Environment Protection Authority v Forestry Commission of New South Wales - [2013] NSWLEC 101 - NSWLEC 2013 case summary — Zoe

NSWNSWLEC

Environment Protection Authority v Forestry Commission of New South Wales

[2013] NSWLEC 101

Land and Environment Court (NSW)|2013-05-21|Before: Pepper J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2013-05-21

Before

Pepper J

Catchwords

ENVIRONMENTAL OFFENCES: hazard reduction burning in protection zone - breach of threatened species licence - pollution of waters.

Source

Original judgment source is linked above.

Catchwords

ENVIRONMENTAL OFFENCES: hazard reduction burning in protection zone - breach of threatened species licence - pollution of waters.

Judgment (52 paragraphs)

[1]

Background to Forestry NSW 5Forestry NSW replaced the Forestry Commission of NSW, as it was known at the time of the commission of the offences. Forestry NSW is a statutory State owned corporation constituted under the Forestry Act 2012. Pursuant to Sch 2 cl 8 of that Act, proceedings for an offence instituted against the Forestry Commission can be continued against Forestry NSW. 6Forestry NSW is responsible for sustainably managing native and planted forests for a wide range of economic, environmental and social values, including monitoring fuel levels in State Forests and carrying out hazard reduction burning.

[2]

Events Leading to the Commission of the Offences 7Between 25 May 2011 and 13 July 2011, employees of Forestry NSW carried out a bush fire hazard reduction burn ("the Hazard Reduction Burn") by lighting fires on 25, 26, 27 and 30 May 2011 and again on 11, 12 and 13 July 2011. 8The Hazard Reduction Burn was carried out within Compartments 155, 156 and 166 of Mogo State Forest. Mogo State Forest is located near Batehaven and Batemans Bay on the south coast of New South Wales ("NSW") and incorporates a number of compartments. 9The Hazard Reduction Burn affected areas in proximity to the tidal waters of Deep Creek, Mundarlow Creek and Waterfall Creek ("the Waters"), on the banks and in the intertidal areas associated with the Waters. The location of the Compartments are as follows: (a)Compartment 155 is bounded by Deep Creek and Waterfall Creek in the north; (b)Compartment 166 is bounded by Mundarlow Creek and Waterfall Creek; and (c)Compartment 156 lies inland to the south of Compartments 155 and 166. 10The Waters are tidal watercourses draining to the Clyde River, which in turn drains to the ocean. A number of streams run through the three Compartments and drain to the Waters. 11The Waters are part of the Batemans Marine Park. Waterfall Creek and Deep Creek are zoned within the Waterfall Creek Sanctuary Zone under Part 7 Div 2 of the Marine Parks (Zoning Plans) Regulation 1999 ("MP Regulations"). The Waterfall Creek Sanctuary Zone extends over the whole of the tidal waters and tidal lands to the mean high water mark of Waterfall Creek and certain creeks, bays and tributaries, including Deep Creek. Mundarlow Creek is part of the Batemans Bay Habitat Protection Zone pursuant to Part 7 Div 3 of the MP Regulations. 12As a result of the Hazard Reduction Burn, an unknown quantity of ash, charcoal and sediment, which are prescribed matters pursuant to Sch 5 cl (c) of the Protection of the Environment Operations (General) Regulation 2009, entered the Waters between 25 May 2011 and 13 July 2011. Those prescribed matters were therefore placed in a position where they were likely to fall, descend and/or wash into the Waters, and continued to enter the Waters until Forestry NSW installed erosion control measures. It is these events that comprised the water pollution offence. 13The parties disagree about the effectiveness of the erosion control measures implemented by Forestry NSW. This is discussed further below. 14The licence breach offence involved the contravention of condition 5.7(a) of Forestry NSW's licence under Pt 6 of the Threatened Species Conservation Act 1995 ("the TSCA"). Specified forestry activities are prohibited in a "protection zone (hard)", including bush fire hazard reduction work. For these Waters, a "protection zone (hard)" is the area 5m from the top of the bank of any incised channel or, where there is no defined bank, the edge of the channel. 15The Hazard Reduction Burn was ignited at certain locations within the "protection zones (hard)" of the Waters and resulted in the burning of a significant proportion of the existing vegetation within those zones and extending over approximately 5km of shoreline adjacent to the Waters.

[3]

Forestry NSW's Operational Context 16Forestry NSW conducts forestry operations in Mogo State Forest under the authority of the Southern Integrated Forestry Operations Approval ("the IFOA") granted under the Forestry and National Park Estate Act 1998 ("the FNPEA"), since repealed (note, IFOAs in force under the FNPEA prior to its repeal continue in force under the Forestry Act 2012: see Forestry Act 2012, Sch 3 cl 10). 17As set out in cl 6 of the IFOA and pursuant to s 34 of the FNPEA, the IFOA contains the terms of several licences. These licences have effect and are enforceable in the same way as any other licence granted under the relevant Acts (ss 34 and 35 of the FNPEA). Relevantly, these licences include the following: (a)Appendix A of the IFOA is an environment protection licence under the POEOA, which does not apply to bush fire hazard reduction works and does not authorise water pollution resulting from such works; and (b)Appendix B of the IFOA is the licence issued to Forestry NSW under Pt 6 of the TSCA, which applies to the South Coast Sub-Region of the Southern Region ("the TSL"). The TSL applies to the three affected Compartments. 18Condition 5.7 of the TSL sets out measures for riparian habitat protection through the mechanism of protection zones. Condition 5.7(a) requires the establishment of protection zones along the entire length of streams, being "protection zones (hard)", and in addition, the establishment of protection zones along the entire length of each "protection zone (hard)", being "protection zones (soft)". The rationale for a protection zone (hard) is to create a buffer to protect waters and habitat. 19Condition 5.7.1(a)(i) states: "Specified forestry activities are prohibited in a protection zone (hard)". Bush fire hazard reduction work is a "specified forestry activity" for the purpose of the TSL (IFOA Definitions, definition of "specified forestry activity" at (vii)). 20"Bush fire hazard reduction work" has the same meaning as it does in the Dictionary to the Rural Fires Act 1997 ("RFA"), which is: bush fire hazard reduction work means: (a) the establishment or maintenance of fire breaks on land, and (b) the controlled application of appropriate fire regimes or other means for the reduction or modification of available fuels within a predetermined area to mitigate against the spread of a bush fire, but does not include construction of a track, trail or road. 21The Waters are fourth order streams and, as such, the size of the "protection zones (hard)" for the Waters is 5m from the top of the bank of any incised channel, or where there is no defined bank, the edge of the channel. 22Under cl 44(5) of the IFOA, prior to the burning operations being carried out, Forestry NSW is required to "carry out a comparative assessment of the potential impacts on the environment of proceeding with burning operations and the potential impacts on the environment of not proceeding with the operations." 23Guidance for undertaking this comparative assessment is provided in Pt 6 of the Forestry NSW Corporate Fuel Management Plan 2008 ("the Corporate Plan"), which applies to all land the subject of the Approval. The Corporate Plan contemplates preparation of regional fuel management plans setting out operational guidelines for application at the regional level. 24However, as at May 2011, there was no regional fuel management plan covering Mogo State Forest. There was a document entitled "Model Regional Fuel Management Plan" ("the Model Plan") (issued August 2008, reviewed July 2011). 25Clause 44(7) of the IFOA states: Site specific plan of burning operations (7)...prior to burning operations being carried out on any tract of forested land in the Southern Region, SFNSW must prepare a plan in respect of the tract ("site specific plan of burning operations") which specifies the following: (a) the measures to be taken to minimise any adverse impacts of the operations on the environment and the risk of wildfire resulting from the operations; and (b) the steps to be taken to monitor the impacts of the operations on the environment. 26Under cl 44(11) of the IFOA, Forestry NSW is required to "prepare a model document setting out the proposed format and general contents of site specific plans of burning operations." Site specific burn plans are completed by a burn planner using that model document.

