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

Land and Environment Court (NSW)|2011-11-09|Before: Preston CJ

Garrett v Freeman [2006] NSWCA 278; (2006) 147 LGERA 96 Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 333 Kew v Commissioner of Fair Trading and Robinson [2007] NSWSC 394 Majury v Sunbeam Corporation Ltd [1974] 1 NSWLR 659 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 R v Jung [2006] NSWSC 658 Sasterawan v Morris [2007] NSWCCA 185; (2007) 69 NSWLR 547 Stoneman v Lyons (1975) 133 CLR 550 Vines v Djordjevitch (1955) 91 CLR 512 Wallace v Director-General - NSW Department of Primary Industries [2007] NSWSC 654 Category: Principal judgment Parties: Director-General of the Department of Environment, Climate Change and Water (Prosecutor) Walker Corporation Pty Ltd (Defendant) Representation: Mr B G Docking with Ms S Callan (Prosecutor) Mr J M Ireland QC with Ms J K Taylor (Defendant) NSW Office of Environment & Heritage (Prosecutor) Colin Biggers & Paisley (Defendant) File Number(s): 50034 of 2010

Nature of case and outcome 1Walker Corporation Pty Ltd ("Walker") owns land at Appin, to the south of Sydney. Three of the parcels of land it owns in the area are formally described as Lot 1 in DP 816861 ("Lot 1"), Lot 2 in DP 239247 ("Lot 2"), and Lot 62 in DP 1064019 ("Lot 62"). Lot 2 and Lot 62 are to the west of a rural road named Macquariedale Road and Lot 1 is to the east. Walker holds these lots, together with the other parcels of land in the area, as land banks for future development. 2In about April 2006, Walker contracted a land clearing contractor, Environmental Land Clearing Pty Ltd ("ELC"), to clear vegetation on the three lots Walker owned. ELC commenced clearing of vegetation in April 2006, initially on the western Lots 2 and 62, and continued intermittently on these lots and then on the eastern Lot 1 until October 2006. Walker paid ELC for the clearing work done. 3By summons filed on 18 August 2010, the Director-General of the Department of Environment, Climate Change and Water ("Director-General of DECCW") sought, and was granted, an order that Walker answer the charge that it committed an offence against s 12 of the Native Vegetation Act 2003 ("the NV Act"), in that it carried out clearing of native vegetation otherwise than in accordance with a development consent granted in accordance with the NV Act or a property vegetation plan. 4The charge was particularised. The place of the offence was on the three lots: Lots 1, 2 and 62. The native vegetation cleared included 71 species of native plants listed in the annexure to the summons. These plant species included eight trees, and 63 shrubs, understorey plants and groundcovers. The manner of breach was that Walker was taken to have cleared native vegetation by its contractor, ELC, clearing native vegetation by means of machinery including a mulcher and/or by being the landholder of the land on which the clearing of native vegetation was carried out. 5Walker pleaded not guilty to the charge. A trial has been held. 6Walker contends that the proceedings should be dismissed because: (a) the proceedings have not been validly instituted or maintained by a proper person (the identity of the prosecutor issue); (b) the prosecutor has not established, beyond reasonable doubt, each of the elements of the offence, and in particular: (i) what clearing of native vegetation occurred in the charge period rather than at prior times (the clearing issue); (ii) what specific native vegetation was cleared (the native vegetation issue); and (iii) that Walker should be taken to have carried out the clearing (the liability for the clearing issue). (c) Walker has established, for the purposes of s 12(3) of the NV Act, the defence that the clearing was permitted under s 19(1) of the NV Act in that the native vegetation cleared was only regrowth (the regrowth issue). 7I have determined that the proceedings were validly instituted and maintained by the Director-General of DECCW, the prosecutor has proven beyond reasonable doubt that Walker committed the offence as charged, and Walker has not established on the balance of probabilities the defence that the native vegetation cleared was only regrowth. Accordingly, I find Walker guilty of the offence as charged and stand the proceedings over to a date to be fixed for a sentence hearing.

The scope of the debate and findings 8The proceedings were instituted and maintained in the name of the Director-General of the Department of Environment, Climate Change and Water. Walker submits that, first, the Director-General did not have authority to institute the proceedings under s 14 of the Criminal Procedure Act 1986 as that section requires a named person to institute the proceedings; secondly, the failure to institute the proceedings by and in the name of a person is not a defect that can be cured by s 16 of the Criminal Procedure Act; and thirdly, if the proceedings were validly instituted, they were not validly maintained after the office of Director-General of DECCW, and DECCW itself were abolished. 9The prosecutor submits that, first, the description of the prosecutor using the name of the office of Director-General of DECCW is sufficient and it is not necessary to use the proper name of the holder of that office at that time; secondly, if the name of the prosecutor in the summons is not sufficient, the defect is cured by s 16(1) or (2) of the Criminal Procedure Act or both; and thirdly, if necessary, the prosecutor seeks leave to amend the summons under ss 20 and/or 21 of the Criminal Procedure Act to amend the name of the prosecutor to add or to substitute the proper name of the holder of the office of Director-General of DECCW at the time, Ms Lisa Corbyn. 10I find that the name of the prosecutor in the name of the summons is not bad, insufficient, void, erroneous or defective so as to cause the proceedings not to be validly instituted but, if I am wrong in that finding, s 16(2) operates to prevent objection being taken to any defect in the name of the prosecutor. Because of the operation of s 16(1) and/or (2) of the Criminal Procedure Act, it is not necessary for the summons to be amended to change the name of the prosecutor. If the summons is good to institute the proceedings, the subsequent abolition of the office of Director-General of DECCW does not cause the summons to become bad, insufficient, void, erroneous or defective. Hence, the proceedings have been validly maintained. Nevertheless, for the sake of good order, the summons should be amended to state the prosecutor's proper name. I will explain my reasons for these findings.

