50 The Prosecutor submitted that the Defendant, the property owner, acted through Mr Bart Elias. On 8 November 2006 he attended a meeting of the RPG which minutes record that he considered he could produce a photograph from 1992 showing the property was cleared and that he would research this. Olmwood No 1 at [259]-[261] makes clear that Mr Bart Elias could not have located any aerial photographs showing the property as cleared after 1990. In mid-November 2006 Mr Bart Elias contacted Mr Flemming and asked for an estimate of the cost to mulch the vegetation on the land and later said it was all right to do the job. Clearing took place from 1 to 18 December 2006. On 6 December 2006 at a meeting of the RPG Mr Bart Elias said that he had ordered copies of aerial photographs discussed at a previous meeting. There was no mention of mulching of vegetation. Without such photographs he could not have been satisfied that the property fell within the window of being regrowth in the NV Act of seven years. Arranging for the clearing work was reckless at best, deliberate at worst. The clearing was premeditated.
51 Mr Bart Elias is the appropriate person to give evidence on behalf of the Defendant and his failure to appear suggests that he could not have given evidence which would have assisted the Defendant's case. Only he could have assisted in the sentencing process. The inferences the Prosecutor asks to be drawn based on the evidence of his actions around the time of the clearing giving rise to the offence is that the clearing was premeditated, reckless at best or negligent.
52 Alternatively, Mr Anthony Elias should not be considered to be a credible witness. Given the RPG minutes of 8 November 2006 and 6 December 2006 it is very unlikely that he would not have been aware of the need to comply with the NV Act and the use of the "window". It is very surprising that he was aware of the concept of regrowth and 1990 but cannot explain the significance of the connection. Further he believed that only regrowth was cleared with no explanation of why he held that belief. While he said that when he visited the property in 2006 the clearing exceeded what he expected to have occurred he did not say what he meant by this. Nor could he say why the Defendant chose to clear up the property in December 2006 at a cost of $81,000. The only rational explanation is that this would assist the rezoning process for the land to allow residential development which process had been on-going for several years.
53 The Defendant argued that Mr Anthony Elias was the appropriate person to give evidence on behalf of the Defendant as he was a director, had knowledge of the property and was involved with events sufficiently to enable him to comment. The reliance by the Prosecutor on the 8 November 2006 minutes where Carl Wilson (representative of Jarberg, another local property owner) referred to a "window" under the NV Act and Mr Bart Elias said he proposed to obtain aerial photographs of the Defendant's land as a basis to ask the Court to conclude beyond reasonable doubt that the Defendant was involved in a plan to capitalise on the situation that was about to end because of the NV Act coming into force, is not made out. The decision to clear/tidy up the land was made earlier as attested to in Mr Anthony Elias' oral evidence when he stated that arrangements for Mr Flemming to come to the land were made months before the work was carried out at a time Mr Flemming was not available. There is no evidence that Mr Anthony Elias discussed the 8 November 2006 and 6 December 2006 meetings with Mr Bart Elias and he did not become aware of those minutes until 20 December 2006 when he attended the RPG meeting himself. I cannot conclude beyond reasonable doubt that the clearing giving rise to the offence was premeditated or reckless or negligent.
Finding
54 I consider that Mr Anthony Elias is an appropriate person to give evidence on behalf of the Defendant given that he is a director of the company, unlike Mr Bart Elias, to the limited extent he is able to do so. As identified in his written and oral evidence set out at length above in par 8-29 he had knowledge of the property before its purchase in 2005. He visited the property in 2004 and saw sand mining, rubbish and weeds on the property. He read the reports of RDM (1998) and the 2004 Terra Consulting report prepared for the Council (2004) inter alia. He discussed management of the property with Mr Bart Elias during 2005 and 2006 including instructing Mr Bart Elias to arrange for the installation of fencing. While Mr Bart Elias was tasked with progressing the rezoning of the property to allow residential development with the Council he was familiar with the company's plans for the property. He, not Mr Bart Elias, attended the RPG meeting on 20 December 2006.
