Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited

Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited - [2010] NSWLEC 73 - NSWLEC 2003 case summary — Zoe

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Contents Subject Paragraph No Introduction 1 Summary of Decision 7 Chronological Factual Overview of Events Giving Rise to the Offence 8 Evidence of Mr Edward Hinton 12 ELC Engaged 16 Evidence of Mr Alan Mills 33 Evidence of Mr Dennis Ashton 56 Evidence of Ms Sharne Ridge 60 Evidence of Mr Michael Wood 69 The Statutory Framework for the Offence 77 "Clearing" 80 "Native Vegetation" 81 Liability for the Clearing 82 Defences 85 Elements of the Offence 96 Was There Clearing on the Property? 97 SPOT 5 Imaging and Aerial Photographic Evidence 99 The Property Was Cleared 101 Was the Cleared Vegetation "Native Vegetation"? 106 The Vegetation Comprised Trees and Understorey Plants, Both Living and Dead 107 The Vegetation Was "Indigenous" 117 The Cleared Vegetation Included One or More of the Seven Species and Was Not Regrowth 118 Evidence 120 Evidence of Mr Kenneth Turner 122 Evidence of Ms Karen Wilson 145 Evidence of Mr John Palmer 146 Evidence of Dr Andrew Smith 171 The Clements Report 207 The Vegetation Was "Native" 208 The Vegetation Cleared Was Not "Only Regrowth" 222 Onus 223 Meaning of "Regrowth" 227 Was the Clearing Permitted Under Div 3 of the Act? 248 Routine Agricultural Management Activities 250 Continuation of Existing Farming Activities 257 Grazing 258 Is Walker Liable for the Clearing by ELC? 263 Principles of Attribution 268 Liability Under s 44 of the Act 270 The Acts of Mr Fife Were those of Walker 276 Did Walker "Cause or Permit" the Clearing to be Carried by ELC Pursuant to s 44? 278 Instructions Given to ELC 278 Reliance by Walker on ELC's Specialist Expertise and Experience 295 Did Walker "Cause" ELC to Carry Out the Clearing? 304 Did Walker "Permit" the Clearing to be Carried Out by ELC? 308 Is Walker Vicariously Liable for the Acts of ELC? 311 Conclusion and Orders 319 Introduction 1 HER HONOUR: This case concerns the unlawful clearing of native vegetation. 2 The defendant, Walker Corporation Pty Ltd ("Walker") pleads not guilty to an offence contrary to s 12(1) of the Native Vegetation Act 2003 ("the Act") that through its contractor, Environmental Land Clearing Pty Ltd ("ELC"), it cleared native vegetation as defined in the Act.

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(b) in relation to Exocarpus cupressifomis , that the species was not found in a wide range of communities but that the distribution was fairly wide in eastern Australia. It was not present in rainforests and she was unsure whether or not it was present in poorly drained areas. Ms Wilson agreed that in most communities its occurrence was sporadic consisting of widely scattered colonies. She agreed that the plant's response to fire would be that the above ground stems would probably be killed. In her experience, the species was not observable in saline areas. The growth form of the plant was generally from shrubs to small trees; (c) in relation to Eucalyptus crebra , it was Ms Wilson's experience that this species was commonly found on heavier and deeper soils in the Sydney region. It was also found in grassy woodlands and dry sclerophyll forests and thus it was, in her view, relatively widespread. Ms Wilson expected that it would be found in rain shadow areas and that it would be confined to open forest woodlands rather than low open forest. The plant was a tree 10 to 30 m high and individuals could last more than 100 years; (d) in relation to Hardenbergia violacea , Ms Wilson described this plant as a very small scrambling plant with runners of up to about 1 m or more. Ms Wilson had never observed this species in saline areas. It was low growing and scrambled over the ground. It could climb up other plants. The plant was widespread from shrub heaps to tall forests. Its lifespan was no more than 5 to 20 years. Ms Wilson agreed that sand dune conditions would be the shortest lived environment for a plant of this type. Ms Wilson indicated that in her experience the plant was a coloniser of disturbed sites. She had not, however, observed it after fire; (e) in relation to the species Melaleuca nodosa, that this was a species which was restricted to coastal and sub-coastal zones in New South Wales. The plant often formed an understorey to eucalyptus or taller melaleuca species. The height of a plant was that of a tall shrub. Ms Wilson was unsure what the salinity tolerance of this species was;

