Director General Land & Water Conservation v Tony Rial

Land and Environment Court (NSW)|1998-04-29|Before: Talbot J

CITATION : Director General Land & Water Conservation v Tony Rial [1998] NSWLEC 72 (29 April 1998) [1998] NSWLEC 66 PARTIES : Director General Land & Water Conservation v Tony Rial FILE NUMBER(S) : 50043, 50044,50045, 50046 of 1996 CORAM: Talbot J KEY ISSUES: :- Penalty LEGISLATION CITED: SEPP 46 CASES CITED: DATES OF HEARING: 15, 16 April 1998 DATE OF JUDGMENT: 04/24/1998

Mr I S Lloyd QC With Mr M H Baird (Barrister) LEGAL REPRESENTATIVES: Mr D P Wilson (Barrister)

JUDGMENT: In a judgment delivered on 3 April 1997, I found that each of the defendants was liable to be convicted for the offence of clearing native vegetation growing on the property known as Windouran, near Moulamein in southern New South Wales, in January 1996, without development consent required pursuant to cl 6 of SEPP 46 contrary to the provisions of s 76 of the EPA Act.

The defence in each case relied on establishing that vegetation cleared in early 1996 was native grasslands, the clearing of which did not require development consent under SEPP 46 between 1 January 1996 and 16 February 1996. Each defendant also claimed exculpation on the basis that they honestly and reasonably believed that the land being cleared was native grassland.

I described the definitions in SEPP 46 as convoluted, obscure and difficult to construe, and said that the task of understanding what the definition of "specified native grasslands" means is a daunting one which no party found easy to resolve. However, in the end the Court found that Mr Crawford, who carried the main executive role in the management of the property, saw a window of opportunity and throwing caution to the wind decided to proceed without seeking further outside advice.

The prosecutor recognises that the defendants Rial and Harris did no more than act on instructions from Mr Crawford. Therefore, as Mr Crawford had taken executive responsibility, he should accept the major share of blame. However, Rial and Harris, being aware that consent had not been obtained, failed to make appropriate inquiries and were culpable on that account.

All defendants were aware that SEPP 46 applied to the land.

It was agreed at the trial that the area cleared contrary to provisions of SEPP 46 is 240 hectares.

Mr Lloyd QC refers to the lack of contrition or remorse displayed by the plea of not guilty and the doubt expressed by the Court about Mr Crawford's credibility.

According to Mr Lloyd, the fact that Mr Crawford aspires to a position of leadership and trust in the community carries with it a higher duty and responsibility to observe and uphold the law.

The prosecutor suggests that at least in the case of Mr Crawford the facts indicate a penalty in the higher range, having regard to the applicable maximum of $100,000, is appropriate.

Since the hearing, further evidence directed solely to the issue of penalty has been adduced.

Mr Wilson made a substantial submission identifying mitigating circumstances to which he said the Court must have regard before proceeding to conviction and imposition of penalty.

In the absence of mitigating circumstances, the company and Mr Crawford face the imposition of a penalty at the maximum end of the scale which ranges up to $100,000.

Following discussion and negotiation which took place over the better part of the first two days set down for the hearing on costs and penalty, the parties agreed on the series of consent orders marked "A" which are attached to and form part of these reasons. They were made by consent on 16 April 1998.

The area illegally cleared is adjacent to the areas marked "A" and "B" on the map. The area marked "A" forms part of the cleared area. Irrespective of how the orders are ultimately put into effect, the result will be a permanent encumbrance on title. The capacity for the owner to obtain any economic benefit from the use of the areas marked "A" to "F" will be severely constrained. In addition the company incurs liability for up to nine kilometres of fencing and the continuing cost of the control of pests, weeds and fire.

In the light of the defendants' consent to the making of the orders, it is not necessary to decide whether they fall within the power given to the Court by s 126(3) of the EPA Act. However, it is appropriate to take the effect of the orders into account for the purpose of assessing an appropriate penalty, in particular as it applies to Mr Crawford and the company.

The consent orders were developed in the light of the opinion of experts advising the Department that regeneration of the cleared area could and should take place with the long term aim of re-establishing Chenopod shrubland with similar habitat, connectivity and biodiversity values as the cleared vegetation. These opinions are strongly contested by the defendants' experts, who regard the vegetation as degraded Chenopod shrubland with reservations as to the extent of its biodiversity and importance. It is the view of one of the defendants' experts that any attempt to restore the community which previously existed on the site would be a difficult task with great uncertainty as to outcome. He strenuously disagrees that attempting to revegetate the area cleared is essential or desirable. Although it has not been fully explained, the Court nevertheless assumes that the purpose of the consent orders is to achieve a compromise which ensures retention of the vegetation type, but allows the landholder to take advantage of the benefits of the illegal clearing for agricultural pursuits, in particular rice growing.

The prosecutor has not challenged the claim made on behalf of the defendants that the setting aside of the areas identified in the consent orders, and the principles of the property agreement, will more than compensate for any environmental degradation caused by the clearing because the areas being set aside are some of the most environmentally sensitive areas on the property. The Court appreciates that the area of approximately thirty five hectares set aside for experimental regeneration of native vegetation is unique in that it will give an opportunity to observe and assess the ability of grazed and ploughed pasture land to regenerate to native vegetation under the conditions provided by the consent orders and the property agreement.