55 Mr Anthony Elias appeared to lack any knowledge about native vegetation as he could not identify it himself on the property during his inspection in 2004 but relied on reports which referred to there being native vegetation. His knowledge of the NV Act at the time of the offence also appeared poor. His evidence is that he was aware of regrowth and the date 1990 but not its significance. He attended the RPG meeting on 20 December 2006, and was given a copy of the RPG meeting minutes from 6 December 2006 where the Council advised that the NV Act had come into force but he said he did not know what that meant. Nor I surmise did he make any inquiries about the operation of the NV Act at any stage.
56 He was cross-examined at length by the Prosecutor's counsel concerning his knowledge of the circumstances of the clearing in December 2006 and could throw no light on the actions of Mr Bart Elias in that period. In that respect his evidence was unhelpful. I do not consider that I should find his evidence lacked credibility because of that. Accepting his oral evidence that the decision to tidy up the property was made with Mr Bart Elias several months before the clearing occurred in December 2006, there does not appear to be any basis for a finding on facts proved beyond reasonable doubt that the clearing was premeditated or intentional. I agree with the Defendant's submission that I should not extrapolate from the statements of Mr Bart Elias at the RPG meeting on 8 December 2006 and 6 December 2006 that he would attempt to get aerial photographs of the property, the inference that the clearing was an intentional and premeditated attempt to circumvent the NV Act.
57 I do consider that the Defendant through the actions of Mr Bart Elias acted recklessly in relation to the clearing in December 2006 by Mr Flemming. No additional vegetation studies were obtained by the Defendant before Mr Bart Elias gave instructions which resulted in most of the property being cleared of all vegetation. There was no rational basis for the statements made by Mr Bart Elias at the RPG meetings or to Mr Priestley in writing and in interviews that the vegetation was regrowth as defined under the NV Act which could be cleared. As found in Olmwood No 1 no aerial photographs existed which could have confirmed that view. According to his answers in the interviews and in writing this was part of the development of the property in pursuit of the rezoning process with the Council.
58 Mr Anthony Elias signed on behalf of the Defendant a letter dated 14 December 2006 to Mr Priestley and in the response to the s 36 notice sent by the Prosecutor, which stated the vegetation was regrowth. His evidence was that he just skimmed the letter of 14 December 2006 before signing it. He relied on the answer prepared by Mr Bart Elias in relation to the s 36 notice response. He personally was aware of only the partial clearing that occurred in 2005 so that he could not exclude the possibility that the rest of the vegetation was not regrowth. Reliance on oral statements by Council officers or other landowners who he said told him the vegetation was regrowth does not suggest a careful approach to ascertaining whether it was. This view is compounded by his evidence that the clearing undertaken on the property was greater than he had expected when he saw it on 20 December 2006. This evidence further confirms the clearing was done recklessly.
Reasons for committing the offence
59 As identified in Rae, the carrying out of an offence for profit or to save incurring an expense or to avoid the cost of obtaining and implementing a statutory permission increases the seriousness of the crime.
60 The Prosecutor argued the Defendant's behaviour suggested the purpose of the clearing was to avoid the need to obtain statutory permission given the circumstances and in light of the clearing by Mr Flemming costing $81,000. The Prosecutor relies upon the references made by Mr Elias to the rezoning proposal in his discussions with Mr Priestley on 12 December 2006 (par 10 of Priestley affidavit 23 June 2008), and the conversations between Mr Elias and Mr Priestley on 9 and 29 August 2007 (par 27 and 28 of Priestley affidavit 23 June 2008) and the development applications which confirm the clearing was to progress development of the property.
61 The Defendant argued to the contrary that the Defendant did not act for gain or surreptitiously. The Defendant believed there was an existing development consent for a golf course which allowed the clearing. That belief was misguided given the Court's findings in Olmwood No 1 that the development consent for the golf course did not permit the clearing. The issue was complex, as can be seen from that judgment. There was no deliberate failure to comply with any direction. Mr Anthony Elias, an experienced developer, denied that the clearing was done to avoid having to comply with the NV Act or to increase the likelihood of the property being rezoned for development.