[5]

The Hazard Reduction Burn in Compartment 166 31On 25 May 2011, Forestry NSW's employees Mr Robert Evans, as the burn supervisor, and Mr Jim Potter, Mr Steve Fitzgerald and Mr Dean Evans, as the burn crew, commenced the Burn in Compartment 166. From the map provided to the Court, it can be seen that Compartment 166 is a reasonably narrow tongue of land that runs in an elongated fashion north to south skirted by Mundarlow and Waterfall Creeks. 32At about 10am that day, Mr Robert Evans lit a test burn near a parking area off the Compartment 166/1 Road, uphill from Waterfall Creek. He then instructed the burn crew to light fires along the Compartment 166/1 Road. Due to the high fuel moisture content along the ridgeline, the fires quickly burnt out. He proceeded to light areas using a drip torch along the eastern side of Compartment 166, along a stretch of shoreline on the west bank of Waterfall Creek running southwards from the point where Mundarlow and Waterfall Creeks meet above Compartment 166. Ignition of fires ceased around 3pm and the employees left. At this time the fire had mostly self-extinguished. The remainder of the fire was not manually extinguished as Mr Evans considered that it would self-extinguish as it ran into the damp uphill fuel. 33At 10am the next day, Mr Robert Evans, Mr Dean Evans and Mr Fitzgerald returned to Compartment 166 to continue the Hazard Reduction Burn. Mr Evans lit further fires using a drip torch, again on the eastern side of Compartment 166 and along the western shoreline of Waterfall Creek. The shoreline ignited by Mr Evans was the majority of the shoreline in the stretch further south of the Burn areas lit on 25 May 2011. Mr Evans then lit other fires further to the south of Compartment 166. 34Mr Fitzgerald and Mr Dean Evans attempted to light fires along the ridgeline in Compartment 166 but had trouble getting the fire to ignite. Under direction from Mr Robert Evans, Mr Fitzgerald and Mr Dean Evans then lit fires using drip torches along the western shore of Compartment 166, that is, along the eastern shoreline of Mundarlow Creek. 35On 27 May 2011, Mr Robert Evans and Mr Dean Evans returned to Compartment 166 to light further fires. However, these were lit well away from the estuary, along Runnyford Road.

[10]

Actions Taken by Forestry NSW After the Incident 49On 14 July 2011, Mr Armstrong and an employee of Forestry NSW, Mr Greg Murphy, inspected north and south along the shore of Waterfall Creek in Compartment 166 from the end of the Compartment 166/1 Road. Mr Armstrong did not observe any evidence of soil or ash movement. 50On 21 July 2011, Mr Armstrong and another employee, Mr Dennis May, inspected north and south along the shore of Waterfall Creek in Compartment 166 from the northern end of the Compartment 166/1 Road. At the time there was low intensity rain. Again, Mr Armstrong did not see any evidence of soil or ash movement. 51On 22 July 2011, and early in the following week, Mr Robert Evans carried out inspections of the Compartments and mapped the burnt areas as shown on the tendered map. 52On 28 July 2011, employees Mr Tuan, Mr Marty Linehan, Mr Armstrong and Mr Robert Evans carried out an inspection of Compartment 166, again near the Compartment 166/1 Road. They saw some evidence of overland flow on the site, but it appeared that no sediment had left the site and only a small amount of charcoal or ash had entered the waters of Waterfall Creek leaving a thin layer of that material lying in the water in several places. 53On 10 August 2011, Mr Tuan and Mr Linehan carried out a joint inspection with EPA officers, Ms Jacquelyn Miles and Mr Michael Hood. Also, Mr Peter Walsh, a person employed as a Soils Specialist by Forestry NSW, and Mr Tuan inspected the shoreline of Waterfall Creek from the end of the Compartment 166/1 Road to the northern tip of Compartment 166 at the confluence of Waterfall and Mundarlow Creeks. Mr Walsh observed that "the majority of the litter layer had been transported as ash into the adjacent waters", but observed "very little evidence of any significant soil movement". 54On 16 August 2011, Mr Walsh provided a report recommending steps to be taken to reduce the risk of runoff. A copy of Mr Walsh's report was tendered. It related only to the area visited on 10 August 2011 and made four recommendations. In summary, these were to: (a)erect and monitor sediment traps or fences on areas above the high water mark where there was an evident concentration of flow (such as drainage depressions), and to remove sediment regularly as it built up; (b)on slopes without obvious drainage features, but with evidence of flow concentration, place small logs and branches as a natural barrier across the slopes to enhance sediment deposition, stabilisation and revegetation; (c)accurately map those areas of medium to high risk which are connected to the Waters and require remediation; and (d)develop a program to monitor the effectiveness of the stabilisation measures and groundcover re-establishment until a point in time when the stabilisation was satisfactory and the sediment fences could be removed. 55On Mr Walsh's advice, mitigation measures were undertaken at locations where there were drainage depressions or other topographical indications of concentrations of flow. Therefore, between 25 August 2011 and 2 September 2011, Forestry NSW installed silt socks measuring 80 to 100cm at irregular intervals across the shoreline to minimise the potential for ash and charcoal to enter the Waters and minimise the potential for any soil movement. 56The parties disagreed about the effectiveness of the silt socks installed by Forestry NSW. 57Forestry NSW monitored the burnt areas regularly following installation of the silt socks, until Forestry NSW considered that the site had sufficiently stabilised. 58On 2 September 2011, Forestry NSW provided documents under a statutory notice, including: (a)the Burn Plan; (b)Mr Walsh's report; (c)a report of an internal investigation carried out by Mr Armstrong entitled "Forests NSW Southern Region Investigation into Hazard Reduction Burn, Mogo State Forest HRB_BB_0155_11" (Forests NSW) ("the Incident Report"); and (d)several photographs which showed the burnt areas, including down to the water line, and the spaced silt socks. 59The four-page Forestry NSW internal Incident Report was tendered. It summarised the chronology of the Hazard Reduction Burn and the post-Burn events, which were in terms generally similar to the Agreed Facts summarised above, but also included details of a meeting on 17 August 2011 between Forestry NSW employee, Mr Linehan, and a Clyde River oyster grower, Mr Kevin McAsh, to discuss potential implications of ash in marine ecosystems and any effects on oyster farms. It summarises remedial actions being taken, including in cooperation with the MPA, as well as the internal planning and procedural changes already in train within Forestry NSW to address the failings. 60The Incident Report also listed "suggested causal factors" as follows: (a)an insufficient understanding of the Corporate Plan by Forestry NSW's Batemans Bay operations staff; (b)the incompleteness of any regional fuel management plan; (c)riparian/wetland buffers and other IFOA exclusions not being routinely shown on burn plans; (d)general environmental protection protocols for riparian buffers and other ecological values were included in an environmental assessment attached to the Burn Plan but were not site-specific; (e)the due diligence checklist in the Burn Plan was not comprehensive; (f)not all environmental factors appeared to have been adequately considered in the burn planning process; (g)inadequate burn plan review and approval processes; (h)because the burn planner was also the burn supervisor, any inadequate understanding of the required environmental safeguards carried through to the conduct of the Hazard Reduction Burn; (i)lack of IFOA refresher training for staff; and (j)lack of formal consultation protocols with the MPA, and no consultation with the MPA for this specific Burn.

