DIRECTOR-GENERAL OF THE DEPARTMENT OF LAND & WATER CONSERVATION v. PYE [1998] NSWLEC 292 (24 November 1998) [1998] NSWLEC 71

The defendant is and was at the material times the registered proprietor of the subject property. Both he and his wife reside on the subject property. The prosecutor alleges that clearing was undertaken by the defendant (and/or his agents) without consent in contravention of SEPP 46. That policy has since been repealed, but is for the most part replaced by the Native Vegetation Conservation Act 1997 (cf E. Lee, M. Baird & I. Lloyd QC, State Environmental Planning Policy No 46-Protection and Management of Native Vegetation (1998) 15(2) Environmental and Planning Law Journal 127). In any case, SEPP 46 applied to the subject property at the time that the alleged offences are said to have occurred.

SEPP 46 cl 2(2) as it stood at the relevant time, stated:

The strategy adopted by this policy to achieve its aim is to allow the clearing of native vegetation to be carried out only with the development consent of the Director-General of the Department of Land and Water Conservation .

Clearing of native vegetation means directly or indirectly: (a) killing, destroying or burning native vegetation; or (b) removing native vegetation; or (c) severing or lopping branches, limbs, stems or trunks of native vegetation; or (d) substantially damaging native vegetation in any other way, but does not include sustainable grazing .

The defendant has pleaded not guilty to the charges and relies on cl 11 of SEPP 46, which exempts the clearing without development consent of any native vegetation described in Schedule 3. The defendant relies in particular on paragraph (j) of Schedule 3, the removal of native vegetation, whether seedlings or regrowth, of less than ten years of age on land that has been previously cleared for cultivation, pastures or forestry plantation purposes.

Evidence was adduced for the prosecutor by Ms M R Pritchard, a soil and vegetation compliance officer with the Departments Far West Regional Office in Dubbo; Ms M A McKellar, the acting total catchment co-ordinator with the Departments Forbes office; Mr A P Smith, an environmental scientist and director of Setscan Pty Ltd (trading as Austeco Environmental Consultants); Mr D A Campbell, the senior specialist in land management with the Department; Mr G R Sawtell, a reserve management officer with the Departments Dubbo office; Dr B J Button, an associate professor in earth observation systems in the faculty of applied science at the University of Canberra and managing director of Agricultural Reconnaissance Technologies Pty Ltd (trading as AGRECON); and Ms K Newman, a soil and vegetation compliance officer with the Departments Dubbo office.

The prosecutor states that the subject property had a moderate to sparse tree cover (predominantly open Coolabah Woodland) in 1992, with a high shrub cover (Smith). In Mr Sawtells opinion, the areas of the subject property that were cleared were formerly most likely eucalypt woodland (dominated by Eucalyptus coolabah) with an open chenapod shrubland understorey, and perennial grasses. Ms Pritchard catalogues the following contact between the prosecutor and the defendant in the period immediately preceding the commission of the alleged offences:

30 April: Defendant advised of the suspicion of clearing in breach of SEPP 46 and an inspection of the subject property by the Department arranged for 8 May 1997. ?. 5 May: Fax from the defendant advising that he will not be present at subject property on 8 May. 6 May: Reply by the Department. Between this correspondence a time for inspection/interview was apparently arranged for 15 May. 11 May: Fax from the defendant denying a breach of SEPP 46 and rescheduling the inspection date from 15 May to 22 May. 13 May: Fax from defendant confirming 22 May as the date for inspection. ?. 19 & 21 May: Re-scheduling of inspection date by defendant due to rain. 22 May: Letter from Department nominating 4 June as the revised date for inspection. 22 May: Fax from defendant advising of his unavailability on 4 June and suggesting 16 June instead. 28 May: Fax confirming inspection on 16 June. ?. 13 June: Fax from defendant confirming 16 June inspection.

An inspection of the subject property was carried out by Ms Newman, Mr Sawtell and Ms Pritchard on 16 June 1997. The defendant was not present, and the officers were shown around the property by Mr Peter Birch, a senior agronomist, who had been asked to act as proxy for the defendant. Further inspections of the subject property by various members of the Department took place on 17 June, 25 July, 30 July, 31 July, 1 August, 5 August and 7 August. An aerial survey of the subject property was carried out under the supervision of the Department on 24 July. On 25 July and formally on 28 July 1997 the defendant was requested to cease all clearing activities by officers of the Department so as to allow investigation to proceed. He complied with this request.

