Director-General Department of Environment and Climate Change v Wilton

16 The defendant and his wife purchased the property at "Wenonah" (the Subject Property) as tenants in common in equal shares in April 2004 for the sum of $31,800.00. The Subject Property comprises some 128.7 hectares.

17 The defendant first became aware that the Subject Property was for sale in January 2004. It was one of two adjoining blocks put up for sale at the same time. The block to the north was sold to John Turner and the block to the south was sold to, acquired by, the defendant and his wife. The defendant had not seen the Subject Property before 2004.

Clearing of Land the Subject of Summons 50010 of 2008 (between about 13.1 and 13.5 hectares) 18 A short time after purchasing the Subject Property, the defendant inspected the north-eastern corner of the Subject Property (which included the land which is the subject of summons 50010 of 2008 or the "Eastern Subject Area"). Upon that inspection, the defendant noticed old tree stumps indicating a history of selective logging. Following that inspection, the defendant formed an intention to clear the land in the north eastern corner of the Subject Property (including the Eastern Subject Area) for the purpose of establishing a native hardwood plantation. 19 Before clearing the north-eastern corner of the Subject Property, the defendant had a conversation with John Turner regarding the state of the fence between the Subject Property and the Turner property. During the discussion, John Turner said to the defendant words to the following effect: I'm afraid my sheep will get on to your property and we'll never find them again. We need to renew the fence. 20 At that time there was vegetation on the Subject Property up to the fence line including a large number of mature trees within 15 metres of the fence line. The defendant agreed with John Turner that a new fence be constructed on the basis that Turner would pay for the labour and the defendant would pay for the materials. The defendant believed that it was necessary to clear a 15 metre wide strip of land adjacent to the fence line in order to construct the new fence and to allow vehicle movement along the fence line during the construction. 21 In September or October 2004 the defendant obtained a bulldozer from Buckets Earthmoving to clear the north-eastern corner of the Subject Property (including the Eastern Subject Area). The defendant operated the bulldozer and cleared approximately 20ha of the north-eastern corner of the Subject Property (including the Eastern Subject Area) by bulldozing and pushing the regrowth into windrows. At this time, the defendant left the larger eucalyptus trees within the north-eastern corner of the Subject Property, including those along the fence line, standing. The defendant then burnt the vegetation in the windrows and felled a substantial majority of the remaining larger eucalyptus trees, including those on the fence line, cut the logs into shorter lengths and pushed the logs into four log stacks on the Eastern Subject Area.

22 The new fence on the northern boundary of the Subject Property was constructed after the clearing of the Eastern Subject Area.

23 The defendant cleared from the Eastern Subject Area the following species of native vegetation:

(a) Eucalyptus viminalis (ribbon gum); (b) Eucalyptus radiata (narrow leaved peppermint); (c) Eucalyptus dives (broad leaved peppermint); (d) Acacia dealbata (silver wattle); (e) Microleana stipoides (weeping grass); (f) Themeda australis (kangaroo grass); (g) Austrodanthonia spp (wallaby grass); (h) Stellaria pungens (prickly star wort); (i) Scleranthus diander (many flowered knawel); (j) Cymbonotus lawsonianus (austral bears-ear); (k) Solenogyne dorninii (smooth solenogyne (l) Solenogyne gunnii (hairy solenogyne); and (m) Plantago varia (variable plantain). 24 At the time of, and at all times prior to, clearing the Eastern Subject Area, the defendant believed that, with the exception of a number of large eucalyptus trees both immediately adjacent to the northern fence line and within the remainder of the Eastern Subject Area, the cleared vegetation was all regrowth less than 15 years old. The defendant was incorrect in this belief. 25 The vegetation which occurred on the Eastern Subject Area prior to clearing was mixed age forest with some large diameter trees. Any prior clearing of this area was prior to 1990. The defendant relied upon the existence of windrows and wattle but accepts that windrows and wattle are not conclusive evidence of clearing post 1990.

26 The defendant also believed that he was entitled to clear regrowth vegetation that was less than 15 years old on land that had previously been selectively logged without the need to obtain development consent for the clearing. The defendant was incorrect in this belief.

