Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd

Land and Environment Court (NSW)|2011-07-25|Before: Sheahan J, Biscoe J

Introduction 1The defendant is charged with an offence against s 12 of the Native Vegetation Ac t 2003 in respect of clearing without approval six areas totalling approximately 38ha of land on four registered lots (Lots 20, 53, 54 and 105 in DP 751368) owned by it, at or near Halfway Creek, in the Clarence Valley Council area between Coffs Harbour and Grafton, in the period between about 20 October to 20 December 2008. 2The " native vegetation " alleged to have been cleared by the defendant included, particularly, three eucalyptus species ( microcorys, acmenoides , and resinifera ), commonly known as tallow wood, white mahogany, and red mahogany, respectively. 3The prosecutor alleges that the clearing works involved the use of a bulldozer and an excavator to clear and stack cleared vegetation, which was then burned, and that these works were done by, and/or at the instruction of, the two directors of the defendant corporation, and/or under their supervision. 4Section 12 provides as follows (emphasis mine): 12 Clearing requiring approval (1) Native vegetation must not be cleared except in accordance with : (a) a development consent granted in accordance with this Act, or (b) a property vegetation plan . (2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act. (3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4. 5The evidence before the court clearly does not engage, in the circumstances of the present case, the provisions of Division 2 " Permitted Clearing ", nor of Division 4 " Excluded Clearing ". Division 3 deals with " Permitted Activities ", and s 22 relevantly permits " clearing for routine agricultural management activities " (dams, permanent fences, buildings, windmills, stockyards and farm roads - see s 11), but not the clearing of any native vegetation beyond the " minimum extent necessary for carrying out the activity ". 6Section 126 of the Environmental Planning and Assessment Act 1979 provides that the penalty for the s 12 offence, when committed by a corporation, is a fine of $1.1M. Remediation orders may also be made.

The Proceedings 7The summons was issued on 28 October 2010, and for a time the defendant corporation was represented by a solicitor (Mr W J Grace). On 4 February 2011, Biscoe J, as List Judge, granted the defendant a further six week adjournment to 18 March with a view to a plea being entered on that date, but there has been no appearance by or for the defendant on any occasion since 4 February 2011. On 17 March 2011, Mr Grace filed a notice of ceasing to act, and, on 1 April 2011, the hearing of the charge was listed for hearing, on a defended basis, over five days 25 to 29 July 2011. 8On 20 May 2011, one of the two shareholders and directors of the defendant corporation, Dr Darrin Marshall, told the solicitor for the prosecutor, Mr Peter Barley, to contact him personally about the matter, including by fax, and the prosecutor has done so on several occasions (see Exhibits P1 and P4 , and Mr Barley's affidavit of 11 July 2011), without any response from Dr Marshall since that conversation on 20 May 2011. 9It is Dr Marshall, on the defendant's behalf, upon whom all the evidence prepared and filed for the prosecutor has been personally served, and I am satisfied that he is aware of the arrangements made for the hearing. 10An outline of the prosecutor's case in the form of a Draft Statement of Agreed Facts, was provided to Dr Marshall on 20 June 2011. No evidence at all has been filed on the defendant's behalf, and the sworn materials relied upon by the prosecutor, together with all annexures/exhibits upon which they depend, were helpfully gathered into one tabbed bundle for the hearing ( Exhibit P2 ). 11Dr Marshall was also clearly warned (on 14 July 2011 - see Exhibit P1 ) that, if the defendant corporation failed to appear, the prosecutor would apply to have the charge heard in its absence, pursuant to s 250(a) of the Criminal Procedure Act 1986. 12On 19 July 2011, again with the defendant having failed to appear, I granted leave for the prosecutor to adduce at the hearing any oral evidence required from seven of its witnesses by audio link. 13When the case was called on at 10am on 25 July 2011 there was no appearance by or for the defendant, and I granted the prosecutor's s 250(a) application. 14I have now considered all the prosecutor's material and am satisfied beyond reasonable doubt that the defendant should be found guilty of the charge in the summons.

