Director-General of the Department of Land and Water Conservation v Warroo

Director-General of the Department of Land and Water Conservation Prosecutor v Warroo (Lands) Pty Ltd Defendant

HIS HONOUR: The defendant, Warroo (Lands) Pty Ltd, is charged with an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") for carrying out clearing contrary to s 76(2) of the EP&A Act without development consent of the prosecutor, as required by State Environmental Planning Policy No 46 - Protection and Management of Native Vegetation ("SEPP 46") between 4 May 1997 and 25 May 1997.

The defendant company entered a plea of not guilty to two charges, including the subject charge, on 18 November 1998. A plea of not guilty to charges for two similar offences in respect of the same events was entered by David Jock Hunter on the same day.

Following an amendment of the summons, pursuant to an order made by consent on 23 February 1999, the plea of not guilty by the company was changed to a plea of guilty at the commencement of this hearing.

The prosecutor then offered no evidence in matters No 50099, No 50102 and No 5010 of 1997. The summons in those cases was dismissed with no order as to costs.

The effect of the amendment is to consolidate the clearing undertaken upon two paddocks known as Boar Paddock and Boxlagoon Paddock into the one charge.

A statement of agreed facts has become an exhibit in the proceedings and the Court has the benefit of evidence from investigating officers who attended the property following information received by the Department of Land and Water Conservation ('DLWC"), together with the evidence of Mr Hunter, a director of the company, and environmental consultants retained by both parties.

The total area cleared was 329 hectares. A bulldozer was used to push trees over and clear the land. According to the statement of agreed facts the area was cleared to farm it and then rotate it to pasture. Prior to that time the land was used for grazing.

In his oral evidence Mr Hunter, who physically carried out the clearing and who, as I said, is a director of the defendant company, explained that his intention to farm the land arose as a response to the need for the control of two prevalent noxious weeds, namely lipia and mint weed. He acknowledged that the control of weeds was not the only reason for clearing the land but he said it was the motivating reason.

Chemical control is no longer a feasible solution and the practice of clearing and farming the land had proved effective in the past.

Mr Hunter acknowledges that he, and hence the company, was aware of the provisions of SEPP 46 or at least the existence of the planning instrument.

Mint weed is listed in category W3 and lipia is in category W4C under the Noxious Weeds Act 1993. The action required under Order No 10, published pursuant to that Act in the New South Wales Government Gazette on 7 February 1997, is that category W3 weeds must be prevented from spreading and its numbers and distribution reduced.

The action required in respect of category W4C weeds is that they shall not be sold, propagated or knowingly distributed. Notwithstanding a statement that appears to be anomalous it is obviously intended to require that the occupier must control the spread to any adjoining property.

Mr Hunter estimated that of the nine hundred trees felled and removed, four hundred and fifty were used for farm purposes such as fence posts, building of yards and rails.

The prosecutor's evidence is that the number of trees used for farm purposes was more likely to be approximately one hundred and fifty three. This conclusion was reached by DLWC after discussing the position with Mr Hunter during an inspection of the cleared land.

That dispute has not been resolved and does not need to be resolved in order to determine the penalty except to the extent, and the Court accepts, that a significant number of the trees cleared from the land were in fact used for that purpose.

The presence of the weeds and the use of the timber generated from the felled trees is relevant in terms of sch 3 to SEPP 46, as it was at the relevant time. An exemption is allowed, firstly, in respect of what is described as minimal tree cutting, being the cutting of no more than seven trees per hectare in any period of one year for on-farm uses, including fence posts and fire wood. Secondly, there is an exemption under the heading "Noxious Weeds". That exemption appears to allow the clearing of native vegetation proclaimed as a noxious weed without the necessity to comply with the provisions of SEPP 46 insofar as the application for development consent is required.

Until he had the benefit of recent legal advice, Mr Hunter and again, of course, the company, believed there was an opportunity to defend the charges. That explains why the plea of guilty was deferred until the last moment, immediately prior to the commencement of the hearing.

