4.17]). The subcontractors were prepared to commence work without sighting written instructions (SOAF at [5.3.9], [9.1(2)]). 6. OEH's suggestion that the Defendant should have ceased investigating alternative access options is not a practical measure for the purposes of this provision. To assert that the Defendant could have chosen not to engage in conduct that led to the offence offends the basic requirement of criminal liability that a defendant engage in voluntary conduct.
OEH also noted measures that the Defendant took after the incident to prevent re-occurrence and said that these could have been taken prior to the offence. The Defendant submitted that it would not be appropriate to hold these measures against the Defendant. They are more correctly characterised as mitigating factors demonstrating the Defendant's commitment to environmental protection. I agree.

[18]

Extent to which Defendant had control over causes that gave rise to offence (s 194(1)(e))

The Defendant had control over the causes giving rise to the offence.
The clearing was carried out by a subcontractor acting on instructions from Mr Skaines. The Defendant submitted that its moral culpability for the subcontractor's conduct is reduced by the fact that the clearing occurred without Custom Clearing first sighting consents and ATS failed to effectively supervise Custom Clearing including ensuring that consents were in place. Its moral culpability in respect of the actions of its employee Mr Skaines is also lessened as he acted contrary to established work practices by failing to ensure that all necessary consents had been obtained. He potentially also acted beyond the scope of his employment if it is accepted that he gave approval for unauthorised clearing to occur.
There are differing accounts of the instructions provided by Mr Skaines to Mr McNickles acting for the subcontractor which are outlined in SOAF at [5.1]-[5.5.4]. According to Mr McNickles, Mr Skaines gave verbal instructions to "clear this track to the northern side of the Corduroy" and was present when he started clearing the track with a track mulcher. Mr Skaines said that he indicated to another employee of subcontractor Custom Clearing that they should walk the trail to investigate whether it was possible to reach the northern powerline spans, but did not give instructions to slash vegetation.
OEH submitted that Mr McNickles' account should be accepted as it is supported by the vegetation works log which was completed by Mr Skaines and contained an instruction to "clear access track to end poles on station creek line" (SOAF at [5.12]).
It is not necessary to resolve the conflicting versions of how the clearing came to take place as the Prosecutor is no longer pressing a finding of criminal negligence. Regardless of the explanation for how the offence occurred the Defendant had control of the causes.

[26]

The Defendant submitted that it pleaded guilty at the earliest reasonable opportunity. A plea was entered following the resolution of discussions between the parties which included representations about the withdrawal of the matter and the making of a joint submission for orders pursuant to s 200 of the NPW Act. It would have been unreasonable to enter a plea while these negotiations were ongoing. The parties agreed that it was never contemplated that this matter would lead to a defended hearing therefore they did not incur significant costs in preparing for the case. In this context the utilitarian value of an earlier plea was minimal.
The Defendant relied on the High Court's decision in Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 to support its argument. In Cameron the majority of Gaudron, Gummow and Callinan JJ said at [13] that regard should be had to the subjective perspective of a defendant's "willingness... to facilitate the course of justice". The relevant enquiry of a sentencing judge is not simply to look at when the plea was entered but to consider when would have been the first reasonable opportunity for a plea to be entered, at [19]-[20]. Cameron also cited at [21] with approval Atholwood v The Queen (1999) 109 A Crim R 465 in which negotiations between the parties led to the withdrawal of several charges and the defendant pleaded guilty to one of the remaining charges. This was held to be an early plea of guilty.
The Court of Criminal Appeal distinguished Cameron in R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142. It held at [38]-[53] that Cameron concerned the application of general sentencing principles in the context of common law principles that had been modified by statute in NSW. Section 22 of the CSP Act permits courts to take into account the objective utilitarian value of the plea, at [62]. A sentencing judge need not be satisfied by any subjective willingness on the part of a defendant to facilitate the administration of justice.
The utilitarian value of an early plea of guilty is emphasised in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102. Principle 8 in Borkowski at [32] states "Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced". In R v AB [2011] NSWCCA 229 Bathurst CJ said at [3] that while sentencing courts should generally follow the approach in Borkowski in exceptional circumstances it may be appropriate to give a full utilitarian discount for a plea even though it had not been entered at the earliest opportunity. The circumstances leading up to the Defendant's plea at the seventh directions hearing on 26 August 2016 are not "exceptional" as Bathurst CJ referred to at [3] in AB.
The Defendant did not plead guilty at the earliest opportunity. As OEH identified the charge did not change so that it was always open to the Defendant to enter a plea of guilty at any stage after the summons was filed. The Defendant's submissions focus on subjective considerations relevant to its decision to plead guilty. OEH conceded that it did not incur the costs of preparing for a fully contested hearing. It has nevertheless prepared and filed evidence in this case including eight affidavits and attended Court on required dates. The utilitarian value of an early plea has been reduced to some extent by the timing of the plea of guilty. These circumstances are quite different from those in Atholwood where the charges did change over time.
I do not consider that it would be appropriate to apply a full 25% discount to the Defendant's sentence. Had it been relevant to determine a penalty I would have considered a reduction of 15% for the plea of guilty appropriate in these circumstances.