27 The defendant formed the belief described in the preceding paragraph on the basis of information in a publication of the predecessor of the Department of Environment and Climate Change regarding the Native Vegetation Conservation Act 2003 which he had seen. The defendant assumed that he could rely upon the exemption for regrowth under the new Act, which at that time had not come into force.

Environmental impact of clearing Eastern Subject Area 28 The defendant established a shining gum (Eucalyptus nitens) plantation in the Eastern Subject Area in late 2004. The planted shining gums in the Eastern Subject Area currently measure, on average, approximately 10 centimetres in diameter at breast height. The defendant proposes to harvest the plantation at some time between 2015 and 2020. 29 The establishment of the shining gum plantation resulted in the creation of soil mounds. The creation of soil mounds on rural land has the potential for causing erosion as a result of the hydrological regime being altered.

30 On 3 June 2008 Colin Groves, an employee, servant or agent of Bombala Shire Council inspected the Subject Property and found no significant weed infestations on the subject properties, including the Eastern Subject Area.

31 The defendant cleared a total of between about 13.1 and 13.5 hectares from the Eastern Subject Area (excluding State protected land and land adjacent to the northern fence line). No complaint is made in respect of the clearing activity on the State protected land and land adjacent to the northern fence line.

Clearing of land the subject of summons 50011 of 2008 (about 18.3 hectares). 32 Approximately 27 hectares on the western side of the Subject Property was cleared.

33 The land the subject of summons 50011 of 2008 the Western Subject Area is on the western side of the Subject Property and comprises approximately 18.3 hectares that was not State protected land nor land adjacent to any fence lines. No complaint is made in respect of any clearing activity on the State protected land or land adjacent to any fence line.

34 The Subject Property adjoins a pine plantation owned by Willmott Forests Pty Limited ("Willmott").

35 In about April 2005 the defendant discussed, with a representative of Willmott, Phil Green, the possibility of entering into a joint venture arrangement with Willmott for the purposes of establishing a pine plantation on the Western Subject Area.

36 The defendant inspected the Western Subject Area and, upon the basis of that inspection, formed the belief that the vegetation was mostly regrowth less than 15 years old.

37 The defendant obtained a bulldozer from Jamieson & Brownlie between 23 and 28 May 2005 and, during that time, cleared native vegetation on the western side of the Subject Property (including the Western Subject Area).

38 The defendant, operating the bulldozer, cleared what he believed to be regrowth. The defendant pushed the cleared vegetation into windrows. The defendant did not burn the windrows in the Western Subject Area. A number of mature eucalypts in the Western Subject Area were not cut down and remain in situ.

39 The defendant's belief that he was clearing only regrowth was incorrect. Any prior clearing of this area was prior to 1990. The defendant relied upon the existence of windrows and wattle but accepts that windrows and wattle are not conclusive evidence of clearing post 1990.

40 The defendant cleared the following species in the Western Subject Area (a) Eucalyptus radiate (narrow leaved peppermint); (b) Eucalyptus viminalis (ribbon gum); (c) Eucalyptus dives (broad leaved peppermint); (d) Acacia dealbata (silver wattle); (e) Cassinia uncata (sticky cassinia); (f) Ozothamnus dendoideus (tree everlasting shrub). Environmental Impact of Clearing in the Western Subject Area 41 Colin Groves, a representative of Bombala Shire Council, inspected the Subject Property on 3 June 2008 and found no significant weed infestations on the Subject Property, including the Western Subject Area. 42 The Western Subject Area has been the subject of a direction to carry out remedial work issued under delegation of the Director General of the Department of Environment and Climate Change pursuant to s 38 of the Native Vegetation Act 2003 on 17 May 2007 (Remediation Direction). The Remediation Direction required the defendant to allow the Western Subject Area to regenerate and to undertake specified monitoring and reporting actions. The defendant has complied with the Remediation Direction to the satisfaction of the Department of Environment and Climate Change and the Department has no reason to believe that the defendant will not continue to comply with the Remediation Direction. The Remediation Direction expires in April 2012. Consequences of the clearing for the defendant in Eastern Subject Area 43 The defendant expended approximately $10,000.00 plus the value of his own labour to clear the Eastern Subject Area and establish the shining gum plantation. 44 The defendant planted approximately 19,000 shining gum trees in the Eastern Subject Area.