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183 Sixth, while satellite image evidence indicated to Mr Palmer that closed shrublands and understorey shrubs were cleared along parts of the pasture forest interface on the property between April and September 2006, analysis of forest cover changes within these alleged cleared areas from historical aerial photographs showed that, with the exception of small patches of possible blackberry infestation, closed shrubland and understorey shrub cover did not develop in these areas until after January 1990, and that emergent trees and tall shrubs present before 1990 appeared to have either been retained or had succumbed to dieback and death following disposal of saline mine water. 184 Seventh, evidence from interpretation of historical aerial photographs indicated that total vegetation cover on the property had increased between 1993 and 2003 by growth of shrubland and regrowth along most of the pasture forest interface and within the understorey of the existing forest and woodland. This change coincided with use of the property for disposal of saline waste water. In his opinion the saline mine water irrigation appeared to have promoted the growth of dense stands of salt tolerant trees and shrubs such as Black She-Oak (Allocasuarina littoralis) and Red Gum (Eucalyptus tereticornis) in dieback affected areas. 185 Eighth, from the analysis of the aerial photographs it could be concluded that all of the tree and shrub understorey in the alleged cleared areas identified by Mr Palmer and Ms Ridge had grown after 1990, with the exception of a small patch of likely blackberry infestation along the riparian zone. 186 Ninth, aerial photographs and interview evidence from clearing contractors indicated that clearing of weeds and native vegetation was undertaken within 20 m of a stream and within a protected riparian zone contrary to instructions to avoid such areas. The occurrence of regenerating blackberry within this area indicated that the clearing may have been exempt under the Noxious Weeds Act 1993. A portion of this area provided a farm access track and was exempt from clearing as "routine agricultural management activities". 187 Tenth, no clear evidence was provided that any of the large overstorey trees that were cleared were living at the time of felling. Interview and ground survey evidence suggested that the only large trees felled were dead trees. Soil Services reports indicated that saline mine water disposal on the property between 1993 and 2003 had killed large numbers of trees. The results of plot surveys and site inspections also showed an abnormally high level of dead trees in the forest canopy in uncleared areas adjoining parts of the pasture forest interface. 188 Eleventh, in relation to the evidence of the size distribution of trees in the cleared and uncleared survey plots, while it was likely that this data was not representative of tree size distribution within the cleared areas due to sampling errors, the estimated mean size of trees predicted to have been removed using the modelling developed earlier by Dr Smith was broadly consistent with the expected mean for stands of trees regenerating after 1990 and thus consistent with "regrowth". 189 Finally, aerial photograph interpretation and ground surveys reveal that forest and shrub cover on the property had been modified in the past by a combination of clearing for agriculture, selective timber harvesting, poisoning, slashing, weed invasion, grazing and fire, and therefore, that, in his opinion, the regrowth clearing exemption should be applicable.

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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. 273 In relation to the term "permit", her Honour reviewed the authorities and observed (at [358]-[359]): 358 In Multiplex (2000), Lloyd J held at [258]-[259] and [263] that permit means "to intentionally allow" after considering Broad v Parish (1941) 64 CLR 588, Miller v Williams (1990) 53 SASR 82, R v Lonie [1999] NSWCCA 319 and Adelaide Corporation . In Hardt (2007) Giles JA said of Multiplex at [30]: In Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1 one question was whether the developer had polluted waters by permitting the pollutant to be placed in a position where it fell or was likely to fall into the waters. A sub-subcontractor to the developer had damaged a pipeline whereby oil was discharged. "Permits" was given by Lloyd J the meaning of "intentionally allows", and it was held that the evidence did not suffice for a finding that the developer permitted the pollution. In the authorities said to give this meaning to "permits", one did so expressly ( Broad v Parish [1941] HCA 25; (1941) 64 CLR 588 at 595 per Starke J), but the others were concerned with the awareness necessary before the defendant permitted something. In Miller v Williams (1990) 53 SASR 82, for example, there was an extensive discussion at 87-92 of the need for actual knowledge of what is happening or about to happen or possibly of something less than actual knowledge. "Intentionally allows" does not carry that the defendant acted or failed to act with the intention that the particular result should come about, and the phrase is perhaps misleading. "Intentionally" really means with knowledge, and the phrase refers to the awareness required in permitting something.

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312 In North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 Preston J summarised the exceptions to the general principle that a defendant will not be vicariously liable for the conduct of an independent contractor (Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-operative Assurance Co of Australia Limited (1931) 46 CLR 41 at 48; Multiplex at [277]; Coffs Harbour City Council v Hickey [2004] NSWLEC 531 at [48]) (at [114]): 114 Between Mr Moline and Mr Jack, there was no relationship of employer and employee or of principal and agent. Mr Jack was an independent contractor. Generally, an accused will not be vicariously liable for the conduct of an independent contractor: Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48; Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 58-59 [277]. There are exceptions to this general principle. An accused may be vicariously liable where the accused has directly authorised the doing of the actus reus by the independent contractor: see Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59 [278], [280] and Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262 [104] - 263 [106]. An accused may be vicariously liable where the work done by the independent contractor is subject to the control and direction of the accused in the actual execution of the work: see Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59 [280], 61-62 [290]. In Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262 [102], Pearlman J described the content of the control test as follows: "That test involves a right to direct and control a course of action, in circumstances where the right is capable of exercise and is, or is likely to be, effective. It relates to the manner in which the independent contractor undertakes the course of action, that is, the way in which the tasks are to be performed or how they are to be carried out".

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