Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15 | Case summary

Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15 | Case summary | Zoe

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Abbott v State of Western Australia (2005) 152 A Crim R 186 Alphacell Ltd v Woodward [1972] AC 724 Blacktown City Council v Pace (2002) 121 LGERA 432 Broad v Parish (1941) 64 CLR 588 Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85 Biwazu Pty Ltd v Cessnock City Council [2004] NSWLEC 411 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243 Coffs Harbour City Council v Hickey [2004] NSWLEC 531 Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Detala Pty Ltd v Byron Shire Council (2002) 133 LGERA 1 Director of Public Prosecutions v United Telecasters Sydney Limited (1990) 168 CLR 594 Director-General of the Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242 Director-General of the Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256 Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232 Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 Garrett v Freeman [2007] NSWLEC 389 Green v Kogarah Municipal Council (2001) 115 LGERA 231 CASES CITED: Hanwood Pastoral Co Pty Limited v Director-General, Department of Natural Resources (2005) 144 LGERA 139 Hardt v Environment Protection Authority (2007) 156 LGERA 337 Hughes v R (1983) 49 ALR 110 Hunter Development & Brokerage Pty Limited v Cessnock City Council (2005) 149 LGERA 460 Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 Majury v Sunbeam Corporation Ltd [1974] 1 NSWLR 659 Miller v Minister of Pensions [1947] 2 All ER 372 Miller v Williams (1990) 53 SASR 82 R v Adams (1935) 53 CLR 563 R v Carr-Briant (1943) 41 LGR 183 R v Hunt [1987] AC 352 R v Jasper (2003) 139 A Crim R 329 R v Lonie [1999] NSWCCA 319 Sheldrake v Director of Public Prosecutions [2004] All ER(D) 169 (Oct) Tesco Supermarkets Ltd v Nattrass [1972] AC 153 The Corporation of the City of Adelaide v The Australasian Performing Right Association Ltd (1928) 40 CLR 481 Vines v Djordjevitch (1959) 91 CLR 512 Vitality Care Pty Ltd v Director-General, Department of Natural Resources (2006) 151 LGERA 15 Wollongong City Council v Ensile Pty Ltd (2008) 71 NSWLR 563 Woolmington v Director of Public Prosecutions [1935] AC 462 Young v Warringah Shire Council (2001) 117 LGERA 62

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19 Clearing of non-protected regrowth permitted (1) Clearing of native vegetation that is only regrowth, but not protected regrowth, is permitted. (2) This section is subject to any exclusion in a property vegetation plan. Elements of the offence 7 According to the Prosecutor, the elements of the offence under s 12(1) require the Prosecutor to prove beyond reasonable doubt the following: (a) clearing occurred on the property; (b) the clearing was of "native vegetation" as defined in the NV Act; (c) there was no development consent granted under the NV Act for the clearing; (d) there was no property vegetation plan authorising the clearing; and (e) the Defendant authorised the clearing. 8 In terms of the scheme of the NV Act set out above in par 3 - 6, a summary related to the circumstances of this case is that clearing of native vegetation is prohibited under s 12 and native vegetation is broadly defined in s 6(1) and (2). Section 9(2)(a) states that, for the purposes of the NV Act, regrowth means any native vegetation that has regrown since 1 January 1990. Regrowth does not include, inter alia, any native vegetation that has regrown since an unlawful clearing event (s 9(4)). Section 10 defines protected regrowth as that identified in certain instruments. 9 A fundamental matter that arises from the evidence and submissions of both parties is how the offence provision in s 12(1) interacts with s 12(3), which states that it is a defence if the clearing was permitted by Div 2, 3 or 4. Section 19 of Div 2 identifies that clearing of non-protected regrowth (undefined but by inference meaning regrowth which is not protected regrowth pursuant to s 10) is permitted. 10 For completeness I note that Div 3 of Pt 3 specifies permitted activities that do not constitute the clearing of native vegetation such as routine agricultural management activities. I have not set these out as they are not relevant to these proceedings. None of the categories of clearing of native vegetation excluded from the operation of the Act in Div 4 apply. Further, the property the subject of the present charge does not fall within the exclusion of certain land from the operation of the NV Act in s 5. 11 If the terms of s 12(1) alone are considered and the Prosecutor is successful in establishing that no development consent granted in accordance with the Act or property vegetation plan permitted clearing of native vegetation, then the operation of s 12(3) will need to be considered. The Prosecutor does not identify, as an element of the offence, that it must prove that the cleared vegetation is not regrowth as defined in s 9(2)(a). The Defendant argues that the Prosecutor does have the onus of proving that cleared vegetation was not regrowth. The Prosecutor submits that is a defence which the Defendant must prove. Evidence 12 The evidence is set out in relation to the elements of the offence (a) (that clearing occurred) and (b) (that native vegetation was cleared), identified by the Prosecutor. In order to consider these elements it is also necessary to consider whether the vegetation cleared was regrowth as defined in the NV Act. Several plans of the property and its surrounds are in evidence. The western and eastern boundaries of the property lie parallel to Old Bar Beach. At the irregularly shaped northern boundary, the property adjoins George Street and Lewis Street. Both are referred to in the evidence. (a) eyewitness evidence of the clearing Mr Flemming 13 Ivan Flemming, director of V&S Flemming Pty Ltd (VSF), gave oral evidence. VSF conducts a business of earthmoving and golf course construction. In 2006 the company had three employees. Mr Flemming stated that he came to know Bart Elias, a representative of the Defendant, through Great White Shark Enterprises, a company which designed golf courses. Mr Elias worked for Medallist which was associated with Great White Shark Enterprises through Macquarie Bank.

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31 After this visit she did not produce any official report and her observations were not recorded in her official notebook because she had left it behind. Ms Robin did type up her notes which were made on a piece of paper when she returned to her office. These notes and photographs were used by Ms Robin in the preparation of her affidavit and the marking up of a diagram annexed to her affidavit. Ms Robin stated that as at December 2006 she had regularly patrolled the area because littering often occurred at the end of Lewis Street. She had previously observed palm tree fronds and other foliage dumped on the side of the road but stated that this green waste was not observed during December 2006. Mr Paget 32 Andrew Paget, officer for the Hunter-Central Rivers Catchment Management Authority, affirmed two affidavits dated 7 April 2008 and 12 November 2008 which were read for the Prosecutor. At all times relevant to the prosecution Mr Paget was employed as a natural environment planner with the Council. This role included investigating complaints about the clearing of vegetation and clarifying the distribution of endangered ecological communities (EECs). (i) July 2005 33 Mr Paget attested to visiting the property on 1 July 2005 after receiving a telephone call from Rosalee Burns, a local resident, about clearing occurring at the south end of Lewis Street. Mr Paget observed at the property a truck and trailer with a machine loaded onto it and an operator preparing to depart the property. Mr Paget also observed that three parallel tracks of vegetation had been cleared and each appeared to be the full length of the property. The track along the western boundary fence appeared to be 30-40m wide, the middle track under power lines was about 25-30m wide and the eastern track following an underground Telstra telephone line was about 20-25m wide. Mr Paget walked approximately two-thirds of the way down the property. He did not observe any rubbish dumped on the property. He saw freshly mulched vegetation on each of the tracks.

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35 Mr Paget attests that the dominant vegetation on the property as observed on 1 July 2005 was mature banksia integrifolia over 10m tall and extensive thickets of large 6-7m tall leptospermum laevigatum with trunks of 400mm at ground level, a photograph of the latter was annexed to his affidavit. He stated that this photograph showed vegetation which was typical across the central and western parts of the property. The eastern half of the property had more banksia integrifolia and littoral rainforest species. Mr Paget's memorandum which he produced on returning from the property is annexed to his affidavit. (ii) August 2005 36 At the end of July or in early August 2005 Mr Paget returned to the property to inspect and map the extent of the littoral rainforest on the property and in the surrounding area. Mr Paget created an electronic record based on his on-site observation and interpretation of recent aerial photography. Mr Paget attests it was possible to recognise parts of the property dominated by littoral rainforest canopy species due to their different foliage texture, density and colour in comparison to the surrounding vegetation. (iii) December 2006 37 Mr Paget visited the property again on 14 December 2006 with Tanya Cross, a Council planner. Mr Paget observed that a large area of the property had been completely cleared of vegetation, and that approximately three machines were in operation on the property. Mr Paget states that the property was covered in a thick layer (100-200mm deep) of shredded vegetation. This included large leptospermum laevigatum stumps and branches up to 400mm in diameter and large banksia integrifolia trunks and branches 400-500mm diameter. Mr Paget had a clear view of several cut stumps which were adjacent to the road. Three photographs taken by Mr Paget during the December 2006 visit were annexed to his affidavit. 38 In his second affidavit sworn 12 November 2008 Mr Paget attests to searching the relevant database maintained by DECC which contains a record of all property vegetation plans (PVPs) and development consents granted under Pt 3 and Pt 4 of the NV Act. No PVP or development consent under the NV Act for clearing was found in respect of the property when Mr Paget conducted his search on 7 April 2008.

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DECC/DNR officers Mr Piercy 44 Noel Piercy, a forestry officer since January 2000 with DECC and its predecessor the Department of Natural Resources (DNR), affirmed an affidavit on 16 April 2008. (i) 1 July 2005 45 Mr Piercy attended the property on 1 July 2005 after receiving a telephone call from a member of the public stating that a large area of the property had been cleared. He entered the property and observed some vegetation had been recently cleared. He observed freshly sawn off stumps of vegetation at ground level, some up to around 20cm in diameter. Three strips of vegetation on the property had been cleared and mulched. One of the strips ran the entire length of the western boundary fenceline and was approximately 25-30m in width. Another strip of approximately 20-25m in width ran the entire length of the power line easement in the centre of the property and the third strip of the same width ran along the entire length of the eastern boundary. Mr Piercy did not observe any machines or people present. He attests to walking down the western boundary and then along the cleared area underneath the power lines. He followed a small track to the eastern boundary and observed the third strip of cleared vegetation. Mr Piercy states that the remaining vegetation at the time was dominated by but not limited to mature banksia, leptospermum and acacia and was up to 4-6m in height. It was extremely dense with little weed invasion. No rubbish or debris dumped on the property was observed. (ii) December 2006 46 Mr Piercy attended the property again on 18 December 2006 at the request of Mr Priestley, a DNR compliance officer. From the end of Lewis Street, he observed that the property had been completely cleared apart from a small number of isolated banksia species towards the eastern boundary. He believed that the clearing extended to the southern boundary based on his knowledge of the property from his visit in 2005. The property had recently been cleared because there was no evidence yet of regeneration. All the vegetation debris appeared to have been removed. Mr Piercy saw three machines on the property, being two trucks and a bulldozer. One of the trucks had a mulching machine attached to it. A bobcat was operating. He saw four men in work gear on the property. He was told by one of the men that he did not have permission to be on the property.

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82 The quadrats were of 10m x 10m dimension. Mr Gibson established quadrat 1 to the southwest of the north-east corner of the property. He conducted a vegetation survey within that quadrat which involved collecting information about the structure of the vegetation, the soils, the cover and the abundance of each plant species in the quadrat. This information was recorded in a form annexed to his affidavit. This also included a description of the substrate and hydrology and characteristics of the environmental stratification unit. He also estimated the total crown cover, non-vascular cover, plant height range and abundance of the plant species on the property in order to describe the vegetation structure and cover and abundance of each species identified on the property. Quadrat 1 included nine plants that he was unable to identity on site. In Mr Gibson's opinion the vegetation in quadrat 1 was regenerating following a relatively recent clearing event. 83 Mr Gibson sought to establish another quadrat in uncleared vegetation of 10m x 10m but there was no such area on the property. Quadrat 2 was set up south of quadrat 1. Floristic and structural data was taken in the same manner as quadrat 2. Samples of seven unidentified plants were collected. Quadrat 3 was set up to the north east of quadrat 2 beyond the boundary of the subject property in remnant woody vegetation. The same information was collected from quadrat 3. Samples of ten unidentified plants were collected. Mr Gibson subsequently identified the samples taken from the property. They were included on a complete list of all species of vegetation Mr Gibson identified in each of the three quadrats and elsewhere on the property (annexed to his affidavit). Using Geographic Information Software and the GPS data, Mr Gibson produced a marked up SPOT5 satellite image on 30 July 2008 (annexure B) showing the property boundaries, the three vegetation quadrats (two within the property, one outside) and the location where photographs were taken by Mr Gibson.

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98 In relation to the two quadrats on the property examined, Mr Gibson stated that there were scatters of mulch within the quadrats and larger piles of mulch beyond the quadrats. Mr Gibson recognised the possibility that mulch may have been spread since the clearing and then germinated in the quadrat but he stated that the species he observed in each quadrat were consistent with what would grow on a sand dune and so he had no cause to question whether they may have come off other parts of the property. Mr Gibson stated that nothing which he did in his examination of the two quadrats allowed him to form a view as to the age of the plants which were present prior to the clearing. He did however observe a Banksia lignotuber which suggested the plant had been there for a number of years. In re-examination he identified a number of other species of native vegetation he saw growing from rootstock. Mr Palmer 99 John Palmer, resource information officer with DECC, affirmed two affidavits dated 30 October 2008 and 5 August 2009. In his first affidavit Mr Palmer states that he was asked by Mr Priestly of DECC to provide an assessment of historical clearing at the property in order to ascertain whether the area comprised regrowth vegetation (within the meaning of the NV Act) by interpreting aerial photographs. Mr Palmer has specialist knowledge in relation to aerial photograph interpretation and visual interpretation of satellite images. (i) aerial photography 100 Mr Palmer was provided with a number of aerial photographs held by the Council and Taree Lands Office ranging in date from 1965 to 2002. Mr Palmer relied on three dimensional views of a selection of the aerial photographs. Three dimensional viewing is facilitated through the use of a mirror stereoscope with a three times magnification binocular eyepiece. Two aerial photographs taken in the same period with a 60 percent forward overlap are required for three dimensional viewing. Mr Palmer stated that three dimensional viewing makes features of the vegetation and general landscape more obvious and can enable different stratum levels of vegetation to be separately identified. Ground features and human activities can be more readily identified. The photographs of the property viewed by Mr Palmer were not taken at regular intervals. Up to 11 years passed without a photograph (between 1965 and 1976) and between such periods regrowth or regeneration could, under favourable growing conditions, mask clearing events. The chance of clearing events being masked is reduced as the time between photographs is reduced.