The Evidence 15To assist in gleaning the defendant's point of view, the court has before it, among the prosecution evidence: (1) the corporation's response to a statutory notice under s 36 of the Native Vegetation Act , and (2) a copy of Clarence Valley Council's file concerning a June 2009 development application by the defendant for " subdivision of land (boundary adjustments) " affecting five lots, including the four subject of the charge ( Exhibit P3 ). 16Council was aware, when considering the corporation's development application (made on its behalf by Petersen Consulting Group), that a prosecution of it over the clearing, which Council had not authorised, was being considered. 17The Petersen Group's submission to Council dated 17 June 2009 relevantly states on the defendant corporation's behalf that: (1) " the aim of the adjustments is to reconfigure the various allotments into more practical shapes, and in part to better reflect site features ". Four of the five proposed lots each has an area of 40ha, and the fifth an area of 195.6ha. and (2) " each proposed allotment has significant cleared areas available to accommodate future dwellings, effluent disposal areas etc, and interested purchasers have indicated that the [four 40ha] allotments ... are to be used for agricultural purposes (blueberries), similar to the numerous other farms in the locality . The remaining parts of each proposed allotment contain native vegetation ". The fifth lot " already contains a dwelling house and is used for the purposes of private native forestry ". 18The documentary material accompanying the Petersen submission acknowledges on the defendant's behalf " extensive vegetation clearing recently carried out on the property ", but claims that " almost all of the vegetation removed was regrowth which had established following cessation of farming on the property ". 19The prosecutor submits that these materials which the defendant put to Council constitute the admission by its authorised agent that the clearing was done for a purpose other than a " routine agricultural management activity " ( Evidence Act 1995 s 87). 20Some of the defendant's responses to the s 36 notice, provided on 12 August 2010, while the defendant was represented by Mr Grace, suggest a possible line of defence, or at least mitigation, based upon discussions the defendant says it had with the prosecutor, around the time of purchasing the land, aimed at agreeing upon a " Private Native Forestry Property Vegetation Plan ". 21Such a plan was eventually issued to the defendant on 21 February 2009, well after the alleged clearing activity occurred, and the prosecutor's investigators opine that plans of this type do not permit clearing of vegetation " back to bare earth ", which is the factual situation alleged in the evidence before me. 22The circumstances of the clearing were frankly discussed in the s 36 responses, but the defendant asserted that the former owner had " heavily logged " the subject land, and claimed that the defendant's clearing activities were for routine agricultural management activities. 23However, the defendant, having dispensed with Mr Grace's services, filed absolutely no evidence in response to the prosecutor's case, nor to advance any possible defence to the charge. 24I now, therefore, proceed to examine what evidence appears in the prosecutor's materials, directly in support of its case.