[11]

The EPA Investigation 61On 14 July 2011, Ms Eichmann contacted the EPA to report the Hazard Reduction Burn. This was the first occasion on which the EPA became aware of the Hazard Reduction Burn. 62On 17 July 2011, Mr Nigel Sargent, an EPA officer, inspected the Compartments in three burnt areas as shown on a map tendered. Mr Sargent observed that fire had burnt to the high water level of the Waters in Area 1, through a drainage line and to the high water level of Waterfall Creek in Area 2 and to the high water level in Area 3. Photographs of each of these burnt areas were tendered. 63EPA officers also carried out inspections of Compartments 155 and 166 on 10 August 2011 (with Forestry NSW employees, Mr Tuan and Mr Linehan), 11 August 2011, 9 September 2011, 22 September 2011, 26 October 2011, 1 March 2012, 11 April 2012 and 20 September 2012. The EPA inspection sites were marked on two maps (Maps A and B) tendered to the Court and included dispersed inspection points at locations in the Waters and on the riverbanks. 64During the inspections on 10 and 11 August 2011, Ms Miles of the EPA made the following observations: (a)the Hazard Reduction Burn had burnt to "the waterline" in all locations inspected save one point identified on Map B; (b)the area from the "waterline" to a point up to approximately 30m upslope had been affected by fire in the locations inspected adjacent to the Waters; (c)ash and charcoal was present on the slopes above the Waters; (d)the majority of ground vegetation above the soil had been burnt by the Hazard Reduction Burn and effectively removed; (e)the majority of the grass tussocks on the banks and mudflats of the Waters were burnt; (f)the bases of Casuarina trees within some of the areas inspected were blackened with charcoal and the foliage on parts of the trees had turned brown; (g)ash and charcoal was present in locations on the mudflats and banks of the Waters; (h)charred plant material was lying on the banks, rock beds and mudflats associated with the Waters; (i)charred plant material was in the vicinity of mangroves and their pneumatophores, as shown clearly in four tendered photographs; (j)evidence of linear channels in the soil from the slopes to the waterline and deposits of charred material at the end of the channels; and (k)evidence of rainwater carrying ash/charred plant material into the Waters. 65Photographs taken during the inspection on 11 August 2011 were also tendered and showed clear evidence of the burnt and charred native vegetation material, ash, charcoal and charred material in the vicinity of the waterline, as described by Ms Miles. 66During the inspection on 9 September 2011, between two points located at the northern tip of Compartment 166, Ms Miles observed: (a)a number of 80 to 100cm long sand filled felt silt socks at irregular intervals along the banks of the Waters on the peninsular north and east of the Compartment 166/1 Road; (b)the silt socks were not continuous along the waters edge; and (c)ash and sediment were starting to build up behind the silt socks (a photograph was also tendered from this inspection). 67On 22 September 2011, Ms Miles conducted another inspection of the Compartments accompanied by Mr Tuan, Mr Linehan, Mr Walsh and a NSW Department of Primary Industries (DPI) officer, Dr Trevor Daly, the Fisheries Conservation Manager - South Coast. An email from Dr Daly regarding this inspection was tendered to the Court. In summary it stated that: a few more sediment stockings could be placed; not much else in the way of sediment control would be useful because the damage had already been done, particularly due to the significant rainfall since the burn which would have washed ash and sediment into the estuary; the area was recovering and natural regrowth was visible; and it may be useful to meet with oyster farmers with adjacent leases in 6 months to discuss whether they had noticed any changes which could be due to run-off from the burning. It further stated that DPI's main concern now was preventing a repeat of the incident and that greater cooperation on forest management issues generally between Forestry NSW, DPI and the EPA may be useful. 68Also on 22 September 2011, employees of Forestry NSW moved a number of silt socks from some of the less steep areas in the Compartments to the two or three locations identified by Dr Daly as requiring further silt stockings. 69On 26 October 2011, Ms Miles inspected the Compartments and collected samples of ash and charcoal from the banks of the Waters and from the mudflats. Analysis of the samples showed that the ash and charcoal on the banks was consistent with the ash and charcoal on the mudflats. 70During the inspection on 1 March 2012, Ms Miles observed: charred plant material on the mudflats and rock platforms associated with the Waters; charred plant material on the slopes and banks above the Waters; that vegetation was starting to regenerate; that burnt debris, including charcoaled leaf litter and bark, was present between the bank of Mundarlow Creek and mangroves (as depicted in two tendered photographs); and that the silt socks along the shoreline between points 1 and 2 as marked on Map B were building up a volume of sediment and charcoal. A small quantity of sediment and charcoal was spilling over the top of the sediment socks (as depicted in another tendered photograph). 71Mr Greg Abood of the EPA undertook the inspection on 11 April 2012 and a photograph of build up along a silt sock was tendered.

[12]

