Environment Protection Authority v Forestry Corporation of New South Wales - [2024] NSWLEC 78 - NSWLEC 2024 case summary — Zoe

NSWNSWLEC

Environment Protection Authority v Forestry Corporation of New South Wales

[2024] NSWLEC 78

Land and Environment Court (NSW)|2024-07-10|Before: Pepper J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2024-07-10

Before

Pepper J

Catchwords

(2006) 148 LGERA 299 Hoare v The Queen [1989] HCA 33
(1989) 167 CLR 348 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v The Queen [2005] HCA 25
(2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39
(2006) 66 NSWLR 566 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54

Source

Original judgment source is linked above.

Catchwords

(2006) 148 LGERA 299 Hoare v The Queen [1989] HCA 33(1989) 167 CLR 348 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v The Queen [2005] HCA 25(2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39(2006) 66 NSWLR 566 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54(1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v ThomsonR v Houlton [2000] NSWCCA 309(1988) 164 CLR 465 Walden v Hensler [1987] HCA 54

Judgment (212 paragraphs)

[1]

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59 R v Abboud [2005] NSWCCA 251 R v Dodd (1991) 57 A Crim R 349 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Secretary, Department of Planning and Environment v Khouzame [2024] NSWLEC 54 v Visconti [1982] 2 NSWLR 104 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Forestry Corporation of New South Wales (Defendant) Representation: Counsel: G Wright SC with Z Shahnawaz (Prosecutor) I Hemmings SC with R Coffey (Defendant)

[4]

FCNSW's Operational Context

FCNSW is constituted as a State owned corporation under s 5 of the Forestry Act.
Forestry operations in State forests, which involve the cutting and removal of timber from land for the purpose of timber production, is regulated in New South Wales ("NSW") by the Forestry Act.
Approvals for forestry operations are granted pursuant to s 69M of the Forestry Act, and are called Integrated Forestry Operations Approvals ("IFOAs"). Section 69M is in the following terms: 69M Granting of approvals (1) Approval for the carrying out of forestry operations to which this Part applies may be granted under this Part. Such an approval is called an integrated forestry operations approval. (2) This Part does not prevent or affect the carrying out of forestry operations authorised by or under any other provision of this Act or any other Act or law. However, the carrying out of forestry operations to which an integrated forestry operations approval applies is subject to the terms of the approval.
The terms of an IFOA are established by s 69P of the Forestry Act: 69P Terms of approval (1) An integrated forestry operations approval is to describe the forestry operations covered by the approval, including a description of the area of the State to which it applies. (2) An integrated forestry operations approval is - (a) to make provision for or with respect to the carrying out of forestry operations covered by the approval, and (b) to set out conditions subject to which those forestry operations are to be carried out, including conditions that may be imposed under any of the following - (i) a biodiversity conservation licence under the Biodiversity Conservation Act 2016, (ii) a licence under Part 7A of the Fisheries Management Act 1994, (iii) an environment protection licence under the Protection of the Environment Operations Act 1997. (3) An integrated forestry operations approval may apply or adopt protocols, codes, standards or other instruments that are publicly available and in force from time to time. (4) Without limiting subsection (3), any such protocols may include those prepared by the Environment Protection Authority.

[5]