The evidence of the prosecutor obtained from the inspections of the subject property is that there had been blade ploughing in the area marked 16 June on the map annexed to this judgment. Although this area is not the subject of the charges, it was the investigation of this area which apparently lead to the issuing of the summonses in these proceedings. The prosecutors officers also observed rubber tyred tractors and ash piles within this area. The tractors appeared to be conducting a stick-raking exercise. The area immediately to the north west of this area had not been blade ploughed and was covered in native shrubland. The areas marked BPa1 and BPa2 on the map annexed to this judgment had been blade ploughed, as had the area marked A on the annexure to this judgment (between the areas marked BPa1 and BPa2). Moreover, the prosecutor states that those areas were comprised of native vegetation prior to such clearing. On 11 August 1997 a map using the geographic investigation system rcview was produced by Ms Pritchard which showed the areas BPa1 and BPa2. These two areas, part of a larger paddock known as Bottle Camp , are the areas which are the subject of these proceedings. This map indicates that the area of the former is 64.5 hectares and the area of the latter is 171.2 hectares.

Ms Pritchard and Ms Newman conducted a comprehensive survey of the areas marked as BPa1 and BPa2 along with two areas adjacent to those areas which had not been blade ploughed. This took place on 31 July, 1 August and between 5 and 7 August 1997. The results of the survey indicated that the area BPa1 had, prior to being blade ploughed, approximately 12,000 shrubs per hectare and a total of approximately 774,000 shrubs; and that the area BPa2 had, prior to being blade ploughed, approximately 10,000 shrubs per hectare and a total of approximately 1,171,000 shrubs. Moreover, the survey indicated that the majority of plant species identified were in fact shrubs and that all but three of these species were native to Australia, with Chloris spp and Alternanthera spp being native/naturalised and Medicago spp being naturalised.

The aerial remote survey (produced through satellite) identified that between 4 June 1997 and 23 June 1997, in the centre south of the area BPa2, a rectangular area of 800 metres in length and 100 metres in width had an appearance consistent with having been blade ploughed. This was also the case in an L-shaped area of approximately 1000 metres in length and 300 metres in width, approximately due east of the centre south of BPa2 (Dr Button).

Mr P S Hastings QC, who appears for the defendant, concedes that the defendant did not have any consent to clear native vegetation on the subject property, and that such clearing took place. The defendant relies on the defence to the clearing of native vegetation without consent, established by cl 11 and Schedule 3 of SEPP 46. Schedule 3 is titled Exemptions and states:

AClearing of native vegetation for the purpose of the following:

(j) The removal of native vegetation, whether seedlings or regrowth, of less than 10 years of age if the land has been previously cleared for cultivation, pastures or forestry plantation purposes .

The defendant states that the vegetation removed during the offence period was regrowth, that it was regrowth of less than 10 years of age, and that the previous clearing of the land had been for the purpose of cultivation or pastures. There is no claim by the defendant that any of the clearing of the property was for forestry plantation purposes.

An initial question is where the onus of proof lies in these proceedings. A precept of the criminal law is that the prosecutor bears the onus of proving all the elements of the offence alleged beyond a reasonable doubt. The question in these proceedings is whether the prosecutor must prove that the defendants conduct does not fall within the exemptions, or whether the onus is on the defendant to prove on the balance of probabilities that the facts do fall within the particular exemption upon which he relies. In Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 Brennan, Dawson & Gaudron JJ said:

The rule laid down in Woolmington v Director of Public Prosecutions [1935] AC 462 at 481, that the burden of proving every element of an offence charged rests at all times upon the prosecution, was expressed to be subject to...the defence of insanity and subject also to any statutory exception. It is made clear in R v Edwards [1975] QB 27 and R v Hunt [1987] AC 352 that the statutory exceptions referred to are not confined to those which expressly cast the burden of proof upon the accused..., but extend to cases in which an intention to do so is necessarily implied. Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself [or herself] within it. That burden may, of course, be discharged upon the balance of probabilities (at 600-601).