Institution of the proceedings not defective 11There is no provision in the NV Act expressly conferring a right on a specified person or specified class of persons to institute proceedings in respect of an offence under the NV Act. Accordingly, proceedings in respect of an offence under the NV Act are able to be brought under s 14 of the Criminal Procedure Act. That section allows "any person" to institute a prosecution or proceedings in respect of an offence. Section 21 of the Interpretation Act 1987 defines the word "person" to mean "an individual, a corporation and a body corporate or politic", unless the particular context in which the word is used implies otherwise. 12A person who is authorised to commence proceedings for an offence under s 14 of the Criminal Procedure Act may be a private person, but can also be a police officer or a public officer (as illustrated by ss 173 and 174 of the Criminal Procedure Act): see Sasterawan v Morris [2007] NSWCCA 185; (2007) 69 NSWLR 547 at 553 [22]. 13A "public officer" is defined in s 3 of the Criminal Procedure Act to mean certain persons, if acting in an official capacity, one of whom is: "(a) an employee in the Public Service or the Police Service". 14Section 3(3) of the Criminal Procedure Act provides that: "In the absence of evidence to the contrary, a person specified in paragraphs (a) - (f) of the definition of public officer who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity." 15In this instance, Ms Lisa Corbyn, the then holder the office of Director-General of DECCW, consented to and authorised the commencement on her behalf of the proceedings against Walker for the offence against s 12 of the NV Act. 16The consent to commence the proceedings (Exhibit BS) states: "I, Lisa Corbyn, Director-General of the Department of Environment, Climate Change and Water, hereby consent to and authorise the institution in the Land and Environment Court of New South Wales on my behalf of the following proceedings against Walker Corporation Pty Ltd (A.C.N. 001 176 263), for an offence against the Native Vegetation Act 2003 . Proceedings for the offence that, between about 1 March 2006 and 31 October 2006 inclusive, at or near Appin in the State of New South Wales, it committed an offence against section 12 of the Native Vegetation Act 2003, in that it carried out clearing of native vegetation otherwise than in accordance with a development consent granted in accordance with that Act or a property vegetation plan. Signature Lisa Corbyn Capacity Director-General Date of signature 12/08/10" 17Ms Corbyn was acting in an official capacity as the Director-General of DECCW with responsibility for administering, among other legislation, the NV Act. Ms Corbyn was, therefore, acting as a public officer in an official capacity in commencing the proceedings against Walker as the prosecutor. 18The name for Ms Corbyn as prosecutor used in the summons was the name of her office, Director-General of DECCW, rather than her proper name. However, there is no doubt that the identity of the prosecutor is Ms Corbyn. In my view, the designation of Ms Corbyn as the prosecutor in the summons by the name of her office of Director-General of DECCW instead of her proper name, does not cause the summons to be bad, insufficient, void, erroneous or defective. Section 16(1)(f) of the Criminal Procedure Act expressly says otherwise. Section 16(1)(f) provides: "(1) An indictment is not bad, insufficient, void, erroneous or defective on any on the following grounds: (f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name," 19An "indictment" in s 16(1) (as well as in s 16(2)) of the Criminal Procedure Act) includes a summons by which proceedings for an offence that is dealt with summarily are commenced in the Land and Environment Court: see s 15(2) of the Criminal Procedure Act and Garrett v Freeman [2006] NSWCA 278; (2006) 147 LGERA 96 at 102 - 103 [34] and Epacris Pty Ltd v Director-General, Department of Natural Resources [2007] NSWCCA 76; (2007) 69 NSWLR 507 at [61], [64], [81], [83], [86] and [87]. 20If I am wrong in this conclusion, however, the designation of Ms Corbyn as prosecutor by the name of her office as Director-General of DECCW is a defect to which s 16(2) of the Criminal Procedure Act applies. Section 16(2) provides so far as it is relevant: "(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form ...". 21These proceedings are for an offence that is to be dealt with summarily by the Land and Environment Court. The defect is in the name of the prosecutor in the summons, not the identity of the prosecutor. This defect is a defect within s 16(2)(a) of "an alleged defect in it in substance or in form". Hence, no objection can be taken by Walker, or allowed by the Court, to the summons on the ground of the defect in the name of the prosecutor. 22These conclusions are supported by cases to which the prosecutor and Walker referred. 23The prosecutor relied on the decision of Harrison AsJ in Wallace v Director-General - NSW Department of Primary Industries [2007] NSWSC 654. In Wallace , the defendants had argued that the Court Attendance Notices ("CANs") for offences under the Fisheries Management Act 1994 were deficient because they did not identify the prosecutor by name but rather described the prosecutor as the Director-General - NSW Department of Primary Industries. Section 175(3)(c) of the Criminal Procedure Act requires a CAN to "contain the name of the prosecutor". Harrison AsJ held that: "It is my view that firstly, the description of the prosecutor in the CANs was sufficient; secondly, if the description of the prosecutor was not sufficient, s 16(1)(f) provides that the indictment is not void or defective; and thirdly, if there was a contravention of s 175, it does not result in the invalidity of the CAN": at [23]. 24The first finding, that the designation of the prosecutor by the name of the office of Director-General - NSW Department of Primary Industries was sufficient, is to the same effect as my conclusion, applying s 16(1)(f) of the Criminal Procedure Act, that the designation of the prosecutor in the summons in the present proceedings by the name of her office as Director-General of DECCW does not cause the summons to be bad, insufficient, void, erroneous or defective. The second finding, that if the name is defective, s 16(2) applies so as to make the process by which the criminal proceedings were commenced not void or defective, is also to the same effect as my conclusion that s 16(2) applies to prevent Walker taking objection to the summons on the ground of any defect in the name of the prosecutor. 25Walker relied on the decision of Adams J in Kew v Commissioner of Fair Trading and Robinson [2007] NSWSC 394 as authority to the contrary. I do not agree. In Kew , the prosecutor was described in the CANs, for offences under s 300(1) and (2) of the Crimes Act 1900, as "S. Robinson, Public Officer for and on behalf of the Commissioner for Fair Trading". Earlier in the proceedings, declarations had been made which meant that Mr Robinson was not the authorised agent of the Commissioner for Fair Trading: at [29]. Hence, the identity of the prosecutor described in the CANs was not the Commissioner for Fair Trading, but rather Mr Robinson. 26Adams J held that Mr Robinson, acting as a public officer but otherwise than as the Commissioner's agent, was nevertheless authorised to prosecute the offences under s 14 of the Criminal Procedure Act: at [32]. The description of the prosecutor as Mr Robinson "for and on behalf of the Commissioner for Fair Trading" was a defect of a kind to which objection could not be taken under s 16(2) of the Criminal Procedure Act: at [33]. It was a defect in the name of the prosecutor not the identity of the prosecutor. 27In the course of reasoning to reach these conclusions, Adams J held that if the Commissioner for Fair Trading prosecutes under s 14 of the Criminal Procedure Act, he cannot do so by a delegate or agent: he must be the identified prosecutor. He could prosecute either as Commissioner or as a named person. If he prosecutes as Commissioner, authority in the legislation establishing his office, namely the Fair Trading Act 1987, must be found to do so. If he prosecutes as a named person, his statutory functions are immaterial: at [25]. 28Adams J then stated that if the Commissioner prosecutes "as Commissioner" the failure to name the Commissioner (in the sense of stating the proper name of the Commissioner) would be a defect to which s 16(2) applies and is thus not fatal, although the CANs should be amended to comply with the requirements of s 175(3)(c) as to the name of the prosecutor: at [25]. 29Finally, Adams J considered the proposal put forward at an earlier time in the proceedings of substituting the Commissioner as the prosecutor for Mr Robinson. Adams J held that the substitution of the Commissioner for Mr Robinson could not be permitted as an amendment and was not a defect to which s 16(2) applied. If the prosecution was under s 14 of the Criminal Procedure Act, the only "defect" concerns the name and not the identity of the prosecutor. To substitute the Commissioner would be the commencement of an entirely new proceedings undertaken by a different party: at [25]. 30These comments were obiter dicta as Adams J had found that the identity of the prosecutor was Mr Robinson, and not the Commissioner. Nevertheless, what the comments establish, of relevance to the present proceedings, is that the Commissioner could prosecute under s 14 of the Criminal Procedure Act as Commissioner, and not only as a named person, and that a description of the Commissioner rather than using the proper name of the Commissioner would be a defect to which s 16(2) applies. 31These dicta are supportive of my conclusion that s 16(2) of the Criminal Procedure Act applies so as to prevent objection being taken to the summons in the present proceedings on the grounds that Ms Corbyn as prosecutor is described in the summons by the name of her office, Director-General of DECCW rather than her proper name, Ms Lisa Corbyn. 32Both parties also referred to the Court of Appeal's decision in Garrett v Freeman [2006] NSWCCA 278; (2006) 147 LGERA 96. In Garrett , the prosecutor was described in the summonses as "Stephen Garrett for and on behalf of the Director-General of the Department of the Environment and Conservation". The summonses charged the defendant with offences under the National Parks and Wildlife Act 1974 ("the Parks Act"). Section 179 of the Parks Act provides that proceedings for an offence against the Parks Act "may only be taken by a police officer or by a person duly authorised by the Director-General in that behalf, either generally or in any particular case". The Court of Criminal Appeal dealt with the appeal on the basis of a concession by the prosecution that this provision had the effect that the Director-General could not commence proceedings for an offence but could only authorise another person to take such proceedings: at [96] per James J with whom McColl JA agreed at [1] and [8], Grove J reserving the question of the correctness of the concession at [15]-[16]. 33On the basis of the concession, the Court of Criminal Appeal found that "the proceedings should be regarded as having been taken by Mr Garrett as an agent on behalf of the principal, the Director-General, and hence the proceedings should be regarded as having been taken by the Director-General": at [113] per James J, [1] and [8] per McColl JA and [17], [19] per Grove J. 34This finding exposed the defect in the summons: on the concession as to the meaning of the Parks Act, the Director-General was not able to commence the proceedings for the offences but the proceedings should be regarded as having been taken by the Director-General. The proceedings were brought by the wrong prosecutor. The Court of Criminal Appeal, however, held that s 16(2) of the Criminal Procedure Act applied to this defect so as to prevent objection being taken to each summons on the ground that the proceedings were brought by the wrong prosecutor: at [135]-[137], [141] per James J, at [9], [13] per McColl JA and [18]-[19] per Grove J. No amendment to the summonses to change the name of the prosecutor was necessary because the defect was cured by s 16(2) of the Criminal Procedure Act: at [141] per James J, McColl JA and Grove J agreeing at [1] and [18] respectively. 35This decision therefore goes further than those in Wallace and Kew . In those cases, a defect in the name but not the identity of the prosecutor was cured by s 16(2) of the Criminal Procedure Act. Garrett held that a defect in the identity of the prosecutor is also governed by s 16(2) of the Criminal Procedure Act. 36In the present proceedings, I do not find that there is a defect in the identity of the prosecutor. The prosecutor is Ms Corbyn and she is authorised by her office to take proceedings as a public officer under s 14 of the Criminal Procedure Act for offences against the NV Act. The defect, if there be one, relates to the designation of Ms Corbyn by her office, rather than her proper name. Section 16(1) and (2) apply to such a defect. The decision of the Court of Criminal Appeal in Garrett is not inconsistent with and indeed, in extending the application of s 16(2) of the Criminal Procedure Act beyond defects in the name to defects in the identity of the prosecutor, would be consistent with the conclusion that s 16(2) applies to a defect in the name of the prosecutor. 37The prosecutor also referred to the Court of Criminal Appeal's decision in Epacris Pty Ltd v Director-General, Department of Natural Resources . In Epacris , there was a mistake in the name in the prosecutor, not the identity of the prosecutor. The summons commencing the proceedings in the Land and Environment Court for offences against the Native Vegetation Conservation Act 1997 (the predecessor to the NV Act) named the prosecutor in the header on the left hand side of the front page of the summons as the "Director-General, Department of Planning" but named the prosecutor in the part of the summons where the defendant is notified of the time and place of the hearing at which it was to appear as "Director-General, Department of Natural Resources". The order, claimed by the summons under s 246 of the Criminal Procedure Act that the defendant be dealt with according to law for the offence charged, and made by the Court on the same day that the summons was issued, named the prosecutor as the "Director-General, Department of Natural Resources". The Director-General of the Department of Natural Resources had authority to take proceedings for offences against the Native Vegetation Conservation Act. 38The Court of Criminal Appeal held that the task of interpreting the summons and the order under s 246 of the Criminal Procedure Act to determine which one of the two Director-Generals had been named in error was "to be undertaken on a completely objective basis by considering which Director-General a reasonable person would interpret the document itself and any linked document - and without reference to the subjective intention of the actual person who drafted it - had been intended to be the prosecutor": at [21]. 39The Court of Criminal Appeal held that, on a completely objective basis, the Director-General, Department of Natural Resources was intended by the two linked documents to be the prosecutor and that the Crown Solicitor had instructions to act for that prosecutor. There was, therefore, no fundamental defect in issuing the proceedings and the summons was not a nullity: at [24]. The Court of Criminal Appeal held that it was "satisfied that the mistake in naming the prosecutor as the Director-General, Department of Planning in the header of the summons may fairly be described as a mistake as to the name of the party and not as to the identity of the party": at [53]. 40The Court of Criminal Appeal went on to hold that s 16(2) of the Criminal Procedure Act did apply to the defect in the name of the prosecutor in the summons commencing the proceedings in the Land and Environment Court: at [61], [64], [81], [83], [86] and [87]. 41Of relevance to the present proceedings, no issue was raised in Epacris as to designating the prosecutor by the name of the office, either the Director-General of the Department of Natural Resources (the correct name of the prosecutor) or the Director-General of the Department of Planning (the erroneous name), rather than the proper name of the prosecutor. The issue of concern was only which of the two names of the offices was correct. Hence, the Court of Criminal Appeal held that the commencement of the proceedings for an offence against the Native Vegetation Conservation Act in the name of the Director-General, Department of Natural Resources, in the summons, but also mistakenly naming in the summons the Director-General of the Department of Planning, was not a fundamental defect and the summons was not a nullity. 42The Court of Criminal Appeal's decision in Epacris is, therefore, supportive of my conclusion that the designation of the prosecutor in the present proceedings by the name of her office as Director-General of DECCW does not cause the summons to be defective, but that, if it did, s 16(2) of the Criminal Procedure Act would apply to cure the defect. 43For these reasons, the summons in the present proceedings is not bad, insufficient, void, erroneous or defective and no objection may be taken or allowed to the summons, on the ground that the summons designates Ms Corbyn as a prosecutor by the name of her office of Director-General of DECCW, instead of her proper name of Ms Lisa Corbyn. Accordingly, it is not necessary for the summons to be amended to substitute Ms Corbyn's proper name for the name of her office of Director-General of DECCW.