The case against the defendant 25The defendant corporation was incorporated on 11 August 2008 and purchased the subject lands, a total of some 170ha in a generally triangular configuration, from four members of the Jones family, which had owned them for many years. The sale was completed on 13 October 2008, and the corporation was the registered proprietor of the four relevant lots at all material times (annexures 'F' and 'G' to Scott Beaumont's affidavit 16 March 2010 in related class 4 proceedings - Exhibit SB1 to his affidavit 20 October 2010, in tab 5 of Exhibit P1 ). 26On 10 November 2008 and 2 January 2009, the prosecutor received complaints about clearing activities on the subject lands. Field and aerial inspections were conducted, and photographic and video evidence collected. The investigators concluded that " significant clear felling " had occurred in recent times and there was no evidence of regrowth. Council confirmed on 8 April 2009 that no development approvals had been granted over any of the subject lots (see generally evidence of Damon Jon Keats and Scott Beaumont. Council's letter is annexure 'B' to Mr Keats' affidavit 15 October 2010, at tab 1 of Exhibit P2 ). 27Officers of the prosecutor manually plotted the affected areas, and one witness (Ms Anni Blaxland Fuad) estimated a clearing of " slightly in excess of 50ha " across six areas (par 11 of her affidavit 15 September 2010, and annexure 'B', in tab 2 of Exhibit P2 ). This estimate was later reduced to " approximately 38ha " in the light of expert photogrammetric analysis, to which I will return. 28Biodiversity expert, Penelope Kendall, carried out extensive - and, in my view, rigorous - quadrat research, and prepared a detailed scientific study in which she identified the various species of " mature native forest " which had been cleared. The charge has been argued on the basis of three out of the six species she nominated, and the distinguished botanist, Dr Peter Wilson, deposes that those three eucalyptus species were " native vegetation ", they having been present in this State as at 26 January 1788 (his affidavit 9 May 2011 and his CV and report are at tab 10 of Exhibit P2 ). 29Ms Kendall also prepared a detailed assessment of the subject property ( Exhibit PK2 to her affidavit) to negate any case put by the defendant that the clearing was for routine agricultural management activities. (Her affidavit 22 October 2010 and its voluminous reports and other annexures are collected at tab 3 of Exhibit P2 ). 30The prosecutor then relies on affidavits sworn by two members of the Jones family (Beverley and Helen), whose father Ted had conducted (with his brother Benjamin) minor cattle and timber activities on the property for many years of the daughters' lives prior to his death on 31 January 2004. He left the property to them and they clearly knew it very well, up until they sold it to the defendant. They gave detailed evidence of their observations and recollections over the years (tabs 6 and 7 of Exhibit P2 ). 31I am satisfied beyond reasonable doubt that, as at the period 2004-2008, during which the Jones family had the property on the market, whatever clearing had taken place over the years of the family's ownership, was limited to small scale selective logging from time to time, involving no clear or " bare earth " felling, and no stump removal. The detailed conclusions reached by Keith Emery (see pars 31ff of his affidavit of 26 October 2010, and annexures 'B' and 'C' thereto, at tab 8 of Exhibit P2 ) refute any case the defendant might raise that prior to the sale the Jones family had heavily logged the subject lands. 32The impressions of the Jones sisters are also reinforced by the thorough technical evidence of other prosecution witnesses expert in aerial photography, 'SPOT 5' satellite imagery, and photogrammetry (Stuart Smith and Roger Dwyer, as well as Mr Emery). 33That evidence reviews evidence available over many years, and "pinpoints " the now clearly apparent and significant change to, or modification of, the wooded vegetation on the land as having occurred between 6 October 2008 and 15 April 2009. 34The extent of the clearing can be most clearly observed, among the very large numbers of photographs in the prosecutor's case, in the digital " orthophoto " prepared by Mr Dwyer on 16 September 2009 (annexure 'B' to his affidavit 18 October 2010, at tab 11 of Exhibit P2 . The estimate of " approximately 38ha " comes from Mr Smith's calculations (see annexure 'C' to his affidavit 5 November 2010, at tab 9 of Exhibit P2 ). 35The defendant's response to the s 36 notice admits that the six clearings were made under the directors' supervision and on their instruction, on behalf of the corporation, by the director Murray John Gray and a third party, during the period in the charge. 36While the response asserts that the clearing should be seen as routine agricultural management activity, the total area cleared (38ha) would appear to be excessive for that purpose, and its agent's submission to Council in support of its development application for subdivision makes clear that its purpose was establishment of homesites, for which it had identified " interested purchasers ".

Conclusion 37I am satisfied beyond reasonable doubt that, as the registered owner of the land, whose directors have admitted supervising and/or participating in the charged clearing operations, without obtaining either of the requisite approvals, the defendant corporation should be found guilty of the offence charged in the summons. I so find. 38The matter is stood over to a date to be fixed for the hearing of any submissions on conviction, penalty, costs, and remediation. 39The exhibits will remain with the court file until that sentencing hearing, and the prosecutor is ordered to serve on the defendant, within seven days of today, a copy of these reasons, notice of the next hearing date, and details of any directions given in respect of it. 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. Decision last updated: 27 July 2011

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