FCNSW Performs Forestry Operations in Compartment 299A

FCNSW is the only entity with a licence to perform forestry operations in the Forest. It must carry out forestry operations subject to the terms of the Coastal IFOA, any applicable Protocol, and any relevant operational plan.
The preparation of operational plans for forestry operations rests with FCNSW. Condition 53.3 of the Coastal IFOA relevantly states that: 53.3 Each operational plan must include the following documents for each forestry operation in each operational area prepared in accordance with of Protocol 4: Operational plans: (a) general requirements for all operational plans; (b) additional specific requirements for operational plans relating to harvesting operations, roading, burning operations, forest products operations; (c) a location map; and (d) an operational map.
To give effect to ecologically sustainable forest management ("ESFM"), the Coastal IFOA contains a condition for the "minimum measures required to be implemented to protect [threatened] species, communities and their habitats from the impacts of forestry operations" and to "ensure sufficient and adequate habitat" is maintained (condition 15.1).
These measures include defining areas as ESAs, namely, areas "identified and retained to provide refuge, connectivity, and to support forest regeneration" (Outcome statement for Division 3 of Chapter 3 of the Coastal IFOA). Pursuant to the Coastal IFOA, ESAs are to be "protected during forestry operations to maintain their intended, specific environmental values" (Outcome statement for Division 2 of Chapter 5 of the Coastal IFOA).
ESAs are categorised in the Coastal IFOA as either Category 1 or Category 2 ESAs by reference to their habitat and environmental features (condition 49.1). The two ESAs the subject of these proceedings were Category 1 ESAs.
The Coastal IFOA prohibits certain activities being carried out within an ESA. Condition 91.1 relevantly states: 91.1 The following conditions apply to a category 1 ESA: (a) forestry operations are prohibited within the ESA unless otherwise specified in the approval; (b) machinery entry into the ESA is prohibited; (c) a tree (or any part of a tree) must not be felled into the ESA;…
Such was the level of protection for ESAs that even if a tree was accidentally felled in an ESA it could not be removed unless to do so would cause no further damage to the vegetation within the ESA, machinery could not enter the ESA to retrieve the tree (or part of the tree) and any disturbance caused by the removal of the tree had to be immediately rehabilitated (condition 93.2 of the Coastal IFOA).
An operational map was an essential document to give effect to the conditions of the Coastal IFOA. Clause 4.3(1)(g) of Protocol 4 of the Coastal IFOA provides that: (1) The operational map for forestry operations in an operational area must show: … (g) location and extent of all areas excluded from forestry operations including: (i) known ESAs; and (ii) other areas on which forestry operations cannot be carried out …
Ordinarily, the process of preparing the operational map is informed by extensive planning assessments and surveys, as detailed in Chapter 4, Division 1 of the Coastal IOFA. This includes broad area habitat surveys designed to identify habitat features and species listed in the Coastal IFOA, undertaken by a suitably qualified person, and mapped in accordance with Coastal IFOA Protocols.
Condition 23.4 of the Coastal IFOA makes provision for the implementation of site-specific operating conditions ("SSOCs") to apply to certain forestry operations if in a specific and unique circumstance FCNSW will not be able to comply with the conditions of the Coastal IFOA. In this context, conditions 23.4 and 23.5 state that: 23.4 If applying a condition of the approval at a specific site would result in a poor environmental outcome, or if in a specific and unique circumstance FCNSW would not be able to comply with the conditions of the approval, then prior to commencing the relevant forestry operation: (a) FCNSW may submit a report to the EPA in accordance with Protocol 5: Approvals for restricted activities; and (b) the EPA may grant a site-specific operating condition in response to the report that specifies: (i) the conditions of the approval that must be implemented at the specific site for the duration of the forestry operation; and (ii) site-specific operating conditions that must be implemented at the specific site for the duration of the forestry operation in that area, or for another time period specified by the EPA. 23.5 Where the EPA has issued FCNSW with a site-specific operating condition: (a) the relevant forestry operation must be carried out in accordance with the site-specific operating condition; and (b) unless otherwise specified in the site-specific operating condition, all other conditions of the approval must be complied with.

[6]

New Conditions Issued Following the Black Summer Bushfires

Between June 2019 and May 2020, the catastrophic Black Summer bushfires burnt State forests throughout NSW, including the Forest. In response, the EPA negotiated SSOCs with FCNSW for various sites.
The SSOCs defined certain "unburned" and "partially burned" areas as ESAs to enable forestry operations in burnt areas of the Forest, including in compartment 299A.
On 12 March 2020, Shane Clohesy, the Operations Planning Manager for FCNSW, sent an email to the EPA requesting SSOCs. In his email, he stated: FCNSW has identified conditions of the CIFOA that cannot be complied with in this operational area due to the impact of the large-scale 2019/2020 wildfires. FCNSW is seeking site-specific operating conditions as per CIFOA condition 23.4 that will allow harvesting to occur while mitigating, to the greatest extent possible, the risks identified. In the opinion of FCNSW it will not be possible in this operation area to meet all CIFOA conditions for: 1. Broad habitat searches - Safety issues associated with the effects of fire (such as increased overhead hazards, tree falling hazards, and concealed stump holes) means that it is not safe for staff to walk through the majority of the burnt area. This makes strict adherence with CIFOA requirements to identify and map features impractical to achieve in all circumstances. Alternative methods for undertaking broad area habitat searches similar to those applied in areas of impenetrable understory are sought to mitigate the risks.
Between 16 and 19 March 2020 the EPA consulted with FCNSW in relation to draft SSOCs for compartment 299A.
On 20 March 2020 the EPA emailed FCNSW attaching draft fire extent and severity spatial data associated with the preliminary SSOCs for compartment 299A.
In early 2020, the EPA and FCNSW discussed the fire extent and severity mapping ("FESM") to be used to inform the SSOCs related to all fire-affected areas in NSW.
On 25 March 2020 Richard Bean, the then Chief Executive Officer of the EPA, issued SSOCs pursuant to condition 23.4 of the Coastal IFOA to FCNSW relevant to compartment 299A. The SSOCs applied in conjunction with the conditions of the Coastal IFOA and prevailed in the case of any inconsistency (conditions 7 and 8 of the SSOCs).
Conditions 15 to 18 of the SSOCs included that FCNSW was not required to carry out a "broad area habitat search" as defined in condition 57.1(c) of the Coastal IFOA and made provision for an alternative search.
To mitigate the removal of the survey requirements, the SSOCs mandated the retention of "unburned" and "partially burned" areas by designating them as ESAs, as set out in condition 13 of the SSOCs: 13. Any unburned area or partially burned area of at least 0.05ha (or approximately 20 by 20 metres) is taken to be an ESA under the approval. Those unburned areas or partially burned areas over one hectare in size are taken to be a Category 2 ESA. Those unburned areas or partially burned areas between 0.05ha and one hectare in size are taken to be a Category 1 ESA. …
Definitions of "partially burned", "unburned" areas and the "site" were, according to condition 2 of the SSOCs, as follows: Partially burned area means the area covered by a spatial data set held by the EPA and provided to FCNSW that the EPA is satisfied adequately shows partially burned areas at the site, as amended from time to time. … Unburned area means the area covered by a spatial data set held by the EPA and provided to FCNSW that the EPA is satisfied adequately shows unburned areas at the site, as amended from time to time. … Site means Yambulla State Forest compartments 299A, 345A, 350A, 355A, 357A, 415A, 418A, 423A, 483A, 484A, 506A, 507A and 508A.
FCNSW was required to monitor the effectiveness of the SSOCs pursuant to condition 65 of the Coastal IFOA, which stated that: 65. FCNSW must monitor the effectiveness of the site-specific operating conditions that apply to the site, and submit a further report to the EPA in relation to the site under condition 23.4 of the approval if in the reasonable opinion of FCNSW: (a) These site-specific operating conditions: i. result in poor environmental outcomes; ii. do not effectively mitigate erosion and water pollution risks; iii. are not delivering the objectives and outcomes of the approval; or iv. are unable to be complied with, or (b) FCNSW identify that the spatial data sets held by the EPA showing partially burned areas and unburned areas are inconsistent with those areas that appear to be partially burned or unburned at the site.