Maintenance of the proceedings not defective 44Walker next submitted that even if the summons was good to institute the proceedings, it became bad upon the abolition of DECCW and hence the office of Director-General of DECCW. 45At the time of commencement of the proceedings on 18 August 2010, the Public Sector Employment and Management Act 2002 ("PSEM Act") identified the Director-General of DECCW as being a Division Head of a Division of the Government Service (s 4D(1) and Pt 1 of Sch 1), a Department Head of a Department within the Public Service (s 6(1) and (2) and Pt 1 of Sch 1), a position created by the PSEM Act (not being created by the NV Act) (s 10(1) and Pt 1 of Sch 1) and a chief executive position (s 64 and Pt 1 of Sch 2). 46The Divisions and Department were changed on 4 April 2011 by the Public Sector Employment and Management (Department) Order 2011 ("the Order") made under the PSEM Act. Clause 7 of the Order removed all branches from DECCW and added them to the Department of Premier and Cabinet (cl 7(1)) (other than those removed and added to the Department of Primary Industries: see cl 7(4) and cl (19)(1) of the Order); abolished DECCW as a Division of the Government Service (cl 7(2)); and required, in any document, a reference to DECCW to be construed as a reference to the Department of Premier and Cabinet (cl 7(3)). A "document" means "any Act or statutory instrument, or any other instrument, or any contract or agreement" (cl 3). An "instrument" is defined in s 3(1) of the Interpretation Act 1987 to mean an "instrument (including a statutory rule or environmental planning instrument) made under an Act, and includes an instrument made under any such instrument". 47Clause 8 of the Order established the Office of Environment and Heritage as a separate office within the Department of Premier and Cabinet (cl 8(1)) which included staff transferred under cl 7 (cl 8(2)). 48The consequence of the Order is that DECCW has become part of the Department of Premier and Cabinet, a new Office of Environment and Heritage has been established within the Department of Premier and Cabinet and the staff of the former DECCW, including the former Director-General of DECCW, Ms Corbyn, have been transferred to the Office of Environment and Heritage. Ms Corbyn became the Chief Executive Officer of the Office of Environment and Heritage, an office with the Department of Premier and Cabinet. The Department of Premier and Cabinet is a Division of the Public Service (s 4C(1) and Sch 1 of the PSEM Act as amended by cl 4(1) of the Order) and part of the Public Service (s 6(1) of the PSEM Act). Ms Corbyn, therefore, continues to be employed in the Public Service. 49The prosecutor submits that the reference to DECCW in the name of the prosecutor in the summons is to be construed, by reason of cl 7(3) of the Order, as a reference to the Department of Premier and Cabinet. Hence, the prosecutor submits that the prosecutor has become the Director-General of the Department of Premier and Cabinet. 50Walker submits to the contrary on the basis that the summons is not a "document" within the meaning of the Order. Walker submits that the definition of "document" in cl 3 of the Order refers to documents that confirm, create or limit rights and would not include the process by which criminal proceedings are commenced. Walker submits this construction is supported by the existence in s 109 of the PSEM Act of express power to make provision for "the carrying on or completion of anything commenced by, or under the authority of, or in relation to, a superseded authority" or "the substitution, in any legal proceedings, of a Minister or officer for a superseded authority", where "superseded authority" includes a Division of the Government Service (DECCW being such a Division): s 109(2)(a), (b) and (3) of the PSEM Act. 51Walker further submits that, even if the summons were to be a "document" within cl 7(3) of the Order, the result would not be that contended for by the prosecutor but rather the identity of the prosecutor would have changed. The prosecutor would become the Director-General of the Department of Premier and Cabinet (which office does exist under the Order, see cl 4(1)) but Ms Corbyn is not the holder of that office. 52I agree with Walker that cl 7(3) of the Order does not apply to the summons commencing the proceedings for an offence against the NV Act but, if it did, it would not maintain the identity of the prosecutor as Ms Corbyn but would effect a change in the identity. 53Nevertheless, I do not consider that the changes to the Departmental structure of the Government Service effected by the Order have the consequence that the summons becomes a nullity. I have found that Ms Corbyn was the person who instituted the proceedings, although the summons designated her by the name of her then office of Director-General of DECCW rather than her proper name. So designating the prosecutor, however, did not cause the summons to be bad, insufficient, void, erroneous or defective (by dint of s 16(1) of the Criminal Procedure Act) and no objection may be taken or allowed on the ground of any such alleged defect (s 16(2) of the Criminal Procedure Act). The effect of the Order is merely to give rise to another defect in the name of the prosecutor. After the Order took effect Ms Corbyn no longer held the office of the Director-General of DECCW. The name of the office used to designate Ms Corbyn in the summons (and in the order issued by s 246 of the Criminal Procedure Act) ceased to be correct after the Order took effect. However, such a defect is only in the name of the prosecutor and not in the identity of the prosecutor. Ms Corbyn remains the person who instituted and who maintains the proceedings. The defect in the name of the prosecutor, caused by the Order's change of the Divisions and Departments of the Government Service, is one to which s 16(2) applies. The decisions to which I have earlier referred support this conclusion. 54Accordingly, no objection may be taken by Walker, or allowed by the Court, to the summons on the ground that the name of the office of the prosecutor ceased to be correct after the Order came into effect. 55Nevertheless, for the sake of good order, if there is a defect in the name, by reason of the Order, an amendment to the summons may and ought to be made: see Garrett v Freeman at [141], Epacris Pty Limited v Director-General, Department of Natural Resources at [76] and see also Corporate Affairs Commission v Bain (1991) 55 A Crim R 73 at 78. 56The Court has power to order the amendment of the summons to correct the defect in the name of the prosecutor under s 21(1) of the Criminal Procedure Act: see Epacris Pty Limited v Director-General, Department of Natural Resources at [82]. In my opinion, having regards to the merits of the case, the summons can be amended, without injustice to Walker, by substituting the proper the name of the prosecutor, Ms Lisa Corbyn, for the no longer correct description of the office held by the prosecutor, Director-General of DECCW. The summons can be amended at any time, including at the trial, as sought by the prosecutor in this case. Walker is not prejudiced by such an amendment to the name of the prosecutor, the desirability of which only arose after the Order restructuring the Divisions and Departments of the Government Service took effect on 4 April 2011. No prejudice was found to prevent similar amendments to the name of the prosecutor in the summonses in Garrett v Freeman or Epacris Pty Limited v Director-General, Department of Natural Resources. 57Accordingly, I will order that under s 21 of Criminal Procedure Act, amendment of the summons to substitute "Lisa Corbyn" for "Director-General of the Department of Environment, Climate Change and Water".

The clearing issue 58"Clearing" of native vegetation is defined in s 7 of the NV Act to mean: "any one or more of the following: (a) cutting down, felling, thinning, logging or removing native vegetation, (b) killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation." 59I find on the evidence beyond reasonable doubt that ELC "cleared" (within the defined meaning of the word) native vegetation on the three lots between April and October 2006. 60ELC held itself out as a specialist land clearing contractor. It had specialist machinery to clear vegetation, including a mega-mulcher and tractor mulchers. ELC was engaged by Walker to clear vegetation on the three lots. 61Walker's employee, Mr Fife, said he gave instructions to Mr Michael Black of ELC on the clearing to be carried out. The instructions to ELC were to the effect: "need to clean up the property, need to get rid of blackberry, need to get rid of the dumped cars and to clean up and around the dams, need to clear the edge of the vegetation, small undergrowth, leave all the large trees, anything looks like it's been cleared before" (T167). Mr Fife explained that by large trees, he meant "anything larger than the girth of your leg" and by understorey he meant "scrubby small shrubs" (T185). Mr Fife included in his phrase "anything that looks like its been cleared before", smaller timber and small saplings (T185-186). 62Mr Humphreys of ELC said he met Mr Fife at the three lots and Mr Fife instructed Mr Humphreys as to the clearing he wanted ELC to carry out: "he asked if we could remove some of the smaller trees, the dead trees, any trees lying on the ground" and that we should "clear back as [far as] we could leaving all the large trees" but that "we shouldn't go back as far as the other contractor " who had "driven right up to the edge of the escarpment" (T307). Mr Humphreys' understanding from Mr Fife's instructions was "that pretty much we would remove a lot of trees that were 200 centimetres [sic, 200 millimetres was probably intended] in diameter or less, that we wouldn't remove any of the larger trees" (T307). 63Mr Fife discussed with Mr Black and Mr Humphreys that the clearing would be carried out by ELC using mulching machines. Mr Fife asked "if we could bring our mulching machines" (T305). 64ELC had at that time a mega-mulcher and tractor mulchers. These mulching machines mulched all vegetation in their path down to, respectively, an inch or so or 20-50 mm off the ground. The mega-mulcher was a new machine for ELC, recently purchased before carrying out the clearing work for Walker on the three lots. Mr Mills of ELC was the main operator of the mega-mulcher. The red mega-mulcher was a forestry mulcher with a large drum with fixed teeth. It has the capacity to mulch trees with a trunk size of up to half a metre (the sales pitch: Mr Humphreys T309), up to 800-900 mm diameter trees (Mr Mills T384) and certainly trees up to 20 cm diameter (Mr Humphreys T309). 65The mega-mulcher mulched all vegetation in its path down to an inch or so off the ground (Mr Mills T386). The path mulched was about 2.67 m wide (Mr Mills T417). 66Trees were totally mulched, first by cutting the trees down, mulching the stump to the roots, then mulching the trunk and branches (Mr Humphreys T 309 and Mr Mills T387-388). 67The blue tractor mulchers also had a spinning drum with flailing teeth (Mr Benjamin Black T586). They were not as effective for mulching tree trunks but were very effective for small branches, small bushes and smaller saplings (Mr Humphreys T309). They could mulch trees with a diameter of 7 or 8 inches (Mr Mills T390), 100 mm (but had taken out 300 mm) (Mr Crisp T495), 100 mm and 3 metres high (Mr Benjamin Black, T588-591), 150 mm or maybe 200 mm for a soft tree (Mr Elliot T680-681). Small trees were taken out by pushing the tree pusher (which is welded on to the front) up against the tree, the drum chews the bottom of the trunk, pushing the tree over, then driving backwards and forwards over the fallen tree and turning it into mulch (Mr Elliot T683). 68The tractor mulchers operated at about 20-50 mm off the ground (Mr Benjamin Black T587, Mr Elliot T684). Underscrubbing was performed by driving over and mulching the vegetation, up to a metre high (Mr Elliot T683). The path mulched was about 2.5 m wide (Mr Mills T417). 69ELC also used a 20-tonne excavator which had shears for cutting up logs on the ground and tree grabs and a 12.5-tonne excavator which also had shears (Mr Mills T391-392). 70ELC carried out clearing of vegetation on the three lots in accordance with their agreement with Walker. The ELC employees described the clearing of vegetation they directed, carried out and observed using the mulching machinery (oral evidence of Mr Humphreys on 23 September 2011, Mr Mills on 26 September 2011, Mr Michael Black on 27 September 2011, Mr Crisp on 27 September 2011, Mr Benjamin Black on 28 September 2011 and Mr Elliot on 29 September 2011). 71Mr Humphreys' instructions and observations were that trees up to 20 cm were mulched (T311, 320, 354). Mr Humphreys marked out with tape an area to be cleared (in Lot 62) which contained a lot of very thick spiny bush and smaller saplings. ELC cleared the marked area back around the dam and out to the paddock (T311). 72Mr Mills (who primarily operated the larger capacity mega-mulcher) said trees 4-6 inches (10-15 cm) and thick bushes, in some places higher than the mega-mulcher and undergrowth were mulched (T383, 399, 418). However, on occasions, ELC did knock down "big trees", being "300 [mm], about a foot" (T464 and see T398). Indeed, "anything, probably 10 inches (25 cm) I could have taken them out" (T464). 73Mr Crisp said that anything under 3 m tall and 100 mm round was to go (T513). The result of the mulching was "a nice clear paddock with nice big trees you could actually see" (T482). He said he never left a patch of smaller trees under the big trees and all smaller trees up to 3 m were mulched (T612-613). Small bushy plants similar to tea tree growing thickly and in abundance, up to the cabin height of the tractor mulcher (3 m) were mulched (T503-504, 591-592, 620-621). Any plants that were from the ground level to 1 m up were mulched (T592). Big trees were 300-500 mm (T483). 74Mr Benjamin Black said anything lower than 3 m in height and 75 mm thick came out (T588). He said occasionally he hit a tree and clipped the bark (T588). Trees 5 or 6 m tall up to 150 mm in diameter could get clipped because there was a thick abundance of them and they were very hard to miss with the tractor mulcher (T589). Mr Mills would come through with a mega-mulcher and tidy up afterwards, taking them out by mulching them (T588, 589). There were mainly gums (T589-590). 75Mr Elliott, operating the tractor mulcher, mulched small vegetation, small shrubs and small trees up to 150 mm in diameter (T680, 683). 76The evidence therefore establishes that ELC "cleared" vegetation on the three lots within the meaning of s 7 of the NV Act. By using the mulching equipment, individual plants were cut down, felled, removed, killed, destroyed or uprooted and the stands, clumps or other areas of native vegetation on the three lots were thinned, leaving, for example, large trees standing in a newly cleared area. 77Walker submits that there has been a history of clearing and disturbance of vegetation on the three lots. The areas of the three lots in which the prosecutor's case has focussed were areas of vegetation at the fringes of historically cleared pastoral land. There was evidence of clearing events, including fire and possibly mechanical clearing, prior to April 2006. There has been mineral exploration which involved clearing of vegetation. There was evidence of cattle grazing. Walker submits that these events cast doubt on precisely what clearing occurred between April and October 2006. 78I accept that, at unspecified and indeterminable times prior to April 2006, clearing or other disturbances of vegetation on the three lots may have occurred. Nevertheless, such prior events do not cast doubt on the evidence that clearing, in the defined meaning of the word in s 7 of the NV Act, of native vegetation was carried out by ELC on the three lots between April 2006 and October 2006. The evidence of clearing by ELC is irrefutable. 79Walker also submits that all of the evidence is not consistent as to the precise parts of the three lots which were cleared by ELC. I find that, although there is some degree of variability in the evidence as to the precise locations of clearing within the three lots, there is a significant degree of corroboration in the evidence that the parts of the three lots which Mr Lucas and Mr Noble identify as totalling about 2.4 ha in the western area (Lots 2 and 62) and 4.9 ha in the eastern area (Lot 1) were cleared (see findings in the section on the native vegetation issue below). However, there is no reasonable doubt, based on all of the evidence, that the clearing was carried out on the three lots. Identification, and proof, of the land on which clearing occurred as being the three lots provides sufficient particularity for Walker to know the charge it has to meet and for the prosecutor to prove this clearing element of the offence. 80I find beyond reasonable doubt that native vegetation was "cleared" on the three lots.