Causes of the Offences 72It was not a matter of controversy that the water pollution offence occurred as a result of the carrying out of the Hazard Reduction Burn by employees of Forestry NSW. 73It was also uncontentious that the licence breach offence occurred as a result of the carrying out of hazard reduction works in protection zones (hard) in contravention of Forestry NSW's TSL. 74The parties agreed that a number of additional matters were relevant to the occurrence of the Hazard Reduction Burn. These included: (a)the training for persons involved in the preparation of the Burn Plan was inadequate; (b)specifically, Mr Robert Evans, the planner and supervisor for the Hazard Reduction Burn, was employed by Forestry NSW in 1972. In 1989, he began drafting burn management plans and received ongoing training relevant to his position from Forestry NSW, the Rural Fire Service ("RFS") and the National Parks and Wildlife Service ("NPWS"), covering topics such as incident management control. However, Mr Evans had not had any formal training specific to his role as a prescribed burn planner. In about 1995 or 1996, a prescribed burning course, the NSW Fuel Management Burning Course, was introduced for burn planners, addressing operational and planning aspects of prescribed burns. Mr Evans had limited input into the course content, but did not take the course. Nor had Mr Evans had any formal training specific to the requirements of the IFOA, although he had attended meetings where the requirements including the protection of riparian zones were explained and he was instructed that those requirements applied to bush fire hazard reduction burns. Notwithstanding that training and his 22 years experience in drafting burn plans, Mr Evans did not understand that the IFOA requirements applied to bush fire hazard reduction burns. At the time of completing the Burn Plan, Mr Evans had not seen, nor had formal training on, the Corporate Plan and had not planned a burn in an estuarine area before; (c)Mr Julian Armstrong had been involved in the management of Mogo State Forest since 1997 but was not familiar with the Corporate Plan at the time he reviewed the Burn Plan; (d)there was a lack of refresher training on the IFOA requirements for employees involved with activities other than timber harvesting; (e)the burn planning process was inadequate and parts of the Burn Plan were inaccurate. For example, in the "Environmental/Cultural Heritage" section of the Burn Plan, a tick was placed next to the IFOA Approval box and ticks were placed next to the following planning considerations to indicate that the burn planner had considered those matters: reference made to the Corporate and Regional Fuel Management Plans; consideration of soil exposure; reference to Forest Management Zones; and identification of fire sensitive flora and threatened fauna. However, in fact: no reference was made by the burn planner to the Corporate Plan or Regional Fuel Management Plans (the Eurobodalla Bush Fire Risk Management Plan was tendered to the Court); and, while the burn planner viewed relevant layers within the Forestry Corporation Geographic Information System ("GIS"), he did not view layers showing the location of streams and stream order or the location of exclusion zones including the protection zones (hard); (f)the reviews of the Burn Plan carried out by Mr Armstrong and Mr Tuan were inadequate because they failed to identify that the Burn Plan did not consider all of the relevant environmental factors. Mr Armstrong assessed the Burn Plan on its face and did not verify information in any other way, such as by reference to GIS map layers; (g)the inadequacies in the Burn Plan carried through from planning to the conduct of the Burn because the burn planner was also the burn supervisor; (h)Forestry NSW failed to provide sufficient policies and procedures. Most notably, Forestry NSW failed to provide a regional fuel management plan in relation to Mogo State Forest. The due diligence checklist within the corporate site-specific burn plan template was not comprehensive regarding environmental considerations; (i)Forestry NSW employees failed to implement relevant procedures. This arose from the inadequate training; (j)while the Corporate Plan notes that the POEOA makes it an offence to cause pollution when fuel management burning; and under the TSL, bush fire hazard reduction work is prohibited in exclusion zones, such as stream and creek buffers, these sections of the Corporate Plan were not heeded by Mr Evans in the planning and conduct of the Burn; (k)the Corporate Plan states that Forestry NSW "procedure in relation to fuel management burning is to avoid as far as practicable intrusion of fire into riparian buffers and drainage lines through the use of appropriate moisture differentials and application of standard fuel management burning guidelines." But, the employees who carried out the Hazard Reduction Burn failed to follow this process; (l)protection zones (hard) were not routinely shown on burn plan operational maps prepared by employees of Forestry NSW in the Batemans Bay office; (m)the Corporate Plan provides that: "All fuel management burning will be supervised by a person accredited as fully competent in the Fuel Management Burning Course", but Mr Evans was not accredited as fully competent; (n)in May 2009, Forestry NSW introduced procedural changes to the planning of burns that: "All burn plans, post-logging or broad area, must include a section titled "Special Considerations" that covers values including threatened species records, species exclusion zones, cultural heritage sites, sensitive water catchments and critical boundaries. The plans must highlight locations and specify appropriate measures to ensure the burn does not compromise or damage those values." Mr Evans attended the Operations Functional Meeting on 27 August 2009 at which the new procedures and requirements for burn planning were explained. In June 2009, Mr Linehan drafted a document entitled "Fuel management planning and implementation in Southern Region" setting out the new procedures. This document was provided to and read by Mr Evans. However, the Burn Plan did not include a "Special Considerations" section covering those values; (o)Forestry NSW did not notify or consult with the MPA in relation to the Hazard Reduction Burn. The employees involved did not identify that the burn area was adjacent to the Batemans Marine Park and thus did not identify the MPA as a relevant stakeholder; and (p)Forestry NSW and the MPA did not take steps to initiate a formal consultation protocol when the Batemans Marine Park was created adjacent to the State Forest.

[14]

Sentencing Principles 76A basic principle of sentencing law is that the sentence imposed for an offence must reflect, and be proportionate to, the objective circumstances of the offence and the personal or subjective circumstances of the offender (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472). 77The instinctive synthesis method is the correct method of sentencing. The Court identifies all the factors relevant to the sentence and weighs their significance to arrive at an appropriate sentence (Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]). 78Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") sets out the purposes of sentencing an offender. The EPA submitted, and I accept, that relevant purposes in this case are those contained in s 3A(a), (b), (e) and (f) of the CSPA. 79In addition, s 21A of the CSPA identifies the matters that the Court must take into account when determining the appropriate sentence, including factors in aggravation under s 21A(2) and factors in mitigation under s 21A(3). 80Relevant subjective circumstances or mitigating factors are those contained in ss 21A(3)(a), (e), (f), (g), (i), (k), (l) and (m) of the CSPA. These are listed and discussed further below. 81Although Forestry NSW's plea of guilty to both offences entails acceptance of the proof beyond reasonable doubt of the elements of each offence, the prosecutor nevertheless still carries the onus of proving beyond reasonable doubt any aggravating factors for the purposes of sentencing (Gore v The Queen [2010] NSWCCA 330 at [27] and [105] and R v Wickham [2004] NSWCCA 193 at [26]). For mitigating factors the onus of proof lies upon Forestry NSW on the balance of probabilities (R v Wickham [2004] NSWCCA 193 at [26] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]). 82When assessing the objective gravity of an offence, the Court not only establishes the upper limit of the appropriate penalty but also the lower limit beneath which the penalty should not go. The sentence should adequately reflect the gravity of the incident and the objectives of punishment such as deterrence (Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [44] and Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [140]). 83Furthermore, in determining an appropriate sentence, the Court must consider the objective and subjective circumstances of an offence in the context of the relevant legislative framework (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [51]-[71] and [168]-[172]; Environment Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly [2013] NSWLEC 19 at [53] and Moolarben at [42]). 84Therefore, the objects set out in s 3 of the POEOA and the matters to be considered in imposing penalty listed in s 241 of that Act must be considered in relation to the water pollution offence. And, the objects set out in s 2A of the NPWA and the matters to be considered in imposing penalty listed in s 194 of that Act must be considered in relation to the licence breach offence. A number of other statutes also provide relevant legislative context in which to consider the offences, as outlined below.

[15]

The POEOA 85The objects of the POEOA in s 3 include, relevantly: 3 Objects of Act The objects of this Act are as follows: (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, ... (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following: (i) pollution prevention ... (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, 86Section 241 of the POEOA provides a legislative direction as to matters that are to be considered in imposing penalty for offences under this Act. Section 241(1) of the POEOA is a list of the objective circumstances of an offence that must be considered by the Court (as far as they are relevant), while s 241(2) recognises the Court's discretion to consider other matters relevant to the particular circumstances. Matters under s 241 that the Court is required to consider are, relevantly: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant. 87The legislative scheme reflected in the objects and operative provisions of the POEOA requires that "proper, and strict, precautions be taken by those whose activities may cause proscribed pollution" (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359 and Moolarben at [43]).

[16]

The NPWA 88The objects of the NPWA in s 2A include, relevantly: 2A Objects of Act (1) The objects of this Act are as follows: (a) the conservation of nature, including, but not limited to, the conservation of: (i) habitat, ecosystems and ecosystem processes, and (ii) biological diversity at the community, species and genetic levels, and (iii) landforms of significance, including geological features and processes, and (iv) landscapes and natural features of significance including wilderness and wild rivers, ... (2) The objects of this Act are to be achieved by applying the principles of ecologically sustainable development. 89Section 194 of the NPWA provides a legislative direction as to matters that are to be considered in imposing penalty for offences under this Act. Section 194(1) is a list of the objective circumstances of an offence that must be considered by the Court (as far as they are relevant), while s 194(2) recognises the Court's discretion to consider other matters relevant to the circumstances. Matters under s 194(1) that the Court is required to consider are, relevantly: 194 Sentencing-matters to be considered in imposing penalty (1) In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused by the commission of the offence, (b) the significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence, (c) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence, (e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, ... (g) whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee, (h) whether the offence was committed for commercial gain.