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102 Mr Palmer provided an opinion in relation to a number of aerial photographs. These commenced at intervals as identified in his written evidence from 1965 up to 2002. The most relevant photographs and his analysis are summarised as follows: 31 August 1983 Two black and white photographs (exhibit K) show a series of closely aligned tracks bisecting the subject property. The area in the north west has in Mr Palmer's opinion been almost completely cleared and the sand and soil substrate is exposed. Within this area there is open shrubland. To the north and south of this cleared area there are other cleared areas but with a denser woody vegetation remnant which in the south appears to have been planted in a row-like pattern. There is a narrow clearing along the eastern boundary. The area east of the track is otherwise undisturbed. 8 June 1984 A single black and white photograph (exhibit R) shows the same pattern of vegetation as the 1983 photographs. 26 March 1986 Two photographs (exhibit L) show the tracks recognisable in the 1983 photographs. The area east of the tracks has not been disturbed as in the 1983 and 1984 photographs. The area north west of the tracks shows past disturbance and soil exposure and there is an open woody vegetation structure there and in the south west of the property. The remaining area west of the tracks is consistent with the earlier photographs. September 1989 A single black and white photograph (exhibit M) shows vegetation east of the tracks which is consistent with previous years. There continues to be evidence of clearing and disturbance in the north west and in the south west to a lesser extent, consistent with the 1983 photograph. 31 March 1991 A single photograph (exhibit N) shows several central tracks continuing to bisect the property. Vegetation east of the tracks is consistent with previous years. To the west of the central tracks is dense woody vegetation consistent with shrubland except for an area of approximately 1.4 ha in the south west of the property which Mr Palmer states was where vegetation appears to have been planted prior to 1984. The vegetation in the area to the west of the central tracks has continued to mature without further disturbance between 1984 and 1991. Mr Palmer annexed a copy of part of one of the 1991 photographs to his affidavit (annexure G) with text identifying the area of open shrubland identified in the original photograph. 8 February 1997 Two photographs (exhibit O) show the property almost entirely vegetated aside from two central tracks. The area west of the tracks is slightly more open in its structure than vegetation on the eastern side. Small areas of exposed soil are present on the western side. The eastern side continues to show no signs of disturbance since the 1965 photographs. Mr Palmer states that the area in the north west of approximately 1.4 ha contains both regrowth and vegetation that was present prior to 1990. The rest of the area to the west of the tracks is not, in Mr Palmer's opinion, regrowth and is consistent with the vegetation observed since 1984. Mr Palmer annexed a copy of part of this photograph to his affidavit (Annexure H) with an outlined area identifying the 1.4 ha area of regrowth. 15 September 2002 Two photographs (exhibit P) show no discernable change in vegetation pattern on the property west of the tracks compared to 1997. Vegetation situated east of the tracks is slightly darker and taller than that west of the tracks and has been undisturbed since at least 1965. Mr Palmer annexed a copy of part of this image to his affidavit (annexure I) with an outlined area identifying the property boundary. (ii) SPOT5 images 103 Mr Palmer also analysed SPOT5 satellite imagery for dates in 2005 and 2006 in order to determine if there were any detectable changes in the woody vegetation (see par 132-136 for evidence in relation to the source and explanation of SPOT5 imagery). Mr Palmer stated that on a SPOT5 image a pixel represents a 2.5m x 2.5m square of land which means that objects smaller than that size cannot be seen with any clarity. A pixel takes its colour from the object with the dominant colour in the pixel area. Contiguous areas of clearing greater than 2.5m x 2.5m are made visible. Soil disturbance shows up as bright pink coloured bleaching in SPOT5 images. Mr Palmer viewed the SPOT5 imagery using a computer program after the images were orthorectified and a cadastral layer imposed (see par 133 and 136). 30 April 2005 This SPOT 5 image (annexure E to Mr Palmer's affidavit) shows that the vegetation and disturbance pattern on the subject property is similar to that depicted in the 2002 aerial photographs. There is however a new clearing along the eastern and western boundaries of the property and the addition of another track which links the central tracks present in 2002 with the western boundary of the property. Apart from the tracks, Mr Palmer states there is no physical change to the pattern of vegetation seen in the 2002 aerial photograph. The significant features are labelled on a copy of the image annexed to Mr Palmer's affidavit as annexure J. 30 May 2006 This SPOT5 image (annexure F to Mr Palmer's affidavit) shows the same vegetation pattern in the subject property as the SPOT5 image of 30 April 2005. The boundary of the lot is marked on a copy of the image (annexure K). (iii) conclusion 104 Mr Palmer concludes in his affidavit that the area east of the central tracks is woody vegetation that has been undisturbed since at least 1965 up until at least May 2006. West of the central tracks the majority of woody vegetation has been present in his opinion since at least March 1986. An area of 1.4 ha towards the north west of the property contains both regrowth and woody vegetation that is not regrowth (having existed prior to 1990). The areas of regrowth and older vegetation cannot be visually separated.

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120 The field surveys identified that the majority of the cleared area on the property at the time of investigation comprised very low, regenerating vegetation not greater than 1m in height and predominantly less than 10 cm in height. There had been intensive disruption to the cleared areas since the clearing in December 2006, most likely due to slashing. The property had a small number of mature trees (banksia integrigolia, allocasuarina littoralis, melaleuca quinquenervia and corymbia intermedia) which have not been disturbed and were of considerable age and height. They are likely to be greater than 15 years old. 121 The vegetation found in the transect survey and within the quadrat both to the east of the property comprised low closed forest. The native regeneration on the property was found to comprise a high diversity of native flora species. (ii) aerial photograph analysis to determine age of vegetation prior to clearing 122 As set out in the report aerial photographic interpretation identifies characteristics of crown density, foliage density, foliage colour, foliage texture and apparent or relevant height in order to analyse the history of vegetation disturbance and growth in relevant areas. There was no stereoscopic analysis of the aerial photographs. Each aerial photograph considered was annexed to the report. The relevant conclusions are as follows: (i) 1983 - The property shows signs of regenerating vegetation and areas devoid of vegetation both of which are consistent with sand mining activities in the early 1980s. There is a strip of dense vegetation (low closed forest) on the eastern boundary which appears floristically consistent with the vegetation to the east of the property. (ii) 1986 - Regenerating vegetation comprising shrubs and low trees is present across the property excluding the strip of native vegetation on the eastern boundary. There are definite shrub canopies across the entire area, with varied density. There appears to be no change to the eastern strip of undisturbed vegetation. (iii) 1991 - A photograph taken shows that the regenerating vegetation has continued to regenerate as shrubland. Variations in density are considered to be a result of natural processes. The eastern strip is undisturbed. (iv) Three photographs taken in 1997, 2002 and 2005 show continued regeneration of the previously disturbed area, characterised by an increasingly dense canopy except for an area in the northern part of the property which appears as open shrubland as a result of natural processes. The eastern strip is undisturbed. (v) 2006 - A photograph (labelled "Base Source: Greater Taree City Council 2006" and dated in the report as 30 May 2006) is marked up to show the property to be predominantly banksia integrifolia - leptospermum laevigatum, coastal heath and the eastern-strip of the property comprising littoral rainforest. The photograph shows strips devoid of trees or shrubs which supported vehicular tracks and fencelines. These areas appear along the eastern and western boundaries of the property and a central track bisecting the property.

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125 The report concluded that two vegetation communities were likely to have previously inhabited the cleared area. The property prior to the December 2006 clearing would have been predominantly a coastal heath complex, dominated by coast banksia and coast tea-tree. A strip of vegetation on the eastern side of the cleared area was found to have previously comprised littoral rainforest based on the regenerating floristic composition in this part of the property the floristic structure of vegetation to the east of the property, and the regrowth of diagnostic species lignotubers in response to the December 2006 clearing (which indicate previously established plants that would have been found at that location). The report estimates 3.6 ha of littoral rainforest was removed as a result of the clearing. The report states that approximately 85 per cent of the species likely to have been present on the property prior to clearing would have been native. The report concluded that the clearing activity in December 2006 removed mature vegetation comprising approximately 3.6 ha coastal heath complex of at least 20 years of age and approximately 3.6 ha littoral rainforest of greater than 40-50 years of age. (iii) oral evidence 126 Mr Peake gave oral evidence. He was involved in a commission from the Council to carry out an ecological and bushfire investigation at Old Bar in 2007. He did not go onto the property for the purposes of this investigation. Umwelt prepared a report for the Council in relation to the proposed redevelopment which was titled "Ecological and Bushfire Investigation, Precinct 3, Old Bar" and dated September 2007 (annexed to Mr Priestley's affidavit). The study boundary area included the property and identified several vegetation communities on the property including banksia integrifolia and leptospermum laevigatum coastal heath. No littoral rainforest was identified. Mr Peake agreed that the vegetation types found in littoral rainforest are in some instances in common with vegetation types that are found in coastal heath although there are individual plant species found within littoral rainforest that are not present in coastal heath. The identification requires assessing whether rainforest types predominate in the community which is a prerequisite for littoral rainforest. Assessment of canopy cover and structural position of species within the vegetation are also important factors. Mr Peake considered the vegetation mapping of the property in the Ecological and Bushfire Investigation when he undertook the investigation in 2008 in relation to the clearing on the property in 2006. He was asked to undertake this investigation in approximately March 2008 and first went on to the property on 15 April 2008.

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137 None of the evidence in par 132-136 is disputed by the Defendant in relation to the aerial photographs and SPOT5 images referred to by Mr Palmer and Mr Peake. (f) defendant's witnesses Mr Fekete 138 Attila Fekete swore an affidavit on 7 August 2009. Mr Fekete was employed during 2003 by Macquarie Bank as head of a team involved in the development and acquisition of golf course community living developments. Macquarie Bank had a joint venture arrangement with Great White Shark Enterprises for such developments. Mr Fekete was involved in negotiating the acquisition by Macquarie Bank of the property from Central Lakes Equities. At the time Macquarie Bank acquired the property, Mr Fekete was aware that the property was the subject of the development consent for a golf course which was granted in 2000. Following the acquisition, Mr Fekete participated for approximately 18 months in discussions with Bob Harrison who was the chief golf course designer with the company Medallist. During this period Mr Fekete became very familiar with the property and estimates that he walked over the property at least 10 times as well as over the adjoining lands. 139 He would enter the property from either Lewis Street or George Street. At this time there were old fences along the western and southern boundaries of the property. There were remnants of an old fence on the eastern boundary. Mr Fekete recalled the power line and a cleared area of 15-20m width beneath it which ran through the centre of the property. West of the property's eastern boundary contained plants which were at ground level and some larger trees. This area, extending to 50 m from the boundary, was nearly impossible to walk through because of bush about 1-2m high and this area appeared to have been interfered with in earlier years because of soil disturbance and the presence of sand stockpiles. The vegetation was entirely different to the vegetation east of the eastern boundary (outside the property) which Mr Fekete described as old growth, with little understorey. That area (outside the property) appeared not to have been interfered with. Mr Fekete states that there was a considerable amount of rubbish dumped on the property. He estimates there were 15-20 truckloads of rubbish as at 2003. The southern and western areas of the property contained more grassland with larger trees interspersed, some of which appeared to be dead.

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150 The clearing work the subject of the offence was undertaken by VSF at the request of Mr Elias acting on behalf of the Defendant. A director of VSF, Mr Flemming, stated that in December 2006 his company used bulldozers and excavators to "push up the vegetation that was there into a windrow which was then mulched" on the property. The mulching was undertaken by Green Waste Australia, which was contracted by VSF. The clearing and mulching work was undertaken at a cost of $81,884 as identified in the invoice sent to the Defendant dated 20 December 2006. Mr Flemming confirmed that the invoice was paid. 151 The clearing work was observed by Ms Robin, a Council ranger, and local residents Mr Burns, Ms Bale and Mr Hardie while it was being undertaken. The most graphic illustration of the clearing which occurred on the property is the contrast between the photographs taken by Mr Burns during a flight on 7 March 2004 and those taken by Tanya Cross, a Council officer, during a flight over the property on 20 April 2007. The photographs of Ms Robin on the day of the clearing, the photographs identified by Mr Flemming in his evidence as depicting the completed works (the photographs forming exhibits 1-3) and the aerial photographs taken on 30 May 2006 and in 2007 (both appearing in the report annexed to Mr Peake's affidavit) show that "clearing" has been undertaken on the Property. Defendant's submissions 152 The Defendant disputes the extent of clearing undertaken by Mr Flemming in 2006 and relies on the plans prepared by Mr Foster to demonstrate that only three small areas were cleared in December 2006 by Mr Flemming. The area cleared lawfully by Mr Flemming in early 2005 and July 2005 was extensive as identified in the evidence of Mr Flemming and depicted in the plan prepared by Mr Foster. VSF was contracted in late 2004 or early 2005 to undertake clearing work on the property, the invoice dated 1 February 2005 being for mulching costing $8,400 plus GST. VSF was contracted again later in 2005. An invoice dated 8 July 2005 to the Defendant for mulching on the property (total of 30 hours) costing $7200 plus GST was paid by the Defendant. 153 According to Mr Flemming's oral evidence, for the clearing in early 2005 a machine was used to mulch the vegetation on the boundaries of the property and extend the central track through the middle. The machinery went down the boundaries of the property to clear them. Mr Flemming made the track through the centre more accessible to a width of 15 m which was associated with an overhead power line. This was done to make it easier for the surveyor to go on site. Mr Flemming was told that the property was going to be surveyed with future development in mind and he assumed that a golf course was to be developed. Mr Flemming identified evidence of sand mining and mounds of sand that had been pushed up and left and regenerated on the southern side of the property. The invoice for the work in early 2005 suggests that substantial work was done given the number of hours billed. The clearing was undertaken in accordance with the exemptions identified in State Environmental Planning Policy No 46 - Protection and Management of Native Vegetation (SEPP 46) which provides an exemption from the prohibition on clearing native vegetation in the NVC Act where it relates to, inter alia, rural structures. In this case the clearing related to fence lines and public utilities including power lines so that it was legal.

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This evidence is relied upon in the plans prepared by Mr Foster. 157 The 2005 work was legal, as confirmed by the evidence of Mr Piercy of his visit to the site on 1 July 2005. Mr Priestley formed a similar view after his visit to the site (see par 61). Finding that vegetation cleared 158 The Prosecutor has to establish beyond reasonable doubt that clearing (as defined in s 7 of the NV Act) of native vegetation (as defined in s 6 of the NV Act) took place on the property during the offence period in December 2006. Clearing includes cutting down and removing (native) vegetation. The Prosecutor relied on the eye-witness evidence of Mr Flemming, the three local residents and Council and departmental officers to establish that clearing had occurred. (i) clearing by Flemming/VSF in 2005 159 The Defendant submits the clearing in December 2006 was not extensive in light of the extensive legal clearing, also by VSF, that took place in 2005 on the property. The 2005 clearing occurred when the repealed NVC Act was in force. The NVC Act provided exemptions from the general prohibition on clearing native vegetation where the clearing was for a purpose listed in Sch 3 to SEPP 46. This included clearing for rural structures in Sch 3(e) which allowed "clearing to a minimum extent of native vegetation if it is necessary for the construction, operation and maintenance of farm structures (such as farm dams, tracks, bores, windmills, fences, fence lines, stockyards, loading ramps, sheds and the like)." 160 Mr Flemming gave evidence of what he was asked to do in late 2004/early 2005 and July/August 2005 in relation to the clearing along the eastern and western boundaries and along the central track under the powerlines (par 15-18). He estimated that he cleared the boundaries and the central track for about 15m and then increased this to 35m. The two invoices issued to the Defendant and paid totalled $15,600. The estimate of hours worked in the first invoice was 30 hours. No estimate of work is contained in the second invoice but the amount charged is similar. This suggests the work undertaken took approximately 60 hours. 161 Mr Paget, then a Council officer, saw the property in July and August 2005 after the clearing by Mr Flemming in 2005. Mr Paget's evidence is important as he viewed the property after the clearing that VSF undertook in early and mid 2005 along the eastern and western boundaries and along a central track under the existing services. He walked approximately two thirds of the length of the property from the northern boundary towards the southern boundary. He identified three narrow strips of cleared vegetation on a plan attached to his affidavit (annexure A). He estimated the width of the strips cleared as 30-40m (along the western boundary fence), 25-30m (the central track) and 20-25m (along the eastern boundary). 162 Mr Piercy, a DECC/DNR officer, also saw the property in July 2005 after clearing had been undertaken. He observed the state of the vegetation and the three strips on the property that had then been recently cleared. What he saw is identified at par 45. He estimated the width of clearings along the central track and along the eastern boundary at 20-25m and 25-30m along the western boundary. He was on the property for about 15 minutes and was viewing the property to see if a breach of the NVC Act had occurred in relation to the 2005 clearing. He walked along the western boundary, the central track and part of the eastern boundary. He was aware that clearing along fence boundaries was acceptable under the NVC Act. He did not observe any machines or people present. 163 Mr Palmer refers to a SPOT5 image dated 30 April 2005 which he considered showed a similar pattern of vegetation to that in the 2002 aerial photographs referred to except for new clearing on the eastern and western boundaries and a new track linking the central track with the western boundary. In his opinion the 30 May 2006 SPOT5 image showed the same vegetation pattern as the April SPOT5 image.

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(ii) clearing by Flemming/VSF in December 2006 164 Clearing of the property in December 2006 the subject of this charge continued for well over a week. Mr Flemming gave evidence (par 20) that he was asked by Mr Elias by telephone to undertake certain work at the property which included mulching the vegetation. His company VSF undertakes that kind of work. Mr Flemming's evidence was that the clearing commenced on 1 December 2006 and went on until 18 December 2006. Mr Flemming's estimate for the time taken to do the clearing and mulching was 15 days. He identified the machinery used in the operation, stated that he employed others to do the work and stated that he had the business Green Waste mulch the cleared vegetation. The invoice for the work undertaken by VSF sent to the Defendant charged $36,440 for the use of specified machinery by VSF being an excavator and a bulldozer and $38,000 for the mulching by Green Waste. The amount invoiced reflects the amount of work carried out. It was Mr Flemming's evidence that the December 2006 work was more costly than the work in 2005 because more time was spent. 165 Based on Ms Robin's evidence that she was present at the property on 5 December 2006 when no clearing was taking place, it appears that clearing and mulching of vegetation on the property commenced shortly afterwards, possibly 6 December. Ms Robin observed clearing by machinery and the aftermath of clearing on 13 December 2006. Machinery, being an excavator, mulcher and a bulldozer is shown in several photographs which she took on that day. A marked up plan of the property shows the excavator, mulcher and bulldozer located half way down the property. A photograph of two low loader trucks parked on Lewis Street was also included. 166 Mr Paget, then a Council officer, observed clearing on the property on 14 December 2006 together with Ms Cross, another Council officer. Mr Paget saw three machines in operation, being a backhoe, a dump truck and a machine with tracks and rippers on the back. He saw several cut tree stumps close to where he was standing. He took three photographs from the southern end of Lewis Street which show machinery still operating, large areas cleared of vegetation and several piles of mulched vegetation. His observations are confirmed by the evidence of Ms Cross (par 41). 167 The machinery used for the clearing and mulching being low loader trucks, bulldozers and bobcats was also seen by Mr Burns, a local resident, in December 2006. Ms Bale and Mr Hardie, other local residents, similarly observed machinery operating on the property in December 2006. These local residents observed the clearing being carried out for more than a week. None of that evidence was challenged by the Defendant and establishes that clearing of vegetation by VSF occurred in the charge period on the property.

