Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd - [2013] NSWLEC 111 - NSWLEC 2013 case summary — Zoe

NSWNSWLEC

Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd

[2013] NSWLEC 111

Land and Environment Court (NSW)|2013-07-22|Before: Pain J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2013-07-22

Before

Pain J

Catchwords

(2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280
(2006) 148 LGERA 299 Hoare v R [1989] HCA 33
(1989) 167 CLR 348 Plath of Department of Environment and Climate Change v Fish
Plath of Department of Environment and Climate Change v Orogen Pty Ltd [2010] NSWLEC 144

Source

Original judgment source is linked above.

Catchwords

(2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280(2006) 148 LGERA 299 Hoare v R [1989] HCA 33(1989) 167 CLR 348 Plath of Department of Environment and Climate Change v FishPlath of Department of Environment and Climate Change v Orogen Pty Ltd [2010] NSWLEC 144R v Houlton [2000] NSWCCA 309

Judgment (32 paragraphs)

[1]

tries [2001] NSWLEC 25 Environment Protection Authority v Waste Recycling Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Hoare v R [1989] HCA 33; (1989) 167 CLR 348 Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd [2010] NSWLEC 144; (2010) 179 LGERA 386 Plath v Glover [2010] NSWLEC 119 Plath v Knox [2007] NSWLEC 670 Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Category: Sentence Parties: Chief Executive, Office of Environment and Heritage (Prosecutor) Leda Management Services Pty Ltd (Defendant) Representation: Ms K Caruana (solicitor) (Prosecutor) Ms S Duggan SC (Defendant) Office of Environment and Heritage (Prosecutor) Bolster and Associates (Defendant) File Number(s): 50076 of 2013

[2]

[3]