The Department has provided expert opinion evidence that, on a gross margin analysis, the illegal clearing has increased the land value from $34,560 to $187,440. Without accounting for development costs incurred, the net improved value of the cleared land has increased from $34,560 to $131,540 at a cost of $25,900, with capital expenditure of $30,000,. The Court accepts that the advantage of retaining the cleared land for the purpose of commercial production is off set in some respects by the reservation of land pursuant to the consent orders and the liability for future non-productive costs in connection with the maintenance of the reserved land. It has not been possible for the Court to calculate the difference between the capital position of the landholder before clearing commenced and its ultimate position after the making of the consent orders.

Mr Lloyd contends that, whatever the effect of the making of the consent orders is, it amounts to "too little too late" for the purpose of expressing contrition. Mitigation

The mitigating circumstances identified by Mr Wilson are summarised as follows:-

The nature of the defences which justified a plea of not guilty:- a) whether the vegetation cleared fell within the statutory definition; b) that the defendants held an honest and reasonable belief that the vegetation was native grassland.

The difficulty experienced in construing the definition in the context of a self-regulating provision during the moratorium period when the clearing took place.

The inquiries that Mr Crawford made as a step in the process of preparing a vegetation management plan required in support of a prospective development application.

That the clearing was not carried out in an underhand or conspiratorial way.

The intention to clear the land was discussed openly with several Government servants.

The defendants assisted the investigating officers in a frank and honest manner, without any attempt to conceal or misinterpret the facts.

The agreement to pay the costs of the prosecutor, which are likely to be assessed at a figure in excess of $100,000.

The ongoing responsibility and liability for the maintenance of the land the subject of the consent orders.

The loss of production from the areas of land made the subject of the consent orders.

The environmental value of the replacement of approximately 250 hectares of native vegetation with almost 800 hectares of better quality native vegetation.

The advantage to the general public which flows from the setting aside of the areas nominated in the consent orders which would not otherwise be available for the public benefit.

The overriding concern of the Court should be in respect of consequences for the environment, without regard to the financial circumstances of the defendants.

The loss of profit from the land taken out of production, which Mr Wilson submits will be in the order of $5,000 net per annum.

The greater environmental significance of the land which is to be protected compared to the low environmental value of the land cleared, albeit for the purpose of growing crops.

The responsible, contrite view taken by the defendants (particular the company and Mr Crawford) by willingly foregoing the use of the land to be protected and accepting the cost of completing the property agreement and the ongoing maintenance of the land.

The high repute of the three individual defendants and the damage to their personal reputation.

The absence of any record of any prior offences.

In the case of the defendants, Rial and Harris, Mr Wilson adopted the approach taken by Mr Lloyd in regard to their role as an employee and sharefarmer respectively and then submitted that, in the circumstances, the Court should apply the provisions of s 556A of the Crimes Act and not record a conviction.

Mr Wilson relied on the association of Mr Crawford with the company, and the flow on effect that the imposition of a penalty on the company would have on Mr Crawford personally and other members of his family, to submit that Mr Crawford, in the light of his good character and reputation, should also be given the benefit of s 556A. Further, having regard to the whole of the circumstances, the company and Mr Crawford have already incurred a significant monetary penalty by agreeing to the orders made by consent. The giving over of the land for the benefit of the whole community, without compensation, in the absence of any legal obligation to do so, is in itself retribution which will continue to have an ongoing, indefinite effect by impacting on the value of the property and by attracting unlimited liability for the upkeep of the reserved land and the fencing. According to Mr Wilson, Mr Crawford and the company (but particularly Mr Crawford) have already suffered enough when regard is had to the significant impact of being prosecuted for this type of offence upon the reputation of Mr Crawford and his standing in the community.

In order to appreciate the significance of the submissions made by Mr Wilson in regard to the reputation of the three individual defendants, it is necessary to note the particulars furnished to the Court in that regard.

In that respect, no evidence was provided regarding the defendant Tony Rial. However, the Court has had the benefit of observing him in the witness box and no adverse submission has been made by the prosecutor against the character of Mr Rial.

An impressive portfolio, prepared for another purpose, in support of Mr Harris has been tendered to the Court. It is obvious that Mr Harris is a man of good character, regarded as a hard working family man who has made a significant contribution to the local community through his service to many organisations such as service clubs and sporting bodies. He is widely respected as a person of the utmost honesty and integrity.

It is apparent that Mr Crawford has made a significant community contribution, although in a slightly different respect to Mr Harris. He has held a number of public positions as an elected and appointed representative, including as a member of the local shire council, chairperson of the inaugural Murray Catchment Management Committee and chairperson/chief executive officer of the Hawkesbury-Nepean Catchment Management Trust. He has been active in the local New South Wales Farmers' Association Branch and instrumental in the establishment of the construction of a local retirement village. A number of persons have acted as referees in his favour. He is well respected as a farmer and as a person in public life. Some of the references are paranoid to the extent of raising doubts about motives for the prosecution. I find submissions in that regard to be of very little assistance. However, I accept that Mr Crawford has given significant time and energy to service in public office and is regarded, generally, as a person of honesty and integrity.