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(iii) appearance of property during/after clearing in December 2006 168 The state of the property after the clearing is seen in three photographs tendered by the Defendant (exhibits 1, 2 and 3, said by the Defendant's counsel to be taken in December 2006). These were shown to Mr Flemming who confirmed that these photographs represented how the property looked after the clearing in December 2006. Apart from about twenty mature trees left on the eastern boundary and a few left in the north of the property these photographs show virtually no other remaining vegetation apart from three isolated trees. The property in the three photographs appears to have been cleared as there is little or no groundcover and no other plants of any description other than the mature trees referred to. Large areas of mulch are shown in the photographs. Mr Flemming gave evidence that the property was cleared by moving the machinery along each half of the property from the boundaries towards the middle to create a windrow in the middle which could then be mulched by Green Waste. His evidence is that the only vegetation left were several mature trees on the eastern boundary. Photographic evidence in exhibit 3 confirms this. 169 Ms Robin attended the property on 13 December 2006 and stated that she observed the property being cleared from the southern end of Lewis Street at the northern end of the property. She also took eight photographs from that location from outside the property. The photograph which is annexure A to her affidavit shows a very large cleared area across much of the property with machinery and a large windrow of cleared vegetation. A few trees remain in each of the photographs. Other photographs of the property show a very large pile of mulch and a large windrow of felled vegetation. Doubt about any of her evidence did not arise in cross-examination (par 30-31). 170 Mr Paget observed on 14 December 2006 that most of the property had been cleared of vegetation and there was a thick layer of mulch of 10-20cm across the whole property. He identified remnants of large leptospermum laevigatum and banksia integrifolia in the debris. 171 When Mr Piercy attended the property on 18 December 2006 and viewed it from the southern end of Lewis Street, he saw that the property had been cleared completely but for a few isolated banksia trees in the east of the property. Two trucks, a bulldozer and a bobcat which was moving other pieces of machinery were on site. One of the trucks had a mulching machine attached to it. 172 Mr Hardie and Mr Burns, local residents, attested to the property being covered in dense vegetation before the clearing. They walked through the property regularly until a fence was erected around it in 2005. Ms Bale gave similar evidence in relation to the western side of the property. After December 2006 Ms Bale observed 20 piles of mulch on the property. Mr Burns stated that 98 per cent of the trees on the property had been knocked down. 173 Aerial photographs taken after the December 2006 clearing by Ms Cross in April 2007 show the whole property cleared but for a number of mature trees. While there was cross-examination of Ms Cross as to where the eastern boundary was located in the photographs that does not undermine the general location of the property as photographed. Figure 1.1 (an aerial photograph) dated 2007 in the report of Mr Peake also shows the property largely devoid of vegetation but for a few mature trees. Mr Gibson also took several photographs of the property in January 2007 prior to conducting quadrat surveys. Those photographs were taken looking across the property to the south-east, south, west, south-west and north-west from near the end of Lewis Street. The photographs show the property with very little or no vegetation other than a number of mature trees, mostly in isolation. Further photographs were taken in May 2007 by Mr Priestley which also show some regenerating grasses and a few mature trees. The aerial photographs taken by Mr Burns in 2004 relied on by the Prosecutor were taken before the 2005 clearing so that they are of limited use for comparison with later photographs. 174 Mr Palmer also gave evidence in his second affidavit that a SPOT5 image dated 6 May 2008 showed signs of vegetation removal over the majority of the lower three quarters of the property (par 105). He also identifies a distinct area in the north-west corner where vegetation removal had occurred. 175 The appearance of the property in 2005 as viewed by Mr Paget and Mr Piercy was of an area well covered by native vegetation but for cleared strips along the eastern and western boundaries and the central track. This opinion is supported by the residents' descriptions of the property up to the time of clearing in December 2006. It is also confirmed by Ms Robin in terms of her observations from the northern end of the property on 5 December 2006 before the clearing had commenced. Further, the volume of material heaped into windrows and mulched in December 2006 was extensive and extended across the entire property. The substantial amount of vegetation mulched on site is identified by various witnesses being Ms Robin, Mr Paget, Mr Piercy and the three local residents.

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176 The Defendant challenged the evidence of the extent of clearing in 2006 on the basis of what Mr Flemming stated he had done and based on the surveyor Mr Foster's evidence. Mr Flemming stated in his evidence what work he was asked to do by Mr Elias in early 2005 and again in July 2005 in terms of clearing along the eastern and western boundaries and down the central track under the power lines. Mr Foster plotted on several plans areas identified by Mr Paget and Mr Flemming as cleared in 2005, inter alia. According to two plans prepared by Mr Foster (CD05 based on the observations of Mr Paget and CD08 based on the observations of Mr Flemming) only two rectangular areas of remaining vegetation in the middle and a small area of vegetation at the northern end of the property remained after the clearing work by Mr Flemming in 2005, estimated to constitute an area of 22,016m2 based on the evidence of Mr Paget or 17,168m2 based on the evidence of Mr Flemming. The total area of the property is 10.1ha (101,000 m2). 177 Mr Foster's plans show 35m of cleared area on the southern and northern boundaries of the property also. Where the 35m measurement is from is unclear. Both Mr Flemming and Mr Paget refer only to three long strips being cleared on the eastern and western boundaries and down the central track. Neither refers to clearing of 35 m on the northern and southern boundaries of the property. There is evidence of Mr Fekete, considered later in relation to the issue of regrowth, of unvegetated mounds of sand on the southern boundary which this could purport to represent. The amount of area shown as cleared on the northern boundary appears to be an overestimation as there is no evidence to substantiate it. 178 If the extent of the clearing in 2005 by Mr Flemming was as great as depicted by Mr Foster in either CD05 or CD08, I agree with a submission made by the Prosecutor that such clearing could not have all been legal clearing which came within the exemptions which then existed in the NVC Act for clearing along fence lines and services as per the exemptions identified in SEPP 46 (referred to at par 159). Mr Paget and Mr Priestley both considered the clearing in 2005 was then legal, suggesting that, because of the exemptions for clearing along fence lines, it was of a far more limited nature than is depicted by Mr Foster's plans CD05 and CD08. 179 Mr Foster is plotting estimates of measurements given in the evidence of Mr Paget and Mr Flemming. It does not reflect the totality of the evidence relied on by the Prosecutor but does raise doubts that the amount of area cleared is the 9.2ha identified by Mr Peake. If the plotting is correct it also differs from the cleared strips Mr Paget marked on the plan attached to his affidavit which are quite narrow. Mr Piercy also gave an estimate of the widths of the cleared strips in 2005 which are similar to, but overall more narrow than, the estimates of Mr Flemming and Mr Paget. 180 The amount of vegetation remaining after the 2005 clearing as shown in Mr Foster's plans are also at odds with an aerial photograph and SPOT5 image in evidence which show the vegetation on the property in 2006 after the VSF clearing on two occasions in 2005. The report prepared by Mr Peake (see par 118-125) included an aerial photograph described as "Base Source: Greater Taree City Council 2006". He relied on this to show the property was vegetated but for narrow strips along the eastern and western boundaries and the central track in 2006 before the clearing in December. The Defendant challenges the provenance of this photograph on the basis that was not proven by the Prosecutor. This submission is correct in that the Prosecutor has not provided any evidence through the Council or anyone else of how that photograph was created. This is in contrast to the numerous aerial photographs and SPOT5 images relied on by other experts, particularly Mr Palmer in relation to which there is extensive, uncontested, evidence about the how these were created. That is the evidence identified above at par 132-136 under the heading "Proving the satellite and aerial photography". None of the photographs or images analysed by Mr Palmer are challenged by the Defendant on the basis of lack of provenance. 181 Mr Palmer referred to a SPOT5 image dated 30 May 2006 (par 103). According to Mr Palmer the 2006 SPOT5 image shows vegetation across the whole property but for narrow areas cleared on the eastern and western boundaries and the central track. Mr Palmer concluded in relation to the 2006 SPOT5 image that the same vegetation pattern on the property existed on that date as shown in the 30 April 2005 SPOT5 image he also analysed in his evidence. The 2006 SPOT5 image confirms that as at that date there were substantial areas of vegetation on the property beyond the clearing along the boundaries and the central track. This shows substantially more vegetation present before the clearing in December 2006 than is depicted on Mr Foster's plans, CD05 and CD08. 182 The total area of the property is 10.1ha. The report prepared by Mr Peake, ecologist, annexed to his affidavit calculates that 9.2ha of vegetation was removed in December 2006 (par 125). In its submissions the Prosecutor argues that essentially the whole of the land was cleared but for a few large trees. That the only vegetation remaining after the December 2006 clearing was a number of mature trees on the eastern boundary and some other isolated trees elsewhere is confirmed by the photographs tendered by the Defendant as exhibits 1, 2 and 3, the aerial photographs taken by Ms Cross in 2007 and the aerial photographs and SPOT5 images considered by Mr Palmer. Whether the evidence supports Mr Peake's opinion that 9.2 ha was cleared is less clear. As raised above, the aerial photograph Fig 3.2 on which he relies for his conclusions has not been properly proven. While this would generally mean his opinion cannot be sustained, the 30 May 2006 SPOT5 image in Mr Palmer's evidence shows a very similar level of vegetation cover on the property to that in the April 2005 aerial photograph. Mr Palmer's analysis of the SPOT5 images supports Mr Peake's finding of a substantial area being cleared but Mr Palmer does not provide his opinion on the area of vegetation cleared.

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Conclusion 185 I consider the Prosecutor has established beyond reasonable doubt that a substantial volume of vegetation was cleared across the whole of the property in December 2006 and has proved this element of the offence beyond reasonable doubt. The extent of vegetation cleared will be further considered in relation to sandmining later in the judgment. I next consider whether the vegetation cleared was native vegetation within the meaning of s 6 of the NV Act. B. clearing was native vegetation 186 The Prosecutor stated that in relation to whether native vegetation was cleared it must prove beyond reasonable doubt: (a) that the vegetation cleared on the property consisted of either trees, understorey plants, ground cover or plants occurring in a wetland; (b) the date upon which European settlement commenced; (c) that the vegetation cleared included species that existed in the State before that date; and (d) that one or more of the seven species identified by the Prosecutor and confirmed by Mrs Wilson, the botanist, or Mr Gibson to be native vegetation were cleared by the Defendant on the property. 187 The native species alleged by the Prosecutor to be cleared are: Banksia integrifolia Coastal Banksia Leptospermum laevigatum Coastal Teatree Acacia longifolia Coastal Wattle Acacia ulicifolia Prickly Moses Actinotus helianthi Flannel Flower Breynia oblongifolia Coffee Bush Kennedia rubicunda Dusky Coral Pea Lomandra longifolia Spiny-headed Mat-Rush or Basket Grass Pandorea pandorana Wonga Wonga Vine 188 The relevant evidence relied on by the Prosecutor is that of Mr Gibson, conservation officer (par 79-98) and Mr Peake, ecologist, (par 118-131). The evidence of the historian Mr Flynn and Ms Wilson, scientific officer, was adduced to prove that leptospermum and banksias were present when Europeans arrived in NSW in 1788. Mr Gibson's evidence confirms that other species identified by the Prosecutor were present in 1788 and therefore satisfy the definition of native vegetation as species present at that date are indigenous (s 6(2) NV Act). This evidence was not challenged by the Prosecutor. (a) whether native vegetation was cleared Prosecutor's submissions 189 The Prosecutor must prove that there were particular native species across the land, the evidence establishing that it was dominated by at least two species (being coastal banksia and coastal teatree). There is unchallenged evidence that the land was dominated by those species. Further there is evidence from Mr Gibson and Mr Peake that they observed certain species on the land which were growing from root stock or lignotubers. 190 The uncontested evidence of Mr Flynn is that European settlement commenced in January 1788. The evidence of Mrs Wilson and Mr Gibson is that the nine species listed by the Prosecutor were present in NSW from at least 1779. It is common ground that the nine species cleared by VSF in December 2006 comprise "trees" within the meaning of s 10(1)(a) of the NV Act or "understorey plants" within the meaning of s 10(1)(b) of the NV Act. It is also common ground that the nine species identified by the Prosecutor were "indigenous" within the meaning of s 10(2) of the NV Act, being species that existed in NSW before European settlement. This evidence proves (a)-(c) of the elements set out at par 7. 191 In relation to element (d), whether any of the nine native species were cleared from the property is a matter of dispute between the parties. Banksia integrifolia and leptospermum laevigatum are referred to in the private mining agreement dated 27 June 1980 (annexed to Ms Iven's affidavit) suggesting they were then present. As that portion of the property to the east of the track was not affected by the sand mining and has not otherwise been disturbed according to the aerial photographic interpretation of Mr Palmer, it can be inferred that these species remained on the eastern portion of the property. Mr Fekete's vague evidence of sand mining disturbance in that area should be disregarded. It can also be inferred that the regeneration of the vegetation on the western portion of the property following the cessation of sand mining in 1982-1983 would have resulted in these species being present on that part of the property which was sand mined prior to the clearing in December 2006. In any event there is unchallenged evidence that Mr Paget visited the property on 1 July 2005, well before the December 2006 clearing and observed "that the dominant vegetation was mature Banksia integrifolia over 10m tall and thickets of leptospermum laevigatum of 6 -7m tall" (par 17 of his affidavit). Mr Piercy also observed on the same day that the vegetation on the property was "dominated but not limited to mature banksia sp, leptospermum sp, and acacia sp" (par 15 of his affidavit). 192 After the December 2006 clearing Mr Gibson, botanist, observed regenerating banksia integrifolia plants across all of the property. In quadrat 1 he observed a banksia growing from a lignotuber, indicating it had been in its current location for a number of years. Mr Peake also observed banksia regenerating in each transect and quadrat survey except quadrat 3. Leptospermum integrifolia was observed in transect 4, 6a, 6b and quadrats 1, 3 and 4. Mr Peake concluded that immediately prior to the clearing event all but a strip on the eastern side of the property contained banksia, leptospermum laevigatum and coastal heath camphor. The vegetation on the eastern side was littoral rainforest. 193 Acacia longifolia and actinotus helianthi were observed by Mr Gibson growing from rootstock in quadrats 1 and 2 on the property indicating both species were present prior to December 2006. Mr Piercy also observed in July 2005 that the property was dominated by, inter alia, these two species. 31. Acacia ulicifolia was observed by Mr Gibson regrowing from existing rootstock in quadrats 1 and 2. The species was also observed by Mr Peake to be regenerating in transect 3 and quadrat 3. 194 Mr Gibson observed regenerating breynia oblongifolia in two quadrats on the property and it was also observed by Mr Peake in two transect surveys. Both species were also seen by Mr Gibson and Mr Peake on land neighbouring the property. Regenerating kennedia rubicunda was observed by Mr Gibson in one quadrat and by Mr Peake in three transect surveys and in two quadrats. Lomandra longifolia was observed by Mr Gibson in both quadrats growing from existing rootstock. Mr Peake observed the regenerating samples of the species in three transects surveys and three quadrats. Pandorea pandorana growing from existing rootstock was observed by Mr Gibson in one quadrat and by Mr Peake in two transect surveys. Defendant's submissions 195 The Defendant's written submissions did not seek to directly challenge the Prosecutor's evidence that the vegetation cleared on the property was native vegetation. The evidence of Mr Peake and Mr Gibson concerning the location of littoral rainforest on the eastern portion of the property was tested in cross-examination as they identified this vegetation type as occurring in different areas and to different extents. The evidence of Mr Peake was argued to be deficient because he asserted that all the vegetation that had existed on the eastern side of the central track on Lot 1 was littoral rainforest. He maintained this view notwithstanding: (a) that his firm (Umwelt) had prepared a report for Council in 2007 which listed the whole of the vegetation community on the property as coastal heath and none of it as littoral rainforest. That 2007 report had involved inspection of the land within the precinct including the property; (b) he accepted that the determination of the NSW Scientific Committee (exhibit 12) defined littoral rainforest as a community with a predominance of rainforest types yet he had undertaken no quantitative assessment of plants which could support a conclusion that any of the land contained littoral rainforest; (c) that his observations were in conflict with the mapping work carried out by Mr Paget who had found what amounted to a tiny area which he described as littoral rainforest within the property. The important fact is that Mr Paget's consideration of the question of littoral rainforest was undertaken on 1 July 2005, before the work carried out in December 2006 by VSF; and (d) his methodology did not involve any quadrat study or "random meander" in the eastern side of the property which he pronounced to be littoral rainforest. Finding on whether native vegetation cleared 196 The Prosecutor must establish beyond reasonable doubt that native vegetation as defined in s 6 of the NV Act was cleared on the property in December 2006 by VSF. In relation to s 6(2) of the NV Act (whether the vegetation is indigenous) it is the uncontested evidence of Mr Flynn and Ms Wilson (par 71-72) that the species identified specifically by Mr Gibson and Mr Peake which are alleged by the Prosecutor to have been cleared existed in the state before European settlement and therefore satisfy the definition of native vegetation. I have held above that the Prosecutor has established that a substantial amount of vegetation was cleared across most of the 10.1ha property. Parts that were already cleared were the three strips of land cleared along the eastern and western boundaries and along the central track by VSF in 2005 as identified by Mr Paget on the aerial photograph annexed to his affidavit. In particular, trees as defined in s 6(1)(a) of the NV Act were cleared. 197 The Prosecutor relied on the expert botanical evidence of Mr Gibson and Mr Peake to prove the species of vegetation present on the property in December 2006 at the time of clearing. The Defendant did not call any evidence concerning the type of vegetation on the property to contest this expert evidence. Its counsel sought through cross-examination and submissions to raise doubts about some of the conclusions drawn by the Prosecutor's witnesses. The Prosecutor's evidence summarised at par 191-194 establishes that all nine species of native vegetation were present on the property as at December 2006. 198 Further considering the evidence of Mr Gibson, this establishes the type of vegetation that was present on the property prior to the clearing in December 2006. Quadrats 1, 2 and 3 are relied on to show specifically the types of vegetation present as those areas are, in Mr Gibson's opinion, representative samples of what was otherwise broadly on the property. His evidence identifies that all the nine species identified by the Prosecutor were located somewhere on the property and were cleared by VSF in December 2006. That vegetation satisfies the description of native vegetation as defined in s 6(1) of the NV Act as identified by the affidavit of Mr Gibson (par 86) and Ms Wilson (par 72). 199 Mr Gibson explained in oral evidence that in addition to quadrat studies, an element of vegetation studies is the "random meander" which is a sampling technique enabling the capture of the presence of other species that grow adjacent to a quadrat. Quadrats are used to gather very specific information on the property. Looking beyond the boundaries of the quadrats and recording the presence or absence of species overcomes the need to meet full statistical sampling theory by having significantly more quadrats established. Mr Gibson recorded the results of his "random meander" on the last page of each field survey recording form.