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Marine Parks Act 1997 94Finally, it is also relevant, as the EPA submitted, to consider the Marine Parks Act 1997, given that riparian protection zones (hard) are designed to act as a buffer to protect waters and the Waters are located within the Batemans Marine Park. The objects of the Marine Parks Act are: 3 Objects of Act The objects of this Act are as follows: (a) to conserve marine biological diversity and marine habitats by declaring and providing for the management of a comprehensive system of marine parks, (b) to maintain ecological processes in marine parks, (c) where consistent with the preceding objects: (i) to provide for ecologically sustainable use of fish (including commercial and recreational fishing) and marine vegetation in marine parks, and (ii) to provide opportunities for public appreciation, understanding and enjoyment of marine parks. 95As noted above, the MP Regulations also provide relevant context, especially cls 1.7 and 1.8 which outline the objects of sanctuary zones and habitat protection zones as follows: 1.7 Objects of sanctuary zone The objects of the sanctuary zone are: (a) to provide the highest level of protection for biological diversity, habitat, ecological processes, natural features and cultural features (both Aboriginal and non-Aboriginal) in the zone, and (b) where consistent with paragraph (a), to provide opportunities for the following activities in the zone: (i) recreational, educational and other activities that do not involve harming any animal or plant or causing any damage to or interference with natural or cultural features or any habitat, (ii) scientific research. 1.8 Objects of habitat protection zone The objects of the habitat protection zone are: (a) to provide a high level of protection for biological diversity, habitat, ecological processes, natural features and cultural features (both Aboriginal and non-Aboriginal) in the zone, and (b) where consistent with paragraph (a), to provide opportunities for recreational and commercial activities (including fishing), scientific research, educational activities and other activities, so long as they are ecologically sustainable and do not have a significant impact on any fish populations or on any other animals, plants or habitats.

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The Water Pollution Offence 98The pollution of waters contrary to s 120(1) is an offence of strict liability. It has been described as being a "result offence" (Environment Protection Authority v Pipeline Drillers Group Pty Ltd [2012] NSWLEC 18 at [44]). 99At the time of the commission of the offences, s 120 of the POEOA stated: 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. (2) In this section: pollute waters includes cause or permit any waters to be polluted. 100The POEOA Dictionary defined pollution to include "water pollution" and defined "water pollution" or "pollution of waters" to mean: water pollution or pollution of waters means: ... (c) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, and, without affecting the generality of the foregoing, includes: (d) placing any matter (whether solid, liquid or gaseous) in a position where: (i) it falls, descends, is washed, is blown or percolates, or (ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, ... if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters. 101The POEOA Dictionary defines "waters" to include "the whole or any part of": (a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), ... 102Ash, charcoal and sediment are prescribed matters for the purpose of paragraph (c) of the definition of "water pollution" in the POEOA pursuant to Sch 5 cls (b) and (c) of the Protection of the Environment Operations (General) Regulation 2009), which provides as follows: Schedule 5 Prescribed matter for the definition of water pollution For the purposes of paragraph (c) of the definition of water pollution in the Dictionary to the Act, the following are prescribed as matter: ... (b) plant matter of any description, including (but not limited to) vegetable or fruit wastes, leaves, grass, trees, wood, sawdust, shavings, chips, bark or other forest products or refuse, (c) ashes, soil, earth, mud, stones, sand, clay or similar inorganic matter, ...

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Explanation For the Offences Given by Forestry NSW 105Forestry NSW sought to explain why the nature of the offences was such as to justify the agreed position on penalty, which plainly reflects the lower end of the scale of penalty for this type of offending. Forestry NSW submitted that this was appropriate because, in summary: (a)it has a statutory duty to manage State Forests (vested under the Forestry Act) and, beyond this, it has a statutory duty to conduct bush fire hazard reduction measures (such as burning) in those State Forests, pursuant to s 63(1) of the RFA, to reduce bush fire risks in order to protect lives and properties, including in order to avert serious bush fires like that which occurred in 1994; (b)the build up of high fuel loads in the intervening years and the unsuccessful burn attempts in 2004 meant that hazard reduction burning was necessary; (c)carrying out broad-acre hazard reduction burning "necessarily causes water pollution, and thus environmental harm, by the creation and mobilisation of ash and charcoal in the catchment of waterways ... particularly so here, because the area ...was an estuarine area with waterways adjacent to the areas which had to be burned"; (d)the gravamen of the conduct was not the carrying out of the hazard reduction burning per se, but the ignition of fires, during that Burn, close to the banks of the Waters and thus in breach of Forestry NSW's TSL, after attempts to light fires closer to the ridgelines were unsuccessful; (e)the burn supervisor "made an error of judgment" in making that decision and in so doing acted contrary to instructions he had previously received regarding the TSL requirements; (f)it should only be punished insofar as actual or likely environmental harm resulted from the ignition of fires on some days in question too close to the foreshore of the Waters and should not be punished for any harm that necessarily would have been caused by the Burn. There is "no evidence that this action added materially to the environmental harm which was likely to have been caused in any event by the necessary hazard reduction burn". Later in its written outline of submissions, Forestry NSW elaborated further on this proposition by explaining that water pollution is necessarily caused by hazard reduction burning activities in proximity to waters, because it necessarily creates burnt vegetation, woody debris and leaf litter, and so necessarily prescribed matters like ash and charcoal will be in a position where they will be likely to fall, descend or be washed into waters and that it "is difficult to imagine any circumstances where pollution of waters within the broad definition in the [POEOA] would not be an inevitable consequence of any significant hazard reduction burn. Ash and charcoal mobilised by fire will certainly blow and descend into any adjacent waterways, and if rain falls in the area soon after ... it is highly likely, if not inevitable that some ash and charcoal will inevitably be washed into those waters. Additionally the burning of the ground cover will be likely to expose soil and sediment, thereby placing that class of matter in a position where it [is likely to] be washed into the adjacent waterways"; and (g)although it could have taken practical measures that "may have avoided the fires being ignited too close to the waterways" (emphasis added), such as by a more thorough training regime, it could not have taken practical measures to avoid the environmental harm necessarily caused by carrying out a major hazard reduction burn. 106These submissions were directed primarily towards the agreed position on the appropriate overall penalty. They are, however, also relevant to the nature of the offences, Forestry NSW's reasons for offending, the practical measures it could have taken to avoid the harm and its control over the causes of that offending. 107Problematically, these submissions are not entirely consistent with the agreed facts in which Forestry NSW acknowledges its wrongdoing and the fact that actual and potential environmental harm (although objectively low) was caused by the two offences, to the extent that they suggest that the environmental harm would have occurred in any event. Such an implication is plainly incorrect. For example, actual and potential harm caused to species limited to the shoreline, such as mangroves, would rarely, if ever, be occasioned by a correctly carried out burn.