[7]

Operational Map for Compartment 299A

The spatial data sets that were used in the preparation of the operational map the subject of the mapping offence were provided to FCNSW on 26 March 2024. They were emailed by the EPA's Principal Policy Officer, Roger Bluett, to FCNSW, including to Dean Kearney, Daniel Tuan, Clohesy and Justin Williams.
Along with the spatial data sets, the email enclosed a PDF Map. The attachments were described as "maps and accompanying data layers of 'unburned areas', 'partially burned areas'…that apply to the site specific operating conditions for the Yambulla State Forest compartments 299A". The EPA was satisfied that the data set adequately showed "unburned" and "partially burned" areas within compartment 299A.
On 26 March 2020 Clohesy forwarded the data set contained in the email to FCNSW's Harvest Planner, Julia Clark. Clark was instructed to interpret and compare the spatial data set against the previous data provided by the EPA, which she had created on 18 March 2020, to confirm the accuracy of the operational maps for the compartment.
At 11:03 am on 26 March 2020 Clark submitted the operational map to Clohesy for approval. She stated in her email that "layers for compartment 299A checked and are the same as previously applied". During the course of the EPA's interview with Clark as part of its investigation into the commission of the offences, Clark admitted that she made a mistake with the data when preparing the map (discussed below at [61]). Clohesy approved the operational map at 11:34 am. However, FCNSW did not check the approved operational map against the PDF map supplied by the EPA.
Clohesy was aware of the requirement that polygons over 0.05 ha were to be protected in accordance with the SSOCs and reflected on any operational map.
Two areas that were required to be identified, namely, an "unburned" and "partially burned" area, were not included on the operational map prepared by FCNSW. The areas should have been identified on the operational map as two polygons.
The sizes of the polygons were approximately 0.35 ha to the east ("polygon 2") and 0.08 ha to the west ("polygon 1"). Because they were greater than 0.05 ha and less than one ha in size, they were Category 1 ESAs under the SSOCs.
The omitted polygons from the operational map are depicted below with polygon 1 in pink and polygon 2 in blue, both indicated by red arrows:
The mapping offence relates to the absence of both polygon 1 and 2 from the operational map. The harvesting offence relates to the harvesting operation carried out within polygon 2.

[8]

Forestry Operations in Compartment 299A

Between 6 April and 6 July 2020 FCNSW carried out forestry operations in compartment 229A, including within polygon 2.
The harvesting crew who undertook the forestry operations comprised Aaron Porteous, Anthony Peck and Francis Umback of McKinnells Pty Ltd ("McKinnells"). Porteous and Peck operated the harvesting machinery. Umback, McKinnells's Crew Manager, operated the forwarder.
Staff from FCNSW, including Production Coordinator James Flanagan and Production Assistant Sharon Fyffe, inducted the harvesting crew. This involved a walkthrough of the coupes. FCNSW supervisors in the field communicated directly with the harvesting crew.
The Harvest and Haul Plan ("HH Plan"), prepared by FCNSW for compartment 299A, identified the type of forestry operation as a "Harvesting and Roading Operation". The HH Plan contained the following written instructions: Harvesting operations must only be conducted as selective harvesting in burned areas at the site. The objective is to harvest all available fire damaged trees down to a minimum basal area of 10m2 per hectare. Crew is to select trees for removal and avoid damage to retained trees. ‑ direction to selectively harvest.
The HH Plan defined the "Operational Area" as "selective harvesting and haulage roads within the operational area. Refer to OM and Operational Area Map."
At the induction FCNSW provided the crew with a hard copy of the operational map. The operational map and the HH Plan were also provided electronically on iPads. The operational map supplied to the harvesting contractors, including Porteous, Peck and Umback, is provided below:
The following instructions in the HH Plan were relevant:
On 6 July 2020 the operational diary was signed by Fyffe for FCNSW with the following declaration: I, The HC, am satisfied the crew responsible for this harvesting operation has satisfactorily completed works described by the Harvest & Haul Plan for the compartment(s) and authorise the crew to move out of the compartment(s).
Data from FCNSW's operations was provided to the EPA by online services. The data included tracklogs which consisted of data captured from GPS devices mounted on harvesting equipment that transmitted the position of harvesting machines.
The map below depicts tracklog data in green from 20 to 25 May 2020, overlaid with the EPA's spatial data set for compartment 299A. It shows tracklogs traversing polygon 2:

[9]

The EPA's Investigation

The EPA is responsible for monitoring the carrying out of forestry operations and enforcing compliance with the requirements of IFOAs pursuant to s 69SB of the Forestry Act.
In July 2020 authorised officer Jock Duncan was preparing for a routine inspection of forestry operations in compartment 299A. On 21 July 2020, accompanied by authorised officer John Forcier, Duncan conducted an inspection of compartment 299A. Within polygon 2, Duncan observed freshly cut stumps, debris on the ground from felled trees, and tracks on the ground, which he concluded was from the use of heavy machinery.
Duncan conducted further site inspections on 9 and 10 February 2021. He physically marked out an area within the Forest using an iPad with GPS and pink flagging tape. Within that area he located, mapped and photographed 53 cut stumps. A photograph taken by Duncan during these inspections appears below:
Duncan subsequently prepared a map using the GPS locations of each stump within the area:
On 15 September 2020 the EPA issued FCNSW with a statutory notice under s 12.8(2) of the Biodiversity Conservation Act 2016 ("the BCA"), requiring it to produce information and records ("the first statutory notice").
The EPA received the following response from FCNSW to the first statutory notice on 1 October 2020: The two unburnt/partially burnt polygons that you refer to were not included on the harvest plan operational map due to a manual spatial data editing error that occurred during map creation. The unburnt/partially burnt spatial dataset was provided to FCNSW by EPA as a compressed shapefile attached to an email. This shapefile contained multi-part polygons and polygons that were less than 0.05ha in size. Due to this, the planner was required to edit the data to separate the individual features within the multi-part polygons, recalculate the area of each individual polygon and remove any that were less than the 0.05ha minimum threshold. It was during this process that the two unburnt/partially burnt polygons referred to in your letter were accidentally removed from the map.
The spatial dataset that was provided by the EPA contained shapefiles for multiple compartments within the Forest. Within the dataset that covered all the compartments there were a total of 124 polygons. No polygons were smaller than 0.05 ha.
On 16 March 2021 the EPA issued FCNSW a further statutory notice under s 12.8(2) of the BCA, which included the following enquiries: Did any FCNSW employee(s) and/or contractor(s) remove any trees from within the Unburned area of the Forest, being a Category 1 ESA exclusion zone…? … Did any FCNSW employee(s) and/or contractor(s) enter the Unburned area of the Forest, being a Category 1 ESA exclusion zone … using machinery?
FCNSW responded on 31 March 2021 answering "yes" to both questions. It also provided documents in response including a draft operational map for compartment 299A. The draft map contained polygon 1 and polygon 2, which were absent from the final version of the operational map. The legend to the draft map contained the following categories of areas: 1. "Unburnt/Partially burnt ( 1ha)" in solid light green shading.
The green striped shading in relation to the "Unburnt/Partially burnt (< 0.05 ha)" category was inaccurately applied to polygons not less than 0.05 ha. This included polygons 1 and 2, which were approximately 0.35 ha and 0.08 ha respectively.
The solid dark green shading in relation to the "Unburnt/Partially burnt (< 0.05- 1 ha)" category was also not accurately applied insofar as it failed to show polygons greater than 0.05 ha but less than 1 ha because it was not applied to polygons 1 and 2.
A comment from Clohesy on the draft operational map stated that there was "no need to show the <0.05 ha polygons. This is part of the NHA". This is depicted in the image below:

[13]

Statutory Matters Required to be Taken into Account in Sentencing

Subsections 21A(2) and (3) of the CSPA sets out aggravating and mitigating factors that the Court must consider. The factors relevant to the facts of this case are: 21A Aggravating, mitigating and other factors in sentencing … (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows- (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if- (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)…
For offences created by the Forestry Act the Court is also required to consider the matters set out in s 13.12 of the BCA (s 69SB of the Forestry Act). The relevant factors contained in that provision are for present purposes: 13.12 Sentencing for offence - matters to be considered (1) In imposing a penalty for an offence against this Act or the regulations (or a native vegetation offence), 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 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 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, … (2) The court may take into consideration other matters that it considers relevant.
A prosecutor carries the onus of proving any aggravating factors beyond reasonable doubt, whereas a defendant must establish mitigating factors on the balance of probabilities (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] and Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [131]).
The appropriate sentence for FCNSW is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the case (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357).