Statement of Agreed Facts 4The facts are set out in the document entitled Statement of Agreed Facts (SOAF) as follows: Cudgen Nature Reserve - the Reserved Land 5. Cudgen Nature Reserve (the Nature Reserve) is located just south of Tweed Heads on the north coast of NSW. The Nature Reserve was established in 1995 and there have been successive additions making the current size approximately 922 hectares. The Blacks Creek Area was included in land additions to the Nature Reserve on 5 March 1999... 6. The Nature Reserve is neighboured to the west by a site owned by Project 28 Pty Limited (Project 28). Project 28 is one of several companies in the Leda group, including LMS, which are involved in the development of this site. This is known as the "Kings Forest Site". 7. The Kings Forest Site was given a concept approval pursuant to Part 3A of the Environmental and Planning Assessment Act 1979 in 2010, prior to the incident the subject of these proceedings. That concept plan envisages development on about 45% of the site which is expected to include approximately 4500 residences, two schools, a golf course and associated facilities. Stage 1 of the proposed development for the Kings Forest Site is before the Department of Planning for Part 3A project approval. The works the subject of the Summons do not form any part of the works authorised by the Part 3A approval nor do they facilitate or improve capacity to carry out development on the land the subject of the approval. 8. The Nature Reserve contains a number of distinct vegetation communities including mangrove, sedgelands, heath, forests and rainforests. Of particular significance are a range of floodplain and wetland communities. Blacks Creek runs through the Nature Reserve and is part of the Nature Reserve. 9. The relevant part of the nature reserve, the Blacks Creek area, is relatively inaccessible to the general public. Access can be obtained by kayak from Cudgen Creek or by walking through various swamp forest communities. Road access to Blacks Creek is only available to sections upstream of Cudgen Nature Reserve within the Kings Forest Site. 10. A timber bridge on Black Creek delineates the approximate boundary between the Nature Reserve and the Kings Forest Site. 11. ...This area will be referred to in these facts as 'the Site'. Condition of the Nature Reserve and the Site prior to the offence 12. On 3 July 2001, the Black Creek Area was inspected by OEH Officer Allan Goodwin. He noted that the vegetation within the Nature Reserve, close to the boundary of the Kings Forest Site, appeared intact and undisturbed. The vegetation appeared to be typical Swamp Sclerophyll community and dominated by Broad-leaved Paperbark Melaleuca quinquenervia. These observations relate to both to the areas to the north and south of Blacks Creek. 13. In 2009 there was a fire within the Nature Reserve to the south of Blacks Creek...The Black Creeks area was once again inspected by Mr Goodwin, whose task it was to construct a fire break using a bulldozer. There was already an old firebreak some 10 - 20 metres north of Black's Creek and a further bulldozed firebreak on the southern bank of Blacks Creek. Mr Goodwin observed that the areas both to the north and south of Blacks Creek were dominated by Swamp Sclerophyll community with an understorey of sedges and fern. However all vegetation adjoining and South of Blacks Creek within the nature reserve had been burnt. The fire had not spread to North of Blacks Creek at any point. 14. At the time of the 2009 fire, the Blacks Creek channel was narrow and lined with vegetation. The vegetation community immediately adjacent Blacks Creek was described as Broad-leaved Paperbark Forest to Woodland. Melaleuca quinquenervia dominated the canopy trees with Swamp Box Lophostemon suaveolens, Swamp Mahogany Eucalyptus robusta and occasional rainforest species. The understorey varied with sedges and native grasses common closer to Cudgen Creek with more shrub and ferns closer to the boundary with the Site. Within Cudgen Nature Reserve the vegetation both North and South of Blacks Creek was comparable in terms of both floristics and condition. 15. Broad-leaved Paperbark grew along each bank of Blacks Creek and in regular places were leaning over or had collapsed within the channel. These logs created regular obstacles and produced a stream bed of barriers to flow. 16. Mr Goodwin inspected both the North and South Banks of Blacks Creek from the boundary with the Site to the confluence with Cudgen Creek. He observed that there was no evident disturbance along Blacks Creek within the Nature Reserve apart from the fire. 17. During these fire operations (on 8 or 9 December 2009) a dormant trail North of Blacks creek was opened up by OEH. This trail ran parallel to Blacks Creek and between 10 and 20 metres from the Northern Bank. A dozer was used to clear shrubs, fallen logs and ground fuel from this line however no standing trees were cleared. The vegetation between this trail and the Blacks Creek was not impacted by the trail works and is now the subject of this prosecution. Previous correspondence and communications with the Leda group over the Kings Forest Site and Nature Reserve 18. During 2010 OEH had meetings with and received various correspondence from Project 28 and lawyers acting on behalf of Project 28 relating to Blacks Creek within Cudgen Nature Reserve. 