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201 Mr Gibson was not aware when he assessed the vegetation that the property had been used for sand mining in the 1980s and had not previously examined land subject to sand mining using quadrat techniques. He agreed that the removal of vegetation by sand mining was likely to affect the composition of vegetation communities for many years. As there was no further discussion or submission by the Defendant on the impact, if any, that sand mining in the early 1980s would have on Mr Gibson's conclusions about the composition of the species he considered were present on the property in 2006, that position does not undermine the conclusions he has drawn about the species present on the property in December 2006. 202 Mr Gibson also stated that he did not form a view of the age of any of the plants before the clearing in December 2006 (I note that the Prosecutor does not rely on his evidence for this purpose). He agreed that he could not distinguish between plants which germinated from seed banks within a quadrat and those which germinated from seeds sourced from outside the property. In relation to plants growing from rootstock, which confirms they were growing on the land at the time it was cleared, he did not record all his sightings of plants growing from rootstock in his data. In re-examination he identified a number of plants growing from rootstock in quadrat 1 and 2 including suaveolens, acacia longifolia, lomandra longifolia, pandorea pandorana, banksia integrifolia, bracken fern and dionella sirulia. This suggests these species were present at the time of clearing in December 2006. None of the other matters raised in his cross-examination (par 87-98) called into question his conclusions as to the identity of the native species present on the property. 203 Mr Peake's evidence about the ecological investigation he undertook is set out above from par 119. As summarised there he undertook field surveys in April 2008 and recorded the species of vegetation found. His report provided a description of what he found and what he considered was likely to have been present before the clearing occurred. In oral evidence he considered that the regrowth since the clearing event was important in being able to determine what vegetation had been cleared. I do not consider his expert opinion evidence as to the native species he concluded were on the property in December 2006 in light of his field studies is undermined by the matters raised in cross-examination and the Defendant's submissions. The focus of the cross-examination was his interpretation of aerial photographs and his conclusions concerning littoral rainforest which I deal with elsewhere in this judgment. 204 Further, there is nothing irregular or unorthodox about the use of a random meander technique where the area to be surveyed is large, as in this case. The evidence of Mr Peake also proves, and confirms Mr Gibson's evidence, that what was cleared was native vegetation, including the nine species identified in the Prosecutor's case. 205 The evidence of Mr Gibson and Mr Peake is also confirmed by Mr Paget who provided evidence of what native vegetation he saw on the property when he visited on 1 July 2005. He identified banksia integrifolia (over 10m tall) and leptospermum laevigatum (6-7m tall) as the dominant vegetation (par 35). Mr Piercy, a forestry officer, attended the site on 1 July 2005 and also gave evidence that the vegetation was dominated by banksia, leptospermum and acacia (par 45). Nothing raised in cross-examination cast doubt on this evidence. 206 Mr Fekete also provided observations of the vegetation he saw in 2003, describing the vegetation on the eastern boundary as scrub and on the western side of the property as more open grassland. He had no relevant qualifications in plant identification and did not identify particular species of vegetation. Mr Flemming also described the vegetation as scrubby regrowth (par 19). "Any scrub" is included in the definition of "tree" in s 6 of the NV Act and is therefore native vegetation in any event. This evidence does not raise doubt about the conclusions of the expertly qualified witnesses of the Prosecutor. 207 This element of the offence as particularised by the Prosecutor requires the identification of individual native plant species rather than the identification of endangered ecological communities, such as a littoral rainforest community, about which several witnesses gave evidence and were cross-examined by the Defendant. The extent of littoral rainforest that was on the property before the clearing in December 2006 is identified differently by the Prosecutor's witnesses. Mr Paget after visiting the property in July and August 2005 (par 33-36) marked a small area he identified on the northern end of the eastern boundary on a plan attached to his affidavit. Mr Gibson's observations of littoral rainforest were on parts of the property where quadrats were not located and no random meander undertaken. He identified elements of littoral rainforest in addition to coastal heath types such as coastal banksias on the eastern side of the property. Mr Peake (par 123-125) identified a substantially larger area of littoral rainforest than the other two witnesses identifying all of the area on the eastern boundary as littoral rainforest. These observations were contained separately in his report from his observations of the particular species he considered were present on the property. The criticisms of his evidence raised by the Defendant are set out at par 195 and the focus of his cross-examination largely concern his evidence about the presence of littoral rainforest. In my view of those criticisms: (a) Mr Peake's expert opinion is not undermined by the fact that he has come to a different conclusion about the presence of littoral rainforest from that arrived at earlier by his firm, Umwelt, in the 2007 Ecological and Bushfire Investigation which was undertaken over a much wider area which included the property. His explanation that there was no physical inspection of the property at the time of that study is a reasonable explanation as to why he has come to a different view after a detailed physical survey of the property; (b) the Defendant argues that he undertook no quantitative assessment of plants which could support a conclusion that the land contained littoral rainforest. Mr Peake maintains that he could make a qualitative assessment, and had done so. His views were tested in cross-examination and he affirmed his views. He did not agree that he could not make such an assessment on a qualitative basis. In any event, the presence or absence of littoral rainforest on the property is not material to the Prosecutor's case which relies on establishing that individual native species were cleared, not particular ecological communities; (c) the Defendant's criticism that his identification of an area of littoral rainforest varies from Mr Paget (who identified a much smaller area) Mr Peake explained by saying that he was able to undertake a much more detailed analysis than Mr Paget; and (d) that there was no random meander in the eastern side of lot 1 which he pronounced littoral rainforest is contradicted by the transect identified on Fig 2.1 in the report which shows a transect survey was undertaken in this area. 208 Mr Peake also gave oral evidence (par 126) that vegetation types found in coastal heath communities can overlap with those in littoral rainforest communities. Conclusions about the types of individual native species located on the property at the time of clearing are not undermined by the cross-examination of Mr Gibson and Mr Peake as to their differing conclusions about the presence of littoral rainforest. 209 The Defendant argues that as sand mining occurred across the whole property the Prosecutor has not established that native vegetation was re-established across the site after that event. As I consider the Prosecutor has established beyond reasonable doubt that the native vegetation species particularised in its case were present on the property at the time it was cleared in December 2006, this submission is unsuccessful in relation to this part of the case. It is dealt with fully in the next section when I consider whether the native vegetation cleared was regrowth. This requires consideration of the age of the vegetation, to which the sand mining history of the property and the evidence of Mr Fekete is relevant. The Prosecutor has proved this element of the offence that native vegetation was cleared on the property in December 2006.

[132]

Prosecutor's submissions 212 The Prosecutor submitted that the Defendant bears the onus of proving the defence in s 12(3) on the balance of probabilities, per Vines v Djordjevitch (1959) 91 CLR 512 at 519-520 and in Director of Public Prosecutions v United Telecasters Sydney Limited (1990) 168 CLR 594 at 600-601. Both decisions were applied by this Court in Wollongong City Council v Ensile Pty Ltd (2008) 71 NSWLR 563. 213 The Prosecutor emphasised that it was incumbent upon the Defendant to prove that the native vegetation which was cleared was only regrowth. It distinguished vegetation that may have grown since 1990, which is termed "growth", from vegetation that had regrown since 1990, which is termed "regrowth". According to The Macquarie Dictionary, 3rd ed (The Macquarie Library Pty Ltd, 2001), the verb grow includes "to arise or issue as from a germ, stock or originating source". The prefix "re" is defined to mean "repetition, as in reprint, rebirth". Regrowth can be distinguished from growth, the latter being part of the natural process of regeneration. Regeneration occurs as plants naturally die off and younger individuals are recruited. The fact that many individual plants may have grown since 1990 as part of this regeneration cycle does not mean that these plants represent regrowth. A clearing event is essential to the definition of regrowth under the NV Act. The fact of individual plants germinating after 1990 does not prevent them from being protected by the NV Act. Defendant's submissions 214 The Defendant did not agree that whether vegetation was regrowth under s 19 of the NV Act was a defence which it had to establish on the balance of probabilities. Rather that the vegetation was not regrowth was part of the Prosecutor's case. The Prosecutor has sought to establish by the evidence relied on that the vegetation cleared was not regrowth. 215 Section 19 of the NV Act identifies that regrowth native vegetation can be cleared if not protected. The definition of regrowth is set out in s 9(2). "Regrown" is not defined in the NV Act. The meaning of regrown has the corresponding meaning of regrowth per s 7 of the Interpretation Act 1987 headed "cognate words". The context and subject matter must be considered; s 6 Interpretation Act, also Cranbrook School v Woollahra Council (2006) 146 LGERA 313 at [40]. 216 The New Shorter Oxford Dictionary (Clarendon Press, 1993) defines "growth" as follows: 1. The action, process or manner of growing; vegetative development; increase. 2. Stage in the process of growing; size or stature obtained by growing (obsolete except in 'full growth') 217 The word "regrow" is listed under the following note: Prefixed to ordinary verbs of action (chiefly transitive) and to derivatives from these, sometimes denoting that the action itself is performed a second time, and sometimes that its result is to reverse a previous action or process, or to restore a previous state of things; as … regrow.

[133]

218 The Defendant submitted that for regrowth to occur there must first be an event which decreased the gradual increase in size or volume that occurs with "growth" of plants. Depending on the circumstances and the nature of the vegetation in question, plants may regrow following complete elimination or damage. This can occur by a number of mechanisms, including seeding from pods thrown out by species causing re-seeding of the same genetic material. It can also occur by an action of disturbance to a plant which measurably reduces its size or volume and thereafter the plant regains its size and volume by regrowing. Various forms of removal of vegetation which sees the native vegetation in a particular area regrow in size and volume, can be said to have "regrown" under the word in the definition in s 9(2) of the Act. 219 In Director-General of the Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256 Lloyd J considered the concept of regrowth. Full argument on this issue did not occur. At [35] and [40] his Honour held that the Prosecutor had proved beyond reasonable doubt that the vegetation cleared was not regrowth. The Prosecutor bears the onus of negativing the regrowth exemption, see Director-General of the Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242. Finding on onus of proof that regrowth (i) meaning of regrowth 220 There appears to be general agreement between the parties as to the meaning of regrowth, that it is growth of vegetation since 1 January 1990 consequential on a disturbance which destroyed or reduced it such as a legal clearing event. Regrowth can be distinguished from the growth of new vegetation since 1990 which occurs as vegetating communities change by old specimens dying off and being replaced with new specimens. 221 The regrowth issues arising in this case are whether what was cleared in 2006 had already been cleared after 1990 and had regrown, or was cleared before 1990 as a result of sand mining but had not yet re-established as at 1990. (ii) where does onus of proof lie 222 The onus of proof of guilt in criminal matters generally falls on a prosecutor "…subject also to any statutory exception" Woolmington v Director of Public Prosecutions [1935] A.C. 462 at 481. In Director of Public Prosecutions v United Telecasters Sydney Ltd Brennan, Dawson and Gaudron JJ held at 600-601: The rule laid down in Woolmington v The Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462 at pp 481-482, that the burden of proving every element of an offence charged rests at all times upon the prosecution, was expressed to be "subject to ... the defence of insanity and subject also to any statutory exception". It is made clear in Reg v Edwards (1975) QB 27 and Reg. v. Hunt (1987) AC 352 that the statutory exceptions referred to are not confined to those which expressly cast the burden of proof upon the accused (see, for example, Crimes Act 1900 (N.S.W.), s.417), but extend to cases in which an intention to do so is necessarily implied. Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself within it. That burden may, of course, be discharged upon the balance of probabilities. Whilst it is convenient to speak in terms of provisoes or exceptions, the legislative intent cannot be ascertained as a mere matter of form. The Court of Appeal in Reg. v. Edwards at p 40, viewed the statutory exceptions as limited to: "offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities." In Reg. v. Hunt , at p 375, even this formulation was said by the House of Lords not to be exhaustive. Each case must turn upon the construction of the particular enactment. 223 Further, at 611 their Honours held: When a statute imposes an obligation which is the subject of a qualification, exception or proviso, the burden of proof concerning that qualification, exception or proviso turns on whether it is part of the total statement of the obligation. If it is, the onus in respect of the qualification, exception or proviso is on the party asserting a breach of the obligation. If it is not, the party relying on the qualification, exception or proviso must prove that he or she has complied with its terms. See Vines v. Djordjevitch [1955] HCA 19; (1955) 91 CLR 512; Roddy v. Perry (No. 2) (1957) 58 SR (NSW) 41. 224 In Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 the High Court considered the onus of proof under a section of the Occupational Health and Safety Act 1985 (Vic) stating that "an employee shall provide and maintain so far as is practicable for employees a working environment that is safe and without risk to health". The majority judgment of Dawson, Toohey, Gaudron JJ (Brennan and Deane JJ concurring in separate judgments) held at 257-259: For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an "exception"), which serves to take a person outside the operation of a general rule. See Vines v. Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, at pp 519-520. The distinction does not depend on the rules of formal logic: Dowling v. Bowie [1952] HCA 63; (1952) 86 CLR 136, at p 147. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention "to impose upon the accused the ultimate burden of bringing himself within it": Director of Public Prosecutions v. United Telecasters Sydney Ltd . [1990] HCA 5; [1990] HCA 5; (1990) 64 ALJR 181, at p 183; [1990] HCA 5; 91 ALR 1, at p 6. The intention may be discerned from express words or by implication. See Reg. v. Edwards (1975) QB 27 and Reg. v. Hunt (1987) AC 352…