[15]

Nature of the Offences

The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are relevant to the determination of the objective seriousness of the commission of an environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]).
The purpose of an IFOA is set out in s 69L of the Act as follows: 69L Purpose of integrated forestry operations approvals (1) The purpose of this Part is to provide a framework for forestry operations to which this Part applies - (a) that authorises the carrying out of those forestry operations in accordance with principles of ecologically sustainable forest management, and (b) current structure of regulation of forestry operations in New South Wales, including under that integrates the regulatory regimes for environmental planning and assessment, for the protection of the environment and for threatened species conservation, including threatened species, populations and ecological communities under Part 7A of the Fisheries Management Act 1994.
Forestry operations under IFOAs are to be carried out in accordance with principles of ESFM, defined in s 69L(2) of the Forestry Act to mean: (2) In this section - principles of ecologically sustainable forest management means the following - (a) maintaining forest values for future and present generations, including - (i) forest biological diversity, and (ii) the productive capacity and sustainability of forest ecosystems, and (iii) the health and vitality of native forest ecosystems, and (iv) soil and water quality, and (v) the contribution of native forests to global geochemical cycles, and (vi) the long term social and economic benefits of native forests, and (vii) natural heritage values, (b) ensuring public participation, provision of information, accountability and transparency in relation to the carrying out of forestry operations, (c) providing incentives for voluntary compliance, capacity building and adoption of best-practice standards, (d) applying best-available knowledge and adaptive management processes to deliver best-practice forest management, (e) applying the precautionary principle (as referred to in section 6(2)(a) of the Protection of the Environment Administration Act 1991) in preventing environmental harm.
The legislative framework establishes a pathway for FCNSW to perform authorised logging operations in an ecologically sustainable manner in specified areas. The Coastal IFOA directly incorporates the principles of ESFM into its conditions. As the EPA argued, SSOCs are essential for ensuring that harvesting activities in fire-impacted forests are carried out to meet ESFM principles and conform with the legislative framework.
The offence created by s 69SA of contravening the requirements of an approval has an essential role in the overall statutory scheme in preventing contravention of the Forestry Act and its objectives. The prohibitions in the regime for IFOAs are critical aspects of the regulatory framework for environmental protection.
The EPA correctly submitted that by conducting forestry operations contrary to the conditions imposed under the Coastal IFOA, FCNSW undermined the integrity of the regulatory system (Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75 ("Dampier State Forest") at [45]).
More importantly, by failing to properly map the ESAs, and by conducting prohibited activities within one of those ESAs, FCNSW acted inconsistently with the principles of ESFM by undermining forest values for future and present generations and by not delivering best-practice forest management.
FCNSW submitted that although polygon 2 was likely to have had a value and contributed, at least in part, to the principles of ESFM, the trees and vegetation did not have a greater value compared with those in the other areas of the compartment that were also only moderately affected by the bushfires. I reject this submission. As I have found below (at [102]-[104]), the vegetation within polygon 2 had a greater ecological value than the remainder of compartment 299A due to its refugial status.

[18]