19. On 14 August 2010 Mark Johnson attended the area which is subject of this incident with Mr Van Rij and Acting NPWS Area Manager Nathan Oliver. They stood on the timber bridge. They discussed the potential for the land to the west (on the Kings Forest site) to be rehabilitated and added to the reserve system managed by NPWS. Mr Van Rij made no comment about any planned activity in the area to the east which is now cleared. At some stage during this process, Mr Van Rij did make a suggestion about clearing Blacks Creek of debris to assist in storm water management. He did not specifically mention where this clearing may take place, but Mr Johnson was aware that Blacks Creek went though both the Cudgen Nature Reserve and the Kings Forest property. Mr Johnson advised Mr Van Rij: "We won't contemplate clearing in the Nature Reserve but we might consider it on your side of the property". In saying 'your side' Mr Johnson was referring to the Kings Forest site to the west of the timber bridge. At the time the area of the Nature Reserve subject of this prosecution appeared as follows: a. the area which is now cleared consisted of melaleuca forest with trees to forty feet in height with an understorey of sedges and grasses b. Blacks Creek was lined by melaleuca trees and the banks of the creek were vegetated with sedges and grasses. There were scattered mangroves along the banks of the creek and the creek had some logs lying in and across it. 20. On 8 October 2010 NPWS advised Leda's lawyers that: a. The Robb Swamp Drainage Scheme had been extinguished and that any proposal to undertake works or maintain Blacks Creek within the Nature Reserve may require the approval from the NSW Office of Water. b. Any proposal for an easement over Blacks Creek within the Nature Reserve would require the approval of the Minister for the Environment. 21. On 12 November 2010 Mr Van Rij from Leda and Mr Neil Sutherland (Gilbert and Sutherland), a consultant to Leda, met with Mr Patrick Pahlow of the NSW Office of Water at the Kings Forest Site and the Nature Reserve. The removal of large woody debris in Blacks Creek (in the Nature Reserve part) was discussed. Mr Pahlow advised that as it was in a Nature Reserve, NPWS (as landowner) and NSW Fisheries would need to be contacted in relation to any proposal to remove woody debris from the Creek. 22. On 12 November 2010 Mr Pahlow's observations about the state of Blacks Creek in the Nature Reserve were as follows: it was in very good condition downstream of the timber bridge with the channel being about 3 - 5 metres wide and reasonably shallow such that the bottom sediments could be observed along much of the reach downstream of the bridge. Mr Pahlow also observed there were a few places where small trees had fallen into the creek, however he considered the accumulation of large woody debris within the creek was not excessive. Mr Pahlow observed the northern bank of Blacks Creek was much more densely vegetated than the southern bank. 23. Following this meeting there was an email exchange between Mr Pahow and Mr Sutherland including photos taken of Blacks Creek in the Nature Reserve during the meeting. 24. Shortly thereafter, flood modelling undertaken by Gilbert and Sutherland Pty Ltd on behalf of Project 28 determined that the state of Black's Creek within the Cudgen Nature Reserve did not have any impact on or constrain the development of the King's Forest site. Further detail of this is contained in a letter from that company dated the 1st of May 2013. The Defendant's group of companies and management of the Kings Forest Site 25. The Kings Forest site is approximately 1,000 hectares, of which more than half is zoned for environmental protection. Approximately 400 hectares are available for development. The development proposed was the subject of a concept plan approval in August 2010 under Part 3A of the planning legislation. About 4,500 residential tenements are planned along with a town centre, two schools and a golf course, together with the normal amenities that go with residential development such as parks, playing fields and the like. At the relevant time Mr Greg Campbell was the regional general manager for Leda and had the overall responsibility for the King's Forest project including maintenance of the property. Mr Reg Van Rij was engaged at that time to deal with the development application process for the King's Forest site and matters that arose in the course of that. 26. While the named defendant is responsible for any development or activity on the site, and responsible for the activity the subject of the prosecution there are several Leda companies (the Leda Group) that have a connection to the Kings Forest Site. 27. ... 32. In correspondence between any of the Leda companies and OEH, Mr Van Rij has generally been the signatory. 33. The Leda Group also employs independent contractors to provide consulting services. One of those is Dennis Hughes Holdings Pty Ltd which provides consulting services relating to earth moving and earth works. The principal of Dennis Hughes Holdings Pty Ltd is Mr Dennis Hughes. 34. From time to time, over the years of its ownership by Project 28 Pty Ltd, maintenance works on the drains on the Kings Forest Site, including the water course known as Blacks Creek has been undertaken pursuant to existing use rights to do so, which only apply to the King Forest site. The incident 35. Sometime before the week of 4 March 2011, Mr Greg Campbell, the General Manager of Development for the Leda group, instructed Mr Dennis Hughes to 'attend to the Kings Forest drains', meaning Blacks Creek. 36. The direction took place as a result of a decision at one of the weekly meetings at the Leda Offices. The instructions were in relation to normal "maintenance" of the drains. Mr Campbell did not recall any specific discussion with Mr Hughes regarding the Kings Forest Site property boundary with the Nature Reserve however he thought Mr Hughes was aware of the boundary given the length of time Mr Hughes had been involved with the Kings Forest Site. 37. During the week of 4 March 2011 Mr Hughes arranged for Mr Scott Dawson to carry out clearing works in the area of the Site where the Site borders the Nature Reserve. He directed Mr Dawson to clear from the timber bridge, being the boundary between the Kings Forest Site and the Nature Reserve, and then east into the Nature Reserve. It appears that Mr Hughes misunderstood the extent of the Kings Forest Site and the location of the Nature Reserve when Mr Campbell instructed him about the works. Mr Hughes stated he was not aware that the Kings Forest Site shared a boundary with the Cudgen Nature Reserve. The instructions Mr Hughes gave were in respect of the removal of such vegetation on the north side of Blacks Creek as was necessary to enable the removal of obstructions within Blacks Creek. The instructions also concerned the removal of debris and vegetation adjacent to and within Blacks Creek. The works were not supervised by either Mr Hughes or Mr Campbell. 