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Maximum Penalty 108The maximum penalty for an offence reflects the seriousness with which Parliament views the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Plath at [67]). 109The maximum penalty for the commission of the water pollution offence under s 120(1) of the POEOA, as stipulated in s 123(1) of the Act, is $1,000,000 for a corporation. 110The maximum penalty for the commission of the licence breach offence under s 133(4) of the NPWA, as stipulated in s 133(4)(b) of the Act, is $22,000 for a corporation. 111There is a spectrum of offending behaviour covered by a given offence and imposition of the maximum penalty is necessarily reserved for the worst case for which the penalty is prescribed (Markarian at [31]). 112The EPA expressly acknowledged that these offences are not within the worst category of case. Plainly this is correct. 113The EPA argued that Forestry NSW's record of prior convictions for environmental offences is an aggravating factor in sentencing for the present offences. Section 21A(2)(d) of the CSPA states that if "the offender has a record of previous convictions" this fact is one of the aggravating factors to be considered in determining an appropriate sentence (Veen (No 2) at 477). An exact conformity between the nature of the prior conviction and the present offences is not required. For example, in Aargus (at [89]-[91]), Craig J took into account a prior conviction of the defendant in Queensland when sentencing that defendant for POEOA offences in NSW. 114The EPA submitted that, not only the criminal convictions for environmental offences, but also the Penalty Infringement Notices ("PINs") are relevant: Ex Parte Newman [1969] 1 NSWLR 538 (at 539 per Jacobs JA). That proposition has been accepted as correct in this Court, for example, by Sheahan J in Environment Protection Authority v Forestry Commission of New South Wales [1998] NSWLEC 318 (at [104]). 115The Statement of Agreed Facts included a long list of PINS issued to (and paid by) Forestry NSW (or its predecessor) by the EPA, which I will not reproduce here, but I have taken into account in determining the appropriate penalty. In total, between 2003 and 2011, Forestry NSW received 32 PINs for various matters: contravening conditions of Forestry NSW's Environment Protection Licence under the POEOA; polluting waters; and contravening conditions of the TSL. The incidents occurred at various different locations/State Forests. 116Forestry NSW also has several previous convictions in the Land and Environment Court of NSW. These include: (a)in 2011, Forestry NSW pleaded guilty to an offence of contravening a TSL condition in the context of the Eden IFOA by conducting specified forestry activities, namely burning, within smoky mouse exclusion zones in Nullica State Forest. Forestry NSW was ordered to pay $5,600 for the purpose of a specified environmental project and to pay the prosecutor's costs in the agreed sum of $19,000 (Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102); (b)in 2004, Forestry NSW pleaded guilty to a charge of polluting waters in Chichester State Forest, thereby contravening s 120(1) of the POEOA and was fined $30,000 and ordered to pay the prosecutor's costs (Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751); (c)in 1997, Forestry NSW pleaded guilty to two charges, and was found guilty of one further charge, relating to breach of conditions of a pollution control licence in Colymea State Forest, involving a failure to properly construct gutters of logging roads and placing soil in a filter strip. Forestry NSW was fined $30,000 (Environment Protection Authority v Forestry Commission of New South Wales [1998] NSWLEC 318); and (d)in 1997, the defendant pleaded guilty to three charges relating to breach of conditions of a pollution control licence in Nullum State Forest near Mullumbimby, involving a failure to construct a road drainage structure, felling of trees into filter strips and failure to install sediment traps. Forestry NSW was fined a total of $25,000 (Environment Protection Authority v Forestry Commission of NSW [1997] NSWLEC 96). 117The parties also brought to the Court's attention proceedings in 1992, when Forestry NSW pleaded guilty to a charge under s 16 of the then Clean Waters Act 1970. However, as no conviction was recorded and a significant time has elapsed, I consider this matter irrelevant to my deliberations in this regard. 118Forestry NSW's record of prior convictions is not trifling and cannot be ignored. However, I am not persuaded it is of the kind of seriousness envisaged by s 21A(2)(d) of the CSPA, particularly as all but one of the previous convictions in this Court occurred more than five years ago. Thus while I propose to take it into account as a circumstance of aggravation against Forestry NSW, I accord it limited weight.

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Environmental Harm 119The environmental harm caused by the commission of an offence is a central consideration in determining the objective gravity of the offence and the concept of harm in the context of environmental offences is broad (Waste Recycling and Processing Corp at [145]-[147]). 120Harm includes the potential or risk of harm, not merely actual harm (Waste Recycling and Processing Corp at [145]; Axer at 366 and Bentley at [175]). Harm can be direct, indirect or cumulative and "[a]ctivities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously" (Waste Recycling and Processing Corp at [147]). 121Usually the more serious the actual or potential harm, the greater the objective seriousness of the crime and the higher the penalty (Waste Recycling and Processing Corp at [148]). It is also important to observe that harm is not mitigated where the waters into which a pollutant is discharged are, at the time, already disturbed or modified (Moolarben at [48]; Waste Recycling and Processing Corp at [149] and Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 at [159]). Although the disturbed condition of receiving waters is not a mitigating factor, it is relevant to the assessment of the extent of harm or likely harm caused by the commission of the offence (Waste Recycling and Processing Corp at [149]; Environment Protection Authority v Hanson Precast Pty Limited [2008] NSWLEC 285 at [66] and Environment Protection Authority v Hochtief AG and Thiess Pty Ltd [2007] NSWLEC 177 at [19]). 122Section 241(1)(a) of the POEOA makes it clear that in sentencing the Court is to consider the "extent of the harm caused or likely to be caused to the environment by the commission of the offence". The same requirement exists in s 194(1)(a) of the NPWA. 123The POEOA Dictionary defines "harm to the environment" to include: ...any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution. 124Quantitative data was not available on the scope or scale of the harm, but based on the collected qualitative evidence, the EPA accepted that the actual environmental harm caused by the commission of the offences could be characterised as "low". I agree. 125It was uncontentious that the Hazard Reduction Burn caused actual harm to the environment insofar as matter entered the Waters. Furthermore, the water pollution offence had the potential to cause environmental harm in that there was potential for: (a)prescribed matters to enter the Waters; (b)non-permanent increases in turbidity in the Waters, which had the potential to result in depletion in the extent and density of seagrass. However, as at 11 April 2012, seagrass within the Waters appeared to be in good condition and unaffected; (c)localised smothering effects on near shore marine life; and (d)non-permanent increases in nutrient loads in the Waters. 126Relevant to potential turbidity was a photograph tendered by the parties of runoff from Runnyford Road. It was taken by the EPA on 11 August 2011. Runoff was observed on 11 and 15 August 2011 and entered a waterway located at the south end of Compartment 166 near Waterfall Creek. In the photograph, muddy runoff is clearly visible and gives the appearance of recent high rainfall. There is some evidence of apparently burnt or blackened leaves in that runoff. However, the photograph does not demonstrate runoff of a nature any different from that which would normally occur in runoff from an unsealed road following a high rainfall event. The photo therefore adds little to the agreed fact above, namely, that there was a potential for increased turbidity to result. It certainly does not prove any actual turbidity increase that could be attributed to the commission of the offences (as distinct from any expected turbidity increase following rainfall in such an area). 127Additionally, the parties agreed that the Hazard Reduction Burn caused actual harm to the environment in the form of burning of vegetation within the protection zones (hard) adjacent to the Waters and mudflats associated with the Waters. This reduced the ability of the vegetation to restrict the movement of prescribed matters (including presumably so that they were more readily able to enter or descend into the Waters thus contributing to the harm already described above). The vegetation that was burned included saltmarsh, understorey grasses and some Casuarinas. The photographs tendered also provide evidence of actual (to a limited extent) and likely harm to mangroves and their pneumatophores. 128And further, the parties agreed that the fires lit within the protection zones (hard) had the potential to harm organisms in the riparian and intertidal areas. 129It is also important at this point to reiterate that the Waters affected by the water pollution offence form part of a sanctuary zone and a habitat protection zone within the Batemans Marine Park. 130The parties therefore agreed that there was actual and potential environmental harm caused by the commission of the offences, and, it was accepted that such harm was, on the whole, at the lower end of the spectrum. While Forestry NSW conceded that environmental harm was caused, it submitted that the environmental harm was not just low but "at the very low end" of the spectrum. Conversely, the EPA's submission that a large area of land was affected, namely 5.7km of foreshore of the Waters, and that this had to be taken into account, and that therefore, the harm was not as minimal as submitted by Forestry NSW. 131On balance, I do not think the harm could be characterised as "very" low. Rather, it was low based on the evidence.