The question is, in part, whether the proviso or exception relied upon is part of the clause that discloses the offence or is separate thereto. The answer will turn upon the particular statute. In Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 McHugh J said (omitting references):

When a statute imposes an obligation which is the subject of a qualification, exception or proviso, the burden of proof concerning that qualification, exception or proviso depends on whether it is part of the total statement of the obligation. If it is, the onus rests on the party alleging a breach of the obligation. If, however, the qualification, exception or proviso provides an excuse or justification for not complying with the obligation, the onus of proof lies on the party alleging that he falls within the qualification, excuse or proviso. Whatever form the statute takes, the question has to be determined as one of substance (at 119).

It is clear that the exception listed in Sch 3 paragraph (j) falls into the latter category referred to by McHugh J. Mr Hastings concedes that the defendant bears the onus of proving, on the balance of probabilities, that the defendant: (1) cleared regrowth of less than ten years of age; (2) on land that has been previously cleared for cultivation or pastures. Therefore, if the defendant is to make good a defence pursuant to the exemption listed in Sch 3 paragraph (j) of SEPP 46, there is imposed by that Schedule a burden on the defendant of demonstrating, on the balance of probabilities, that the clearing falls within that particular paragraph.

The defendants evidence may be summarised as follows:

The defendant has worked on the subject property between 1974 and 1978, and from 1980 until the present. In 1982 the defendant assumed ownership of the subject property. The subject property is intermittently affected by both drought and flood. In 1988 the subject property was bare. In the defendants words, in 1988 the country was completely bare (p 124 transcript). There were floods in 1988, 1989 and 1990. Floods can have the effect of removing vegetation completely through effectively suffocating it, and/or facilitating the rapid regrowth of vegetation. In 1993 a decision was made to farm and crop most of the freehold portion of the subject property. The areas of the property the subject of the present charges were part of that country.

Specifically in relation to the Bottle Camp paddock, being the area of the property the subject of these charges, the defendant states:

In 1978 and 1984 Bottle Camp was ringbarked. In 1985 trees were pushed for pastures. In 1994 there was the worst drought seen by the defendant during his time on the subject property. The defendant in that year pushed over some trees on Bottle Camp so as to provide feed for cattle. He did not merely lop off the limbs of the trees in this paddock. By the time the drought was broken in January 1995 the defendant described Bottle Camp as Abare as bare . ?. After 10 August 1995 Bottle Camp was chain pulled and this had the effect of flattening the area, and removing regrowth. This would appear to include the areas BPa1, BPa2 marked on the annexure to this judgment, which are the subject of these proceedings. He also states that stick raking occurred in 1996 on the land the subject of these proceedings. Between the pushing of trees, chain pulling and stick raking which took place on Bottle Camp in 1994, 1995 and 1996 there was regrowth of vegetation.

Mr M J Joseph SC, who appears for the prosecutor, submits that the defendant was an unreliable and unimpressive witness. The Court should take note, in Mr Josephs submission, of the fact that no corroborative evidence of the chronology of events on the subject property between 1978 and 1997 was adduced. He further submits that even if the land the subject of the present proceedings was bare in 1988, this fact does not automatically bring that land within the exemption in Sch 3 paragraph (j), because for the purposes of that exemption the land must have been previously cleared, and cleared for the purpose of cultivation, pastures or forestry plantation. It was conceded by the defendant that the barrenness of the land in 1988 was caused by a combination of drought and flood. In Mr Josephs submission, the damage done to the vegetation on the subject property in 1978, 1984, 1985, 1994, 1995 and 1996 was not clearing according to the definition of that term in SEPP 46, cl 5, because of the extent of survival of vegetation after those actions. This indicates that the clearing undertaken, and admitted to by the defendant, within the relevant dates cannot be clearing which qualifies for the exemption listed in paragraph (j), because it was not the clearing of land which has previously been cleared.