38. At the time Mr Scott Dawson was employed by Leda Management Services Pty Ltd as trustee for the Leda (NSW) Trust. As part of Mr Dawson's role with the company from time to time he was engaged in operating earthmoving machinery used in the Kings Forest Site. 39. At the time Dennis Hughes's company, Dennis Hughes Holdings Pty Ltd was contracted to Leda Management Services Pty Ltd. 40. Log jambs and overhanging logs were removed leaving the Blacks Creek channel a uniform depth and width. From this point vegetation had been removed for a further distance averaging about 8 metres in width for about 320 metres. Almost all trees were removed within this strip, and any sand taken from the creek channel was placed on the bank, levelled, and sown with grass. The vegetation that was cleared was then taken and put into piles in a cleared area of land and then stockpiled on the Kings Forest Site ('the works'). 41. The works began and ceased during the week ending 4 March 2011. 42. Mr Dawson used a 320 CAT Excavator to clear the strip and level out the area. The machine was owned by Leda Finance Pty Limited. When removing trees he would place the bucket of the excavator underneath and pick it up or pushed it over as well as what came with it, such as soil, the rootball and part of the creek bank. He did not carry out the grass seeding. He carried out the works over 2 days as an isolated job on the Site. He did not carry out any clearing on the Kings Forest Site at the same time of these works. Mr Hughes did not supervise him during the works but, according to Mr Dawson, walked him along the area he was to clear before he commenced, being from the Timber Bridge and across along the drain to the east. Mr Hughes states that he was not present while the works were taking place, except once when works were taking place on the Kings Forest Site, but he was present at the start and the finish of the works. 43. In mid to late May 2011, Mr Van Rij visited the site and discovered the clearing in the Nature Reserve. Mr Van Rij had not been aware that the clearing had taken place. He was immediately concerned about it. He saw that the clearing was a continuation of clearing he had known about, associated with maintenance works on Blacks Creek on the Kings Forest Site, being the removal of debris that had accumulated in the creek over time, predominantly vegetation and silt. Mr Van Rij immediately reported it to his management. They were also unaware that the clearing had occurred. 44. As previously stated, the person that arranged for the drainage maintenance works to be undertaken was Mr Hughes. He was responsible for managing the resources of another Leda group company, Ecovale Pty Ltd, predominantly in property management and earthworks in relation to the Kings Forest Site. 45. Mr Hughes is responsible for keeping the plant and equipment economically operative and maintaining the various Leda properties that require maintenance including other Leda properties (such as Cobaki and other properties in Qld). From time to time he would use equipment to carry out work that he envisages is necessary. 46. There were no consents, approvals, permits or licences that were in place or had been issued in relation to the works that took place on the Nature Reserve. OEH Investigation 47. Following upon the clearing work being discovered by Mr Van Rij reporting it to management, Mr Van Rij contacted Mr Gary Davey of OEH in the week prior to the 2nd of June 2011 and made arrangements to meet with him. It was Mr Van Rij's intention to discuss the clearing work and its remediation on the 2nd June 2011. Due to Mr Davey's subsequent unavailability the meeting was rescheduled and took place on the 27 of June 2011 between Mr Davey, Mr Van Rij and Mr Greg Campbell. After the meeting the clearing was raised with Mr Davey by Mr Van Rij. Mr Davey advised Mr Van Rij to contact Mark Johnson the Regional Manager at NPWS. 48. On 12 July 2011 OEH officer Mark Johnston, Regional Manager (Northern Rivers) with NPWS, had a telephone call with Mr Van Rij where Mr Van Rij informed him that there had been some land cleared at the Nature Reserve. Mr Van Rij told Mr Johnston "There's been some land cleared, I'm embarrassed by it but it's been the contractor's mistake. I know Leda have to take responsibility for it." 49. The following day, on 13 July 2011, Mr Johnston met with Mr Van Rij at the Nature Reserve. Mr Johnston observed the edge of Blacks Creek to be cleared back to sand or mineral earth. Mr Johnston saw the ground had been seeded as there was grass sprouting. Mangroves had been trimmed off at about ankle height (from the ground level on the banks of the creek) and all of the trees that had been removed were no longer on the site. The area that was cleared was vastly different to the nature reserve when Mr Johnson had last seen it. 50. Mr Van Rij explained that a contractor was given instructions to clear and mulch the north side of the creek on the Site but "for some reason" the contractor had gone beyond that into the Nature Reserve. Mr Van Rij also said "When I discovered it I realised it was out of line and contacted National Parks. I want to make good and I know there's a potential of a breach. We'll co-operate." 51. After Mr Johnston returned to the office he spoke to Mr Damien Hofmeyer at the Tweed Area Office. 52. On 20 July 2011 OEH officers Mr Allan Goodwin, Ranger and Mr Damien Hofmeyer, Tweed Area Manager inspected the Site and Nature Reserve. 53. The area of clearing was mapped and photographed by the OEH officers... 54. The total vegetation clearing was 10 to 12 metres wide. The area that was cleared ran from the Site boundary up the banks of Blacks Creek, to the junction with Cudgen Creek, a distance of approximately 320 metres. 55. The OEH officers observed that the vegetation removed would have been predominantly Broad-leaved Paperbark Melaleuca quinquenervia but would have included other species including Swamp Box Lophostemon suaveolens, Swamp Mahogany Eucalyptus robusta and several rainforest species. Individuals of Hard Corkwood Endiandra sieberi were present adjacent the cleared edge along with the afore mentioned species 56. Nearly all of the vegetation on the northern bank had been removed with less than ten Swamp Melaleuca retained. 