The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Harvesting Offence

Section 13.12(1)(a) of the BCA requires the Court to take into account the extent of the harm caused, or likely to be caused, by the commission of an offence, and if harm was caused, the CSPA requires the Court to consider whether that harm was substantial (s 21A(2)(g) and (3)(a) of the CSPA).
The concept of harm in the context of environmental offences extends to both actual and potential harm (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[149]).
An analogous meaning of the term "harm" under s 194(1)(a) of the National Parks and Wildlife Act 1974 ("the NPWA") was considered by Preston J in Bentley (at [175]): 175 Harmfulness needs to be considered not only in terms of actual harm but also harm that is likely to occur in the future as a result of the commission of the offence. The seriousness lies not only in the actual death or damage to the plants of the threatened species and their habitats at the time of commission of the offence but also in the potential for harm which the acts constituting the picking of the plants might entail.
The harvesting activity the subject of the harvesting offence resulted in 53 trees being felled and harvested within polygon 2. As a result of the carrying out of this forestry operation there was also compaction and disturbance of ground cover elements.
The EPA submitted that the extent of the actual harm caused was substantial due to the compromised state of the Forest following the Black Summer bushfires and the consequential ecological importance of the areas designated as ESAs. It was in this context, that the EPA further contended that the severity of the potential cumulative harm caused by the unauthorised harvesting was substantial.
The EPA relied upon the evidence of Dr Wall who opined that the Black Summer bushfires caused: 1. approximately 77% of the Forest, including all of compartment 299A, to be impacted by various categories of fire severity as mapped by FESM; 2. major habitat loss in the surrounding landscape in the three to six months prior to the harvesting offence, as well as some level of impact within polygon 2; and 3. moderate canopy scorch and fire impacts to the understorey of the area marked as "unburned", namely, polygon 2.
Based on his observation of field images taken on 21 July 2020, video footage taken on site between 9 and 10 February 2021, commentary recorded by the EPA inspectors, and FESM mapping, Dr Wall opined that at the time of the commission of the offences, polygon 2 had a reasonably intact midstory canopy, including a non-epicormic canopy, that the harvested trees would have possessed relatively healthy foliage at the time of their harvest, and that the subject area would have provided an ongoing nesting and foraging habitat for forest dwelling fauna.
Moreover, following the Black Summer bushfires, due to the more severe canopy scorch and consumption in adjacent areas of the fire-affected Forest, any relatively intact areas of the Forest, including the mapped ESAs the subject of these proceedings, took on a greater level of significance from an environmental and ecological point of view, especially as a wildlife refugium for native plants and animals to recolonise. He considers that the area unlawfully harvested would have provided refuge for mammal, bird and reptile species and many invertebrate, especially less mobile species, those with small home ranges (that is, less than 1 ha), and those unable to cross burned areas due to risk of exposure or predation.
Wildfire refugia are places where living organisms and ecosystem processes can persist during and after major wildfires. There are two classes of wildlife refugia: 1. persistent wildfire refugia, which are associated with parts of the landscape that experience longer fire-return intervals or reduced fire severity than the surrounding matrix over the long term. These are unburned areas and partially burned areas that persist through multiple fires and facilitate persistence of fire-sensitive plants and animals within a forest ecosystem; and 2. transient wildfire refugia, which are associated with areas that are unburned or partially burned through a single fire event and are generally formed through stochastic factors rather than predictable or deterministic factors.
Dr Wall defined a "refugium" as follows: A refugium is an area of habitat within a landscape that has been relatively lightly impacted by a disturbance event such as a wildfire compared with other areas and continues to provide a level of ecological function that supports persistence of species during and after the event.
At the time of the offence, polygon 2 would have provided ongoing nesting and foraging habitat for forest dwelling fauna species. Dr Wall states that it was his "strong opinion" that the harm caused to the refugial status of the subject area was actual harm rather than likely harm.
It was his assessment that the actual harm to the Forest caused by the commission of the offences included: 1. the removal of 53 trees cut by machinery roughly 10 to 20 cm above ground level, comprising Silvertop Ash and Yellow Stringybarks, that likely ranged from 10 to 16 m in height and 10 to 25 years in age. This included the direct mortality of some trees that were not likely to have been fire affected; 2. the direct loss of living biomass. The total living above-ground biomass of the trees lost would have been between two to six tonnes; 3. the significant loss of canopy cover over the subject area. The total volume of crown foliage removed would have ranged between 1,500 m3 and 2,500 m3, representing 20% to 50% of all living trees within polygon 2; 4. the reduction in vertical connectivity between the living canopy of large trees and understorey vegetation due to the removal of foliage in the 10 to 16 m height category; 5. the crushing, compaction and disturbance caused by machinery movements of unburned or partially burned on-ground refuge including coarse woody debris, patches of leaf litter, earth mounds, shallow burrows, tunnels, grassy tussocks, low forbs and shrubs that persisted after the fires; and 6. actual harm to the status of polygon 2 as a transient wildlife refugium.
According to Dr Wall, this had the following likely ecological consequences: 1. during the harvesting operation, the direct loss and forced displacement of fauna from the area comprising polygon 2 into surrounding areas of the Forest, including birds, small mammals, reptiles and invertebrates. This increased their risk of exposure and predation; 2. following the harvesting operation, the direct loss of living biomass that provided protection, foraging and nesting habitat for various arboreal species. The reduction of habitat would have led to the loss of some fauna within polygon 2; 3. the reduction of vertical connectivity between the forest floor and canopy compromising the capacity of some species to forage; and 4. a reduction in the use of the subject area as a stepping stone between other unburned or partially burned areas of the Forest in and around the Forest, with less mobile species being more impacted.
In addition, as a result of the harvesting offence, there was potential harm to three (out of 13) threatened bird species known to inhabit the Forest: the Dusky Woodswallow; the Scarlet Robin; and the Varied Sitella. The potential harm included the forced displacement of these canopy-foraging birds due to loss of foraging substrate, nesting opportunities and foliage cover, as well as reduced opportunities to support these species post-fire.
Based on Dr Wall's report the EPA conceded, however, that the harvesting operations within polygon 2 would not have affected the long-term trajectory of post-fire recovery in the Forest and that the full assemblage of flora species would be present again within 10 years in the absence of further wildfires.