[134]

Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined "upon considerations of substance and not of form": Dowling v. Bowie , at p 140. And, of course, the necessity to have regard to substantive and not merely formal considerations is emphasized by the words of s.168(1) of the Magistrates (Summary Proceedings) Act and like legislative provisions which make it clear that a matter may be classified as a statutory exception "whether it does or does not accompany the description of the offence". One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. See Darling Island Stevedoring and Lighterage Co. Ltd. v. Jacobsen [1945] HCA 22; (1945) 70 CLR 635, per Dixon J. at p 644. Such is ordinarily the case where, in the terms used in Reg. v. Edwards , at p 40, there is a prohibition on the doing of an act "save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities". See Reg. v. Hunt , at p 375, where Lord Griffiths considered the statement from Reg. v. Edwards "an excellent guide to construction"… 225 In Ensile Jagot J in this Court considered whether the prosecutor or defendant had the onus of proof of establishing existing or continuing use rights under s 107(1) and 109(1) of the EP&A Act. Her Honour considered Vines v Djordjevitch at 519, Director of Public Prosecutions v United Telecasters Sydney Ltd at 611, and Chugg at 237 - 238 and further authorities that have considered existing use rights explicitly. Her Honour held the onus of proof lay on the defendant as existing or continuing use rights are an exception to a general statement of liability that development may only be carried out in accordance with an environmental planning instrument, per s 76, 76A and 76B of the EP&A Act. 226 The Defendant relied on Bailey to support its argument. In Bailey the NSW Court of Appeal considered the operation of the exemptions for clearing activity under the now repealed NVC Act. The defendant was charged under s 21(2) of that Act with two counts of clearing native vegetation without the required consent. Section 12(f) of the NVC Act stated that the Act did not apply to certain types of clearing, including clearing as part of designated development. A schedule in SEPP 46 also specified clearing which was not subject the offence provision in s 21, which relevantly included clearing for rural structures (referred to earlier in the context of the 2005 clearing at par 159). In relation to the statutory construction issues raised in Bailey (of whether the clearing fell into one of the exceptions provided by the NVC Act), Shaw JA (Mason P and Hidden JA concurring) referred to the principle in R v Adams (1935) 53 CLR 563 that penal statutes should be read narrowly and any ambiguity construed against the prosecution. The elements of an offence under s 12 of the repealed NVC Act included that, firstly, native vegetation was cleared and, secondly, it was done without consent. The exception in s 12(f) of the repealed NVC Act was a qualification of the first element of the offence because the section states that "the Act" did not apply to clearing of a kind described in the subsections. Similar reasoning applied to the exceptions identified in SEPP 46. Accordingly, it was for the prosecutor to establish that the Act did apply in light of these provisions. 227 The parties have not referred to any case which has considered s 12(3) of the NV Act apart from Hudson. Lloyd J there stated at [35] that the prosecutor had discharged the onus of proof in relation to regrowth. His Honour provides no reasons for his conclusion no doubt because it was not a matter in dispute and his Honour did not have to consider it. It is not authority that the Prosecutor has the onus of proving to the criminal standard that the vegetation cleared was not regrowth. 228 The wording of s 12(3) states that it is a defence in any proceedings for an offence against s 12 if the clearing is established to be permitted under Div 2 or 3 of Pt 3 of the NV Act. The use of "it is a defence" appears to explicitly cast the onus on a defendant to establish that the clearing was permitted under Div 2 or 3. To adopt United Telecasters Sydney Ltd this wording is a proviso which discloses a legislative intention to impose on the accused the ultimate burden of bringing himself, herself or itself within it. The Court of Criminal Appeal in Bailey was considering a charge of clearing native vegetation under the now repealed NVC Act. The Court of Criminal Appeal found the onus fell on the prosecutor to prove that the exemptions in SEPP 46 did not apply. The NVC Act has been replaced by the NV Act and the exemptions identified in SEPP 46 and for clearing for designated development do not appear in the NV Act. Given the differences in drafting between the previous and current acts, the approach to statutory construction in Bailey cannot apply to the NV Act.

[137]

Defendant's submissions 231 If the Defendant bears the onus of establishing that regrowth was permissibly cleared on the balance of probabilities, it has discharged the onus. That a significant lawful clearing event took place on the land is relevant to establishing what was on the property as at 1 January 1990. Sand mining potentially occurred across the whole land between 1977 and at least 1983. That sand mining had a significant impact on the vegetation as it involved the removal of topsoil. (i) impact of sand mining on the vegetation 232 Evidence of the history of sand mining on the property was given by Ms Ivens and relevant documents exhibited to her affidavit (exhibit H). Red Safety Coaches Pty Ltd granted a mining lease over the whole of the land for a period of seven years from 7 July 1977 to RZM. Authority was also granted under the Mining Act 1973. The letter from RZM to Ms Ivens dated 5 October 1979 stated that mining would commence in the northern part of the mining lease from 12 October 1979 moving in a southerly direction. A diagram of the proposed operations was enclosed. The letter also stated that a plant site was to be constructed adjacent to the end of Lewis Street with commencement of dredging operations adjacent to the southern end of George Street. On completion of mining the area would, according to that letter, be planted with a mixture of suitable grasses to stabilise the surface area and promote the regeneration of native species growing on the area before the commencement of mining. A private agreement was made between RZM and Red Safety Coaches dated 27 June 1980. That allowed mining on the balance of the property being a further 5.03 ha. Mining operations were concluded by 28 April 1981, as per the letter from RZM to Red Safety Coaches Pty Ltd dated 28 April 1981. 233 The Defendant submitted that the combination of the Mining Authority dated 7 July 1977 and the licence agreement dated 27 June 1980 gave RZM permission to mine the whole of the property. No evidence confined the mined areas to any part of the property. By 28 April 1981, mining operations were concluded. RZM continued to have an interest in renewing the mining lease until 1986 when renewal was refused as evidenced by the letter from RZM to Central Lakes Equities dated 17 December 1986 (exhibit 9).

[140]

240 The last stereoscopic images available to Mr Palmer were two 2002 aerial photographs. Everything after that entailed the use of SPOT5 images, which made it impossible to visualise differences in the height of vegetation. He could not see multi-stem plants from such photographs. His use of the phrase "woody vegetation" was just a general reference to "trees and shrubs". His interpretation of the SPOT5 images do not enable him to draw any useful conclusions concerning the age of the vegetation in those images. 241 The Defendant also submits on this issue that the 2006 photograph referred to by Mr Peake (Fig 3.2) has an uncertain provenance as there is no evidence of when it was taken or by whom and therefore Mr Peake's evidence based upon it cannot be relied on. I have dealt with this issue on the question of whether clearing of native vegetation occurred at par 180 and 182. Finding on whether the Defendant has established that regrowth cleared 242 I have held that the Defendant has the onus of proving on the balance of probabilities (meaning more probable than not per Miller referred to at par 229) that the vegetation cleared on the property was regrowth as defined under s 9(2) of the NV Act in order to establish a defence. The Defendant argued that the Prosecutor has not proved beyond reasonable doubt that it was not regrowth, which does not accord with the finding I have made in relation to where the onus of proof lies. It was put in the alternative that if the Defendant did bear the onus it has been discharged, relying on the same arguments made that the Prosecutor had failed to discharge the onus of proof. The Prosecutor has successfully proved that native vegetation of certain types was cleared from the property. It has an onus of negativing a defence which the Defendant could rely on, on the balance of probabilities. 243 In Mr Elias' letter to Mr Priestley received 18 December 2006 (par 52) he stated that the property was degraded and of little conservation significance, providing a report of Terra Consulting prepared for the Council which he said confirmed this. The letter also said the property was regrowth and had been cleared over the last six to seven years. There is no evidence from the Defendant to prove that statement, apart from the evidence already considered in relation to the clearing by Mr Flemming in 2005. Mr Fekete said in oral evidence that he believed the area west of the eastern boundary was regrowth scrub due to its form and height. Mr Fekete does not have any relevant qualifications in plant identification to found his opinion as that of an expert. 244 The Prosecutor's witnesses Mr Peake and Mr Palmer considered the age of vegetation that was cleared in December 2006, contrary to the Defendant's submissions that they did not. Mr Palmer of DNR has expertise in interpreting aerial photography and SPOT5 images. Based on the numerous aerial photographs and SPOT5 images referred to in his evidence, as summarised at par 99-117, he concluded (par 104) that the vegetation cleared in December 2006 on the area east of the central track was woody vegetation which had been undisturbed from 1965 until May 2006. The majority of the vegetation to the west of the central track had been there since at least March 1986. He identified a 1.4ha area in the north-west of the property containing both woody vegetation that existed before 1990 and regrowth vegetation.

[141]

245 Mr Palmer explained in his evidence how he viewed aerial photographs stereoscopically to analyse the presence of vegetation and determine its type by colour, texture pattern and shape (summarised at par 100-101). Two aerial photographs exist for 1983, 1986, 1997 and 2002. While containing less information to interpret, he was able to interpret the single black and white photographs taken in 1984, 1989 and 1991 and make observations in relation to continuity of vegetation, as identified in the summary of his evidence. 246 The Defendant cross-examined Mr Palmer at length, as summarised at par 107-117 in relation to his conclusions. In relation to whether he could see the heights of vegetation in single aerial photographs or SPOT5 images, he agreed that he could not. He had not tried to track individual plants given the scale of the photographs but focussed on texture and pattern, and colour to a lesser extent. He was able to explain where the 2008 SPOT5 image showed trees shown in the photographs in exhibit 1 and vegetation in exhibits 2 and 3, which photographs were taken after the clearing. Similarly, he was able to distinguish differences in vegetation in the 30 April 2008 SPOT5 image, contrary to suggestions he could not put to him in cross-examination. He was also cross-examined about his conclusions that vegetation had not been disturbed on the western side of the central tracks since 1986. He accepted that the 1983 aerial photographs in exhibit K showed activity consistent with sand mining on the western side of the property (par 114). 247 The Defendant submitted the interpretation of aerial photographs which did not enable the use of stereoscopic images (1984, 1989 and 1991), because only one photograph was available, did not enable Mr Palmer to draw any useful conclusions about the age of the vegetation in those photographs. The last stereoscopic photographs were in 2002. The interpretation of SPOT5 images by Mr Palmer was also argued to be a flawed methodology to assess the age of vegetation because he was not able to identify particular vegetation or the heights of the vegetation from these images. Mr Palmer did not agree with the submission that his methodology was flawed when it was put to him in cross-examination. As summarised at par 112, he was able to distinguish differences in vegetation as he identifies in relation to the SPOT5 image dated 30 April 2005 between the property and the adjoining lot by reference to colour and pattern. I am satisfied that his evidence is soundly based, applying the techniques he outlines in his evidence for the interpretation of the aerial photographs and SPOT5 images referred to by him. 248 Mr Palmer accepted that clearing could be masked if there was a long period between photographs (par 110). While criticism was made by the Defendant that there was an eleven year gap in the aerial photographs between 1965 and 1976 (not referred to in the summary of aerial photographs set out above but included in Mr Palmer's evidence) and between 1991 and 1997, the Prosecutor does not have the onus of proving that no clearing event occurred in that period. No evidence of possible clearing activity since 1990 which was concealed was put to him by the Defendant. Nor did the Defendant have any evidence that clearing did take place in that period in order to discharge the onus of proof that it has.

[143]

251 The Defendant has not brought forward any evidence to contest the expert opinion of the scientific witnesses in the Prosecutor's case. The submissions as to flawed methodology are not supported by expert evidence as to why the methodology is flawed but are based on matters put in cross-examination that are not self-evidently correct. Mr Peake and Mr Palmer both have considerable expertise in their respective fields. Their expert opinion evidence was not undermined by the matters put to them in cross-examination. None of the matters put in cross-examination caused either of them to change their opinion or impacted adversely on their conclusions. I accept the evidence of Mr Palmer and Mr Peake in relation to the interpretation of the aerial photographs and SPOT5 images and the conclusions they draw. Further, it is not necessary for the Prosecutor to negative a defence that the vegetation was regrowth on the balance of probabilities by establishing the height of vegetation in the SPOT5 images after 1990. 252 For completeness I note that there is lay evidence that there were weeds on the property. Mr Flemming referred to the vegetation cleared in December 2006 as scrubby regrowth including weeds. What he meant by scrubby regrowth or weeds is unknown. Mr Fekete also noticed weeds such as lantana on the property. Mr Elias referred to weeds in his record of interview with Mr Priestley. The extent of weeds on the property is not otherwise identified in the Defendant's evidence. The Prosecutor's evidence suggests that there was native vegetation across the entire property apart from those areas cleared in 2005. Impact of sand mining 253 The Defendant submitted that sand mining across much of the property in the early 1980s (as permitted by the agreements referred to in Ms Ivens' evidence) meant that the Prosecutor had to show that native vegetation had re-established by 1 January 1990 and had failed to do so. As identified in the Defendant's submissions the mining agreements permitted sandmining over the entire property. That activity ceased sometime between 1981 and 1986, when renewal of the mining lease was refused. Mr Elias stated in the record of interview conducted with Mr Priestley that he had been told several times on numerous occasions by the Council and by local people that the site was previously a sand mine. There is no dispute that some sandmining on the property did occur, the issue is where did it occur. The Prosecutor submitted that the aerial photographic evidence analysed by Mr Palmer primarily showed that disturbance from sand mining was confined to parts of the western side of the property in the early 1980s. 254 In relation to the extent of sand mining on the property over the time since the 1980s, the only evidence is that of Mr Palmer. He refers to the series of aerial photographs (par 102) he analysed as showing disturbance of a large area of the property after mining commenced, particularly on the western side of the central track. He agreed in cross-examination this disturbance was consistent with sand mining. In Mr Palmer's opinion the two 1983 aerial photographs show an area in the north west of the property which has been almost completely cleared with the sand and soil substrate exposed. To the north and south of this area there are other cleared areas which appear at that time to be denser woody vegetation. Evidence of clearing and disturbance in the north west area is also present in the 1989 aerial photograph. Mr Palmer also identified the disturbed area in the north west in the 1991 aerial photograph. He gave evidence that he was confident he knew where the boundaries of the property were from other evidence. By 1997 Mr Palmer expresses the opinion that this area of approximately 1.4ha contains both regrowth and vegetation that was present prior to 1 January 1990 but it is not possible to distinguish the two. The eastern side of the property continued to show no sign of disturbance since the 1965 photographs. His opinion, as stated above, was that the whole property was largely vegetated by 1 January 1990 after the disturbance from sandmining in the early 1980s, and as shown in the series of aerial photographs and SPOT5 images dated 30 April 2005 and 30 May 2006 referred to in his evidence. Mr Palmer was cross-examined about his analysis and conclusions in relation to the series of photographs identified in his evidence but I do not consider that was successful in undermining the quality of his evidence. 255 In terms of eye-witness evidence of previous sand mining on the property, the Defendant relied on the observations of Mr Fekete during his approximately ten visits to the property in 2003/2004. He recalled observing mounds of whitish sand on the central track and in the area to the east of the track. The mounds were irregularly placed and some had ground cover over them. He marked an area on an aerial photograph of the property where mounds of sand were observed (exhibit W). Areas marked were most of the length of the central track and an area near the southern boundary of the property. Mr Fekete said that the areas marked were cleared of vegetation. He agreed in oral evidence that there was vegetation surrounding the marked areas, to the east and west of the marked areas.