57. Broken stumps and roots projecting from the sand and bank of Blacks Creek were observed. It appeared to Mr Goodwin that additional fill had been applied to the 8 metre cleared strip beside the creek as it appeared higher than the surrounding coastal plain. 58. All of the vegetation had been removed, and had not been chipped or windrowed. There was no evidence of chainsaw clearing and it appeared that a large machine had been used to push and break the trees. 59. The cleared area had been sown with introduced grass species. 60. Two smaller drainage lines north of the Main Blacks Creek channel, which had previously been observed by Mr Goodwin, were now filled with sand material allowing a raised access directly besides Blacks Creek. Photographs were taken by Mr Goodwin... 61. No consents or approvals for the works were obtained from the Minister or any appropriate area of OEH. Interviews 62. OEH officers interviewed the following people associated with LMS: Mr Reg van Rij, Mr Greg Campbell, Mr Scott Dawson and Mr Dennis Hughes . The Defendant has cooperated with the OEH in the conduct of these interviews. Documents 63. During the investigation OEH issued notices under the NPW Act to Leda related companies: LMS, Project 28 Pty Ltd, Leda Developments Pty Ltd, Leda Holdings Pty Ltd and Ecovale Pty Ltd. Various responses and letters were received. ... At all times the Defendant cooperated with the OEH. Damage to the Nature Reserve 64. Attachment 9 is the expert report of Penny Kendall [not attached]. 65. Damage was caused to soil and vegetation in the Site. A 10 to 12 metre wide 320 metre long strip was cleared along the northern bank of Blacks Creek. 66. Vegetation that was cleared included the following: a. Upper strata species being Broad-leaved Paperbark (Melaleuca quinquenervia), Swamp Box (Lophostemon suaveolens), Swamp Oak (Casuarina glauca) Swamp Mahogany (Eucalyptus robusta), Red Mahogany (Eucalyptus resinifera subsp. hemilampra) in the upper strata with the introduced species Slash Pine (Pinus elliotti) likely to have been a minor component of the pre clearing upper strata b. Mid strata species include Cheese Tree (Glochidion ferdinandi var. ferdandi) Paperbark (Melaleuca alternifolia and Melaleuca quinquenervia), Tea Tree (Leptospermum polygalifolium subsp. polygalifolium) and Coast Banksia (Banksia integrifolia subsp. integrifolia) Geebung (Persoonia stradbrokensis)Midgen Berry (Austromyrtus dulcis), Notched Bush-pea (Pultenaea retusa), Hop Bush (Dodonea triquetra) and Hard Corkwood (Endiandra sieberi) c. The lowest strata species include Swamp fern (Blechnum indicum), Baumea juncea, Native Wandering Jew (Commelina cyanea),Flax Lilly (Dianella caerulea), Wiry Panic (Entolasia stricta), Blady Grass (Imperata cylindrica) Swamp Grass (Ischaemum australe) and Bracken Fern (Pteridium esculentum) d. This community is a swamp sclerophyll community equivalent to the native community described by Sheringham et.al. as Community 20 Swamp Box- Broad-leaved paperbark- rush, fern Swamp Sclerophyll Forest 67. Cudgen Nature Reserve is located within the coastal floodplain, coastal floodplains being relatively flat and fertile landscapes have been predominantly cleared. Cudgen Nature Reserve represents a small remnant in this predominantly cleared landscape. The northern part of Cudgen Nature Reserve where the clearing has occurred is a narrow naturally vegetated remnant between the coastal urban area and the now predominantly cleared Kings Forest Site to the west. 68. The structure of the forest in cleared area prior to clearing would have been mature forest of a similar age as the adjoining forest. The forest is also likely to have contained tree hollows. Tree hollows are recognised as an important habitat resource for many species of native fauna. The loss of tree hollows is identified as a Key Threatening Process under the Threatened Species Conservation Act 1996. The NSW Scientific Committee Final determination recognises that "The distribution and abundance of hollow-bearing trees in NSW has been reduced and fragmented by extensive clearing of native vegetation during the past two centuries", "Clearing has occurred at a greater intensity on flatter and more fertile landscapes, which typically support the highest densities of hollow-using fauna" (NSW Scientific Committee 2007). 69. NSW Scientific Committee Determination (2007) identified the relatively flat and fertile coastal floodplains as typically supporting the highest densities of hollow-using fauna. 70. Soil on the banks and bed of Blacks Creek was disturbed with some widening of Blacks Creek. Clean up/rehabilitation 71. From the outset Leda has indicated a willingness to take whatever steps are required to rehabilitate the site and restore the damage that has been done. Personnel in Leda particularly Mr Van Rij, have been proactive in pursuing the question of rehabilitation. A rehabilitation plan is presently being prepared by a consultant chosen by OEH and paid for by Leda. The plan once formulated will be put into action and all of the costs associated with it will be paid by Leda. It is expected that the costs of rehabilitation will be $100,000-$150,000. Very little natural regeneration has occurred within the clearing along Blacks Creek. 72. It is considered that the rehabilitation works can in the long term restore the vegetation composition along Blacks Creek. Works will include removing the sand overburden to restore the northern bank elevation. Resnagging with large woody debris is proposed to assist in restoration of in-stream and fish habitat. However, significant engineered restoration of the Blacks Creek alignment, its width and depth are not proposed. Restoring the predominantly sand profiles of the Blacks Creek stream banks to their previous alignments would be difficult to initially establish and stabilise. The Blacks Creek stream channel will therefore remain its altered width. 73. Mr Reg van Rij of the Leda group has formally agreed with OEH that Leda will pay for the preparation of a rehabilitation plan for Blacks Creek within Cudgen Nature Reserve. OEH has engaged NSW Soil Conservation Service to prepare this plan. 5The plan dated 17 July 2013 was tendered as exhibit B.