During the cross-examination of Dr Wall the following relevant evidence was elicited: 1. that the EPA had correctly delineated the boundaries of the ESAs (T5:32-34, 7:24-37 and 10:09-19); 2. that he did not conduct a site inspection of the subject area (T5:17-30); 3. the term "unburned" was employed by him to describe polygon 2 because it was the term provided to him by the EPA (T3:28-37 and 4:05-10). He adopted the term based on his view that polygon 2 contained "areas where the canopy wasn't unburned and areas where…it was partially burned" (T20:23-26). In other words, the term "unburnt" included partially burnt areas; 4. he had variously described the fire impact on polygon 2 as "medium" (T5:06-09), "relatively lightly" and "reasonably lightly burned" (T14:26-30 and 16-17:04). When asked to clarify these descriptions he said (T24:38-25:04): Q. And do you distinguish between your description, "reasonably lightly burned" and FESM's categorisation of medium? Can you clarify that? A. So FESM's definition of medium is understorey burn and light canopy burn. So the canopy is retained intact. And FESM's definition of light burn is, is understorey, light understorey burn with no canopy, no burn in the canopy at all. Q. When you use the description reasonably lightly burnt, which you have used throughout your cross-examination-- A. Yeah. Q. --are you using that term in some way that differs from the medium category FESM burning? That's what I am looking to clarify. A. Yes. I think that there were parts of, there would have been parts of the subject area that were, in, in relation to what FESM would describe as light and then there would be parts that were medium. So, and that, and that was, yeah, that's, that's right. 1. at a "strategic level", Dr Wall said that FESM was "very good" and that it was "subject to robust quality assurance procedures" (T5:42-6:07). He noted, however, that "FESM doesn't behave…at a very local scale" but that FESM assisted at a landscape level to identify the severity of the fire (T7:10-19); 2. by reference to FESM, Dr Wall agreed that the surrounding Forest conformed with the part-medium and part-high fire severity within polygon 2 (T8:07-9:08). However, having regard to photographic evidence he conceded that he was "not totally confident that FESM is telling the correct picture" and that polygon 2 was "light to moderately burnt" (T9:10-17). He later clarified this evidence by stating that at a landscape level, FESM demonstrated that the polygon had "proportionally more medium impacted fire scar than the surrounding country, which is more high to extreme" (T19:46‑20:12); 3. he could not determine the boundaries of the ESAs as shown in the photographs and video footage (T12:24-32, 14:33-36 and 16:01-05). Dr Wall conceded that it was possible that the photographs depicted areas outside the ESAs, but he stated that he was looking at the trees that were located in the subject site (T16:41-50). He also agreed that if the photographs depicted areas outside of the ESAs, then they indicated a medium intensity fire both inside and outside the polygon (T13:06-12); 4. based on the definition of "refugium" adopted in his report, he confirmed that polygon 2 would be a refugium if it was relatively lightly impacted by fire compared to the surrounding areas (T19:21-37); 5. in comparing polygon 2 to the surrounding Forest, he confirmed that it "experienced a fire that was a lot less severe than the surrounding areas" (T4:39-40). Later he said that, "the potential for plants to regenerate within the subject sites, because it was a relatively light fire, would have been higher than elsewhere in the forest where…the area was subject to extreme or high intensity fire" (T18:17-20); 6. there was a distinction between what FCNSW sought to describe as an "unburned area", being unburned areas on the ground marked for the purposes of mapping, and what he was describing as "unburned vegetation", being features of polygon 2 that persisted through the fires, such as unburned canopy (T20:46‑21:42); and 7. his estimate of the total biomass felled by the harvesting of the 53 trees within polygon 2 was based on an assumption that all of the tree canopy in polygon 2 was retained following the Black Summer bushfires. While he conceded that the photographs indicated that there had been some loss of canopy, he nonetheless believed that, consistent with FESM, most of the canopy was intact (T23:36-24:17).
FCNSW accepted that the offences caused both actual and potential harm, however, it cavilled with the refugial status of polygon 2. It submitted that the Court could not be satisfied on the totality of Dr Wall's evidence that polygon 2 was relatively lightly impacted by fire compared to the surrounding area, and therefore, that the harvesting occurred in a refuge area because: 1. FESM did not show a relative difference at a landscape level in the ESAs and their surrounds. This was supported by Dr Wall's description of both polygon 2 and the surrounding Forest as having experienced a "medium" fire severity; 2. there was no evidence to support Dr Wall's assumption that the EPA's delineation of the ESA was correct. Dr Wall made no inquiries of the EPA in this regard; 3. the photographic evidence depicted more than the ESAs and there was visually no difference between the vegetation inside and outside the ESAs. The evidence was therefore consistent with the conclusion that the severity of the fire outside the ESAs was no different than the severity inside; and 4. during cross-examination, Dr Wall departed from the language he had adopted in his report to describe the "unburned areas" by reference to FESM, by stating that the term meant "unburned canopy". This evidence was inconsistent with the operation of FESM which defined "medium" as involving 20-90% of scorched canopy, that is, there was still unburned canopy.
Having noting this evidence it is nevertheless the case that: 1. Dr Wall did not resile in cross-examination from his opinion that FESM supported his conclusion that polygon 2 experienced a relatively light burn compared to surrounding areas (T19:46-20:12); 2. FESM was not the only evidence that Dr Wall had relied upon for his conclusion that polygon 2 was a refugium. He also had regard to photographic and video evidence; and 3. whether the photographic and video evidence showed trees outside the polygon was not determinative because the polygon was not a hard boundary. At most, this indicated that the wildlife refugium was slightly bigger than the area of the polygon.
I accept Dr Wall's evidence that polygon 2 was a wildlife refugium. The varying language used by Dr Wall to describe the status of the fire severity within polygon 2 (including "medium" and "relatively light", or "unburned area" and "unburned canopy") does not warrant departure from this finding. Both Dr Wall's oral and written evidence was consistent with a conclusion that the fire impact was less severe within polygon 2 when compared to the surrounding Forest.
Accordingly, I reject FCNSW's challenge to the refugial status of polygon 2. The definition of refugium given by Dr Wall in his report, and accepted by FCNSW, was that of an area relatively lightly impacted compared to its surrounds. The very basis of the EPA's identification of polygon 2 as an ESA was that it was an "unburned area" within a surrounding burnt forest. It follows that it was relatively less burned than the surrounding areas, making it a wildlife refugium. That FCNSW seeks to challenge this evidence suggests that it does not accept a key aspect of the harm it has caused by the commission of the offences.
I am satisfied beyond reasonable doubt that the commission of the harvesting offence caused actual and potential harm in the manner set out in Dr Wall's report. I am further satisfied that the harm caused was substantial because the felling of the 53 trees not only had individual environmental value, but collectively, the trees represented a significant ecological cohort, the felling of which, together with the compaction and disturbance to ground cover, disrupted the refugial status of polygon 2 in a forest that had been severely impacted by bushfire (s 21A(2)(g) of the CSPA).