[146]

Conclusion 259 The Defendant argued there was a lacuna in the evidence of the Prosecutor because it had not established that native vegetation had been re-established on the property after sand mining in the early 1980s. I have held that the Defendant bears the onus of proof on the balance of probabilities of a defence that the native vegetation cleared was regrowth as defined under the NV Act. The Prosecutor can seek to negative that defence on the balance of probabilities. The Prosecutor has established that native vegetation was cleared in December 2006 and I have accepted expert opinion that the vegetation had been there for a considerable period, predating 1990. There is no lacuna in that evidence. My finding is not affected by the evidence concerning the extent of sandmining on the property as identified in the evidence of Mr Palmer. The Defendant has not sought to call any evidence on this issue. The Prosecutor has negatived on the balance of probabilities, meaning more probably than not, a defence that the native vegetation cleared in December 2006 was regrowth. The area in the north-west corner described in Mr Palmer's evidence as mixed regrowth and older vegetation is the only area of regrowth vegetation identified in the Prosecutor's evidence. Further the Defendant has not established on the balance of probabilities that the vegetation cleared in December 2006 was regrowth as defined in the NV Act. Accordingly, the Defendant does not have available to it the defence provided in s 12(3) of the NV Act as it has not established that the clearing was permitted under s 19 of Div 2 of the NV Act. 260 As identified in par 184 I said I would revisit my conclusion that a substantial area of vegetation had been cleared in December 2006 after evidence about sand mining had been considered. I have identified the conflicting eye-witness evidence of Mr Fekete compared to that of Mr Fleming, Mr Priestley and the local residents in relation to the possible area affected by sand mining. Taking the latter together with the 2005 and 2006 SPOT5 images referred to by Mr Palmer as showing the property to be largely vegetated but for the three strips cleared in 2005, I consider that the Prosecutor has established beyond reasonable doubt that a significant area of vegetation was cleared in December 2006 as the areas of the property where there are unvegetated mounds of sand are not proved by Mr Fekete's evidence to be as extensive as shown on Exhibit W. The possible area cleared ranges from the 17,168 m2 estimated by Mr Foster based on Mr Flemming's evidence up to the 9.2 ha estimated by Mr Peake, about which there is some doubt as a result of the evidence as depicted in Mr Foster's plans. As observed in par 177, Mr Foster identified in the plans prepared by him a 35m cleared strip on the southern boundary. That area is likely to be based on Mr Fekete's evidence of mounds of sand that he saw, but does not confirm the accuracy of that evidence. The area of uncleared land of 17,168m2 is an underestimation for that reason, in addition to the area shown by Mr Foster as cleared on the northern boundary, as earlier noted in par 177. Further, the area cleared on the property is likely to be in the upper end of the possible range given all the evidence I have referred to earlier and my findings at par 168-183. C. clearing not pursuant to a development consent 261 Section 12(1)(a) of the NV Act provides that native vegetation must not be cleared except in accordance with a development consent granted in accordance with this Act. Since February 2000, there have been a number of development consents granted by the Council in relation to the property under the EP&A Act. They are as follows: (a) a development consent for an 18 hole golf course granted by the Council on 15 February 2000 (DA488/99). It lapsed on 15 February 2005 if not commenced by that date. The golf course consent is the focus of these proceedings (the golf course development consent). (b) a modification to the golf course development consent was passed by Council resolution on 12 September 2001. This modification did not relate to the property. (c) a development consent granted by the Council on 29 July 2002 to keep a stockpile of fill at an identified location at the Lewis Street end of the property. (d) a modification to the golf course development consent, granted by the Council on 18 June 2008 to permit modification of the golf course from an 18 hole to a 9 hole course. 262 This information is confirmed by the evidence of Ronald McDermott, manager of land information at the Council since 2005, who affirmed an affidavit on 30 October 2008. Two development applications, two applications to modify a consent and the notices of determination for each of these four applications relating to the property were reviewed by Mr McDermott after he undertook a search of records held by the Council. Mr McDermott also reviewed two rezoning applications made in relation to the property, one of which was finalised and one of which is still being considered. Annexed to Mr McDermott's affidavit were the development applications, applications to modify, notices of determination and minutes of Council meetings in September 2001 concerning the modification applications. Mr McDermott also gave brief oral evidence. Mr McDermott produced to the Court a zoning map for the City of Greater Taree which was prepared in accordance with the 1995 LEP along with a table of rezoning amendments (exhibit U). He stated that that map is held by Council and is updated as amendments to the LEP are made.

[152]

271 In Green v Kogarah Municipal Council (2001) 115 LGERA 231 Giles JA extended the principle of Handley JA in Iron Gates to prohibition on carrying out development without consent because the development was not "permitted by the planning permission read together with its conditions". The existence of a condition precedent requiring something to be done before a development can proceed means that there is in fact no consent to develop where that condition precedent remains unsatisfied. Iron Gates and Coalcliff have been followed or referred to in this Court on many occasions, most recently in Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85. While s 95(4) is in a different form to that considered in Iron Gates and Coalcliff these still apply, as held in Green v Kogarah Municipal Council. Defendant's submissions (i) whether physical commencement of consent 272 On 15 February 2000, the Council issued a development consent for an 18 hole golf course to be constructed over various parcels of land including the property. That consent was expressed to be for a five year period expiring on 15 February 2005. The development for the 18 hole golf course was physically commenced by the carrying out of substantial engineering/survey work, culminating in plans produced on 6 October 2004 as amended on 31 October 2005 by Lidbury, Summers & Whiteman Consulting Surveyors Planners & Engineers (annexed to the affidavit of Mr Foster). The carrying out of that work constituted, and was later acknowledged by the Council to constitute, physical commencement, pursuant to s 95 of the EP&A Act with the consequence that the development consent issued by the Council on 15 February 2000 did not lapse on 15 February 2005. (ii) whether survey work relied on as commencement was unauthorised 273 Part 3A of the now repealed Rivers and Foreshores Improvement Act imposed a requirement for a permit to be obtained in certain restricted circumstances. Condition 6 of the golf course development consent has to be read in the context of that statutory scheme. It would not be within the Council's power, nor would it be appropriate for the Council to place a general embargo upon any work upon the land in circumstances where the topography of the land could only require a consent under Pt 3A in respect of areas on the various titles affected by the scheme of Pt 3A itself. As the Prosecutor's submissions make clear, the areas of land within the proposed development which attracted those considerations were not on the property itself. They were in the wetland areas to the west of the property on the adjacent land owned by Jarberg Pty Limited. The only relevant CAA (exhibit V) was ultimately expressed in that way when granted in 2009.

[155]

(i) physical commencement/(ii)whether survey work authorised 278 The survey work carried out in 2005 was physical commencement of the consent within the meaning of s 95(4) of the EP&A Act per Hunter Development & Brokerage Pty Limited (2005). The issue to resolve is whether it was carried out in breach of the development consent and so cannot be relied upon as lawful commencement. This requires the construction of condition 6 of the golf course development consent. 279 In Iron Gates (1992) the Court of Appeal considered a predecessor to s 95(4) of the EP&A Act, s 99(2), which was in similar but not identical terms. It then provided: (1) A consent granted under this Division to a development application shall lapse - (a) unless the development the subject of that consent is commenced - (i) ...within 2 years (or, if the consent authority so approves. . .3 years) of the date on which that consent becomes effective ... (2) For the purposes of subs(1)(a) - (a) where development comprises.......the subdivision (involving physical work) of land...that development is commenced when building, engineering or construction work relating to that development is physically commenced on the land to which the consent applies" 280 In Iron Gates development consent for subdivision was granted subject to a condition requiring that a road be constructed prior to commencement of stage 1. Stage 1 was commenced before the road was constructed and the Court of Appeal had to consider whether the trial judge was correct that the consent had not been lawfully commenced. The Court of Appeal held it had not. Handley JA (Mahoney JA and Rogers AJA concurring) stated at 135: The imposition of conditions on the grant of development consent is authorised by s. 91 and such conditions are enforceable as if they were part of the Act: see ss. 122 (b) (iii), 123 and 125. In my opinion, the work found to be engineering work which was relied upon by the Appellant to save its consent from lapse was prohibited and illegal, and the persons offending against that prohibition were guilty of offences against the Act for the purposes of s. 125 (1). It is not necessary in this case to explore the possible application of the principle that a person may not rely upon his own wrong: compare Alghussein Establishment v Eton College [1988] 1 WLR 587. In my opinion, the work in question was not work 'relating to that development' for the purposes of s. 99 (2) (a) because it was prohibited by the consent and therefore was not 'the subject of that consent' within s. 99 (1) (a). 281 In Coalcliff (1999) the Court of Appeal again considered the now repealed s 99 of the EP&A Act. Stein JA held that the relevant condition requiring specific work prior to the commencement of any other work on the land was a precondition to work commencing on the site. That condition was held at [62] to be plain on its face and its ordinary meaning apparent. Stein AJA applied the ratio of Handley JA in Iron Gates at 135. 282 In Green v Kogarah (2001) Giles JA (Mason P and Ipp JA concurring) considered the lapsing provisions in s 95(4) of the recently amended EP&A Act. A condition of the relevant consent provided that all trees were to be protected in a manner described and another condition provided for silt control devices. Both conditions provided that details were to be submitted with a building application. Before that application was determined various activities were undertaken on the site, including the digging of footing trenches, drainage lines and the removal of trees. These works were relied on as commencement.

[158]

284 Giles JA also considered the argument that the activities could not be carried out on the basis that although the development consent had been granted, the carrying out of any development was conditioned on the satisfaction of the conditions. Without the conditions being satisfied there was no development consent allowing the work. At [67] his Honour stated: To my mind this is a more satisfactory basis for the reasoning. Even if a development consent on its proper construction amounts to a requirement not to do Y until X has been done, it is necessary to ask why the landowner is precluded from doing Y in the first place - why there can be imposed the precondition of doing X. The answer is that Y can not be done without consent, and the underlying prohibition is the prohibition on carrying out the development without consent. 285 Giles JA concluded that the activities that occurred on the site constituted carrying out of work within the EP&A Act definition of development. Because one of the conditions was not complied with the works were prohibited and illegal and the development consent therefore lapsed notwithstanding the activities. 286 As identified by the Prosecutor, Iron Gates and Coalcliff have also been followed in this Court on many occasions in considering s (95)(4), most recently in Birdon Contracting at [47] - [48]. Detala Pty Ltd v Byron Shire Council (2002) 133 LGERA 1 was referred to by the Prosecutor for completeness but it submitted that it was a special case which should be distinguished on its facts. I agree and do not need to further consider it. 287 The arguments of the Defendant that the Council's powers to impose a condition such as condition 6 under the EP&A Act must be limited to acting as a condition precedent to work only in respect to the land the subject of a Pt 3A permit under the now repealed Rivers and Foreshores Improvement Act are not supported by authority. The power of a council to impose conditions under the EP&A Act in light of s 79C, which sets out matters for consideration in deciding whether to grant development consent and on what conditions, is broad. Section 79C is substantively the same now as it was when the consent was granted in February 2000. Similarly s 80A provides now as it did in February 2000 in stating that a condition of development consent may be imposed if it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent. That this statutory regime gives broad power to councils to impose conditions is confirmed by the Court of Appeal in cases such as GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 per Basten JA at [54] (Bell JA and Young CJ in Eq concurring) and Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 per Basten JA at [57] (Hunt JA and Handley AJA concurring). It is within that broad power for a council to require a Pt 3A permit to be obtained before any work on a development consent is commenced where the required permit may apply to only part of the land the subject of the consent. As argued by the Prosecutor the impact of a golf course on wetlands is an important environmental consideration for the council in its consideration under s 79C of the EP&A Act. If in the consent authority's wisdom it considered a Pt 3A permit should be obtained before any work commenced it is empowered to require that in a condition of development consent. 288 These are criminal proceedings and a consent must be strictly construed in light of this, condition 6 is not ambiguous and is in clear terms. The view of the Council that the consent had commenced as stated in the letter dated 12 November 2007 to New Heritage Developments is not material to the construction of the condition. 289 It is common ground and confirmed in the affidavit of Mr Phillipa (par 269) that no Pt 3A permit was obtained prior to the survey work relied upon by the Defendant commencing. It follows from the above reasoning that the survey work was not authorised under the terms of the development consent. It cannot be relied upon as commencement of the consent under s 95(4) of the EP&A Act and it is not work relating to the subdivision consent because it was prohibited by the consent before a Pt 3A permit was obtained. The golf course consent therefore lapsed on 15 February 2005. 290 It follows that the Prosecutor has established that the clearing in December 2006 was not carried out in accordance with any development consent as provided for in s 12(1)(a) of the NV Act. 291 As there were additional arguments made about the effect of the development consent if it was available to authorise the clearing I will consider these, although not strictly necessary to do so. (b) what area of land subject of development consent (temporary clubhouse) 292 Condition 9 of the golf course development consent required "a separate Development Application being submitted for the temporary clubhouse". Condition 8 required "construction of the access road from the end of George Street to the proposed temporary clubhouse and carparking area to the requirements of the Director Engineering". The plan labelled Annexure B, annexed to the consent shows a temporary club house site on the western side of the property. Annexure B also shows a "proposed public road" commencing at the end of George Street running through, inter alia, a "Future Residential" development up to a clubhouse site upon which is stamped the following notation: "Subject to future D/As future clubhouse site. Stage 1 temporary clubhouse and gravel car park". Prosecutor's submissions 293 If the consent is held to have commenced and permitted clearing of native vegetation it relates to a small portion only of the property. This is the area of the property south of the future clubhouse site and to the west of the black line on Annexure B. This area was marked with red hatching on exhibit T during the proceedings. The plan Annexure B showing the temporary clubhouse and access to it must be considered when considering conditions 8 and 9. Annexure C is a plan showing the same "proposed public road" running through what had been marked on Annexure B as "Future Residential" through an area marked "Golf Course Acc" to an area bearing the notation "Clubhouse".

[161]

Defendant's submissions 296 The notice of determination of the consent refers in the property details to the property the subject of these proceedings. The development detail is for an 18 hole golf course. There is no suggestion that the development consent extended to only to part of the property. Annexures B and C (the plans annexed to the consent) show the whole of the property with different levels of development. The thick black line on Annexure B is not explained on that document or in the conditions. Both plans are part of the consent. Annexure C refers to a clubhouse, whereas Annexure B refers to a temporary clubhouse and golf course accommodation. The Prosecutor essentially ignores Annexure C, however the consent by including a reference to a club house gives consent for a club house and golf course accommodation subject to a further DA as per condition 9. That a more detailed application was required for a temporary clubhouse does not deny that in principle consent was given by the Council to a clubhouse on the property where it appears in Annexure C. Finding on area of land subject of development consent (temporary clubhouse) 297 The Prosecutor's submissions on the construction of the golf course consent in relation to the temporary clubhouse are correct. That consent did not allow development of the temporary clubhouse as identified on Annexure B given the imposition of condition 9 and the delineation of the area of the temporary clubhouse on Annexure B. That the same area is identified in Annexure C as "clubhouse" does not affect this construction of the consent as condition 9 can only be given work to do if the area denoted as a temporary clubhouse on Annexure B is considered. Clearing of the property in that area was not permitted by the golf course consent. (c) whether development on land zoned 7(f2) under Greater Taree LEP 1995 permissible 298 It is common ground that the property comprises two zoning areas under the LEP. One area of 45,064m2 on the western and northern boundaries is zoned 1(a) Rural General and the other area of 56,223m2 on the eastern side of the property is zoned 7(f2). The land in each of these zones is shown on Mr Foster's survey plan CD02, described as an approximate area based on Council's advice that the 7(f2) zone extends 110m from the eastern boundary of the property. This advice was given to Mr Foster during 2008 when he was speaking with council as part of the process of preparing a development application for a manufactured housing estate on the property. On Annexure B to the golf course consent, the approved survey plans showing parts of the proposed development, the distance between the eastern boundary of the property and the thick black line which includes the boundary of the temporary clubhouse is shown as 100m. The zoning plan which is part of the LEP, produced by Mr McDermott, shows the two different zones on the property at a large scale and without numerical measurements. The Prosecutor argued that there was no approval for any development for a golf course on that part of the property zoned 7(f2). 299 The EP&A Act provides for the making of environmental planning instruments under Div 1 Pt 3. The relevant clauses of the LEP at the time the golf course development consent was granted were as follows: 24 Environmental Protection zones which apply in this plan ZONE No 7 (f2) ENVIRONMENTAL PROTECTION COASTAL LANDS ACQUISITION Objectives of zone The objectives are: (a) the protection of environmentally sensitive coastal lands, (b) the provision of land for acquisition by the corporation constituted under the Act, (c) the regulation of development so that it would not adversely affect or be adversely affected by, the coastal processes in both the short and the long term, and (d) the maintenance of the visual character of coastal landscapes and the availability of land for coastal recreation and access. Without consent Agriculture (other than intensive agriculture). Only with consent Nil

[169]

306 It is crystal clear that the Council was well aware of the restrictions imposed as a consequence of the zoning of the Precinct 3 land and the impact of the LEP. What appears on Annexure B is entirely consistent with the following propositions: (a) no part of the property which comprised land zoned 7(f2) could or would be developed; (b) that part of the property bearing the notation "Future Residential" on Annexure B was not part of the golf course development consent it then being zoned 1 (a) Rural General; and (c) the only part of the property which was covered by the golf course development consent was a small area extending along the western boundary from the southern edge of the proposed temporary clubhouse. This area was zoned 1(a) Rural General but did not require rezoning because this did not include any residential development. Defendant's submissions (i) power to grant golf course consent to land in the 7(f2) 307 Zone 7(f1) is a zone applicable to lands which have actually been acquired for coastal protection purposes. The adjacent coastal strip was acquired in 1978 by the Crown. It is clear from the LEP that the Council would have had power to consent to a golf course development within zone 7(f1) with certain concurrence. By contrast, the 7(f2) zone is a transition zone. It identifies land which may or may not ultimately be the subject of acquisition for coastal protection purposes. The scheme of cl 39 and cl 40 of the LEP is to give the Council a discretion to approve development, with the concurrence of the Director for Planning, in the period of "limbo" which may exist between the attribution of the 7(f2) zone and a final decision being made about acquisition. The letter from the Department of Urban Affairs and Planning to Ms Ivens dated 24 July 2001 confirmed that the land was not to be acquired and therefore the period of "limbo" where the Director of Planning's concurrence was required had ended. No concurrence of the Director of Planning for the granting of the golf course development consent was required contrary to the submission of the Prosecutor. This demonstrated that as there was no intention to acquire the property by the Crown, the Council was entitled to assume concurrence in granting consent to development on the part of the land zoned 7(f2) zone.

