Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd

Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd - [2010] NSWLEC 43 - NSWLEC 2010 case summary — Zoe

[16]

THE EVIDENCE 5 Clearing of native vegetation occurred on about 12 of 40 hectares of rural land owned by the defendant known as 106 Q7 Lane Quorrobolong in the local government area of Cessnock between about 1 April and 24 May 2007. The native vegetation was not cleared in accordance with a development consent or a property vegetation plan. The clearing was carried out by a contractor. Mr Mario Mura instructed the contractor to carry out the clearing and paid him from the bank account of a company with which he was associated but which was unrelated to the defendant. At all relevant times Mr Mura was one of the two directors and two equal shareholders of the defendant company, the other being Mr Jack Issa. Mr Mura has since been declared bankrupt and is no longer a director of the defendant. 6 When convicting the defendant I held at [118]: "In my opinion Mr Mura was the mind and will of the defendant so far as concerns the management of the land and it was within his implied or apparent authority to mange the land. Mr Issa was purely a passive investor with no interest at all in the land other than as a long term investment. Mr Mura was the only active director and the company had put him in possession and control of the land. From start to finish Mr Issa left everything to Mr Mura. Mr Issa may well have assumed, as he says, that Mr Mura would consult him in relation to major matters not involving Mr Mura's cattle grazing business but I do not accept that that included clearing of land which served the interests not only of that business but of the defendant." 7 I proceeded to find that Mr Mura's conduct in causing the clearing of the land was attributable to the defendant on the basis of one or more of three alternative rules of attribution. 8 Upon Mr Mura making enquiry by phone of the Hunter Central Rivers Catchment Management Authority on or around 9 March 2006 he spoke with a catchment officer, Mr Russell, who put him on notice as to the ecological value of the understorey vegetation. Mr Russell told Mr Mura that he could not advise Mr Mura as to whether particular vegetation was regrowth or not, that this needed to be determined by the owner of the land or the person carrying out the clearing, and that he would send Mr Mura some printed information about the Act.

[17]

9 On the same day a receptionist employed by the Authority sent out an information kit to Mr Mura. One of the documents in the kit is headed "What Clearing Requires Approval?" under which the following appeared: "Clearing remnant native vegetation or protected regrowth requires approval under the Native Vegetation Act 2003 (NV Act) unless the clearing is a permitted activity. Explanations of clearing, remnant vegetation, regrowth and protected regrowth are in Info Sheet 4 while details of all permitted activities are in Info Sheets 6 and 7. Under the Native Vegetation Act your local Catchment Management Authority (CMA) can only approve the clearing of remnant vegetation or protected regrowth when the clearing will improve or maintain environmental outcomes (see below)...Development consent cannot be granted unless the clearing itself improves or maintains environmental outcomes because offsets are not available...If your clearing proposal forms part of a Property Vegetation Plan and the clearing itself does not improve or maintain environmental outcomes, you may be able to offset your proposal with positive management actions to help meet the 'improve or maintain' test. Offsets are actions that a landholder agrees to in order to balance any negative impacts of clearing. Offsets may include, for example, agreeing not to clear regrowth, reducing stocking rates from areas of remnant vegetation, planting, re-seeding or improving habitat by weed control." OBJECTIVE SERIOUSNESS OF THE OFFENCE 10 The primary sentencing consideration is the objective seriousness of the offence which fixes the upper and lower limits of proportionate punishment. Having regard to the evidence considered below, I think that it lies at the lower end of the scale. MAXIMUM PENALTY 11 The maximum penalty for this offence is $1.1 million. The maximum penalty is an expression by the legislature of the seriousness of the offence. ENVIRONMENTAL HARM 12 About twelve hectares of native vegetation was the subject of the form of mechanical clearing employing the use of a bulldozer which predominantly left the canopy trees intact, with a small number of exceptions, but which involved the removal of a high proportion of understorey and groundcover vegetation. 13 Mr Mura's purpose was to retain the landscape featuring canopy trees and replace the scrub and groundcover with grasses to facilitate pasture improvement for the purpose of grazing cattle on that part of the land.

[22]

18 Expert evidence tendered by the prosecutor indicates that: (a) soil conservation practices, such as re-establishing vegetation cover, will need to be implemented to stabilise the soil in the cleared area; (b) whilst groundcover vegetation is slowly returning to the cleared area, it is likely that erosion will continue in the cleared area during subsequent heavy rainfall events unless soil conservation works are implemented which are sympathetic with any planned revegetation of the area; (c) overall the vegetation on the property was displaying strong recovery potential from local sources of seeds and plant fragments; (d) this clearing event can be rehabilitated largely through natural regeneration but it will likely require some targeted areas of soil stabilisation and periodic weed control for best results; (e) the clearing event was accompanied by widespread soil disturbance that led to significant gully, rill and sheet wash erosion during a subsequent heavy rainfall event in June 2007. The soil in the cleared area is still vulnerable to further erosion until either sufficient groundcover vegetation has become re-established or until soil conservation techniques are implemented. 19 I accept the prosecutor's submission that the environmental harm was significant but somewhere towards the lower middle end of the spectrum. REMEDIAL DIRECTION 20 The harm occasioned by the commission of the offence is likely to be remediated by compliance with a Remedial Direction issued by the Department of Environment and Climate Change on 4 March 2010 or some appropriate variation thereof (see below). The Remedial Direction records an opinion of an officer of the Department that native vegetation had been cleared on the property in contravention of the Act, that the clearing had caused soil erosion and land degradation, and that the clearing had caused an adverse effect on the environment. 21 The Remedial Direction directed the defendant to repair damage caused by the clearing, to rehabilitate land affected by the clearing (including the taking of steps to allow the land to regenerate) and to ensure that the cleared land would not be further damaged by the clearing. It required the defendant to perform specified remedial works on the property within the time specified, if any, for each work or where no time was specified for a period of thirteen years.

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Judgment (35 paragraphs)

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Cases Cited (4)