The native vegetation issue 81Section 12 of the NV Act prohibits the clearing of "native vegetation", except in accordance with a development consent granted in accordance with the NV Act or a property vegetation plan. "Native vegetation" is defined in s 6 of the NV Act, which provides, so far as is relevant: "(1) For the purposes of this Act, native vegetation means any of the following types of indigenous vegetation: (a) trees (including any sapling or shrub, or any scrub), (b) understorey plants, (c) groundcover (being any type of herbaceous vegetation), (d) plants occurring in a wetland. (2) Vegetation is indigenous if it is of a species of vegetation, or if it comprises species of vegetation, that existed in the State before European settlement." 82It is to be noted that this definition of native vegetation includes both individual plants as well as assemblages of plants. Hence, a single tree, sapling or shrub, an understorey plant or a groundcover plant is native vegetation if it is of a species that existed in the State before European settlement. So too an assemblage of trees and shrubs, such as may be termed scrub, or plants in the structural layers of the understorey or the groundcover are native vegetation if they comprise species of vegetation that existed in the State before European settlement. 83To establish this native vegetation element of the offence against s 12 of the NV Act, the prosecutor must establish that there was clearing of vegetation of one or more of the types of vegetation described in s 6(1) and that such vegetation was indigenous within the meaning of s 6(2) of the NV Act. 84I find, beyond reasonable doubt, that the prosecutor has established both of these components of the native vegetation element of the offence. The first component, that vegetation of one or more of the types in s 6(1) has been cleared, is established by the evidence of:

the Walker employee, Mr Fife, as to the instructions he gave to ELC to clear vegetation on the three lots, including clearing vegetation around the dams, the edge of the vegetation, small undergrowth, and anything that looks like it has been cleared before (such as smaller timber and small saplings), but leaving all the large trees (Mr Fife T167, T185-186);
the ELC employees who directed, carried out and observed the results of clearing of vegetation on the three lots between April and October 2006 (Mr Humphreys' oral evidence on 23 September 2011, Mr Mills' oral evidence on 26 September 2011, Mr Michael Black's oral evidence on 27 September 2011, Mr Crisp's oral evidence on 27 September 2011, Mr Benjamin Black's oral evidence on 28 September 2011 and Mr Elliott's oral evidence on 29 September 2011, summarised in part earlier) that ELC mulched, using a mega-mulcher or tractor mulcher, understorey plants, shrubs and saplings as well as trees up to a diameter of, variously described, 200-300 mm, but sometimes also larger trees which had been damaged by the machinery were taken out with the mega-mulcher (Mr Mills T464) as well as groundcovers which had their leaves cut off by the mulchers;
the business records of ELC, including the plant hire dockets, the hazard identification, risk assessment and controls sheets and the invoices (Exhibit E, tab 20, and Exhibit BD), and the diary of Mr Mills (Exhibit E, tab 18), which recorded mulching of trees and vegetation throughout the period April to October 2006;
the investigating officers who observed and photographed in 2008 and 2010 evidence of clearing, such as mulched vegetation on the ground, cut stumps, regrowing vegetation from cut stumps and open areas without or with little understorey or groundcover plants (Mr Pupo's affidavit of 16 August 2010, oral evidence on 20 September 2011, and Exhibit E (including video footage and photographs taken on site) and Exhibit BC (annotated investigation event log)); Mr Giddins' affidavits of 17 August 2010 and 9 November 2010, oral evidence on 20 and 21 September 2011 and Exhibit K (Mr Giddins' photographs marked with cleared and uncleared areas); Mr Noble's affidavits dated 16 August 2010, 9 November 2010 and 16 September 2011, Exhibit N (including investigation event log sheets), Exhibit O (schedule of photos and locations) and Exhibit S (photographs taken on site) and oral evidence on 22 September 2011; Mr Hager's affidavits of 16 August 2010 and 9 September 2011 and expert reports and other evidence in Exhibit AJ (including Mr Hager's inspection report and photographs), Exhibit AK (Mr Hager's vegetation field sheets), Exhibit AL (Mr Hager's table of species recorded in quadrats with photographs marked with names of species shown), Exhibit AM, tab 170 (supplementary report dated 9 September 2011, paras 13-29 and photographs) and Exhibit AN (further report dated 27 September 2011, paras 8-16) and oral evidence on 4 October 2011);
the experts in aerial and satellite photography interpretation who observed and expressed opinions from aerial photographs and satellite images taken before (including 6 February 2005 and 1 June 1995 SPOT5 satellite images and 20 December 2005 aerial photograph) and after (including 17 September 2006 SPOT5 satellite image and 2 April 2008 aerial photograph) the period of clearing between April and October 2006 that trees and areas of vegetation had been removed, including an area of about 2.4 ha in the western area (Lots 2 and 62) and 4.9 ha in the eastern area (Lot 1) (Mr Lucas' affidavits of 16 August 2010, 11 October 2010, 11 November 2010 and 7 September 2011, expert reports in Exhibit Q, tab 109 (first report titled API Report dated 24 May 2010, including pp 11, 13, 15, 16 and maps 2-4), tab 110 (supplementary report dated 12 August 2010, including pp 3-4 and maps 2A and 2B), tab 116 (aerial photographs marked with areas of vegetation removed after 20 December 2005) and tab 120 (supplementary report dated 6 September 2011, pp 1-4) and Exhibit AZ (supplementary report dated 26 September 2011, pp 4-12), and oral evidence on 22 and 23 September, 5 and 6 October 2011; Mr Noble's affidavits of 16 August 2010, 9 November 2010 (particularly, para 44 that the eastern area cleared was 4.9 ha) and 16 September 2011 (particularly, para 13 that the western area cleared was 2.4 ha) and oral evidence on 22 September 2011, supported by affidavit and oral evidence proving the satellite images and aerial photography from Mr Carroll, Mr Peters, Mr Gould, Mr Garside, Mr Smith and Mr Jeremy Black);
admissions of the corporate defendant, Walker, in response to statutory notices to produce information and documents, that clearing of vegetation occurred on the three lots between April and October 2006 by ELC by mulching using a mulcher, tractor mulcher and excavator (see, for example, Walker letters dated 30 April 2009 and 6 July 2010 in Exhibit E, tab 10 and Exhibit N, tab 82 respectively); 85The opinion evidence of Dr Smith, called by Walker in its defence, which endeavoured to rebut the conclusion that vegetation was cleared in 2006, was tendentious and ignored the extensive evidence of witnesses of fact, the Walker and ELC employees, who directed, carried out and observed clearing of vegetation between April and October 2006 on the three lots. I do not accept Dr Smith's opinion evidence that no vegetation was cleared in 2006 on the three lots. 86The second component of the native vegetation element of the offence, that the vegetation cleared was indigenous within the meaning of s 6(2) of the NV Act, is established by the evidence of:
a biologist, Mr Hager, as to the species of native vegetation and the vegetation communities (being structurally described as a native dry sclerophyll forest), which occurred on the three lots prior to clearing in 2006, based on observations and sampling in 2008 and 2010 of cleared and uncleared areas of the three lots, identification of species of vegetation growing on the three lots, and interpretation of vegetation shown in photographs taken before the clearing in April 2006 and after the clearing in 2008, which concludes that the 71 species of native plants in the Annexure to the summons together with two more native species, Eucalyptus globoidea and Eucalyptus tereticornis were amongst the species of vegetation cleared (Mr Hager's affidavits and oral evidence on 4 October 2011 and tendered exhibits, including affidavit of 16 August 2010, paras 16-23; Exhibit AJ, tab 165 (list of plant species recorded within the subject area); Exhibit AK (Mr Hager's vegetation field sheets); Exhibit AL (Mr Hager's table of species recorded in subject area and annotated photographs with names of native species shown); Exhibit AM, tab 170 (supplementary report dated 9 September 2011, paras 18-24) and tab 174 (photographs annotated with names of native species shown); and Exhibit AN (further report of 27 September 2011, paras 8-11).
Walker's flora consultants, Anne Clements & Associates, who undertook surveys of the species of native vegetation in and in the vicinity of the three lots in 2004 before the clearing occurred (Anne Clements & Associates reports of 31 May 2006 (Exhibit AO) and 4 October 2007 (Exhibit AP)), identifying many of the 73 native species the prosecutor submits were cleared (see Mr Hager's report of 27 September 2011 (Exhibit AN), paras 8-11);
an expert in aerial and satellite photography interpretation, Mr Lucas, who interpreted, from aerial photographs and satellite images, the vegetation that was cleared in 2006 to be comprised of native species (Mr Lucas' affidavit and oral evidence and tendered exhibits including Exhibit Q, tab 109 (API report dated 24 May 2010, p 5), tab 120 (supplementary report dated 6 September 2011, pp 1,3);
mapping of native vegetation communities in the locality, including on the three lots, by the National Parks and Wildlife Service in 2002 ( Native Vegetation of the Cumberland Plain , final edition, NPWS, 2002) and by Tozer in 2003 (M Tozer, "The Native Vegetation of the Cumberland Plain, Western Sydney: Systematic Classification and Field Identification of Communities" (2003) 8(1) Cunninghamia 1 (see Mr Hager's affidavit of 16 August 2010, para 8(g) and para 29 and Exhibit AJ, tab 161 and Anne Clements & Associates Report dated 31 May 2006 (Exhibit AO), pp 10-11 and figures 5a, 5b and 6));
Mr Hager (para 29 of his affidavit of 16 August 2010 and paras 8 and 11 of his report dated 27 September 2011 (Exhibit AN)) and Anne Clements & Associates (in the 31 May 2006 report, p 28: Exhibit AO) that the native vegetation communities on parts of the three lots are components of the endangered ecological community of Shale Sandstone Transition Forest and of Anne Clements & Associates (in the 31 May 2006 report, p 21 (Exhibit AO)) that the native vegetation communities on parts of the three lots are components of another endangered ecological community of Cumberland Plain Woodland, both of which endangered ecological communities comprise native species of plants;
a historian (Mr Flynn), a botanist (Mrs Wilson) and biologist (Mr Hager) that the species of vegetation recorded by the various scientific experts as occurring on the three lots were species that existed in the State before European settlement in January 1788 (Mr Flynn's affidavit of 30 September 2010; Mrs Wilson's affidavit of 11 November 2010 and Exhibit B as well as Exhibit A, C and D (evidence, including printouts from PlantNET-New South Wales Flora Online, of the species being indigenous) and Mr Hager's affidavit of 9 September 2011 and Exhibit AM, tab 170 and other tendered extracts from PlantNET-New South Wales Flora Online of the species of vegetation cleared being indigenous). 87The opinion of Dr Smith that any vegetation cleared in 2006 has not been established to be native vegetation is again tendentious and contrary to other evidence. Dr Smith's evidence had a negative focus of finding what he perceived to be mistakes in the evidence of the prosecutor's experts, particularly Mr Hager and Mr Lucas, to demonstrate that no breach of the NV Act had occurred. Dr Smith did not advance positive opinions on the clearing of native vegetation based on the whole of the evidence concerning both the vegetation and the clearing of the vegetation on the three lots. Dr Smith did not hear the evidence of the ELC employees in court (T920), or seek to be briefed on it (T946), as to the mulching machinery they used to clear vegetation (T919-920, 940), the capacity of the machinery to clear trees and stumps (T1001 and 1032), or the trees, shrubs and other vegetation they actually cleared. For example, Dr Smith speculates that individual exotic trees may have occurred on parts of the three lots prior to clearing (para 4.2.2 of Exhibit 1) but refers to no evidence in support. When challenged in cross-examination, Dr Smith could not identify any trees recorded before or after the clearing in 2006 in or in the vicinity of the three lots, or from his inspection of the three lots, which were not indigenous (see T987). 88However, whilst criticising some evidentiary statements of the prosecutor's witnesses with which he disagreed, Dr Smith did express opinions that were consistent with native vegetation having been present on the three lots before and after the clearing in 2006. For example, Dr Smith's description of the vegetation community in the eastern Lot 1 before and after clearing in 2006, is of a community comprising native species (see para 4.2.18 of Exhibit 1). Dr Smith accepted that photography of the western area (Lots 2 and 62), prior to clearing in April 2006, showed a native shrub, Kunzea ambigua , and opines that such vegetation may have been cleared (para 4.2.20). Indeed Dr Smith, in order to advocate that one of the types of vegetation cleared was an invasive species, stated that the native shrub species, Kunzea ambigua , was "a likely candidate for a dominant shrub" in the western area (Lot 1) prior to clearing (para 4.7.2). Dr Smith also accepted that the native saw sedge, Gahnia aspera , would have been the dominant groundcover that was cleared in 2006 (T930). In his report, Dr Smith suggested that the vegetation communities on the three lots could be "Dry Sclerophyll Forest" (para 4.2.22), a structural description of a vegetation community that comprises native species (T985). Dr Smith's later oral evidence in cross-examination that the vegetation community in the eastern Lot 1, by reason of past disturbances, had become structurally a woodland rather than a dry sclerophyll forest, did not matter because such a derived woodland still comprises predominately native species (T987, 1044). 89Dr Smith conceded that Eucalyptus coppice regrowth from several cut stumps in the eastern Lot 1 observed by Mr Hager was "potentially definitive evidence of native vegetation clearing" (para 4.3.12) but then dismissed it on the basis that the youth of the coppice growth meant that the tree could not have been cut in 2006 (para 4.3.14). Nevertheless, Dr Smith had conceded that a native species of eucalypt was growing on one of the three lots. 90Dr Smith's evidence concerning regrowth of trees and shrubs, to which I will come later when I deal with the regrowth issue, is based on his regrowth model using growth data primarily from a number of species of eucalypt. Dr Smith sought to apply his regrowth model to the trees in the paddock which Mr Lucas identified as having been removed to establish that those trees had regrown since 1 January 1990. However, in order to do so, Dr Smith would have to assume that the trees cleared were species of eucalypts. Dr Smith also sought to apply his regrowth model, based on one shrub species of Kunzea ericoides , to another shrub species of Kunzea ambigua which Dr Smith accepted grew on the property (para 4.4.11). Dr Smith's regrowth evidence, therefore, is founded on accepting that the trees and shrubs cleared were native species. 91I do not accept Dr Smith's opinion that it has not been established that the vegetation cleared in 2006 on the three lots was not native. To the contrary, I find beyond reasonable doubt that the evidence establishes that the vegetation cleared by ELC on the three lots between April and October 2006 was indigenous within the meaning of s 6(2) of the NV Act. 92I do not accept Walker's criticism that the prosecutor has not proven with sufficient particularity the native vegetation cleared. The evidence in relation to the element of the offence of clearing and of the element of the native vegetation cleared establishes that vegetation of the types of trees, understorey plants and groundcover, within the meaning of s 6(1), was cleared on the three lots between April and October 2006 and that such vegetation was indigenous within the meaning of s 6(2) in that the plants were not only individually of a species, but also the vegetation collectively comprised species, which existed in the State before European settlement. 93Individually, I find that the vegetation cleared on the three lots included plants of the 71 species listed in the Annexure to the summons together with the two additional species of Eucalyptus globoidea and Eucalyptus tereticornis adduced in the evidence (see Exhibit BB). Collectively, I find that the vegetation cleared, apart from including those native species, structurally could be described as a dry sclerophyll forest, even if clearing had given it a woodland appearance, and different parts on the three lots would fall within the endangered ecological communities of Shale Sandstone Transition Forest or Cumberland Plain Woodland, both of which comprise native species. The evidence as a whole is sufficient to prove with sufficient degree of particularity that the vegetation cleared was native vegetation.