45 The defendant has not, to date, earned any profit from the shining gum plantation. The defendant expects to harvest approximately 200 tonnes per hectare between 2015 and 2020. The defendant expects to receive a gross return of $76,000.00 from the harvest. The defendant in oral evidence accepted that the existence of the plantation adds to the value of his property, which he has advertised for sale.

46 Without the clearing of the Eastern Subject Area it was of limited commercial use.

47 The defendant has promised all the timber in the log stacks presently upon the Eastern Subject Area to local charitable and community organisations and has donated and delivered about one quarter of that timber to local charitable and community organisations.

Western Subject Area 48 Without the clearing of the Western Subject Area it was of limited commercial use. The Western Subject Area has no present commercial value whilst it remains subject to the Remediation Direction. The Western Subject Area is not capable of being used for grazing purposes. 49 The defendant has not profited from the clearing of the Western Subject Area. The vegetation removed from the Western Subject Area remains on that land.

Number of Large Trees Felled 50 It appears from the defendant's oral evidence that, away from the fence, he felled nine large trees (more than 30 centimetres in diameter) on the Eastern Subject Area and an unspecified number on the Western Subject Area.

Reasons for Commission of Offence: State of Mind 51 The defendant cleared the land for the purpose of commercial planting and harvesting of trees for profit.

52 The clearing of native vegetation for a purpose or to the extent described in Schedule 3 to State Environmental Planning Policy No 46 - Protection and Management of Native Vegetation (SEPP 46) was exempt from any requirement for development consent under Part 2 of the NVC Act: NVC Act s 68 and Schedule 4 Part 2 cl 3(2). SEPP 46 Schedule 3 contains two relevant exemptions. First, clearing to a minimum extent of native vegetation if it is necessary for the construction of fences. This exemption applies to the native vegetation necessarily cleared by the defendant for the construction of fences. It has been taken into account in calculating the cleared Western Subject Area of 18.3 hectares, which is the subject of proceedings 50011 of 2008. As regards the clearing in the Eastern Subject Area, which is the subject of the other proceedings, the defendant says that this exemption permitted clearing of native vegetation to a distance of 15 metres from the fence line and therefore that the area unlawfully cleared in that area was 13.1 hectares. The prosecutor submits that this exemption only permitted clearing to the extent of 10 metres and that the area unlawfully cleared in the Eastern Subject Area was therefore 13.5 hectares. There was no evidence from the prosecutor to support is submission. I accept the defendant's submission.

53 The second relevant exemption under SEPP 46 was the removal of native vegetation of less than ten years of age if the land had been previously cleared for conservation, pastures or forestry plantation purposes. This exemption is relevant to the clearing conducted by the defendant away from the fence line. The land had been previously cleared for one of those purposes.

54 It is an agreed fact that the defendant mistakenly believed that there was an exemption for removal of native vegetation of less than 15 years of age, relying on the publication issued by the prosecutor's predecessor regarding the superseding Native Vegetation Act 2003: see [26] - [27] above. The defendant's reliance on the publication was mistaken because, although that Act was enacted in 2003, it did not commence until 1 December 2005 - after these offences occurred. Nevertheless, such reliance by a layman was understandable. If in fact the native vegetation he removed was less than 15 years of age, it seems unlikely that these prosecutions would have been brought. However, the native vegetation removed was older than that.

55 It is also an agreed fact that the defendant mistakenly believed that the native vegetation he removed, other than the large trees, was regrowth less than 15 years of age: see [24] - [25] and [38] - [39] above. The defendant in evidence said that he formed that belief because of the presence of black wattle regrowth, which does not live that long, and because he observed windrows of cleared timber on the land. However, the expert evidence establishes that the wattle was not black wattle but silver wattle which lives to a greater age. The defendant had a lifetime of forestry experience and had lived in the area all his life. It is most surprising that he could have made such a serious mistake as to the species of wattle, upon which he then essentially based his belief that a development consent was not required. In the circumstances, in my view, the formation of his belief was, to say the least, careless. His observation of windrows is irrelevant, of itself, because he did not know how old they were; indeed, he had not been on the land before he purchased it in 2004.