[8]

Statutory context 13I agree with the Prosecutor 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] NSWLEC 34; (2006) 145 LGERA 234 at [51] - [71] and [168] - [172]). 14The 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. 15These 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. In this case, the purpose of reserving land as a nature reserve is set out in s 30J of the NPW Act: (1) The purpose of reserving land as a nature reserve is to identify, protect and conserve areas containing outstanding, unique or representative ecosystems, species, communities or natural phenomena so as to enable those areas to be managed in accordance with subsection (2). (2) A nature reserve is to be managed in accordance with the following principles: (a) the conservation of biodiversity, the maintenance of ecosystem function, the protection of geological and geomorphological features and natural phenomena. 16The Prosecutor submitted that damaging vegetation and soil within the Cudgen Nature Reserve, and the resulting impacts on the ecosystem, are directly incompatible with this purpose. The Defendant submitted that the fact that the land was located in a nature reserve was a neutral consideration because that was inherent in the nature of the charge. 17The scheme of the NPW Act which includes s 194(1)(b), considered below, suggests that it is appropriate to consider the objects of the NPW Act and that these are given effect by the creation of nature reserves with the conservation purposes identified in s 30J when assessing the seriousness of this offence.

[10]

Extent of the harm or likely harm caused by offence (s 194(1)(a)) 20The extent of the harm caused or likely to be caused to the environment by commission of the offence can increase the seriousness of the offence. 21The Prosecutor submitted that the harm caused by the offence is set out in the SOAF from [64] to [70]. This is drawn from the expert report of Penny Kendall which was attached to the SOAF. It is agreed that damage was caused to the soil and vegetation on the site, including the list of vegetation set out at [66]. The damage occasioned to the nature reserve is considerable. Between 3,200 and 3,840 square metres (10 - 12 metres by 320 metres) has been cleared along the northern bank of Blacks Creek. The admitted damage is to plants and soil. The damage to vegetation included 22 native species which had been cleared (SOAF at [65] and [66]) and mangroves which had been trimmed off at about ankle height (SOAF at [49]). 22An employee of the Defendant, Mr Dawson, used an excavator to clear the strip, removing the trees by placing the bucket of the excavator under them and picking them up or pushing them over as well as what came with them such as soil, the rootball and part of the creek bed (SOAF at [42]). The vegetation cleared, pushed over or damaged by the Defendant was located up to 320 metres into the nature reserve. 23The damage to soil included that the edge of Blacks Creek had been cleared back to soil or mineral earth (SOAF at [49]). Soil on the bed and banks of Blacks Creek had been disturbed with some widening of the creek (SOAF at [70]). The actions of Mr Dawson, as set out at [20] above explain how soil on the banks and bed of the creek has been disturbed. In addition the sand taken from the creek channel was placed on the bank, levelled and sown with grass (SOAF at [40]). 24In terms of likely harm caused, the clearing activities would have resulted in a loss of tree hollows which are an important habitat resource for many species of native fauna and identified as a key threatening process under the Threatened Species Conservation Act 1996 (SOAF at [68] - [69]). The Defendant submitted that the likely harm relied on by the Prosecutor had not been proved beyond reasonable doubt as there is no evidence that tree hollows existed. 25It is agreed that very little natural regeneration has occurred within the clearing along Blacks Creek (SOAF at [71]). 26The Defendant submitted that assessment of environmental harm included consideration of the length of time the harm would continue. While there was short term harm to vegetation and soil the Defendant has from the time of the offence been prepared to rehabilitate the area and any delay in the preparation of the rehabilitation plan by the NSW Soil Conservation Service is not due to the Defendant's actions. The rehabilitation plan paid for by the Defendant was provided very recently in July 2013. Once implemented, the Prosecutor agrees that the rehabilitation works in the long term can restore the vegetation and soil composition along Blacks Creek (SOAF at [72]). It has been accepted that the excavated Blacks Creek bed will remain in its altered state. This should be taken into account as part of assessing the extent of environmental harm caused by the offence. 27There is clearly significant harm to vegetation, soil and the creek through alteration of its structure caused in the short term by the actions giving rise to the offence, as identified above by the Prosecutor's submissions and as agreed in the SOAF. That rehabilitation efforts which the Defendant has willingly agreed to including paying for the rehabilitation plan have a high likelihood of success does ameliorate my finding on the seriousness of the extent the harm caused in the long term as that is likely to be much reduced.