The Court also recognises that the plea of guilty was obviously entered after the prosecutor agreed to amend the summons in the subject proceedings and not to proceed on the other matters.

Although that is at least an explanation of why the plea of guilty was not entered until such a late stage the Court nevertheless needs to take into account the fact that it was not done at an earlier stage when assessing penalty.

According to Dr Andrew Smith, a Principal Environment Scientist retained by the prosecutor, the cleared area provided potential habitat for up to ten threatened species which have been recorded in similar habitats in the region and could have occurred on the property prior to clearing.

He acknowledged these threatened species may not all occur on the property or its immediate environs at the present due to seasonal conditions and other matters. The presence of suitable habitat in his opinion is at least an indication that these species could recover on the property should appropriate conditions arise.

Otherwise the evidence of Dr Smith relates to wide generalisations regarding impacts of clearing and the significance of the impacts from that type of activity on threatened species generally.

I do not seek to criticise the evidence of Dr Smith in that respect but only to make it clear that his evidence was in the main of a wider application than the subject property.

He also made recommendations for the future management of the cleared area and for amelioration measures on other parts of Warroo. In a second affidavit sworn recently, on 23 February 1999, Dr Smith responded to what was put to him by the prosecutor, namely, that an order might only relate specifically to the cleared area. He says that if it is only possible to consider revegetation of the cleared area, the whole of an area described as area 4, comprising 8 hectares, should be revegetated by replanting. This, he explained, represented about 25 per cent of the total area cleared.

He also opined that a management plan for the area should be implemented, that grazing should be excluded on the revegetated area for up to ten years and thereafter grazing should be regulated in accordance with the management plan.

No further details are provided and no detailed plan providing a specification for the restoration and future management has been furnished to the Court.

Dominic Fanning is an Environmental Consultant engaged by the defendant. Mr Fanning also gave evidence. He told the Court that the areas which had been cleared on Warroo were of low ecological and biodiversity value. He gave reasons for that opinion including that the areas had been subject to considerable loss of native vegetation over a long period including long term poisoning, burning and grazing.

He also said that in addition to being in that highly modified and degraded state the land which was cleared did not support habitat features or resources of restricted distribution or intrinsic and unique conservation value. He went on to explain the details of why he held that view.

The further point that Mr Fanning made in that respect was that the highly modified savannah type vegetation, in those areas that were cleared on Warroo, is of limited value to most of the threatened fauna species which could potentially occur in the area and, in any case, is extremely widespread in the locality.

Mr Fanning also told the Court that, in his opinion, the clearing which had occurred on the subject land was conducted in an environmentally responsible and sound manner. The whole of any paddock was not cleared. Rather it was the case that generally the areas of lowest tree and shrub density were selected for clearing activities. Areas of denser vegetation were retained and corridors of trees and shrubs with an uncleared under storey have also been retained.

Mr Fanning also notes that the areas cleared were infested by the two noxious problematic weeds that I mentioned earlier, namely the lipia and mint weed. He explained that in addition to being indicative of disturbed and degraded lands these two invasive species reduced the value of lands as habitat for native fauna by altering the eco systems and affecting the availability of resources.

That last statement was not wholly supported by Dr Smith although he accepted that his expertise was not necessarily related to flora such as weeds.

Mr Fanning summed up by saying that, on the basis of the considerations outlined, the area of Warroo which has been cleared was indisputably of very low biodiversity, conservation and ecological value. He says the activity cannot reasonably be regarded as having imposed an adverse impact of any note or significance upon the natural environment and it is not likely that a significant effect was imposed upon any threatened biota or their habitats.

Given the degraded and disturbed nature of the area cleared and the extent of similar or identical habitats in the locality the clearing on Warroo is regarded by Mr Fanning as of little or no consequence in ecological or biodiversity conservation terms.

The prosecutor has made a responsible concession that the clearing undertaken by the company was substantial but not serious. Further, an application for development consent was more than likely to have been approved subject to conditions. However, the failure to lodge a development application deprived the DLWC, as the consent authority, of the opportunity to assess the impact of the clearing beforehand. The evidence of Dr Smith must be regarded in that context.