Defendant's Background and Character 56 The defendant is aged 54 and has lived in Bombala his entire life. References were tendered which speak to the defendant's good character and standing within the community and his support for good community causes [Ex 1].

57 The defendant was elected to Bombala Shire Council in 1994 and served as a councillor until 1999. The defendant served as Deputy Mayor during part of that time. The defendant is a board member of the Southern Monaro Community Fund (SMCF) and has acted in that capacity since August 2002. The SMCF is an incorporated association which has a range of functions including the provision of safe houses, firewood and short term financial relief for the needy in the Southern Monaro Area. The defendant, personally and through Wilton Logging Pty Limited has donated a large quantity of fire wood to the SMCF.

58 The defendant has provided 30 tonnes of firewood each year for heating of the Bombala Swimming Pool since 2004 and regularly donates firewood to the following organisations: (a) Anglican Parish of the Southern Monaro (for heating of rectory and street stall fundraisers); (b) Bombala Show Girl Committee; (c) Bombala Rugby League Club; (d) Bombala and Ando Public Schools,

which use it for fundraising purposes. Thousands of dollars have been raised as a result of the donations of firewood by the defendant; 59 Wilton Logging Pty Limited donates timber and prize money to the South Coast Axemans Association for the wood chopping events at the Bombala Show. 60 The defendant has also made donations of wood, machinery, time and labour to the Bombala Trail Horse Riders Incorporated, Bombala Exhibitions Society/Australia Day Celebration Committee, Lions Club of Bombala, Rotary Club of Bombala, Bombala Exhibition Society Incorporated (the major sponsor of the show jumping event at the Bombala Show), Bombala District Country Music Association Incorporated and Bombala Senior Citizens Welfare Committee. He has also donated or proposes to donate to charity most of the fallen timber the subject of the present proceedings.

61 Neither the defendant nor any entity controlled by the defendant has been charged with, or convicted of, any environmental offences.

62 The defendant has expressed contrition for not obtaining development consent.

Expert Evidence 63 Expert evidence was given for the applicant by Ms Allison Treweek, a Regional Biodiversity Conservation Officer with the prosecutor, and by Mr F Dominic Fanning, an ecological and riparian expert for the respondent. Generally, the experts held the same or similar views. To the limited extent that they differed, it is unnecessary to resolve the differences. I accept their evidence subject to the qualification, which I understood counsel to accept, that it is not clear that they distinguished between the effects of clearing along the fence line, which is exempted from the development consent requirement under SEPP 46, and clearing elsewhere which is the subject of the offences.

64 The experts' views included the following: (a) as to the impact of the clearing on the defendant's property - (i) Mr Treweek described the impact of the clearing on the Eastern Subject Area as " significant "; Mr Fanning described it as " moderate "; (ii) they agreed that there was a higher level of impact on the Eastern Subject Area by virtue of the clearing than the Western Subject Area, and that the former had also been heavily impacted by the plantation; (iii) they agreed that the soil has been severely disturbed by the use of a ripping and mounding machine on the Eastern Subject Area and that this process created a large area of exposed top soil available for weeds to germinate and may cause erosion. However, there is no evidence of weeds or erosion having occurred; (b) the Eastern Subject Area had a larger proportion of large trees which would have provided ongoing roosting, nesting and foraging sites to bird, bats and arboreal marsupial species. Ms Treweek considered that this number would have been large, Mr Fanning disagreed. However, the experts appear to have included in their assessment the large trees along the fence line, which is exempted from the offence the subject of this charge. Only nine large trees were felled elsewhere in the Eastern Subject Area. (e) regeneration was occurring over several large areas in the Western Subject Area where there were very few weed species and the level of ground disturbance was not as great. 65 As to the conservation value of the vegetation and the impact of the clearing on the local area - defined as being within a radius of 5 kilometres - the experts' views included the following:

(a) the impact of the clearing on the local area was described by Ms Treweek as moderate and by Mr Fanning as low to moderate; (b) Ms Treweek considered that the vegetation within the cleared area was " significant " vegetation within the local area. Mr Fanning disagreed with the description "significant". (c) the cleared areas are adjacent to pine plantation on the eastern and western sides. The property to the south has been cleared. Ms Treweek considered the remaining vegetation in the locality to be very important. Mr Fanning considered it to be important; (d) the vegetation lost was not critical to the survival of any species. However, they may have provided habitats for several threatened small birds and will impact on their ability to find roosting and foraging sites; (e) the clearing, particularly in the east, may also have impacted on the amount and quality of hollow bearing trees, which would have provided roosting habitats for many threatened and non-threatened species. However, in Mr Fanning's view, the reduction in hollow bearing trees would not be significant. (f) the clearing has increased the fragmentation of the landscape by creating a gap in the woody vegetation which will impact on the ability of species to move through the landscape. However, the plantation and retained trees would provide a corridor for forest species. 66 The experts agreed that the impact of the clearing on the South East Highlands bio-region, which is considered to be 38 percent cleared and which extends to the Victorian border, was low.

67 Ms Treweek recommended that the plantation in the Eastern Subject Area be removed, but the prosecutor has not acted on that recommendation.

Sentencing considerations 68 Sentencing considerations generally and the framework for sentencing provided by the Crimes (Sentencing Procedure) Act 1999 (Sentencing Act) were analysed in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 (Preston CJ) and Blue Mountains City Council v Carlon [2008] NSWLEC 296 (Biscoe J).

69 The sentence should reflect both the objective circumstances and the subjective circumstances of the offence: Veen v The Queen (1978) 143 CLR 458 at 490. The sentence should be determined by an instinctive synthesis of all the relevant objective and subjective circumstances: Markarian v The Queen (2005) 228 CLR 357 at [37], [39], [66] and [73].

Objective Factors 70 The primary consideration in sentencing is the objective seriousness of the offence. That is because objective seriousness fixes the upper and lower limits of proportionate punishment: R v McNaughton (2006) 66 NSWLR 566 (CCA) at [15], [25]; R v Whyte (2002) 55 NSWLR 252 (CCA) at [156] - [158]; Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264 at [137]. Maximum Penalty 71 The primary indicator of objective seriousness is the maximum penalty for that is the expression by parliament of the seriousness of the offence. The maximum penalty for this offence is $1,100,000 and a further daily penalty of $110,000: s 126 EPA Act. The prosecutor does not seek a daily penalty in this case. Place of the Offence in the Statutory Scheme 72 Carrying out development without ensuring that necessary development consent has been obtained undermines the efficacy of the planning system: Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89. It is contrary to two objects of the Environmental Planning and Assessment Act 1979: the object of encouraging the promotion and coordination of the orderly and economic use and development of land; and the object of providing increased opportunity for public involvement and participation in planning and assessment. Harm Caused 73 There has been environmental harm, as analysed earlier, which I would describe as relatively moderate. The defendant foresaw the harm, controlled the cause of the harm and could have avoided the harm.