[12]

Practical measures that may be taken to prevent, control, abate or mitigate harm (s 194(1)(c)) 29The Prosecutor submitted that the Defendant was aware of the boundary between the nature reserve and the Kings Forest site however at the time it was not marked or signposted in any way. The Defendant could have properly established the boundary between the Kings Forest site and the nature reserve (to all its employees and contractors) before carrying out the works. The General Manager of the Defendant, Mr Campbell, could have ensured the importance of the boundary with the nature reserve was discussed with Mr Hughes, the contractor, prior to Mr Hughes instructing Mr Dawson in the works. This would have prevented the damage to the nature reserve. 30The Prosecutor submitted that these measures were available to the Defendant prior to the offence, and the taking of these measures would likely have prevented the offence occurring, or would at least have minimised the risk of the offence occurring. Since the offence, the Defendant has implemented corrective actions to prevent a recurrence: (a)Clear signage between the Kings Forest site and the nature reserve (b)A full survey of the boundary between the Kings Forest site and the nature reserve (c)Introduction of an induction program for all employees and contractors working on the Kings Forest Site. (Affidavit of Mr Reginald Van Rij, 16 July 2013) 31The Defendant submitted s 194(1)(c) is directed to future actions which the Defendant has now taken. 32The wording of s 194(1)(c) "may be taken" is open ended as to timing and can encompass actions which could have been taken to prevent harm arising from an offence as well as actions taken afterwards to control, abate, or mitigate any harm. Clearly the offence could have been readily prevented if the actions now taken had been implemented beforehand. As to measures taken to mitigate harm, the Defendant promptly expressed willingness to rehabilitate the affected area of Blacks Creek and has paid for a rehabilitation plan to be prepared. This has very recently been provided by the Prosecutor and the Defendant is willing to pay for its implementation.

[16]

Reasons for the commission of the offence / state of mind of the Defendant 36While the offence is one of strict liability and mens rea is not an element of the offence, the state of mind of a defendant in the commission of the offence can be relevant to the sentencing process. The extent to which the offence was committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: Plath v Glover [2010] NSWLEC 119 at [36]. The Prosecutor submitted that the Defendant was negligent at the time of the offence. 37In Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd [2010] NSWLEC 144; (2010) 179 LGERA 386 I held at [81]: [81] ... in the criminal context, negligence means more than a breach of a duty of care. To amount to criminal negligence, the degree of carelessness must be such as to show such a disregard for the objects of the statute as to amount to a crime against the state ( R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8; see also Andrews v DPP [1937] AC 576 per Lord Atkin at 583; applied in Cittadini v The Queen [2009] NSWCCA 302 at [38]-[40]). For there to be negligence, there must have been an indifference to an obvious risk ( R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini ). 38The Prosecutor submitted that the state of mind of the Defendant corporation may be proved via subsections 175B(4) and (5) of the NPW Act as in force at the time of the offence provided: (4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind. (5) In this section, the state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person, and (b) the person's reasons for the intention, opinion, belief or purpose. 39Applied to the present facts, the state of mind of Mr Dawson employee (who carried out the works subject of the charge), Mr Campbell employee (who directed Mr Hughes that the work be carried out) and Mr Hughes contractor (who instructed Mr Dawson) may be attributed to the Defendant corporation. Mr Campbell was aware the boundary was delineated by the Timber Bridge at Blacks Creek however neither Mr Hughes or Mr Dawson were aware of the boundary. 40In addition, the Defendant was advised on many occasions between 2010 and the offence date that any work on the nature reserve would require approval from a government authority or the Minister for the Environment (SOAF [18] - [21]). That is, they were on notice that they needed to be careful with any works that might affect the nature reserve. The Prosecutor submitted that, through Mr Campbell in particular, the Defendant was negligent in its actions. Mr Campbell knew of the boundary and appears to have just assumed Mr Hughes was aware of it without checking. 41The Defendant submitted that the actions of its employees and contractor were mistaken, not negligent, deliberate or inexplicable. The whole of the Defendant's acts or omissions need to be assessed. The fact that the Defendant's land shares a boundary with Cudgen Nature Reserve was well known by the Defendant's employees. Routine maintenance that has been carried out before was to be carried out. It was not intended to extend beyond the Defendant's boundary. Direction was given to Mr Hughes, a contractor, for the works to be carried out who in turn instructed Mr Dawson, an employee. At the time the instructions were given by Mr Campbell, employee, it was assumed that due to Mr Hughes's association with the land he was aware of the location of the boundary. The offence resulted from a mistake of assuming that Mr Hughes had the shared knowledge of the boundary, not any negligent action by the Defendant. 42I accept the Defendant's submissions that the offence resulted from a mistake and not negligence within the meaning identified by the authorities cited in Fish at [81]. The agreed facts make clear that the Defendant was well aware of the boundary location and took care to ensure that the interface was well managed to maintain the integrity of the reserved lands by continuing consultation with relevant officers when required (SOAF at [19]) and an offer to dedicate lands to supplement the reserve.