[29]

Consistency in sentencing - even-handedness

The principle of even-handedness in sentencing so that like offences receive like sentences is recognised, but each case must be determined on its own facts, see Hili v The Queen; Jones v The Queen (2010) 272 ALR 465; [2010] HCA 45 at [54].
There have been few prosecutions under s 156A of the NPW Act in this Court and the cases referred to below are all more serious in the sense of greater moral culpability on the part of the defendant than in this matter. In Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 over 500 trees were removed from a national park and the motive of financial gain was established. The defendant's state of mind at the time of the offence was found to be negligent. The Court imposed a fine of $100,000 discounted by 27% to $73,000 to be paid to the Northern Rivers CMA to be used for general environmental purposes. The defendant was also ordered to pay the prosecutor's legal costs of $47,100 and investigation costs of $2,900.
In Chief Executive, Office of Environment and Heritage v Coffs Harbour Hardwoods Sales Pty Ltd [2012] NSWLEC 52 the defendant was charged with two offences, one under s 156A of the NPW Act and one under s 118A(2) of the NPW Act (picking 21 plants of a threatened species) relating to vegetation removal from a nature reserve. During logging operations approximately 4,000 m² of the reserve was cleared. The defendant was found to be negligent. The Court fined the defendant $40,000 for the s 156A offence and $45,000 for the s 118A(2) offence, imposed a restoration order directed to the prevention of soil erosion under s 200 of the NPW Act, and a publication order was made. The totality principle was taken into account. The defendant was also ordered to pay the prosecutor's legal costs of $26,000 (in total for both matters).
In Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111 the defendant damaged vegetation and soil within a nature reserve. The area cleared was between 3,200-3,840 m². Instructions had been given to carry out clearing on a development site adjoining the reserve but a boundary had not been marked. The defendant was fined $32,500, discounted after a plea of guilty, and a rehabilitation order and publication order were imposed. The defendant was also ordered to pay the prosecutor's legal costs of $38,000.
The parties submitted at the sentencing hearing that these cases provide limited assistance to the Court given the unusual circumstances of this case.

[30]

Orders under NPW Act

Before determining if a monetary penalty should be imposed it is necessary to consider the orders that are available under the NPW Act. Relevant sections of the NPW Act provide: Part 15 Criminal and other proceedings Division 3 Court orders in connection with offences 199 Orders generally (1) Orders may be made One or more orders may be made under this Division against the offender. (2) Orders are additional Orders may be made under this Division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. (3) Other action not required Orders may be made under this Division regardless of whether any penalty is imposed, or other action taken, in relation to the offence. 200 Orders for restoration and prevention (1) The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow): (a) to prevent, control, abate or mitigate any harm caused by the commission of the offence, or (b) in relation to an offence under Part 8A involving damage to any critical habitat or habitat of a threatened species, an endangered population or an endangered ecological community-to retire, in accordance with Part 7A of the Threatened Species Conservation Act 1995, biodiversity credits of a number and class (if applicable) specified in the order and, if the offender does not hold sufficient biodiversity credits to comply with the direction, to acquire the necessary biodiversity credits for the purpose of retiring them, or (c) to make good any resulting damage, or (d) to prevent the continuance or recurrence of the offence. ...
OEH seeks an order under s 200(1) of the NPW Act. No penalty is otherwise sought. Both parties submitted that an order under s 200(1) requiring the Defendant to take steps to make good the damage resulting from the offence and to prevent a recurrence of the incident would, in lieu of a fine, satisfy the purposes of sentencing and the objects of the NPW Act. The Defendant provided to the Court an approximate costing for the measures proposed under the s 200 order of $73,200.
I consider that the s 200 order in the terms agreed by the parties should be made. I do not consider an additional penalty is warranted as provided for in s 199(3) of the NPW Act.

At a glance

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Judgment (33 paragraphs)

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Legislation Cited (4)

Cases Cited (21)

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