Reasons for Commission of Offence: State of Mind 74 The defendant's reasons for the commission of the offence and his state of mind have been analysed at [51] to [55] above. The defendant made a serious and careless error, for a person with a lifetime of forestry experience who had lived in the area all his life, in forming a belief that the vegetation cleared, with the exception of large trees, was less than 15 years old, and thus within what he incorrectly thought was an exemption to clearing without development consent: see [55] above. Subjective Circumstances 75 The following mitigating subjective circumstances should be taken into account in the defendant's favour: (a) the defendant has no record of prior convictions: s 21A3(3) Sentencing Act ; (b) the defendant is a person of good character: s 21A(3)(f); (c) the defendant has given full assistance to the prosecution: ss 21A(3)(n) and 23; (d) the defendant has pleaded guilty at the earliest available time: ss 21A(3)(h) and 22. Consequently, he is entitled to the full discount of 25 percent on penalty: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 418 - 419 (e) the defendant has shown remorse, has provided evidence that he accepts responsibility for his actions and has acknowledged the damage caused: s 21A(3)(i); (f) the defendant has donated or is to donate the felled timber to charities. (g) the defendant has complied with the Remediation Order in respect of the Western Subject Area. Financial Advantage 76 There should be taken into account that the defendant is likely to obtain a financial advantage for establishing the plantation in the Eastern Subject Area: see [43] - [46] above. He has acknowledged that its existence has enhanced the value of the land. A fine is not a mere license fee for the making of profits by unlawful means. The gross return from the harvest anticipated between 2015 and 2020 is $76,000. Some $10,000 has already been expended to clear that land and establish the plantation. There will be unquantified maintenance, harvesting and sales costs before a net profit can be struck. Account should be taken of the fact that any net profit lies well in the future, that there is an element of risk in the interim, and that the defendant may sell the property before the timber is harvested albeit at an enhanced value as a result of the plantation. Doing the best I can on the limited evidence, I propose to add $10,000 to the fine that would otherwise be appropriate in the proceedings relating to the Eastern Subject Area, with the object of negating the net financial advantage that the defendant otherwise would obtain. Deterrence 77 General deterrence of others from committing similar offences is a major consideration. There is a need to uphold the integrity of the system of protecting and preserving native vegetation and the ecological communities that are dependent upon it. A strong warning should be sent that offences such as this will be visited with significant consequences. See Director General of the Department of Climate Change v Taylor [2007] NSWLEC 530 at [31] - [33] and the cases there referred to. I do not think specific deterrence is a strong consideration in this case.

Even-handedness 78 The principle of even-handedness requires the Court to have regard to any sentencing pattern discernible in like cases or in particular cases where the full range of facts may suggest more precise parallels. However, as Spigelman CJ observed in R v Mungomery (2004) 151 A Crim R 376 at [5]: …the broad judgment required for the determination of an appropriate sentence turns on the facts of a particular case and the facts of other cases are virtually never so similar as to require detailed exposition. It will often be appropriate for a sentencing judge to refer only to an impression that s/he acquires from reading relevant prior judgments and from the range of statistics available on the Judicial Commission's database. 79 The only case to which I was referred was Director General of the Department of Climate Change v Taylor [2007] NSWLEC 530. A search of the Judicial Information Research System (JIRS) indicates that it is the only case recorded in that system for an offence against s 21(2) of the NVC Act. In that case Lloyd J considered that the appropriate penalty to impose on the offender for clearing approximately 30.35 hectares of native vegetation was $30,000, which his Honour discounted to $20,000 for mitigating factors similar to those in the present case, including the full 25 percent discount for the utilitarian value of an early plea of guilty. In reaching that decision, his Honour reviewed a number of other land clearing offence cases under other legislation.

Conclusion 80 In my opinion, in proceedings 50010 of 2008 the appropriate fine is $30,000. This fine is calculated by assessing the appropriate starting point at $30,000; discounting that sum by one third to $20,000 for all the mitigating factors referable to the Eastern Subject Area to which I have referred including the full amount of 25 percent for the utilitarian value of the early plea of guilty; and then adding $10,000 with the object of negating the estimated financial advantage to the defendant from the plantation in the Eastern Subject Area. In proceedings 50011 of 2008 I would also start with $30,000 discounted to $20,000 for the same mitigating factors and then discount further to $10,000 because of the defendant's compliance with the Remediation Order in relation to the Western Subject Area.

81 The defendant has agreed to pay the prosecutor's costs in the sum of $30,000, which I propose to apportion equally to each of the proceedings.

82 The orders of the Court in proceedings 50010 will be as follows: 1. The defendant is convicted of the offence as charged. 2. The defendant is fined the sum of $30,000. 3. The defendant is to pay the prosecutor's costs, agreed in the sum of $15,000. 4. The exhibits may be returned. 83 The orders of the Court in proceedings 50011 of 2008 will be as follows:

1. The defendant is convicted of the offence as charged. 2. The defendant is fined the sum of $10,000. 3. The defendant is to pay the prosecutor's costs, agreed in the sum of $15,000. 4. The exhibits may be returned.

04/11/2008 - typographical errors - Paragraph(s) 5 04/11/2008 - Typographical error - Paragraph(s) 5 05/11/2008 - Typographical error - Paragraph(s) 75(e)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.