The liability for the clearing issue 94Under s 12(2) of the NV Act, a person who carries out or authorises the carrying out of clearing of native vegetation in contravention of s 12(1) is guilty of an offence. There are, therefore, two ways in which a person may be guilty of an offence: first, by carrying out the clearing and, secondly, by authorising the carrying out of the clearing. 95In this case, the clearing of native vegetation on the three lots was not physically carried out by Walker; it was carried out by ELC. The prosecutor charges Walker, however, as having carried out the clearing, first, by its contractor, ELC, having carried out the clearing and, secondly, by being the landholder of the land on which the native vegetation was cleared. 96I will start with the second way in which the prosecutor claims Walker carried out the clearing. 97Section 44 of the NV Act is an evidentiary provision by which the landholder of land on which native vegetation has been cleared is taken to have carried out the clearing unless both of the matters in paragraphs (a) and (b) of s 44 are established. Section 44 provides: "In any criminal or civil proceedings, the landholder of any land on which native vegetation is cleared is taken to have carried out the clearing unless it is established that: (a)the clearing was carried out by another person, and (b)the landholder did not cause or permit the other person to carry out the clearing. This section does not prevent proceedings being taken against the person who actually carried out the clearing." 98Section 44 is a new provision in the NV Act, there being no equivalent provision in the previous and now repealed Native Vegetation Conservation Act 1997. 99One consequence of the evidentiary presumption in s 44 being established is that the landholder, who is taken to have carried out clearing by s 44, may be a person who "carries out" clearing for the purposes of s 12(2) of the NV Act, provided that the clearing is in contravention of s 12(1) of the NV Act. However, s 44 is not itself concerned with whether the clearing is in contravention of s 12(1) of the NV Act. It is only concerned with the attribution of responsibility of the act of carrying out clearing to a person (the landholder of land on which the clearing was carried out) who did not physically carry out the clearing, without regard to the lawfulness or unlawfulness of the clearing. 100Once clearing of native vegetation occurs on land, s 44 operates to deem the landholder of the land on which the native vegetation was cleared to have carried out the clearing unless both of the matters in paragraphs (a) and (b) of s 44 are established. Establishment of both of the matters in paragraphs (a) and (b) is necessary to prevent s 44 operating to deem the landholder to be a person who carried out the clearing. 101Paragraph (a) requires the establishment of a positive matter: the clearing was carried out by another person other than the landholder. Paragraph (b) requires the establishment of a negative matter: the landholder did not cause or permit the other person (established in paragraph (a)) to carry out the clearing. The negative formulation in paragraph (b) is important: what is to be established is that the landholder did not cause or permit the other person to carry out the clearing, and not that the landholder did cause or permit the other person to carry out the clearing. 102The fact that the evidentiary presumption in s 44 operates unless both matters in paragraphs (a) and (b) are established and the fact that the matter in paragraph (b) is formulated in negative terms, has the consequence that the landholder who wishes to rebut the evidentiary presumption, bears the onus of establishing the matters in paragraphs (a) and (b), on the balance of probabilities: Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15; (2010) 173 LGERA 366 at 444 [333] and Director-General, Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; (2009) 172 LGERA 225 at 247 [96]. 103In this case, Walker is the landholder of the three lots on which native vegetation was cleared. "Landholder" is defined in s 4(1) of the NV Act to mean "a person who owns land or who, whether by reason of ownership or otherwise, is in lawful occupation or possession, or has lawful management or control, of land." 104Walker owns the three lots, title having been transferred to it on 8 June 2000 (an agreed fact between the prosecutor and Walker: Exhibit A). 105I have found earlier in the judgment that native vegetation has been cleared on the three lots. Hence, Walker will be taken to have carried out the clearing of the native vegetation on the three lots it owns, unless both of the matters in paras (a) and (b) of s 44 are established. 106Paragraph (a) has been established on the evidence in this case. The clearing was carried out by "another person" than Walker, namely by ELC. The critical question is under paragraph (b), whether it is established that Walker, as the landholder "did not cause or permit the other person to carry out the clearing". As I have indicated, Walker, as the landholder who wishes to rebut the evidentiary presumption in s 44, needs to establish that it did not cause or permit ELC to carry out the clearing. 107I find that it is not established on the evidence that Walker did not cause or permit ELC to carry out the clearing of the native vegetation on the three lots. In submitting otherwise, Walker relied on the fact that Walker did not cause or permit ELC to carry out clearing in contravention of s 12(1) of the Act. However, as I have said earlier, s 44 is not concerned with the lawfulness or unlawfulness of the clearing - it is only concerned with the act of clearing. Hence, the only relevant inquiry under s 44 is whether or not Walker caused or permitted ELC to do the act of clearing. 108For the purposes of paragraph (b) of s 44, for a landholder to cause another person to carry out clearing on the landholder's land, there needs to be a positive act on the part of the landholder: Alphacell Pty Ltd v Woodward [1972] AC 824 at 834-835, 839-840, 845, 846, 847; Majury v Sunbeam Corporation Ltd [1974] 1 NSWLR 659 at 662-664; Cooper v ICI Australia Operations Pty Ltd (1987) 31 A Crim R 267; 64 LGRA 58 at 65; Empress Car Co (Abertillery) Ltd v National Rivers Authority [1999] 2 AC 22 at 27-28, 35, 37. A landholder may cause another person to carry out clearing by some active operation or chain of operations which leads to the other person carrying out the clearing on the landholder's land: Alphacell Pty Ltd v Woodward at 834, 839-840, 845, 846, 847; Empress Car Co (Abertillery) Ltd v National Rivers Authority at 28, 36. The positive act does not have to be the only cause; the fact that someone or something else could be said to have caused the other person to carry out the clearing is not inconsistent with the landholder, by its positive act, having caused the other person to carry out the clearing: Empress Car Co (Abertillery) Ltd v National Rivers Authority at 30, 35-36. 109For the purposes of paragraph (b) of s 44, for the landholder to permit another person to carry out clearing on the landholder's land, the landholder needs to intentionally allow the other person to carry out the clearing on the land: Broad v Parish (1941) 64 CLR 588 at 595; Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 54-55 [258]; Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337 at 344-346 [26]-[31] and Department of Environment and Climate Change v Olmwood Pty Ltd at 452 [359]. The landholder could expressly grant permission for the person to clear vegetation on the landholder's land. Permission may also be inferred from circumstances which carry with them a reasonable implication of a discretion or liberty to allow that state of affairs: Broad v Parish at 595. The circumstances must include knowledge. A landholder cannot permit a person to clear vegetation on the landholder's land without knowledge of that act of clearing. Again, I note that the knowledge required does not include whether the person's clearing of the vegetation on the landholder's land would or would not be in contravention of s 12(1) of the NV Act. It is knowledge of the act of clearing not its lawfulness or unlawfulness. 110Having regard to these meanings of cause and permit in paragraph (b) of s 44, the evidence does not establish that Walker did not cause or permit ELC to carry out the clearing of native vegetation on the three lots Walker owned. Walker engaged ELC as a specialist land clearing contactor to carry out clearing of vegetation, including native vegetation, on the three lots owned by Walker at agreed rates (the Schedule of Rates for Walker is in Exhibit AB). ELC carried out clearing of native vegetation on the three lots. Walker paid ELC at the agreed rate for ELC's clearing of native vegetation on the three lots. Walker submits that its contract with ELC was for ELC only to clear native vegetation in accordance with the NV Act. But even if this were so, Walker has still, by entering and performing the contract, caused and permitted ELC to carry out clearing of native vegetation on the three lots. 111Accordingly, as only the matter in paragraph (a) but not the matter in paragraph (b) of s 44 has been established, by operation of the evidentiary presumption in s 44, Walker as the landholder of the three lots is taken to have carried out the clearing of the native vegetation on the three lots. 112Because that clearing of native vegetation on the three lots is in contravention of s 12(1), the consequence of this evidentiary presumption in s 44 is that Walker is a person, for the purposes of s 12(2), who has carried out clearing in contravention of s 12(1) of the NV Act. 113I return to the first way the prosecutor alleges Walker is liable for the clearing carried out by ELC. The prosecutor alleges that Walker carried out the clearing by being vicariously responsible for the conduct of ELC in carrying out the clearing. 114An offence against s 12 of the NV Act is one of strict liability and attracts the principles of vicarious liability: Director-General of Department of Land and Water Conservation v Greentree [2003] NSWCCA 31; (2003) 131 LGERA 234 at [74], [84]. 115Generally, 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. 116One exception is that 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 at 59 [278], [280] and Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262-263 [104]-[106]. An act constituting the actus reus of an offence will be the act of the accused if the accused orders the contractor to do the act which constitutes the offence, to do some act which comprises that act, or to do some act which leads by all physical necessity to the offence: Stoneman v Lyons (1975) 133 CLR 550 at 573-574; Coffs Harbour City Council v Hickey [2004] NSWLEC 531 at [52]. Another exception is that 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 at 59 [280], 61-62 [290] and Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd at 262 [102]. 117The prosecutor submits both of these exceptions apply so as to make Walker vicariously liable for ELC's conduct of clearing native vegetation on the three lots. As to the first exception, the prosecutor submits Walker directly authorised the doing of the actus reus by ELC. The prosecutor relies on the evidence of Mr Fife of Walker (who, it is accepted, represents Walker) and Mr Michael Black and Mr Humphreys of ELC as to the instructions Walker gave to ELC concerning the work to be done: see summary above in the section on the clearing issue. The prosecutor submits that, at the outset of the clearing work, Walker expressly authorised the clearing of all vegetation falling within the description of vegetation given by Mr Fife of vegetation "around the dams", "the edge of the vegetation", "small undergrowth", "anything looks like it has been cleared before" such as smaller timber and small saplings, but leaving the larger trees. The prosecutor submits the clearing of such vegetation by ELC was a necessary result of the authorised conduct (referring to Coffs Harbour City Council v Hickey at [52]-[54]). 118Walker submits that the instructions by Mr Fife were general and should be interpreted as authorising only lawful clearing. Walker relied on the evidence of Mr Fife that when he was asked by Mr Michael Black of ELC whether Walker had council approval for the work, Mr Fife told him that "if he didn't have it and he needed it he should get it" (T181). Mr Michael Black's evidence about this discussion was different. Mr Michael Black said he asked Mr Fife "what is the situation with approval" (T564) and he was told by Mr Fife that Walker "had bought a substantial amount of land" in the region and that "certain amounts of clearing were allowed to be done in accordance with percentages of clearing per annum" (T545 and see also T565). Mr Black said that Mr Fife did not tell him that "if you didn't have it (approval) and you needed it you should get it" (T564). Walker submits the Court should accept Mr Fife's version over Mr Black's version. Walker submits that ELC was a specialist in environmental clearing and that Walker relied on ELC to conduct the clearing lawfully. 119I find that Walker, by the terms of the instructions given by Mr Fife to ELC, did directly authorise clearing (within the meaning of s 7 of the NV Act) of native vegetation (within the meaning of s 6 of the NV Act). Walker's instructions were not specific enough to limit the clearing to only regrowth (within the meaning of s 9 of the NV Act). The instructions to clear vegetation "around the dams", "the edge of the vegetation", "small undergrowth" and "anything that looks like it's been cleared before" do not, by their terms, necessarily limit clearing to "only regrowth", that is to say, to only native vegetation that has grown since 1 January 1990 (as would be required in order for the vegetation to be regrowth under s 9 and to be permitted to be cleared under s 19 of the NV Act). Indeed, the representatives of Walker and ELC who negotiated for ELC to clear vegetation on Walker's land, namely Mr Fife for Walker and Mr Michael Black and Mr Humphreys for ELC, did not say they discussed the term "regrowth" (Mr Fife T166-167, 181; Mr Humphreys T307, 310; Mr Black T533, 537). 120That Walker's instructions were not so limited was borne out by the events that happened. As I find below, the vegetation cleared by ELC falling within the descriptions given by Mr Fife of Walker (as well as larger trees falling outside Mr Fife's instructions), has not been established to have been only regrowth. Hence, the terms of the instructions given by Walker required ELC to do the act which constitutes the offence, namely clear native vegetation, which is not only regrowth. 121I find that the terms of Walker's instructions to ELC did not include expressly or by necessary implication the requirement to obtain development consent for the clearing to be carried out. I accept Mr Black's version in preference to Mr Fife's version of the discussion they had about clearing. I find that Mr Black asked Mr Fife whether there was approval to undertake the clearing and that Mr Fife said that certain amounts of clearing were allowable because of the area of the site. If Mr Fife's statement were to be correct, there would have been no necessity to obtain development consent and, as a matter of fact, ELC did not obtain development consent for the clearing. 122I find that it is not established on the evidence that Mr Fife was aware of the environmental policies or other documents published by ELC as to their credentials or expertise in land clearing or that Mr Fife relied on such expertise to believe that ELC would know to and would carry out the clearing lawfully. Mr Fife did not say he was so aware or so relied. Mr Michael Black of ELC said Mr Fife never asked whether ELC had any certification and the topic never came up in any discussions with him (T567). 123I therefore do not accept Walker's submission that Mr Fife, on behalf of Walker, directed ELC to carry out only lawful clearing. 124The prosecutor also relies on the second exception that 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. I find that this exception is not established beyond reasonable doubt. After giving the instructions, Mr Fife did not control and direct ELC in the actual execution of the clearing work. The evidence is that Mr Fife did not specifically recall going to the land after the work was done (T168) or after getting an invoice to check what work had been done (T169), although he accepted he most likely would have done so (T171). However, the evidence does not establish that, if Mr Fife did attend the land, he exercised any control and direction over ELC in the actual execution of the clearing work carried out by ELC. Another Walker employee, Mr McLansborough, visited the land once or twice, towards the end of the clearing work (Mr Humphreys T319, 355). He indicated he was very pleased with the work (T319). However, again, he did not exercise any control or direction over ELC in the actual execution of the clearing work. 125The result is that I find, by reason of the first exception, Walker is vicariously liable for ELC's acts of clearing of native vegetation on the three lots. By this way also, Walker is taken to have carried out the clearing of native vegetation on the three lots.