[25]

Consistency in sentencing - evenhandedness 57The principle of evenhandedness in sentencing so that like offences receive like sentences is recognised, but each case must be determined on its own facts. As stated in Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 at [133]: But care must be taken given the wide divergence of facts and circumstances leading to the imposition of specific penalties and because a sentence in one case does not demonstrate the limits of a sentencing judge's discretion ( Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365, Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465 at [54] ). 58There have been few prosecutions under s 156A in this Court. According to the Prosecutor four previous matters have been prosecuted in the Court for offences pursuant to section 156A of the NPW Act. Two of these concern corporations, Plath v Vaccount Pty Ltd t/as Tableland Timbers and Chief Executive, Office of Environment and Heritage v Coffs Harbour Hardwoods Sales Pty Ltd [2012] NSWLEC 52. Two concern individuals, Plath v Knox [2007] NSWLEC 670 and Plath v Glover [2010] NSWLEC 119. The cases against the corporations are of more assistance than those against the individuals and they are briefly described below. 59In Plath v Vaccount Pty Ltd t/as Tableland Timbers 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 per cent to $73,000 to be paid to the Northern Rivers CMA to be used for general environmental purposes. Vaccount was also ordered to pay the Prosecutor's legal costs of $47,100 and investigation costs of $2,900. 60In Plath v Coffs Harbour Hardwoods Sales Pty Ltd 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 square metres 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). 61The facts of this case are less serious than in both those matters in large part because the offences in both were committed for financial gain and were negligent, unlike this matter. The level of environmental harm caused is similar to Coffs Harbour Hardwoods in terms of the extent of the area cleared, there estimated as 4,000 sq metres.

[26]

Orders under the NPW Act 62Before 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: 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. ... 205 Additional orders (1) Orders The court may do any one or more of the following: (a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person, ... 63The Prosecutor seeks the imposition of a fine, an order for rehabilitation of the land under s 200, a publication order under s 205 and a costs order. The Defendant submitted that no monetary penalty should be imposed but an order for rehabilitation pursuant to s 200 should be made because the likely cost of implementing the rehabilitation plan is likely to exceed any fine imposed by the Court. Such an approach is enabled by s 199 of the NPW Act.

[31]

Orders 70The Court makes the following orders

The Defendant is convicted of the offence with which it is charged;
The Defendant is fined the sum of $32,500;
The Defendant is ordered pursuant to s 200 of the National Parks and Wildlife Act 1974 to: (a)Within 12 months of the date of these orders carry out the works detailed in Part 5 of the Blacks Creek Rehabilitation Plan dated 17 July 2013 ("the Rehabilitation Plan") in accordance with the provisions of Part 6 of the Rehabilitation Plan, with the exception that: (i)the rehabilitation plan is hereby modified so that the requirement for monitoring and reporting is limited to five years from the date of the undertaking of the said works; (ii)the natural surface reestablishment referred to in s.5.1.3 shall be undertaken under the supervision of an officer of Soil Conservation (such person is to be approved by OEH's area manager Tweed - Kyogle) and such officer shall direct the final level of the resurfaced landform; (iii)placement of large woody debris referred to at 5.1.1 under the supervision of an officer of the Department of Fisheries (such person is to be approved by OEH's area manager Tweed - Kyogle) and the debris shall be placed in the location and on the composition as directed by that officer; (iv)the bush regeneration shall be undertaken by the approved contractor (Appendix A) in accordance with the policy (Appendix B). (b)The Defendant is given liberty with respect to the time for compliance with this order
The Defendant, at its expense and pursuant to s 205 of the National Parks and Wildlife Act 1974 shall: (a)within 28 days of the date of these orders cause to be published an advertisement in the form of annexure 'A' to be placed in the Tweed Daily News, the Northern Star and the Tweed Echo being of quarter page size; and (b)within 28 days of such publication, notify the Prosecutor of publication.
The Defendant must pay the Prosecutor's costs in the sum of $38,000. ANNEXURE A PUBLICATION ORDER LEDA MANAGEMENT SERVICES PTY LTD CONVICTED OVER ILLEGAL WORKS IN NATURE RESERVE On 23 July 2013 Leda Management Services Pty Ltd (Leda) was convicted in the Land and Environment Court of one offence against the National Parks and Wildlife Act 1974. In March 2011 Leda cleared approximately 3200 square metres of vegetation and damaged the bed and banks and widened part of Blacks Creek in Cudgen Nature Reserve near Tweed Heads. A site known as the Kings Forest Site adjoins the nature reserve and is being developed by another company within the Leda group of companies. Vegetation was cleared on the northern bank of Blacks Creek from the Kings Forest Site to the junction of Blacks Creek with Cudgen Creek. Leda pleaded guilty to the offence and was fined $32,500 and ordered to carry out remediation works on the cleared land, such works are of an estimated monetary value of $100,000 - $150,000 with $38,000 costs. Leda Management Services Pty Ltd was prosecuted by the Office of Environment and Heritage and was ordered by the Land and Environment Court to place this notice at Leda's expense. (OEH logo)

Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd

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