The legislature clearly regards the offences as serious by setting a maximum penalty of $100,000. Although the offences occurred during a moratorium period allowed under an environmental planning instrument that no longer has effect, the principles of SEPP 46 are now enshrined in legislation enacted as the Native Vegetation Conservation Act 1997. To that extent there remains a question of deterrence notwithstanding a submission by Mr Wilson to the contrary.

Each of the defendants have a long association with farming and land management. They should have investigated the prospect that consent was required before the clearing was undertaken. The difficulty in construing the definition in the legislation is no excuse. To the contrary, the difficulty provided an incentive to consult and take advice from those responsible for the supervision and management of SEPP 46. This option, although available, was not taken.

Mr Harris had no primary role to play in the decision making process. He was in the nature of a pawn, carrying out work on behalf of the owner of the property under the supervision and direction of Mr Crawford and, to a lesser extent, Mr Rial. He was the one who actually carried out the work. In that sense he was the primary offender. Technically he was acting independently as a contractor to the company. However, he carried out the work at the bidding of Mr Crawford and Mr Rial, acting for the company. His primary concern related to the operation of the machinery and the efficient completion of the physical task of clearing and ploughing the land.

Mr Rial, unlike Mr Harris, did not stand to make any personal gain from clearing the land, other than indirectly pursuant to the terms of his employment. However, he was directly involved in earlier discussions with an officer of the Department about the provisions of SEPP 46. A means of assessing the character of the native vegetation was explained to him by that officer.

It is probable that Mr Rial and Mr Harris did not directly turn their minds to the application of the statutory definition and relied on the survey undertaken by Mr Crawford. They both formed an opinion about the dominance of native grasses, but effectively they relied on the decision made by Mr Crawford, namely that the clearing could go ahead.

The offence is not trivial and the environmental consequences are serious. Having regard to the background and experience of all defendants and their pre-existing knowledge that SEPP 46 applied and the requirement for consent, I have not been satisfied that any of them is entitled to the benefit of the application of s 556A of the Crimes Act, notwithstanding previous good character.

The penalty to be imposed in each case should have regard to the extent to which the individuals had responsibility for, and the role they played in, the relevant events. The interests of the company and Mr Crawford can be regarded, for the purpose of sentencing, as being in the same interest, including the financial consequences referred to earlier. The imposition of a penalty against one should not be regarded as subsuming any penalty against the other but rather that, in assessing the fine to be paid, the Court accepts that an impost against the company will impact upon Mr Crawford and perhaps vice versa, although probably to a lesser extent.

A penalty will be imposed in each case having regard to the maximum penalty of $100,000, and after taking into account the serious nature of the offence and the environmental consequences against the significant benefit of the mitigating matters raised by Mr Wilson, including the effect of the consent orders.

In Matter No 50043 of 1996 the defendant Tony Rial will be convicted and he will be required to pay a fine in the sum of $5,000.

In Matter No 50044 of 1996 the defendant Drew Harris will be convicted and he will be required to pay a fine in the sum of $2,000.

In Matter No 50045 of 1996 the defendant Robert Bryce Crawford will be convicted and he will be required to a fine in the sum of $10,000.

In Matter No 50046 of 1996 the defendant Windouran Pastoral Company Pty Ltd will be convicted and will be required to pay a fine in the sum of $10,000.

No agreement has been reached in relation to costs. Accordingly an order will be made that costs shall be paid in accordance with an agreement made between the parties or, if no agreement is reached, in the amount determined in accordance with the Regulation.

Matter No 50043 of 1996

The defendant Tony Rial is convicted of the offence as charged in the summons.
The defendant Tony Rial is ordered to pay a fine in the sum of $5,000.

Matter No 50044 of 1996

The defendant Drew Harris is convicted of the offence as charged in the summons.
The defendant Drew Harris is ordered to pay a fine in the sum of $2,000.

Matter No 50045 of 1996

The defendant Robert Bryce Crawford is convicted of the offence as charged in the summons.
The defendant Robert Bryce Crawford is ordered to pay a fine in the sum of $10,000.

Matter No 50046 of 1996

The defendant Windouran Pastoral Company Pty Ltd is convicted of the offence as charged in the summons.
The defendant Windouran Pastoral Company Pty Ltd is ordered to pay a fine in the sum of $10,000.

Matter No 50043 of 1996, Matter No 50044 of 1996 Matter No 50045 of 1996, Matter No 50046 of 1996

The defendants Tony Rial, Drew Harris, Robert Bryce Crawford and Windouran Pastoral Company Pty Ltd are respectively ordered to pay the costs of the prosecutor determined by agreement or, if no such agreement can be reached, in accordance with clause 7A of the Land and Environment Court Regulation 1994.
The Exhibits may be returned.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 11 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 4 PAGES ARE A TRUE AND ACCURATE RECORD OF THE CONSENT ORDERS ATTACHED AND MARKED A TO THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE R N TALBOT IN MATTER NOS 50043-9 OF 1996

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.

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