In Mr Hastings submission, going back to 1978 and 1984/1985, the land the subject of these proceedings had been cleared pursuant to the definition of that word in SEPP 46. According to the defendants evidence, in 1978 and 1984 Bottle Camp was ringbarked. In 1985 trees were pushed for the purposes of pastures. Mr Hastings, correctly in my view, submits that previously cleared in paragraph (j) does not import a time constraint, and therefore, provided that the land has at any previous stage been cleared pursuant to the definition of that term in the Act, the land qualifies according to the exemption in paragraph (j), obviously subject to the other requirements of the paragraph. Mr Hastings further submits that in 1994 Bottle Camp was cleared for pastures through cutting down fodder vegetation (trees); in 1995 Bottle Camp was cleared through chain pulling for the purpose of cultivation; in 1996 Bottle Camp was cleared through stick raking for the purpose of cultivation; and in June/July of 1997 there was blade ploughing which constituted further clearing of the subject land.

It is appropriate to examine the evidence as it relates to the relevant requirements of the defence established by paragraph (j) of the schedule.

The first two elements of paragraph (j) are that the native vegetation must be (1) regrowth and (2) under the age of ten years. When questioned by the prosecutor about the effect of the clearing in 1994, 1995, 1996 on Bottle Camp, the following exchange between Mr Joseph and the defendant took place:

Q. So youre saying that even by 1997 there could be shrubs there that have survived the pushing, the chain ploughing, the stick raking, could have survived all of those things right back to what, 1990 but no further. Is that you situation? A. The country was bare in 1988.

Q. Yes but no further and therefore it must have been on all of that evidence, nothing there older than nine years old? A. Yeah thats right...

Q. Just happens to be the situation that come 1988 or 1990, total vegetation shrub land nothing, therefore 1997 nothing older than ten years. Thats your scenario isnt it? A. Yes.

Q. Its untrue isnt it? A. No its not. ... Q. What I am putting to you is that in 97 there was a substantial amount of shrub land that had survived your interventions, pushing, pulling, etcetera, stick ploughing or clearing, in 94, 95, 96. You concede that? A. Yep ... Q. There were many shrubs in 1997 that had survived those interventions and therefore would probably be four or five years old? A. Yep

Q. So the only, the key to your scenario has to be does it not, that there was a total waste land practically between 88 and 90 for none of these shrubs to be older than ten years? A. In 1988 it was a total waste land .

It is the evidence of the defendant that the land the subject of these charges was bare in 1988. The reason that it was bare was the fact that the subject property had been in drought prior to 1988, and this was followed by floods in 1988, 1989 and 1990.

The prosecutor has adduced no direct evidence on the subject of the age of the vegetation removed, whether the land had been previously cleared or the purpose thereof, or whether the vegetation removed was regrowth. The only evidence of that nature can be drawn by inference from the photographs tendered by the prosecutor, and the survey of Ms Pritchard and Ms Newman carried out between 31 July and 7 August 1997, which shows a heavy cover of predominantly native vegetation on the land cleared by the defendant. In view of the evidence of floods in 1988, 1989 and 1990 offered by the defendant to explain the thickness of the shrub land, I am not prepared to draw the inference from the evidence of the prosecutor that the vegetation cleared must necessarily have been more than ten years old. I have direct and plausible evidence to the contrary. On the balance of probabilities, I conclude that the vegetation removed by the defendant the subject of the present charges was regrowth under the age of ten years.

(2) Whether the land has been previously cleared and the purpose thereof

The second question that arises in determining whether defendants clearing, the subject of these charges, falls within the exemption is whether the land has been previously cleared for the purposes of cultivation, pastures or forestry plantation purposes. The defendants evidence indicates that the land the subject of these charges has previously been cleared at least for the purposes of pastures. His evidence was that ringbarking occurred in 1978 and 1984, and the pushing of trees occurred in 1985 and 1994. The timing of such clearing is not a factor in paragraph (j), apart from the fact that it must have been prior to the clearing which is said to qualify as an exemption to SEPP 46. The only evidence I have before me about clearing of the land prior to 1988 is that trees were ringbarked for the purpose of pastures in 1978 and pushed for the proposed pastures in 1984 and 1985. In 1994 trees were pushed for the purposes of pastures. The defendant states that the trees cleared were largely native to Australia and this is reinforced by the evidence of Mr Smith, Ms Pritchard and Ms McKellar. I accept that this is clearing notwithstanding the fact that there was no removal of shrubs at any of these times.