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State of Mind of Forestry NSW 132Both offences are offences of strict liability. This means that mens rea is not an element of the offence. However, the state of mind of an offender at the time of committing an offence is a relevant consideration when imposing sentence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed accidentally (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42]-[43] and Gittany at [123]). 133This is subject to any limitation arising by virtue of the De Simoni principle. In R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, Gibbs CJ observed (at [8]): ...a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence." 134Importantly, an aggravating factor in s 21A(2) of the CSPA cannot be taken into account if to do so would breach the De Simoni principle (R v Wickham [2004] NSWCCA 193 at [26]; Huntingdon v R [2007] NSWCCA 196 at [9] and s 21A(4) of the CSPA). 135A "more serious offence" is one that imposes a higher maximum penalty than the offence for which an offender is being sentenced (Environment Protection Authority v Snowy Hydro Limited [2008] NSWLEC 264; (2008) 162 LGERA 273 at [147]; R v JB; R v RJH [1999] NSWCCA 93 at [29] and Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 at [101]). 136There is no dispute that the De Simoni principle applies to statutory offences including strict liability offences under the POEOA (Snowy Hydro at [148]-[149] and Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337 at [53], [57] and [59]). And, with respect to a water pollution offence contrary to s 120(1) of the POEOA, the De Simoni principle has been repeatedly held to preclude the Court from considering whether the conduct of a defendant was reckless or negligent because of the existence of the more serious offence under s 116 of the POEOA (Tea Garden Farms at [101]-[103]; Snowy Hydro at [150]-[151] and Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 at [178]-[181]). 137However, whether state of mind can permissibly be taken into account with respect to the breach of licence offence is less settled. 138Several decisions of this Court have considered the state of mind of the offender in relation to a licence condition breach under s 64(1) of the POEOA. These include Environment Protection Authority v Transpacific Industries Pty Limited; Environment Protection Authority v Transpacific Refiners Pty Limited [2010] NSWLEC 85 (at [98]) and Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695 (at [35]-[39]). There is nothing in the NPWA which warrants a different approach with respect to considering Forestry NSW's state of mind in committing the licence breach offence, which may properly be characterised as negligent.

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Demonstrable Remorse 160In Waste Recycling and Processing Corp, Preston J stated that contrition and remorse is more readily demonstrated by a corporate offender "taking actions" rather than offering "smooth apologies" through legal representatives (at [203]). His Honour identified four forms of actions that would demonstrate genuine contrition and remorse (at [204]-[214], applied in Queanbeyan City Council (No 3) at [223]; Moolarben at [85]-[89] and Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 at [101]). These are: (a)first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence (at [204]); (b)second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities (at [210]); (c)third, taking action to address the cause of the offence (at [212]); and (d)fourth, the personal appearance of corporate executives in court to give personal evidence of the defendant's regret and a plan of action to avoid repetition of the offence (at [214]). 161In the affidavit of Mr Roberts, he acknowledged the following matters: the commission of the offences; that the Burn had been carried out incorrectly; that Forestry NSW training had been inadequate; and that the burn planning template at the Batemans Bay Office had been inadequate. He also stated that when he had been made aware of the incident he made efforts to ensure cooperation with the subsequent investigations by government departments and that under his direction Forestry NSW had cooperated with the EPA pursuant to the Premier's Memorandum M1997-26 guidelines. In his affidavit Mr Roberts also highlighted the many steps taken by Forestry NSW since the incident to prevent its recurrence. 162Importantly, Mr Roberts expressed "sincere regret and remorse that harm to the environment occurred as a result of the wrongful manner in which the hazard reduction burn was carried out." He concluded that "whilst recognition of the above matters unfortunately cannot change what has happened, I am confident that the lessons learned have resulted in genuine improvement of procedures". 163I found the affidavit of Mr Roberts to be a particularly thorough acknowledgement of corporate wrongdoing and expression of contrition and remorse for the commission of the offences. I am also persuaded that Forestry NSW has taken, and is taking, steps to ensure such an incident does not recur. 164In my view, the demonstrated remorse on the part of Forestry NSW should be taken into account as a mitigating circumstance in its favour.

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Sentencing for Water Pollution Offences 179Recent decisions of this Court for pollution of waters offences display a range of penalties imposed on corporate offenders in a range of factual circumstances. 180Forestry NSW referred the Court to Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131. Unomedical (No 4) concerned an offence of contravening s 128(2) of the POEOA, which required an occupier of licensed premises to carry on activities, or operate any plant, so as to minimise air pollution where no emissions standard was prescribed. The maximum penalty was $1,000,000. The Court concluded that the offence was of low objective gravity and the environmental harm was not substantial. The defendant's lack of prior convictions, good character, assistance to authorities, and unlikelihood of re-offending all operated to mitigate the ultimate penalty. However, Unomedical had not pleaded guilty nor expressed remorse. A discount of only 15% was applied. The Court imposed a fine of $90,000, made a publication order and imposed a costs order for $140,000 (at [97]-[112] and [157[-[158]). In my view this case is distinguishable on many levels from the present case and therefore only of limited value to fixing an appropriate penalty. 181A more relevant case to the present facts is Moolarben, in which the defendant was convicted under s 120(1) of the POEOA, fined $105,000, taking into account a 30% sentencing discount, and ordered to pay the prosecutor's costs. The offence was a continuing offence involving four discharges of sediment-laden water into a nearby creek. The pollution was held to have caused actual environmental harm towards the lower end of the range, despite the potential for substantial harm. The defendant had complete control over the causes, the risk was foreseeable, and practical measures could have been taken to prevent the harm. However, subjective features including an early guilty plea and the defendant's lack of prior convictions, cooperation with authorities and expressions of remorse, all operated to mitigate the penalty that would otherwise have been imposed (at [81]-[83], [90]-[91] and [107]). 182In Moolarben (No 2), the defendant was again convicted under s 120(1) of the POEOA for releasing sediment-laden water into a creek. The release had the potential for significant environmental harm, but again did not cause any actual harm and was deemed of moderate objective seriousness. The defendant had one prior water pollution conviction. Mitigating factors included the defendant's early guilty plea, remorse and assistance to authorities. The defendant was fined $112,500 and ordered to pay the prosecutor's costs (at [132]-[133] and [139]). 183In Queanbeyan City Council (No 3), the defendant council pleaded guilty and was convicted under s 120(1) for the release of sewage which flowed into the Queanbeyan River. The Court found the actual harm was low but there was the potential for harm to human health. Subjective mitigating features only operated to mitigate the penalty to a limited extent. The defendant was ordered to pay $80,000, taking into account a 20% discount, which was directed towards an environmental improvement project pursuant to s 250(1)(e) of the Act. The defendant was also ordered, as agreed, to pay the investigative costs of $1,189 and prosecution legal costs of $343,000 (at [280]-[286]). 184Tea Garden Farms involved the pollution of waters contrary to s 120(1) of the POEOA by discharge of sediment-laden water from a rural dam into the waters of a marine park. The overall environmental harm was judged to be in the "relatively low range" with overall objective seriousness lying in the low to moderate range. The subjective factors of remorse, an early guilty plea and assistance to authorities operated to mitigate the defendant's sentence. The defendant was ordered to pay $77,000 towards two environmental protection and remediation projects pursuant to s 250(1)(e) of the POEOA. A publication order was made and the defendant was ordered to pay the prosecutor's costs totalling $121,464 (at [154]). I consider this case to be particularly relevant.