Mr Fanning has had direct regard to the value of the vegetation removed and the immediate prospect of impact on fauna. He acknowledges that individuals may have suffered harm but he does not believe any significant impact on the species could have occurred. Mr Fanning said he agreed with Dr Smith in his identification of the area cleared as having the lowest biodiversity value. He agreed in general terms with the proposed rectification method and that the clearing was not significant in terms of other clearing events in his experience.

The Court finds Mr Fanning's more direct and concise address of the subject land, its characteristics and assessment of impact from the clearing more helpful by providing a picture of the real and potential harm arising out of the activities giving rise to the offence. It is proper in the Court's opinion to regard the impact as being of a minor nature.

Mr Hunter impressed the Court as being a sincere person suffering from significant remorse, humiliation and family problems as a consequence of being charged and of course, as in this case, of the company being charged.

The Court is prepared to take his personal circumstances and embarrassment into account given that he and his wife are the sole directors of what is essentially a family company.

SEPP 46 is legislation which has caused considerable debate and confusion, even anxiety, amongst the rural community. It is understandable that many farmers and graziers who, as a class, enjoy a tradition of independence, in some cases through many generations, and are conditioned to dealing with diversity in many forms are resentful of what they see as bureaucratic interference with their historic role of managing their lands in a way they see as responsible and in the best interests of production and conservation.

It is perhaps seen as conflicting that the control of noxious weeds and the need to maximise productivity is regarded by some as contrary to the protection of native vegetation and against the wider interests of the community.

This case shows, as others have done, that there can be serious discrepancies between the opinions of experts about the significance of native vegetation as defined in the legislation. The Court is required to bring an objective view to its assessment of the actual impact or potential for harm to flora and fauna caused by unauthorised clearing for the purpose of determining an appropriate penalty.

Once again it becomes necessary to observe that the prosecutor's expert does not seem to be capable of assisting the Court in regard to the value of vegetation destroyed by clearing. The fact that the vegetation in question does not rate as highly as Dr Smith would claim, however, is no excuse for the defendant's failure to proceed without the requisite consent.

It is no answer to assert that consent would have been forthcoming or that it was likely to be granted. The law requires that an application be made and considered to enable the relevant assessments to be made in advance.

Mr Hunter now suggests that he believes the clearing may have fallen within two categories of exemption. Unfortunately, his assertion that he protested this perceived entitlement to the investigating officer has not been confirmed and has not been properly tested by questions put to the officer in that regard. That is no criticism of the officer or even the parties. It is simply a reflection of the fact that the officer's affidavit was relied upon and the officer was not required for cross-examination. It is not now pressed as a defence in the light of the plea of guilty.

It is a tragedy for this family that they are suffering the shame and humiliation of being treated as criminals. To a relevant extent this is of Mr Hunter's own making and hence the company's own fault by not pursuing further enquiry and seeking proper advice. Clearly criminal behaviour is not a characteristic of Mr Hunter. The testimonials produced to the Court are sufficient confirmation in this respect.

Furthermore, the Court has had the opportunity of observing Mr Hunter in the witness box. He and his family are obviously suffering beyond the consequences of a monetary penalty.

The impact on Mr Hunter may only be indirectly relevant in the context of the company being the defendant, however, the Court is conscious, as I said, that the defendant is a family company and that its real personality is Mr and Mrs Hunter. It is in practice their alter ego.

Having regard to the whole of the circumstances it is appropriate that the penalty imposed be salutary but nevertheless reflect the lowest range of seriousness. The Court has not been convinced that any significant or serious environmental harm has occurred. Arguably the world might be a better place if the noxious weeds are to some extent brought under control.

The evidence does not justify making an order pursuant to s 126(3) of the EP&A Act.

Mr Baird, appearing for the prosecutor, has suggested the Court should allow further opportunity for an order to be formulated by agreement if the Court decides an order is warranted in the circumstances of this case.