The defendant conceded in the course of cross examination that there was a substantial amount of shrubland that survived his interventions in 1994, 1995 and 1996. This contradicted his earlier evidence that his clearing in those years was rather more effectual than that. He described Bottle Camp in 1995 as Abare as bare . He also said that the chain pulling in Bottle Camp in 1995 flattened the shrubs on that land. He said that those shrubs that had survived his interventions in 1994, 1995 and 1996 would probably have been 4 or 5 years old at the time of the alleged offence. Therefore his evidence-in-chief was thus somewhat contradicted by evidence adduced in cross examination.

I nevertheless accept that the pushing of trees for the purpose of pastures that occurred on the subject property in 1985 and 1994, and the ringbarking in 1978 and 1984 qualify as clearing for the purpose of the definition of that word in cl 5 of SEPP, especially cll 5(c) and 5(d). This is the case even though these actions did not remove all vegetation, because of the width of the definition of clearing in cl 5. I have evidence before me from the defendant, which has not been impugned, that goes toward establishing this requirement of the exemption in paragraph 3(j) of the Schedule. The prosecutor adduced no direct evidence on the clearing undertaken by the defendant in these years. I therefore accept, on the balance of probabilities that the land the subject of these charges was cleared in 1978, 1984, 1985 and 1994 for the purpose of pastures. I also accept, on the balance of probabilities that the land the subject of these charges was cleared in 1995 and 1996 for the purposes of cultivation.

The final question is whether I accept Mr Josephs submissions regarding the veracity of the defendants evidence. Mr Hastings submits that to accept the prosecutors submission I would have to conclude that the defendant was untruthful in giving his evidence in these proceedings in order to find him guilty. I agree with that submission.

It is clear that there are some further inconsistencies in the defendants evidence, apart from that discussed above. An issue on which the defendants credibility was seriously challenged was the removal of native vegetation undertaken in 1995. His evidence was that clearing of the subject land took place after 10 August 1995. However, there are no diary entries that record this clearing, because, in the defendants evidence, of his uncertainty as to any potential consequences of it. The defendant was fearful of breaching SEPP 46. However, this is inconsistent with his evidence that he was aware of the regrowth exemption in SEPP 46 at this time and consequently decided that the vegetation should be removed expeditiously in case of a change to this provision in the legislation. The defendant said (p 114 transcript) AI never...had any doubt [about] the fact that I was clearing regrowth under 10 years of age . In response to Mr Josephs question of why no diary entries of the post 10 August 1995 clearing were made, the defendant gave this explanation:

ASEPP 46 was a new major [piece of] legislation at the time and nobody really-I mean we were finding out new parts of it every day .

In my opinion, this is a plausible explanation of the defendants failure to enter the clearing activities in his diary, notwithstanding his perception that such activity was lawful. It is entirely possible that a lay person could have been aware of the provisions of SEPP 46 soon after its introduction, and also be aware of a particular exemption, but still see fit to err on the side of caution in terms of recording activities which are prima facie in breach of the legislation. Also at issue, and also (at least in part) explained by the above reason, is the defendants evasive conduct toward the Department in the initial stages of its investigation of potentially unlawful clearing taking place on the subject property. This is described in paragraph 6 above. Mr Hastings further points out that the defendant has no prior convictions for criminal behaviour. He runs a large rural business. There is therefore some evidence before me of the defendants good character. In weighing the merits of the evidence adduced in these proceedings, I am not always convinced by the evidence of the defendant. But that evidence is directed toward the issue of whether the defendants clearing is within the exemption outlined in paragraph (j) of the Schedule, and the success with which his evidence was challenged did not impugn those factors which establish that the clearing is an exemption under that schedule. Most importantly, on these issues, there was no evidence adduced by the prosecutor to the contrary of that of the defendant.

I therefore conclude that the clearing the subject of these proceedings was the clearing of native vegetation that was regrowth of less than ten years of age, and on land that has been previously cleared (in 1978, 1984/5 and 1994) for the purposes of pastures and further cleared (in 1995 and 1996) for the purpose of cultivation. In these circumstances, I accept that the evidence of the defendant establishes, on the balance of probabilities that the clearing of the land the subject of the present proceedings falls within the exemption pursuant to paragraph (j) of Schedule 3 to the provisions of SEPP 46. I therefore find the defendant not guilty of the charges.

(1) I find the defendant not guilty of the offences as charged.

I certify that this and the 17 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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