No development consent or property vegetation plan 126Clearing of native vegetation is lawful under s 12(1) if done in accordance with a development consent granted in accordance with the NV Act or a property vegetation plan. 127The evidence is clear that no development consent had been granted authorising clearing of native vegetation on the three lots by the relevant local council, Wollondilly Shire Council (the evidence of Ms Spear) or by the Hawkesbury Nepean Catchment Management Authority (the evidence of Mr Stone) and no applicable development consent was in the documents produced in response to statutory notices to the Wollondilly Shire Council or the Hawkesbury Nepean Catchment Management Authority. The evidence is also clear that no property vegetation plan has been approved under Pt 4 of the NV Act authorising clearing of native vegetation in the three lots (evidence of Mr Stone) and no property vegetation plan was in the documents produced in response to a statutory notice to the Hawkesbury Nepean Catchment Management Authority. 128Walker did not dispute that there was no applicable development consent or property vegetation plan. 129I find beyond reasonable doubt that the clearing of the native vegetation on the three lots was not done in accordance with a development consent granted in accordance with the NV Act or a property vegetation plan.

The regrowth defence explained 130Section 12(3) of the NV Act provides that: "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." 131Division 2 of Pt 3 of the NV Act concerns permitted clearing, Division 3 permitted activities, and Division 4 excluded clearing. One of the provisions in Division 2 is s 19 which permits clearing of non-protected regrowth. Walker relies on this defence. Section 19(1) provides: "Clearing of native vegetation that is only regrowth, but not protected regrowth, is permitted." 132"Regrowth" and "protected regrowth" are defined in ss 9 and 10 of the NV Act respectively. "Protected regrowth" needs to be identified as such in various statutory instruments. Neither the prosecutor nor Walker contended that the native vegetation cleared was protected regrowth. Section 9 defines "regrowth", so far as is relevant, as follows: "(1) For the purposes of this Act, remnant native vegetation means any native vegetation other than regrowth. (2) For the purposes of this Act, regrowth means any native vegetation that has regrown since the earlier of the following dates: (a) 1 January 1983 in the case of land in the Western Division and 1 January 1990 in the case of other land, (b) the date specified in a property vegetation plan for the purposes of this definition (in exceptional circumstances being a date based on existing rotational farming practices). ... (4) Regrowth does not include any native vegetation that has regrown following unlawful clearing of remnant native vegetation or following clearing of remnant native vegetation caused by bushfire, flood, drought or other natural cause." 133Hence, the statutory scheme is that s 12(3) establishes a "defence" to an offence against s 12, of clearing native vegetation except in accordance with a development consent granted in accordance with the NV Act or a property vegetation plan, if it is established that the native vegetation cleared was "only regrowth" (s 19(1) as defined in s 9). 134The structure of the statutory scheme, the terms of ss 12(3), 19(1) and 9, including the use of words such as "defence", and the fact that these sections set up new matters to be established additional to those which constitute the elements of the offence, namely that the native vegetation cleared was only regrowth as defined, establish that s 12(3), with s 19(1) and s 9, are a qualification, exception or proviso to the elements of the offence against s 12. They provide an excuse or justification for not complying with the obligation in s 12(1). The onus of proof, therefore, lies on the person alleging that he or she, and his or her conduct, falls within the qualification, exception or proviso, namely on the accused: Vines v Djordjevitch (1955) 91 CLR 512 at 519-520; Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 at 601,611; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257-259; Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 at 119; ADI Limited v Environmental Protection Authority (2000) 118 A Crim R 335 at 339-342. This Court has so held in two prior prosecutions for offences against the NV Act: Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15; (2010) 173 LGERA 366 at 421 [228]-[229]; Director-General, Department of Environment and Climate and Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73 at [225], [226]. 135Five points can be made about the regrowth defence under the NV Act. 136First, the defence operates with respect to the native vegetation that has been cleared in contravention of s 12. It is that native vegetation that must be established to be "only regrowth". 137Secondly, that native vegetation must be established to have "regrown" so as to be "regrowth", before it was cleared in contravention of s 12. It is not sufficient for the native vegetation to have "grown" or be "growth"; it must have "regrown" so as to be "regrowth". For native vegetation to regrow, there must be a prior act or event of disturbance that is a cause of the regrowth. At the level of an individual plant of native vegetation, the act could be by humans or nature. For example, the cutting down of a tree by humans or the breaking off of a tree by a storm might result in regrowth from the remnant stump, such as coppice growth. The tree could be said to have regrown following the prior act of cutting down or breaking off. Similarly, above ground vegetative parts of groundcovers which are removed by slashing or mowing might produce new vegetative parts from rhizomes or subterranean stems. The groundcover could be said to have regrown following the prior act of slashing or mowing. 138At the level of stands or areas of native vegetation, removal of individual plants of native vegetation by human actions or natural causes may result in the germination of seeds and growth of native vegetation in the vacated space. The new native vegetation could be said to have regrown following the prior removal of the former native vegetation in the stand or area. 139This meaning of regrowth as connoting growth following upon an act or event of disturbance accords with the examples of excluded regrowth given in s 9(4) of the NV Act. That provision excludes certain types of regrowth from being regrowth if the regrowth follows unlawful clearing of remnant native vegetation or follows clearing of remnant native vegetation caused by bushfire, flood, drought or other natural cause. It is the growth of the native vegetation "following" the unlawful clearing or the clearing by natural causes that makes the native vegetation "regrowth". 140This meaning of native vegetation regrowing following an act or event of disturbance, whether by human actions or natural causes, was adopted by Pain J in Department of Environment and Climate Change v Olmwood Pty Limited at [220], although there was general agreement between the parties. Similarly, Pepper J in Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited distinguished between "growth" and "regrowth", between growing anew from an original source and growing again: at [234], [235]. 141Thirdly, not all regrowth of native vegetation will fall within the meaning of "regrowth" for the purposes of s 9. As noted, s 9(4) excludes certain types of regrowth. If the native vegetation that was cleared in contravention of s 12 had regrown following unlawful clearing of remnant native vegetation or following clearing of remnant native vegetation caused by bushfire, flood, drought or other natural cause, that native vegetation will not be regrowth for the purposes of s 9 or s 19 of the NV Act. 142Fourthly, there is a temporal requirement for regrowth. Regrowth for the purposes of s 9 and s 19 of the NV Act only includes native vegetation that has regrown after the relevant date specified in s 9(2) of the NV Act. In the present proceedings, the relevant date is 1 January 1990. Hence, it must be established in the present proceedings that the native vegetation that was cleared in contravention of s 12 had "regrown" since 1 January 1990. 143This temporal requirement in s 9(2) is cumulative on the other requirements of regrowth under s 9 of the NV Act. This means that the native vegetation cleared in contravention of s 12 must have "regrown" within the meaning of that word (regrown following an act or event of disturbance), not regrown following unlawful clearing or following clearing by natural clauses within s 9(4), and regrown since 1 January 1990. 144Fifthly, the native vegetation cleared in contravention of s 12 must have been "only regrowth" (s 19(1) of the NV Act). This requires each and every plant comprising the native vegetation cleared to be established to be "regrowth" meeting the requirements of s 9. This requirement of being "regrowth" will not be satisfied if some but not all of the vegetation was "regrowth" (others being "growth"), any of the native vegetation had regrown following unlawful clearing or following clearing by natural causes within s 9(4), or some but not all native vegetation had regrown since 1 January 1990.