[172]

313 Condition 1 of the golf course consent required the development to be carried out generally in accordance with the drawings marked D488/99 approved (as amended by conditions). At issue is the interpretation of the two plans being Annexures B and C which were part of the development consent. The parties made conflicting submissions about what the heavy black line on Annexure B titled "Old Bar Golf Course" depicts. The black line encloses a large irregular area of land across the five lots the subject of the development consent. A small part of the area enclosed by the black line includes a small elongated rectangular block on the western side of the property, including the temporary clubhouse site. The black line is shown as drawn 100m from the eastern boundary of the property. There are three areas outside the area enclosed by the black line which are within the lots the subject of the development consent. These areas lie to the west, north and north east of the enclosed area and are described as future residential. The area in the north east includes part of the property. Within the black line there is a golf course layout of holes, sand bunkers and practice green. There is no reference to the black line in the documents constituting the consent. 314 The Prosecutor submitted the black line on Annexure B showed the limit of the 18 hole golf course for which consent was sought. Mr Fekete's evidence was that he believed this showed an area from which fill could not be taken (par 10 of his affidavit). The Prosecutor referred to a photographic image with a superimposed golf course layout titled "Old Bar 1999 Golf Course Layout Plan" which was part of an application made in 2008 to modify the golf course consent (attached to the affidavit of Mr McDermott and referred to at par 261(d). That shows the golf course as located outside the property. The property is marked "Future Residential Area". The latter confirms the Prosecutor's construction of the thick black line but it is not a document which can be used for the purpose of construction of the consent as it was produced well after the consent was granted. Nor is Mr Fekete's opinion relevant. In any event, the black line on Annexure C shows matters associated with the filling and sediment control plan, as the title makes clear. There is no reference to filling on Annexure B. 315 The boundaries of the land zoned 1(a) Rural General and the land zoned 7(f2) are not shown on the Annexure B plan or Annexure C plan. The Prosecutor argued that no development could take place on the part of the property the subject of the golf course consent zoned 7(f2) and this was the area outside the black line on Annexure B as located on the property. The temporary clubhouse site was not on zone 7(f2) land and the heavy black line located along the boundary of the proposed temporary clubhouse and parallel to the eastern boundary of the property denotes the edge of the land zoned 7(f2). The Defendant submitted to the contrary, that the black line on Annexure B intrudes 10m into the land zoned 7(f2) land, as identified by Mr Foster's survey evidence in CD02 in which the 7(f2) land has a width of 110 metres. The other depiction of the land zoned 7(f2) on the property can be seen on the plan which is part of the LEP, produced by Mr McDermott. That plan does not contain any dimensions but a visual inspection suggests that the boundary of the 7(f2) zoned land on the property on the LEP plan is located in the general area of the thick black line on Annexure B on that part of the property next to the temporary clubhouse site. 316 Mr Foster's survey plan CD02 was prepared based on advice obtained from the Council in 2008 in the course of preparing a development application for a manufactured housing estate for the property. He understood that the development application was for land zoned 1(a) Rural General, not land zoned 7(f2) (TS Day 6 17.5-32). He has no knowledge of the golf course consent. He describes the boundary of the zone 7(f2) land as approximate based on the advice of the Council. This suggests that precisely where the boundary of the zone 7(f2) land lies can vary marginally. His evidence does not rule out the possibility that the thick black line on Annexure B is drawn along the boundary of the zone 7(f2) land as the surveyor understood it in 2000. 317 Given that these are criminal proceedings the development consent must be construed strictly. The development consent must be given meaning, which suggests that the thick black line in Annexure B must do some work. The Defendant's arguments, if accepted, would mean that it is ignored. I consider that there is a strong inference arising from the description of the plan in Annexure B as "Old Bar Golf Course" and the identification of future residential areas outside the heavy black line that it depicts the limits of the golf course the subject of the development consent. That line is very likely to have been drawn on the property along the 7(f2) zone boundary. I accept the Prosecutor's submissions set out at par 294 and 295. 318 Another reason why this inference arises, separately from the arguments of the parties set out above, is that no part of the development for the golf course is indicated on Annexure B as occurring on the property outside the heavy black line apart from the access road from the northern boundary of the property to the proposed temporary clubhouse site. That proposed access road runs through an area marked "future residential". The consent was granted on the basis that it be carried out generally in accordance with the plan in Annexure B. The golf course consent does not have conditions which approve specifically or generally clearing of vegetation. It is relevant to contrast this consent with the consent in Hanwood Pastoral Co Pty Limited v Director-General, Department of Natural Resources (2005) 144 LGERA 139 referred to in the next section. The consent the subject of consideration in Hanwood had provisions dealing with clearing.

[173]

(d) no ministerial consent under repealed NVC Act and NV Act 319 At the time the golf course consent was granted in 2000 the repealed NVC Act was in force. Under s 15 of the NVC Act the Minister was the consent authority for an application for clearing of native vegetation made under Pt 4 of the EP&A Act. Consent was required for clearing native vegetation on any land covered by the Act unless it was in accordance with a native vegetation code of practice or fell within an exception identified by the Act. In relation to whether an application for development consent had been made for clearing under the repealed NVC Act, Stephen Gowlland, DECC officer, swore an affidavit on 6 August 2009. Mr Gowlland accessed the VegNet2 database which registers applications for development consent for clearing of native vegetation under the NVC Act. Mr Gowlland attests to finding no applications received, applications withdrawn, applications rejected, consents granted or consents refused relevant to the property or any of its owners over time. No such consent had been issued under Pt 3 of the NV Act, as confirmed by the evidence of Mr Paget in his affidavit affirmed 12 November 2008 (at par 38). 320 The Defendant argued that the golf course consent provided the necessary consent for clearing, relying on Vitality Care Pty Ltd v Director-General, Department of Natural Resources (2006) 151 LGERA 15. The Prosecutor submitted that the intention of Parliament as reflected in s 13 of the NV Act and s 14 of the repealed NVC Act was to require all consents for the clearing of native vegetation to be issued by the Minister. The Prosecutor submitted that Vitality Care was wrongly decided but I do not need to consider that matter. 321 I have held that the golf course consent has lapsed so that this argument is not available to the Defendant. As there is otherwise no Ministerial consent for the clearing in December 2006 granted under s 13 of the NV Act or s 14 of the repealed NVC Act the Prosecutor has proved this element of the offence beyond reasonable doubt. 322 If I am wrong that the consent has lapsed, it applied only to a small portion of the property, as marked in red on exhibit T. That is an area to the south of the site for the temporary golf course zoned 1(a) Rural General. The development consent only authorised development on that small area of land. 323 For completeness it is necessary to refer to Hanwood, referred to in the previous section at par 318. In Hanwood the Court was considering whether an order to cease clearing could be given by the Director-General of the Department of Natural Resources on the grounds there was a breach of the repealed NVC Act. A development consent had been granted by the council for subdivision of land for residential development. A condition of the consent provided: With the exception of any habitat trees which are to be retained as per Condition No. 36, consent is granted for the removal of trees and other vegetation from the site of approved permanent accessways and for the removal or lopping of trees within three metres of approved buildings. No other trees or vegetation shall be removed or lopped except with prior written approval of the Council. Reason To ensure that only trees and vegetation directly affected by the development are removed from the site, and to grant approval for such removal

[178]

332 Landholder is defined in s 4 of the NV Act as: landholder means a person who owns land or who, whether by reason of ownership or otherwise, is in lawful occupation or possession, or has lawful management or control, of land. 333 The section deems the landholder liable for clearing on its land unless it establishes the two matters in subsections (a) and (b). The Defendant accepted that under s 44 it has the burden of proving the two matters in subsections (a) and (b) on the balance of probabilities, per R v Hunt [1987] AC 352. The Prosecutor has proved on the evidence of Mr Priestley that the Defendant was a landholder within the meaning of the NV Act because it had lawful management or control of the property and because it owned it. The Defendant does not dispute it is the landholder. The clearing was carried out by a third party a contractor Mr Flemming through his company VSF (ss (a)). The issue that arises is whether the Defendant has discharged the onus it bears of establishing that it did not cause or permit the contractor to carry out the clearing the subject of the offence. 334 The evidence relevant to the issue of authorisation of the contractor is the oral evidence of Mr Flemming of the instructions received from Mr Elias to do the clearing work (par 20) and the work that was undertaken on the property following receipt of those instructions (par 19-21). The record of interview with Mr Elias attached to Mr Priestley's affidavit (par 54-56), and the conversation between Mr Priestley and Mr Elias on 13 December 2006 (see par 49-51) is also relevant. As set out in Mr Priestley's affidavit, a Notice to Provide Information was issued to the Defendant on 17 September 2007 under s 36 of the NV Act and a response and folder of documents were provided by the Defendant to DECC on 7 November 2007. These were exhibited to Mr Priestley's affidavit. In the Defendant's letter of response, the director of the Defendant stated: The company understands that works were undertaken in December 2006 to remove all rubbish and debris and clean up the site. We understand instruction [sic] were given to the contractor, V & S Flemming to clean up the site and remove any weeds, lantana and rubbish dumped on the site. This included garden clippings, branches, tree stumps, car bodies, car parts, disused car tyres, building rubble, waste building materials such as gyprock & fibro, broken roofing tiles, waste soil, and an abandoned caravan. The site had been used for dumping for many years as a locally known 'tipping' area. 335 Through its solicitors, VSF responded to a Notice to Provide Information issued 17 September 2007 by letter dated 10 December 2007. This letter stated: Bart Elias phoned Vince Flemming in mid-November 2006 and asked for an estimate of cost to mulch vegetation on the land. Verbal estimate given of $73,000 plus GST. Bar Elias gave the OK to do the job. No other specific directions given. Prosecutor's submissions 336 Section 44 of the NV Act imposes upon the Defendant the legal burden of proving (having regard to the evidence as a whole) on the balance of probabilities that it did not "cause or permit" VSF to carry out the clearing; see Abbott v State of Western Australia (2005) 152 A Crim R 186 at [62]; Hughes v R (1983) 49 ALR 110 at [132]; Sheldrake v Director of Public Prosecutions [2004] All ER(D) 169 (Oct); R v Carr-Briant (1943) 41 LGR 183 at 612. (The Defendant does not dispute that it bears the onus of proof). 337 Proof on the balance of probabilities requires that a matter in issue must carry a reasonable degree of probability, that is, be more probable than not. The evidence as a whole could not satisfy the Court that more probably than not the Defendant "did not cause or permit" VSF to clear the land. There can be no doubt that Mr Elias had authority to act on behalf of the Defendant. He described himself to Mr. Priestley as a representative for the Defendant and "the site manager". Mr Elias also corresponded and signed letters to Mr. Priestley on behalf of the Defendant. 338 Mr Elias' record of interview made it abundantly clear that Mr Elias authorised the works undertaken by VSF. In these circumstances, it is submitted that the Court would be satisfied that the Defendant: (1) authorised the clearing of native vegetation; and (2) alternatively, exercised a sufficient degree of control and direction of VSF in the actual execution of the work. Significantly, the Defendant paid VSF in excess of $80,000 for the clearing work. Defendant's submissions 339 The Prosecutor has not established that the Defendant was liable for the actions of VSF in December 2006 given the instructions of Bart Elias to VSF. The instruction of Mr Elias was to clean up rubbish, clear "regrowth" and mulch. Beyond a telephone call to Mr Flemming, Mr Elias had no contact with the employees of VSF. The request to Mr Flemming was to clean up the property. Lloyd J held that a request in similar terms did not render the person requesting the work liable to prosecution for a breach of the EP&A Act on the basis of vicarious liability in Coffs Harbour City Council v Hickey [2004] NSWLEC 531, partly because the contractor was a specialist in his field. At common law a person engaging an independent contractor is not usually liable for the contractor's acts or commissions, per Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48. No particular acts at a particular time and date or at a particular place or involving any particular one of the species of native vegetation allegedly cleared referable to any particular instruction from Mr Elias were proven by the Prosecutor. No particular instructions were given by Mr Elias as to the way in which the work should be done.

[179]