In the Court's opinion, such a submission goes beyond the bounds of reasonableness. In any event, the Court is not satisfied there is a sufficient demand for restoration to be made or a plan of management to be implemented in the light of the level of significance of the vegetation removed by the defendant.

The maximum penalty in this case is $100,000. The parliament, by setting the maximum penalty at such a large sum, is reflecting the public expression of the gravity of the offence as perceived by the community. The penalty, of course, applies to the general range of the serious offences which arise as a consequence of a breach of the EP&A Act.

The Court is required to assess the relative seriousness of the particular offence in relation to a worst case scenario. The penalty should reflect the place in the scale that the particular offence occupies. Any conflict between Mr Fanning and Dr Smith as to the seriousness of the offence, if ultimately there is any serious dispute between them, should be resolved by the Court in favour of the defendant. The authority for that approach is the Court of Criminal Appeal in R v O'Neill (1979) 2 NSWLR 582 at 588.

There is no suggestion that the conduct by Mr Hunter, on behalf of the company, was not sensitive, proper and appropriate outside the confines of SEPP 46. The family has a long history of association with the property. This is not a case of rapacious development without due regard to responsible farming practice.

In the absence of a specific plan for rehabilitation and management put forward as the suggested subject of an order, pursuant to s 126(3) of the EP&A Act, the Court is not able to make an assessment in that respect. As I said earlier the Court does not propose to make such an order.

The Court is required to take into account the role of sentencing in the area of general deterrence and punishment of the individual.

It is not, in the Court's opinion, appropriate for the provisions of s 556A of the Crimes Act 1900 to be applied in this case, notwithstanding the personal contrition, embarrassment and humiliation experienced by a director of the company or even both directors of the company and those associated with them and further notwithstanding the relative minor nature of the offence.

It remains the case that consent was required and it was not obtained.

SEPP 46 does not operate to prevent clearing. It operates to facilitate it under approved conditions. It is the failure to obtain the consent which gives rise to the offence.

In determining the amount of penalty the Court has taken into account the liability of the defendant for costs.

The amount of costs have not been specified, nor has the Court been made aware of any agreement in that respect. However, the Court is aware from other cases that the amount of the costs will not be insignificant and particularly in this case having regard to the fact that the prosecutor was entitled to prepare for a hearing on a defended basis. It was not until the commencement of the hearing, or at least immediately prior to, that the plea of guilty was entered. Of course by then most of the costs of preparation had been incurred.

Mr Robson argues that part of the costs incurred by the prosecutor should be the subject of a special costs order. His argument is based upon the purpose of Dr Smith's evidence and the use to which it was put in the conduct of the litigation. He contends that much of it was ultimately irrelevant and that the defendant was put in a position where it had to meet that evidence notwithstanding its ultimate lack of probative value.

Although the Court preferred the evidence of Mr Fanning, more as a consequence of the way in which the evidence was presented in many respects, the evidence of Dr Smith was still relevant. The Court is satisfied that it was within the bounds of proper conduct for the prosecutor to rely on it.

Having regard to all of the circumstances and facts which I have referred to together with the matters put to the Court by the respective parties, I am satisfied that the offence has been proved beyond reasonable doubt. The defendant will be convicted and required to pay a fine in the sum of $2,500.

In addition, the defendant will be required to pay the costs of the prosecutor as agreed or, if there is no agreement, as assessed in accordance with s 52 of the Land and Environment Court Act 1997 ("the Court Act") and the Land and Environment Court Regulation 1997 ("the Regulation").

The orders that the Court makes are:- (1) The defendant is convicted of the offence set out in the amended summons.

(2) The defendant is ordered to pay a fine in the sum of $2,500.

(3) The defendant is ordered to pay the costs of the prosecutor as agreed or, if there is no agreement, as assessed in accordance with s 52 of the Court Act and the Regulation.

(5) The defendant is allowed a period of six months to pay the fine.

(6) The defendant is allowed a period of six months from the date of agreement or assessment of the costs to pay the prosecutor's costs.

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