The regrowth defence is not established 145Applying this understanding of the regrowth defence to the present proceedings, I find that Walker has not established, on the balance of probabilities, that the native vegetation cleared on the three lots in the charge period was "only regrowth" and hence has not established the defence under s 12(3) of the NV Act.

Native vegetation cleared not established to have "regrown" 146First, Walker has not established that the native vegetation cleared by ELC in 2006 had "regrown". Walker pointed to evidence that there had been prior clearing and other disturbances on the three lots, including clearing by humans, fire and cattle grazing. However, there was no evidence causally linking the regrowth of the native vegetation that was cleared in contravention of s 12 in 2006 with any earlier act or event of clearing or disturbance. For example, Walker called Dr Smith who used a regrowth model to predict the average diameter at breast height ("DBH") of trees in 2006 if they had begun growing after 1 January 1990. Dr Smith asserted that, based on his regrowth model, a cohort of trees that began growing on 1 January 1990 in partially cleared forests would be expected to have an average DBH of 13-16 cm. However, Dr Smith did not assert that the trees that were cleared by ELC in 2006 had regrown since 1 January 1990 following some earlier act or event of clearing or disturbance. Dr Smith's evidence, even if it be correct, only would establish that a cohort of trees with an average DBH of 13-16 cm may have grown since 1 January 1990, not that they have "regrown". To establish that such trees have regrown, the regrowth needs to follow some earlier event of clearing by humans or by natural causes or follow some other act or event of disturbance. Dr Smith did not assay this task. 147It is not sufficient that, in a temporal sense, the point of time when the trees began growing is later than some act or event of clearing or disturbance. There needs to be some causal link between the earlier act or event of clearing or disturbance and the later growth of the trees so that the trees can be described as having "regrown" following the earlier act or event. 148There is no evidence that any other types of native vegetation cleared by ELC in 2006, including shrubs, understorey plants or groundcovers, had regrown following some earlier act or event of clearing or disturbance. Walker submitted that, by their nature, grasses and small shrubs are likely to have been disturbed before, including by cattle grazing. There is no evidence that the particular native vegetation cleared in 2006 had been so disturbed. Indeed, the fact that thick scrub comprising shrubs such as Kunzea ambigua and sedges and matt rushes such as Gahnia and Lomandra were growing on the three lots in 2006 and were the subject of the clearing undertaken by ELC, suggests that whatever disturbances might have occurred in the past, including cattle grazing, had ceased to be effective to prevent the growth of such native vegetation. Questions which need to be answered, but which were unanswered by the evidence, are when did such native vegetation begin growing and was it following the disturbances?

Native vegetation cleared not established not to be excluded regrowth 149Secondly, Walker has not established that the native vegetation cleared in contravention of s 12 in 2006 did not include native vegetation that had regrown following unlawful clearing of remnant vegetation or following clearing of remnant native vegetation caused by bushfire, flood, drought or other natural cause, and hence was not excluded regrowth under s 9(4) of the NV Act. Walker points to evidence of earlier clearing by humans, such as the open areas and mulched vegetation spread over the ground in the western area prior to ELC commencing work in 2006, the piles of dead logs pushed in windrows in various places, the cut stumps of trees, and the fallen and cut timber in drainage lines. However, Walker has not established that any such earlier clearing was not unlawful. Such proof would, of course, require ascertaining when such clearing occurred and then determining the lawfulness of the clearing having regard to the laws and regulations that applied at that time. But no such evidence on either the timing or the lawfulness of any clearing was adduced. 150Walker also referred to evidence, particularly of Dr Smith, that the lots, especially the eastern Lot 1, had been subject to fire. This was disputed by Mr Lucas (see, for example, Exhibit AZ, supplementary report dated 26 September 2011, p 13) and the records of fire history (Exhibit BL). However, even if there had been prior clearing by bushfire, there is no evidence that the particular native vegetation cleared by ELC in 2006 had regrown following such bushfires. Furthermore, even if this could be established, native vegetation that has regrown following clearing caused by fire is excluded from being "regrowth" by s 9(4) of the NV Act. More generally, Walker has not established that the native vegetation cleared in contravention of s 12 in 2006 had not regrown following clearing caused by natural causes.