Finding
62 The interviews between Mr Priestley and Mr Bart Elias set out in Mr Priestley's affidavit suggest the work on the property was done as part of the long term development of the property through the rezoning process with the Council. The cost of the clearing work was $81,000, a substantial sum. There is no explanation in the evidence of Mr Anthony Elias for why the clearing was carried out other than there was a need to tidy up the property because that is what the Defendant did. The clearing was part of a process of fencing and tidying up that had started in 2005. That process was undertaken as part of the intention to develop the property.
63 It is not established on the evidence whether the clearing provided a particular benefit to the Defendant in terms of the rezoning of the land and its future development. The NV Act required that permission for the removal of the vegetation was necessary. Mr Anthony Elias stated several times that had the Defendant been aware consent was required it would have been sought. It relied on the golf course consent as authorising clearing of the whole of the land and I consider that was reasonable in the circumstances. The Council sent a letter dated 12 November 2007 referred to in the first hearing see Olmwood No 1 at [265] which stated that in its view the consent had been commenced. That I ultimately held after much deliberation in Olmwood No 1 that the consent had lapsed does not suggest that this belief was unreasonable.
Foreseeability and risk of harm/control over causes
64 The Prosecutor submitted that a reasonable person would foresee the risk of harm caused or likely to be caused to the environment by the commission of the offence. I agree.
65 The Defendant had control over the cause of the clearing and should have refrained from causing the native vegetation on the land to be cleared until any necessary consent had been obtained.
Finding on objective circumstances
66 I consider the objective circumstances of the offence for this offender are of low to moderate objective gravity.
Deterrence
67 The sentence must ensure that the offender is held accountable for its actions and is adequately punished. The sentence must deter the offender from committing similar offences in the future. Further, the sentence of the Court needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. Similar observations in the context of the NV Act are made in Director General of the Department of the Environment and Climate Change v Wilton [2008] NSWLEC 297 at [77] and in Rae at [77].
68 Mr Anthony Elias has been involved in property development for a number of years. He is speaking for a corporate defendant engaged in a substantial redevelopment process of its property. Persons engaged in such activity need to be aware of relevant laws concerning those activities including laws to prevent illegal clearing of native vegetation.
Mitigating (subjective) circumstances
69 There are matters to be considered in mitigation of any penalty to be imposed, as provided for under s 21A(3) of the CSP Act.
Prior convictions- s 21A(3)(e) of the CSP Act
70 The Defendant does not have any prior convictions for any environmental offences.
Assistance to the authorities - s 21A(3)(m) CSP Act
71 The Defendant argued that it provided assistance to the authorities through attendance at interviews and its response to the s 36 notice to provide information sent by the Prosecutor. The Prosecutor submitted that while Mr Bart Elias and Mr Anthony Elias provided some assistance to investigating officers, the extent to which this can be relied upon by the Defendant as a mitigating factor must, to some extent, be diminished by the content of the assistance provided. In particular the reference to the vegetation being regrowth in the letter of 14 December 2006 and in the response to the s 36 notice was not made with the benefit of any specific knowledge to support such a statement. I agree with that submission in light of Mr Anthony Elias' evidence that he was not aware of any clearing event other than that in 2005 which would suggest that the vegetation cleared was regrowth. Reliance on general statements from Council officers and other landowners that vegetation on the property is regrowth is not adequate for a matter that can result in a criminal conviction.
Contrition and remorse- s 21A (3)(i) CSP Act
72 Mr Anthony Elias states in the last paragraph of his affidavit that the Defendant is sorry for what occurred in light of the Court's findings in Olmwood No 1. The Prosecutor criticises this wording as being a qualified expression of remorse but I accept the Defendant's submission that this is a reasonable statement in the circumstances of this case given my findings in relation to the golf course consent.
73 Further the Defendant's counsel submitted that Mr Anthony Elias said on numerous occasions that if approval had been required for the removal of the vegetation then it would have been sought. This is not a "fly by night" company but one which has spent considerable sums on fencing and clearing in the context of negotiations with the Council about the Precinct 3 rezoning. Further the Defendant has agreed to the remediation order which will require it to revegetate and keep 2 ha on the eastern boundary, part of which it can otherwise clear under exemptions in the NV Act. I consider these submissions should be taken into account in the Defendant's favour.