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High Resolution Mapping of a Threatened Ecological Community in South Eastern NSW Project Overview This Project has been developed in relation to a prosecution of the Forestry Corporation of New South Wales before the Land and Environment Court of NSW. Background In summary, the High Resolution Mapping of a Threatened Ecological Community in South Eastern NSW Project will direct $35,000 of funds towards the identification and mapping of a Threatened Ecological Community located on State Forest Estate in South Eastern NSW. The aim of the project is to develop an accurate high resolution map to assist the Environment Protection Authority in establishing management practices and ongoing protection measures for the Threatened Ecological Community. Objective of Project This project relates to either Tablelands Snow Gum, Black Sallee, Candlebark and Ribbon Gum Grassy Woodland in the South Eastern Highlands, Sydney Basin, South East Corner and NSW South Western Slopes Bioregions, or River-flat eucalypt forest on coastal floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions ("the Endangered Ecological Community" or "EEC"). The final choice will be made jointly by the parties immediately before the project begins. The objective of this project is to develop and assess mechanisms to reduce or remove the risk of harm to the EEC in the course of forestry operations on State forest estate. The project aims to do this by removing or reducing uncertainty and ambiguity through improved identification on the ground by accurate spatial mapping of its occurrence where possible, or by the targeted application of field identification guidelines where mapping is not feasible. Project Design

Diagnostic characteristics for the Endangered Ecological Community will be identified based on a review of the Scientific Committee determinations, and the advice of independent and suitably qualified botanical/ecological experts.
A map will be produced for the Endangered Ecological Community where it occurs on State forest estate.
Mapping will be done using ADS-40 high resolution imagery projected in a three dimensional GIS environment using specialised computer hardware (based on Maguire et al 2012) at an operationally practical scale based at the best available resolution.
The imagery will be interpreted by specialist mappers, field validation and existing vegetation sample plots will be used to support the interpretation. The mapping will be coordinated by the EPA Forestry Section.
If for some reason mapping is not possible the project will produce an accurate and reliable field identification guideline to allow for the identification of the Endangered Ecological Community on the ground during harvest planning, compartment mark-up ahead of the logging operation, and in compliance audits by the EPA.
The accuracy of the map and its effectiveness to address the project objectives will be considered through a review process to be conducted as the last step of the project. Project Outcomes The project will produce an accurate high resolution map of the Endangered Ecological Community on State forest estate in South Eastern NSW. Where mapping is not possible the project will produce accurate and reliable field identification guidelines to allow for the identification of the same Endangered Ecological Community. These products will improve the current level of environmental protection for Threatened Ecological Communities. The following outcomes are expected:

a reduction in the risk of damage or harm to the Endangered Ecological Community caused by forestry activities on State forest due to failure to correctly identify the Threatened Ecological Community prior to undertaking forest operations;
improved sustainable forest management by better understanding of the Endangered Ecological Community distribution within State Forests;
improved environmental regulation, with more enforceable conditions; and
improved knowledge of the spatial extent, condition and status of the Endangered Ecological Community in State forests and NSW as a whole. Adaptive Management After each step of the project, all involved parties will assess the project tracking, including problems encountered, resourcing, budgetary constraints and so forth. This assessment will be used to assess the need for modifications to the project design and outcomes. Any changes to the project scope will be agreed and formalised between all involved parties. Identification Disputes As required, independent expert advice will be sought to define the diagnostic characteristics of the EEC (as described by the Scientific Committee) for the purpose of identifying the EEC for mapping and subsequent management. In the event of any disputes regarding the diagnostic characteristics used for identification of the EEC, these will be referred to an agreed independent expert for resolution. The decision of the independent expert will be final and both the EPA and Forestry Corporation NSW will agree to adhere to the interpretation of the EEC's characteristics as defined by this advice. Funding Schedule The Office of Environment and Heritage Science Division, Native Vegetation Information Branch, is able to receive funding of $35,000 to contribute to carrying out the works specified above. The project will be completed within 12 months of the date of this judgment. Accountability and Reporting The Office of Environment and Heritage will retain accountability for the project and will administer any funds received to fund the project. The Office of Environment and Heritage will also prepare a report upon completion of the project, to be provided to the Environment Protection Authority. The report will provide information containing details in relation to how the funds have been spent and on the outcomes of the project. 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: 10 July 2013

Parties

Applicant/Plaintiff:

Environment Protection Authority

Respondent/Defendant:

Forestry Commission of New South Wales

Cases Cited (58)

Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234

Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304

Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102

Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121

Environment Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly [2013] NSWLEC 19

Environment Protection Authority v Baiada Poultry Pty Limited [2008] NSWLEC 280; (2008) 163 LGERA 71

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211

Environment Protection Authority v Forestry Commission of New South Wales [1998] NSWLEC 318

Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751

Environment Protection Authority v Forestry Commission of NSW [1997] NSWLEC 96

Environment Protection Authority v Hanson Precast Pty Limited [2008] NSWLEC 285

Environment Protection Authority v Hochtief AG and Thiess Pty Ltd [2007] NSWLEC 177

Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695

Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65

Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80

Environment Protection Authority v Pipeline Drillers Group Pty Ltd [2012] NSWLEC 18

Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220

Environment Protection Authority v Snowy Hydro Limited [2008] NSWLEC 264; (2008) 162 LGERA 273

Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89

Environment Protection Authority v Transpacific Industries Pty Limited; Environment Protection Authority v Transpacific Refiners Pty Limited [2010] NSWLEC 85

Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131

Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299

Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189

Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253

R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Forestry Commission of New South Wales (Defendant) Representation: Mr E Bateman (Solicitor) (Prosecutor) Mr T Howard (Defendant) Office of Environment and Heritage (Prosecutor) Allens Linklaters (Defendant) File Number(s): 50717 and 51123 of 2012

(1993) 113 LGERA 357

(2006) 145 LGERA 234

(2001) 115 LGERA 304

(1993) 32 NSWLR 683

(2009) 168 LGERA 121

(2008) 163 LGERA 71

(2008) 162 LGERA 273

(2006) 148 LGERA 299

(2006) 145 LGERA 189

(2007) 156 LGERA 337

(2010) 242 CLR 520

(2004) 78 ALJR 616