340 The evidence is clear that Mr Elias on behalf of the Defendant did not cause or permit VSF to clear the particular species of native vegetation alleged to have been cleared in breach of the Act. Section 44 is an evidentiary provision which is directed to reversing the onus of proof by requiring the landholder to establish the two facts in subsections (a) and (b). The Act is framed in language which adopts the same concepts used to determine the existence of vicarious liability under the common law. In Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 Lloyd J considered whether a principal "caused or permitted" the pollution of waters at [238]-[259] and found, inter alia, that a person causes a result where he or she intends to secure a particular outcome and does an act to bring about the result. Referring to Alphacell Ltd v Woodward [1972] AC 724 at 839, Lloyd J held that the defendant must engage in a positive act to "cause" something to occur and this act need not be an immediate cause referring to Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 27-28. To determine if the involvement of a third party excludes the defendant as a causative factor, the court must consider whether the actions of the third party were an ordinary occurrence or something extraordinary. This is a question of fact, per Empress Car Co at 36. 341 It is impossible to conclude on the evidence that Mr Elias caused or permitted the clearing of any particular native vegetation on the land in breach of the NV Act. Finding on s 44 of the NV Act 342 The offence created by s 12 of the NV Act is an offence of strict liability so that mens rea is not an element of the offence. Section 44 came into force in 2005 when the NV Act commenced. There was no equivalent provision in the repealed NVC Act. It is an evidentiary provision. If a defendant cannot discharge the evidentiary onus placed on it under the section he or she is "taken to have carried out the clearing" of native vegetation on land. This renders them liable to an offence under s 12(2). Section 12(2) states that "A person who carries out (emphasis added) or authorises the carrying out of clearing in contravention of this section is guilty of an offence…". A company is a person by virtue of s 21(1) of the Interpretation Act. By virtue of s 44 a landholder is held to have carried out clearing, as referred to in s 12(2), unless certain matters can be established by it. It is not necessary to make a separate finding that the Defendant authorised the clearing, the second limb of s 12(2), if s 44 applies to the landholder. A company can be liable through the actions of its officers or employees, per Lord Reid in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170. (i) whether Elias' actions attributable to the Defendant 343 The parties did not refer to any case which has considered the operation of s 44. The section was not raised in Hudson. Since the conclusion of the hearing in this matter Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232 was handed down in this Court. That case considered the application of s 44 in the context of whether the instructions of a company director to undertake clearing were attributable to the corporate landholder. There was no dispute, in contrast to this matter, that the instructions of the director did cause or permit the clearing the subject of the offence. The issue raised was whether the conduct of the director in causing or permitting the contractor to carry out the clearing was attributable to the corporate landholder in the context of s 44(b) and s 12 of the NV Act. 344 Biscoe J in Issa (No 5) at [96]-[97] concluded that the conduct of the defendant's director was the conduct of the corporate defendant on the basis of a special attribution rule that applies under s 44(b). At [79] and following, his Honour considered that criminal liability attaches to a company for the conduct of a person who is the directing mind and will of the company (organic theory) or an agent or servant for whom the company is vicariously liable (agency theory). That person need not be a director of the company but an employee. In reaching that conclusion his Honour took into account that an offence under s 12 is one of strict liability and attracts the principles of vicarious liability, referring to Director-General of Department of Land and Water Conservation v Greentree (2003) 131 LGERA 234. The question to ask on the proper construction of the statute is whose act is intended to count as the act of the company, referring to Meridien Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500. At [82]-[90] his Honour considered several authorities and concluded that Meridien provides a relevant framework to identify in a statutory context the rules of attribution to determine which persons actions are attributable to the company. 345 Attribution in the criminal context as considered in Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA and ABC Developmental Hearing Centres Pty Ltd v Wallace [2006] VSC 171 is referred to at [92]-[95]. These cases held that a rule of attribution of the actions of an employee can apply to a corporate defendant when the employee is performing a regulatory obligation. At [96], in determining the proper statutory construction of s 44(b) and s 12(2) Biscoe J referred to the policy of protection of native vegetation under the NV Act in accordance with the principles of ecologically sustainable development and the seriousness of this strict liability offence in light of the maximum penalty imposed. His Honour concluded at [96]-[97] there was a special attribution rule under s 44(b) where the conduct of the director of the company in carrying out or authorising the carrying out of clearing in contravention of s 12(2) is attributable to the company where such conduct is in furtherance of the company's interests. Biscoe J separately referred to other bases of liability raised by the prosecutor of whether the defendant company was vicariously liable for the acts of the director and whether the director was its directing mind and will. 346 Neither of the parties before me raised the application of s 44(b) in terms of whether the actions of Mr Elias can be attributed to the Defendant company and I was not referred to any of the cases to which Biscoe J refers in Issa (No 5). On the assumption that it is necessary to make a finding of attribution of Mr Elias' conduct to the Defendant in relation to s 44(b) I adopt the reasoning of Biscoe J which caused him to conclude in that case that the actions of a director were attributable to a corporate defendant for the purposes of s 44(b). Mr Elias is not a director of the company but the evidence relied on by the Prosecutor suggests that he was authorised to represent the company in relation to the work undertaken by Mr Flemming. The Defendant has not tendered any evidence to suggest the contrary. The Defendant was invoiced for work on the property by Mr Flemming and Mr Elias arranged for the payment. The clearing was undertaken for the purposes of the company as shown in the evidence of Mr Elias in the record of interview and the Defendant's answer to the Notice to Provide Information. (ii) whether Defendant caused or permitted clearing 347 As noted at [12] of Issa (No 5), Biscoe J did not need to consider the distinction between "cause" and "permit" in s 44(b). The Defendant accepts that it has the onus of establishing on the balance of probabilities that the clearing was, firstly, carried out by another person and, secondly, that the landholder did not cause or permit the other person to carry out the clearing. In relation to the identity of the landholder of the land on which native vegetation has been cleared, there is no dispute that the Defendant is the landholder as defined in s 44, being the owner in lawful occupation and with lawful management and control of the land. Mr Elias' role in the company is identified in the evidence of Mr Priestley. The evidence establishes that Mr Elias was acting on behalf of the landholder when he contacted Mr Flemming to ask him to do work on the land. There is no dispute that the clearing that did occur was undertaken by VSF, an independent contractor, so that s 44(a) applies. 348 As discussed earlier at par 229, Miller v Minister of Pensions at 373-74 states that proof on the balance of probabilities requires a reasonable degree of probability or something being more probable than not. The cases cited by the Prosecutor at par 335 (Abbott, Hughes, Sheldrake and Carr-Briant) confirm that whether the onus of proof is discharged must be assessed on the whole of the evidence.

[182]

352 Lloyd J considered "cause" at [236]-[240] and at [245]-[257] referring to Alphacell and its application in Majury v Sunbeam Corporation Ltd [1974] 1 NSWLR 659. Majury considered a previous version of s 16 of the Clean Waters Act providing that "A person shall not cause any waters to be polluted". McClellan CJ at CL applied Alphacell to hold that the defendant had caused the pollution of water. In Multiplex Lloyd J held that "caused" can have several meanings depending on the statutory context. As summarised in the Defendant's submissions (par 340), a person causes a result where he or she intends to secure a particular outcome and does an act to bring about that result. A defendant must engage in a positive act to cause something to occur and this act need not be an immediate cause. Where a third party is involved the Court must consider whether the actions of the third party were an ordinary occurrence or something extraordinary. 353 After considering Alphacell and Majury, Lloyd J held in Multiplex at [262] that in relation to the deeming provision in s 16(2) of the Clean Waters Act: …the concept of causing extends liability in a common sense way to the natural consequences of what the defendant may have done or omitted to do. This includes liability for the ordinary or natural consequences of the defendant's conduct, but not for extraordinary consequences or other contributing causes which exclude any operation of the defendant as a causative factor. 354 Section 44(b) of the NV Act is premised on s 44(a) applying, namely that a third person other than the landholder has carried out clearing. Multiplex, Majury and Alphacell were considering strict liability offences for water pollution. Those cases emphasise that it is necessary to consider the meaning of cause in its particular statutory context. The Defendant's submissions emphasised that whether there was control exercised by a defendant over the actions of a third party was relevant to determining cause, relying on Multiplex. This submission was bound up with the Defendant's submission that principles of vicarious liability are relevant to the consideration of cause and permit in s 44(b). Section 44(b) provides a statutory basis of landholder liability arising from the acts of a third party, such as an independent contractor, separate from the common law principles of vicarious liability. The issue of control in determining whether a principal is vicariously liable for the acts of a contractor is not the same in relation to determining whether the landholder causes clearing through the actions of a third party, in this case an independent contractor. As noted already, in Multiplex Lloyd J considered vicarious liability separately from the meaning of "cause" and "permit" in the Clean Waters Act. 355 The offence in s 12 of the NV Act is a strict liability offence in a statute directed to the preservation of native vegetation. The findings of Lloyd J summarised at par 351-352 are appropriate to apply in the context of s 44(b) of the NV Act. To cause clearing in s 44(b) does not require the exercise of particular control over the third party whose actions result in the clearing event to the extent that would be necessary to establish vicarious liability for the actions of an independent contractor. Where the clearing by a third party arises as a natural consequence of the landholder's conduct that landholder can be said to have caused the clearing. It is necessary to apply these principles to the facts in this case. Permits 356 Whether the Defendant permitted the clearing is also relevant given Mr Flemming was employed to work on the property by Mr Elias acting on behalf of the Defendant. "Permit" has been considered in a number of criminal cases in varying statutory contexts. A common starting point in a number of cases is The Corporation of the City of Adelaide v The Australasian Performing Right Association Ltd (1928) 40 CLR 481. In R v Jasper (2003) 139 A Crim R 329 Mason P (Dowd and Adams JJ concurring) held at [32] - [34:] 32 There are many statements in cases discussing the knowledge element implicit in the word "permits". Thus, in Adelaide City Corporation v Australasian Performing Right Association Ltd [1928] HCA 10; (1928) 40 CLR 481, Knox CJ said at 487 (emphasis added): ... indifference or omission is permission' within the plain meaning of that word where the party charged (1) knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done , (2) has the power to prevent it, (3) makes default in some duty of control or interference arising under the circumstances of the case, and (4) thereby failed to prevent it. This statement of the legal position was not challenged in argument before this Court. 33 Knowledge is more than suspicion and, to that extent, the passage just quoted needs to be adjusted in a criminal context. But the reasoning remains authoritative as regards the object of the knowledge and the recognition that (for the law) the future can be "known". Knowledge of something likely to be done in the future may suffice, at least if that knowledge rises to the level of "shutting one's eyes to the obvious" (Souter at 407-8, Thomas at 69, Lyver v State of Victoria [1983] 2 VR 475 at 478, Douglas-Brown v Commissioner of Police (1995) 13 WAR 441 at 446). This extends to the obvious in the future as well as the obvious in the (continuous) present. 34 Similarly, in Chappell v A Ross & Sons Pty Ltd [1969] VR 376 Winneke CJ and Smith J said (at 382, emphasis added): We think that in accordance with the natural use of language it ["permitting"] involves not only a right or capacity on the part of the permittor to prevent the contravention, but also a state of mind amounting to consent to, or acquiescence in, the contravention. And consent or acquiescence must include an element of knowledge or foresight. Actual knowledge that the contravention is being or will be committed would plainly be sufficient. Likewise, we think a belief that a contravention is highly likely or probable would suffice . The weight of judicial authority, in our opinion, supports this view. For these reasons, permission', in our opinion, cannot be equated with a careless or negligent failure to prevent a contravention. These remarks were supported by citation of authority and were made in the context of a crime of permitting another person to drive in a manner contrary to the Motor Car Act 1958 (Vic). 357 That case was cited with approval in Hardt v Environment Protection Authority (2007) 156 LGERA 337. In Hardt the Court of Criminal Appeal was considering s 144 of the Protection of the Environment Operations Act 1997 which states that a person permitting use of land as a waste facility is guilty of an offence. At [26] Giles JA (Grove and Harrison JJ concurring) held that: …"Permits" plainly has a mental element. Permitting something requires awareness of it and failure to exercise a right or power to prevent it: R v Jasper [2003] NSWCCA 186; (2003) 139 A Crim R 329 at [22]-[34]. In that case Mason P cited at [32] from the judgment of Knox CJ in Adelaide Corporation v Australasian Performing Rights Association Ltd (1928) 40 CLR 481 at 487 …

[184]

359 The criteria referred to in Adelaide Corporation continue as foundation findings on the meaning of permit, as recognised by Mason P in R v Jasper and Giles JA in Hardt. Knowledge that something that is a contravention is likely to be done in the future can be permitting it to be done. That is a potentially wider definition of permit than to intentionally allow as applied in Multiplex. Carelessness or negligence in failing to prevent an act giving rise to a contravention is not permitting it to occur. It is necessary to apply these principles to the facts of this case. What instructions were given to Mr Flemming by Mr Elias? 360 The landholder's relevant conduct in this case are the instructions given by Mr Elias on behalf of the Defendant to Mr Flemming. The onus is not on the Prosecutor to positively prove that there was a particular instruction to VSF to clear particular native vegetation but on the Defendant to demonstrate that what Mr Flemming/VSF did was not caused or permitted by Mr Elias on behalf of the Defendant. There is no evidence that Mr Elias gave explicit instructions to clear any particular native vegetation on the property, a fact emphasised in the Defendant's submissions. 361 Mr Flemming's oral evidence is that he was asked by Mr Elias by telephone to provide an estimate of the cost of mulching the vegetation on the property. He provided a verbal estimate of $73,000 plus GST. He was told verbally to go ahead by Mr Elias. Mr Flemming and employees of his company, VSF, worked across the site with machinery pushing the groundcover with a dozer blade into windrows which were then mulched. He also said that he came across rubbish when the vegetation was being cleared and it was progressively exposed, particularly at the northern end. He levelled out the rubbish and pushed sand over it as he considered part of his task was to tidy up rubbish. The work he had VSF undertake on the property was consistent with the instructions which he received according to his evidence. The invoice rendered to the Defendant for the work in December 2006 specified the cost (not including GST) of an excavator and dozer of $35,000 and the cost of Green Waste Australia of $38,000 and a dozer for $1440. This amount was paid by the Defendant. 362 The Defendant in its written submissions stated that the Defendant's instructions through Mr Elias were consistent with a direction to clean up rubbish and clear regrowth and mulch. I am not aware that the exact words "clear regrowth and mulch" appear in the evidence of Mr Elias. In his record of interview with Mr Priestley (summarised in par 54-56), Mr Elias stated that he asked for the land to be cleaned up. During the record of interview with Mr Priestley he stated that clearing up included the clear up of regrowth but it is not clear that he said that to Mr Flemming. In the conversation with Mr Priestley on 13 December 2006 Mr Elias said "I am having the site cleared up for insurance reasons … I asked him to clear 6-8m around boundary and a series of trails". 363 In the written response to the Notice to Provide Information sent by the Prosecutor (exhibited to Mr Priestley's affidavit and referred to at par 333) the Defendant stated that instructions were given to clean up the site and remove any weeds, lantana and rubbish dumped on the site. 364 The oral evidence of Mr Flemming of the instructions given by Mr Elias varies from that stated by Mr Elias to Mr Priestley in the record of interview and as identified in the answers to the Notice to Provide Information sent to the Defendant from DECC dated 17 September 2007. No concern was raised by Mr Elias about the work undertaken by Mr Flemming in the interview between Mr Elias and Mr Priestley conducted on 2 August 2007. In his answers Mr Elias stated that the only instructions given were verbally by telephone from him to Mr Flemming. 365 The behaviour of VSF gives rise to a clear inference that the work undertaken by Mr Flemming was in accordance with the instructions received by telephone from Mr Elias that he mulch the vegetation on the property and clean up rubbish. There is no suggestion in Mr Flemming's evidence that he was asked to clear 6-8m around the boundaries and a series of tracks as Mr Elias told Mr Priestley on 13 December 2006. The work he undertook was over the whole property not just along the trails. Part of the work required Green Waste Australia to do mulching work to the value of $38,000 which the Defendant paid. Mr Flemming caused a large volume of vegetation on the property to be mulched in December 2006, as he believed Mr Elias had requested him to do and for which he gave a quote to Mr Elias. Mr Elias paid for that work on behalf of the Defendant. There is no evidence that Mr Elias expressed any concern to VSF about the work undertaken. In the record of interview with Mr Priestley Mr Elias said he was happy with the work undertaken by VSF. I accept that the instructions given by Mr Elias to Mr Flemming are those identified in Mr Flemming's oral evidence that he mulch the vegetation on the property and remove rubbish.

[185]

366 In relation to the instructions given by Mr Elias to Mr Flemming, the Defendant relied on Hickey as supporting its submission that there was no control over the work carried out by Mr Flemming and no instructions were given to Mr Flemming to clear native vegetation by Mr Elias. That case was a prosecution for the removal of trees in breach of a tree preservation order (TPO), constituting an offence under the EP&A Act. The defendant landholder engaged a contractor to carry out work such as cleaning up weeds, lantana and regrowth vegetation on the land. As a result of the work being carried out trees the subject of the TPO were knocked over. Whether the landholder was vicariously liable for the actions of the contractor in knocking down the trees was in issue. Lloyd J held that the landholder did not instruct the contractor as to how the work should be done and relied on the contractor's expertise in requesting him to do the work. There was no control exercised by the landholder as to the manner of work and the landholder was held not to be vicariously liable. There was no direction to do the act that comprised the offence, or to do some act which necessarily led to the offence. 367 Hickey was not considering s 44 of the NV Act which does not impose liability on the landholder on the basis of vicarious liability. The facts also differ materially from those in this matter. The instructions I have held were given to Mr Flemming inevitably led to the clearing of native vegetation. Hickey does not provide any assistance to the Defendant in this matter. Whether clearing permitted or caused by the Defendant 368 By virtue of his instructions to Mr Flemming, Mr Elias on behalf of the Defendant caused VSF to carry out the clearing of native vegetation on the property. That clearing occurred was a natural consequence of the instructions given by Mr Elias to Mr Flemming. The clearing was not an extraordinary consequence resulting from those instructions but inevitable. The act of mulching the vegetation authorised by Mr Elias on the property did necessarily lead to the offence with which the Defendant is charged. But for Mr Elias' request to Mr Flemming to do work on the property, the work resulting in the clearing of the land would not have been carried out. It is impossible to mulch vegetation without clearing it. Whether or not Mr Elias intended that native vegetation be cleared is irrelevant to the determination of whether the landholder caused the clearing, the offence being one of strict liability. 369 As s 44 refers to whether "it is established that…(b) the landholder did not cause or permit the other person to carry out the clearing" (emphasis added), it is unnecessary to find that the Defendant also permitted the clearing for a finding that s 44 applies. For completeness, I consider that on the basis of Adelaide Corporation as applied in Hardt and R v Jasper this was not established by the evidence. There is no evidence that Mr Elias had any awareness that native vegetation would be cleared in breach of the NV Act. The evidence suggests that if anything he was careless about the consequences of the mulching and clearing of rubbish he employed Mr Flemming to do on behalf of the Defendant. That does not give rise to a finding that he permitted the clearing in the sense that he had a belief that a contravention was highly likely or probable.

Department of Environment and Climate Change v Olmwood Pty Limited

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