Native vegetation cleared not established to have regrown since 1 January 1990 151Thirdly, Walker has not established that the native vegetation cleared by ELC in 2006 had regrown since the relevant date of 1 January 1990. I found earlier that the native vegetation cleared by ELC comprises trees, shrubs, understorey plants and groundcover. In order for Walker to establish the regrowth defence, Walker must establish that the native vegetation cleared of each of these types had regrown since 1 January 1990. 152Walker called evidence of Dr Smith with a view to establish that the trees, and one of the shrubs, Kunzea ambigua , had regrown since 1 January 1990. Dr Smith relied on his regrowth model to estimate the average DBH of trees and of the Kunzea ambigua shrub that would have been expected in 2006 if the trees and shrubs had grown since 1 January 1990. As I will explain in a moment, I am not satisfied that Dr Smith's evidence establishes that all of the trees that ELC cleared and all of the Kunzea ambigua shrubs ELC cleared, had regrown since 1 January 1990. In any event, however, Dr Smith's regrowth model does not apply to other types of native vegetation cleared by ELC, including other shrubs, understorey plants and groundcovers. The vast majority of the 73 species of native vegetation cleared by ELC on the three lots are not trees (only 10 out of 73 species would be considered to be a tree by NSW Flora Online). Walker adduced no other evidence to establish that these other types of native vegetation cleared by ELC had regrown since 1 January 1990. 153It is not sufficient to assert, as a bald proposition and without evidence, as Walker did, that such types of native vegetation, of their nature, are likely to be regrowth. Without evidence, I cannot find that such types of native vegetation cleared are of a nature likely to be regrowth, but even if I could, without evidence I cannot find the date from which the native vegetation of those types cleared did in fact regrow and that the date from which they had grown was after 1 January 1990. 154I return to the evidence Walker did adduce of Dr Smith concerning the growth of trees and the Kunzea ambigua shrubs. I am not satisfied that this evidence establishes that the trees and Kunzea ambigua shrubs cleared by ELC in 2006 had regrown since 1 January 1990. My reasons are basically fivefold. 155First, I find Dr Smith's opinions as to the predicted average DBH of trees and the Kunzea ambigua shrubs on the three lots as at early 2006, based on his regrowth model, are of low reliability. 156Dr Smith developed a model for identification of regrowth trees based on tree diameter, forest structure and site quality. Dr Smith explained the model in his report dated 1 October 2011 (Exhibit 1): "The Regrowth Model (Annexure B) predicts the mean size of regrowth trees of any species (or cohorts of mixed species) of ten years age based on two parameters Productivity Class (the quality of the site on a gradient from 1-4) and Stand Basal Area Class (the basal area or stocking of the regrowth stand in square metres per hectare). The model recognises that the primary determinant of growth rates is site quality, and the degree of competition (crowding). The type of tree species is relatively unimportant except in very high quality sites with a high stand density where the Regrowth model takes into account that shade intolerant species may grow more slowly" (para 4.4.8 of Exhibit 1). 157The model is based on measurements of the average growth rates in cm per year primarily of certain species of eucalypts in natural forests and in plantations but also of three non-eucalypts, including a shrub Kunzea ericoides in a natural forest in Victoria, in different productivity classes. 158Dr Smith states that his regrowth model can be used as a guide to predict the average DBH of trees in native forests at age ten years (pp 73-75 of Annexure B of Exhibit 1). In order to apply the model, it is necessary to know the average basal area of the forest stand, the dominant community or tree species, the productivity class of the forest and whether the forest was planted or naturally occurring (p 75 of Annexure B of Exhibit 1). 159The productivity class of the forest depends on the site productive capacity. Dr Smith states that: "Site productivity varies with topographic position (ridge top, aspect, riparian etc), soil type and fertility, climate (average temperature and rainfall) and competition." Dr Smith classified NSW forest types into four productivity classes using mature stand height and NSW forest type as indicators. When mature stand height and forest type data are not available, Dr Smith states that other indicators of site quality can be taken into account, including "soil fertility, soil depth, climate, topographic position and general geographic location" (p 70 of Annexure B of Exhibit 1). 160Dr Smith's regrowth model predicts the average or mean diameter of all of the trees in a stand or cohort that regenerated around the same time, recognising the fact that within a cohort there will be differences in growth rates between individual trees. Dr Smith explains: "Some faster growing individuals within the stand will have larger diameters than the mean and other slower growing individuals will have much smaller diameters than the mean. There is likely to be a 'bell curve' distribution of DBH sizes about the mean with some individuals having a much larger than predicated diameter and some individuals having a much smaller than predicted diameter. No data is available on the spread of tree size about the mean but it is possible to assess the likely spread by assuming that the largest trees would grow at a rate at least one Stand Basal Area Class lower than the site average, and the slowest growing individuals would grow at a rate at least one Stand Basal Area Class higher than the site average" (para 4.4.13 of Exhibit 1). 161Dr Smith recognised that his regrowth model has limitations. These include: "This model should only be used as a guide to the likely average diameter of regrowth stands or cohorts. It is best applied to patches of forests with a relatively uniform disturbance history. It predicts average diameters for whole stands in uniform forest types and productivity classes. A wide margin of error may result if it is used to predict the age of individual trees rather than the mean age of whole stands or cohorts. Where forests have been disturbed by multiple light disturbance events at short intervals (0.5 ha in size) growth rates of young trees in the gaps may be faster than predicted by the model. These effects can be corrected by using the growth rates from the next lowest or highest stand basal area class at the user's discretion. Sample plots used to measure stand basal area should be obtained at random from forests mapped and stratified by productivity class and disturbance history. Predictions of the model provide a predicted estimate of tree age only and should, where possible, be supported by other lines of evidence, including tree ring counts or data on the timing and extent of clearing, logging and burning disturbance obtained by interview or remote sensing" (p 76 of Annexure B of Exhibit 1). 162Dr Smith applied his regrowth model to the trees on the three lots owned by Walker. Dr Smith expressed the following opinions: "The Regrowth Model predicts that trees which regenerated on 1 January 1990 in forests with a median site quality (class 2/3) on a scale of 1-4 (such as I would expect on the Eastern Areas of the Property) in partially cleared forests or stands with a medium to low stand basal area (Class B) would have an average annual diameter increment of 0.85-0.98 cm, and an average DBH of about 13-16 cm by early 2006. The Regrowth Model has two predicted values for each combination of Productivity Class and Stand Basal Area Class, one based on averages of actual growth data, and one based on smoothed values. The range quoted above encompasses both values. This mean growth rate is likely to be achieved by trees in the Eastern Area of the Property. Acacias and eucalypts that grow in open areas and in the Western Area could be expected to have greater mean diameters than this over the same time period. Scattered trees in the Western Area could be expected to have growth rates of 1.4-1.45 cm per annum, an average DBH of about 21-22 cm by early 2006" (para 4.4.12 of Exhibit 1). 163In relation to the bell curve distribution of DBH sizes, Dr Smith expressed the opinion that: "... while the mean diameter of trees regenerating on the Eastern Area of the Property on 1 January 1990 is likely to be 13-16 cm in 2006 the maximum individual diameter in a cohort with a mean of 13-16 would be up to 22 cm. This faster rate is likely to be achieved by most scattered isolated trees and paddocks in the Western Area on the Property." (Para 4.4.13 of Exhibit 1). 164In relation to the shrub Kunzea ambigua , Dr Smith expressed the opinion that the growth rate of Kunzea ambigua on the property (measured at 10 cm above the ground for the largest of multiple stems) would be comparable to the rates predicted by his regrowth model for a related shrub Kunzea ericoides , namely 0.55 cm per year (para 4.4.11 and p 72 of Annexure B of Exhibit 1). 165The prosecutor objected to the admissibility of these opinions on the grounds that they did not meet the principles for admissibility of expert opinions, described in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and R v Jung [2006] NSWSC 658 at [60], in not providing the necessary scientific criteria for testing the accuracy of the conclusions, not being based on the facts of the diameters of all of the stumps, and admissible evidence not establishing the matters assumed. I allowed Dr Smith's opinions to be admitted and Dr Smith gave further oral evidence and was cross-examined. I considered that Dr Smith has identified sufficient of the facts and assumptions, and the methodology he has used to reach his opinions, for his opinion evidence to be admitted. However, at the close of all evidence, there was a lack of proof of certain matters Dr Smith states are necessary to know for application of the model and a lack of support for the model's predictions by other lines of evidence, which diminished the reliability and weight of the opinions expressed by Dr Smith. Furthermore, as I explain below, Dr Smith's opinions ultimately did not assist Walker because of the evidence of ELC employees concerning the trees and shrubs actually cleared and of Mr Lucas concerning the age of 42 larger trees cleared which was inconsistent with the model's predictions. 166As to the matters necessary for application of the model (see p 75 of Annexure B of Exhibit 1), first, Dr Smith assumed a medium to low stand basal area (Class B) but there was not evidence establishing the average basal area of the different forest stands in the different parts of the three lots in which ELC cleared native vegetation; secondly, Dr Smith did not state what was the dominant community or tree species, although it would seem Dr Smith assumed the trees were eucalypts; and, thirdly, Dr Smith assumed the productivity class was of median site quality (Class 2/3) but there was not evidence establishing, for the three lots, the indicators of site quality upon which Dr Smith stated site productive capacity was based (p 70 of Annexure B of Exhibit 1 and T958). 167As to the limitations of the model (see p 76 of Annexure B of Exhibit 1), Dr Smith claimed elsewhere in his evidence that the three lots had a history of disturbance events but he does not describe with the particularity required the nature, intensity or frequency of disturbance events for the stands of forests on the three lots in which ELC cleared native vegetation, or consider the implications of that disturbance history for application of the model or correct for the effects of the disturbance events (as he suggested ought to be done at p 76 of Annexure B of Exhibit 1). Dr Smith's predictions were not supported by other lines of evidence, such as he had recommended should be done (p 76 of Annexure B of Exhibit 1), including tree ring counts or data on the timing and extent of clearing, logging and burning disturbance obtained by interview or remote sensing (T945-948, 951-952, 974-975). Without such lines of evidence, the model's predictions remain theoretical and not aligned with evidence of actual growth rates and site-specific factors affecting growth rates for the trees and shrubs on the three lots. 168Accordingly, I find Dr Smith's opinions concerning the predicated average diameters of trees and Kunzea ambigua shrubs on the three lots in early 2006 to be of low reliability. 169Secondly, as Dr Smith acknowledged, for any cohort of trees regenerating from a particular date, there will be a bell curve distribution of DBH sizes for the trees in the cohort. Hence, Dr Smith stated that if a cohort of trees had regenerated on 1 January 1990 in partially cleared forests in the eastern area (Lot 1), there would be a bell curve distribution of DBH sizes smaller and greater than the mean of 13-16 cm (up to a maximum of 22 cm). However, there will also be a series of bell curve distributions of DBH sizes for cohorts of trees that regenerated from other dates. So, for example, a cohort of trees that regenerated before 1 January 1990, say in 1988, will have a bell curve distribution of DBH sizes that overlaps with the bell curve for the cohort of trees that regenerated on 1 January 1990 (T970). As a consequence, it is not possible, without doing a probability analysis, to determine for individual trees with a DBH that falls within more than one of the overlapping bell curve distributions of DBH sizes, to which cohort the trees most likely belong and hence what is the most likely date on which the trees regenerated. Dr Smith did not undertake such a probability analysis (T971). The consequence is that the reliability of Dr Smith's predictions that a cohort of trees in partially cleared forests on the three lots in early 2006 with an average DBH of 13-16 cm would have grown on or after 1 January 1990 is low. 170Thirdly, Dr Smith's regrowth model does not apply to individual trees. Dr Smith stated that the model cannot be relied on for an individual tree (T972). In his description in his report of the limitations of his regrowth model, Dr Smith states that "a wide margin of error may result if it is used to predict the age of individual trees rather than the mean age of whole stands or cohorts" (p 76 of Annexure B of Exhibit 1). Hence, the regrowth model cannot be used to establish that each tree cleared by ELC on the three lots in 2006 had regrown since 1 January 1990. 171Fourthly, Dr Smith's evidence does not assist in establishing that the trees and shrubs ELC actually cleared in 2006 had regrown since 1 January 1990. The forensic purpose of Dr Smith's evidence was to predict what would be the average DBHs for trees and shrubs which had regenerated since 1 January 1990. These averages would be compared to the DBHs of the trees and shrubs cleared by ELC in 2006. If the DBHs of the trees and shrubs cleared were not greater than the predicted average DBHs, Walker submits that the inference could be drawn that the trees and shrubs cleared had regrown since 1 January 1990. However, the evidence of ELC employees is that they cleared trees and shrubs with diameters larger than the predicted average DBHs (a mean DBH of 13-16 cm for trees in partially cleared forests or up to 22 cm for isolated trees in paddocks in the western area and a mean DBH of around 8.4 cm for the Kunzea ambigua shrub (0.55 cm/yr x 15.25 yrs (see T970 and 972)). 172The instructions were for trees with a DBH of up to 20 cm to be taken out (Mr Humphreys) but on occasions trees with a DBH of up to 30 cm were taken out and anything up to probably 25 cm could have been taken out (Mr Mills). There was no limitation at all in relation to the Kunzea ambigua shrubs, either in terms of instructions as to the diameter of the stems of the shrubs which should be cleared or retained, or in terms of the actual clearing carried out. The ELC employees' evidence is that they pushed over and mulched all of the shrubs, regardless of size, leaving a clear paddock with big trees left standing. 173Hence, the evidence of the ELC employees establishes that the trees and the Kunzea ambigua shrubs cleared by ELC did not all have a DBH less than the average DBHs Dr Smith predicted for trees and shrubs that had regenerated since 1 January 1990. 174Fifthly, Mr Lucas' evidence, based on interpretation of aerial photographs and satellite imagery, is that the 42 larger trees in the western area (Lots 2 and 62) which were cleared by ELC in 2006 (being present in 2005 but absent in 2008) were growing there in 1990 (including in the 5 October 1990 aerial photograph) (see Mr Lucas' affidavit of 16 August 2010, first report titled API Report dated 24 May 2010 (Exhibit Q, tab 109, including pp 11, 13, 15, 16), supplementary report dated 12 August 2010 (Exhibit Q, tab 110, including pp 3-4), affidavit of 11 October 2010, affidavit of 11 November 2010, affidavit of 7 September 2011, further supplementary report dated 6 September 2011 (Exhibit Q, tab 120, including p 4) and, supplementary report - image interpretation dated 26 September 2011 (Exhibit AZ, including pp 4-12) and oral evidence in Sydney and Albury on 22 and 23 September, 5 and 6 October 2011). 175I accept Mr Lucas' evidence that the 42 trees he identified as having been removed between 2005 and 2008 were present before 1 January 1990 and reject Dr Smith's criticisms of it. I found Dr Smith's evidence to be unsatisfactory. In particular, Dr Smith's opinions on interpretation of aerial photographs and satellite imagery suffered, and had low reliability and weight, by reason of: his lack of formal training and expertise in aerial photographic interpretation (being essentially self taught: T1050-1051 and see T899); the inferior quality, mirror stereoscopic equipment (geoscope) Dr Smith used compared to the multiple and superior quality, stereoscopic and digital planar equipment used by Mr Lucas; and the inferior quality of the inkjet prints of aerial photographs used by Dr Smith compared to the superior quality, wet contact prints of the aerial photographs used by Mr Lucas. 176More generally, in addition to the shortcomings in Dr Smith's opinion evidence to which I have referred earlier in the judgment, I also found the reliability and weight of Dr Smith's opinion evidence was diminished by: Dr Smith's relative lack of expertise in plant identification (eg T1003-1004) and his inability to identify, and his errors in identification of, native species of groundcovers (eg T1006, 1011, 1030) and shrubs (eg T1003) on the site; his selective use of parts of the evidence adduced at the trial that might support his opinions, but lack of awareness and use of other parts of the evidence that might not support his opinions, including the evidence of ELC employees of the mulching machinery used to clear vegetation (eg T910-920, 946), its capacity to remove trees and stumps (T1001 and 1032) and the actual removal of trees from the lots on which the 42 trees were located; his selective use and/or application of scientific literature and governmental publications to advance his opinions or rebut opinions of Mr Lucas or Mr Hager and lack of mention of data or propositions in the scientific literature or publications which might cast doubt on his opinions (exposed in cross-examination on 7 and 11 October 2011); and his alteration of certain aerial photographic images using Photoshop software by reducing the green tint relative to the red and blue tints to make trees and shrub crowns appear brown which better accorded with his opinion that they had been killed by drought or scorched by fire (see para 4.2.16 of Exhibit 1 and T1054), but without citing any expert authority or recognised learning in aerial photographic interpretation supporting use of Photoshop to change the colours on prints of aerial photographs (T1056). 177Mr Lucas' conclusion that the 42 trees cleared were older than 1 January 1990 either throws doubt on the reliability of Dr Smith's predicted average DBHs for trees regenerating on the three lots since 1 January 1990 (if the trees cleared by ELC were of the predicted average DBHs) or confirms the evidence of ELC employees that trees with DBHs greater than Dr Smith's predicted average DBHs for trees regenerating since 1 January 1990 were cleared (and hence the trees cleared had regenerated before 1 January 1990). Either way, it is not established that the 42 trees cleared had regrown since 1 January 1990.

Native vegetation cleared not established to be "only regrowth" 178Fourthly, Walker has not established that the native vegetation cleared by ELC on the three lots in 2006 was "only regrowth". Because of the earlier matters I have found above, Walker cannot establish that each and every plant comprising the native vegetation cleared by ELC on the three lots in 2006 was regrowth. Hence, Walker has not established that the native vegetation cleared is "only regrowth" within s 19(1) of the NV Act. 179For these reasons, Walker has not established the defence under s 12(3) of the NV Act.

Conclusion 180I find, beyond reasonable doubt, Walker guilty of the offence against s 12 of the NV Act as charged. The matter now needs to be fixed for a hearing on the sentence to be imposed for the offence. I list the matter before the List Judge on the next available list day, 2 December 2011, for the purpose of fixing a date for the sentence hearing and making appropriate directions to prepare the matter for the sentence hearing. 181I make the following orders and directions:

The name of the prosecutor in the summons is amended by omitting "Director-General of the Department of Environment, Climate Change and Water" and inserting instead "Lisa Corbyn".
The defendant is found guilty of the offence as charged.
The proceedings are listed on 2 December 2011 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

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: 30 November 2011

(2010) 173 LGERA 366

(2003) 131 LGERA 234

(2009) 172 LGERA 225

(2003) 128 LGERA 240

(2007) 156 LGERA 333

(2007) 156 LGERA 337

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