[21]

Practical Measures that Could Have Been Taken to Prevent or Mitigate the Environmental Harm

Section 13.12(1)(b) of the BCA requires the Court to take into account the practical measures that may be taken to prevent, control, abate or mitigate the harm caused by the commission of an offence.
The mapping offence arose due to Clark incorrectly inputting the spatial data into the operational map and failing to adequately review her work. Clark's supervisor, Clohesy, also failed to properly check her work despite being required to sign off on the operational map. The harvesting offence occurred due to the mapping offence. As stated above, both mistakes were inadvertent.
The EPA submitted that the principal preventative measure that FCNSW could have taken was to implement more robust processes in the finalisation of the operational map. This can hardly be cavilled with.
The EPA also contended that the SSOCs provided more liberal conditions than the previous obligations imposed on FCNSW under the Coastal IFOA in respect of surveying the proposed operational area. It argued that this ought to have indicated to FCNSW the importance of the spatial data set as a key determinative factor in the protection of an ESA. As a result, FCNSW should have been more diligent in entering the spatial data into its operational map, and moreover, it should have been supported by a process of verification.
I do not accept that the SSOCs augmented the care that FCNSW was required to take in ensuring that the spatial data was correct in respect of the ESAs. It was the status of the area as an ESA that demanded that the mapping be carried out with due care and diligence.
The EPA further submitted that FCNSW should have adopted Dr Wall's suggestion of undertaking a targeted rehabilitation process within a nearby part of the Forest by means of mitigating the harm caused by the commission of the offences. According to Dr Wall this would offset the actual loss of refugial status and the potential loss of threatened species habitat caused by the offending.
In relation to Dr Wall's proposed offset measure, Chaudhary stated that FCNSW had not considered the proposal in any detail (T28:31-29:13): Q. Sir, you've said that you're aware of the recommendations that Dr Wall made? A. Yes, in the report. Not specific details but I know there are recommendations in the report. Q. And you would have seen that he made four specific suggestions about ways in which the Forestry Corporation might undertake an offset measure for rehabilitation of a part of the forest? A. Yeah, I'm not aware of the specific details of what those offset measures are, yep. Q. But you read that part of his report, did you, at the time? A. I've read the, the report and the, particularly the executive summary in detail. I can't recall, sorry, exactly what those recommendations are offhand. Q. And is it you can't recall what the recommendations are because they haven't been given consideration within Forestry Corporation, is that the case? A. Look, in terms of this, you know, we, we've actually worked out how we avoid an error like this from happening again, so we focused on the root cause of not having this sort of issue occur again. That's what we've spent time doing. Q. Do you agree that preventing a recurrence of the offence is a slightly different issue to the issue of an environmental step that might be taken in order to offset the harm that was caused by the actual offence? Do you agree that's a separate issue? A. Yes. Q. And just dealing with my previous question, is it the case that you haven't considered within Forestry Corporation the specific suggestions made by Dr Wall for how that might be done with Yambulla State Forest? A. Yes, I, I cannot recall that we have, we have considered those in detail.
In terms of steps taken by FCNSW to avoid a similar incident occurring, Chaudhary's evidence was somewhat vague if not equivocal (T30:10-31): Q. And is that because nothing in particular has been done to avoid any future instance similar to this case? A. No, that's not the case. Q. Well, what action has been taken by Forestry to avoid-- A. Yep. Yep, so we, we've done a number of things. This particular issue arised out of the site-specific operating conditions, which was not the normal process of how we operated under the Coastal IFOA, and there was manual data entry as a result of that, and notwithstanding any of that, the error should not have occurred. But the process we have in place, there's no further data entry that is manual. It's, all the maps are automated. So we've taken that, we've improved that process if you like. We've also, since I've taken the CEO role, we've bolstered the Compliance Team, so I've actually centralised the Compliance Team into the corporation and we've got additional resourcing, we do proactive checks and audits, and, and that, that all has improved. There's also learnings out of these. Every time we have an instance like this, I sit with my team, we go through root cause analysis. And one of the learnings out of this particular one, it was a protocol amendment. And whenever we have one of these now, and we had one recently, we really put tools down and do a very different approach in trying to better understand the implications of the rule set before any harvesting is done. So we've implemented a number of things like that to avoid something like this from happening again.
FCNSW submitted that the error in mapping the spatial data arose out of "unique circumstances" that would not occur again. It asserted that the SSOCs required substantially more human input and analysis compared with the automated data management system under the Coastal IFOA. As Chaudhary attempted to explain (T31:05-33): Q. Now, you're aware that the mapping offence arose from a misinterpretation of spatial dataset information by your staff or Forestry staff? A. Yes. Yep. Q. And you would be aware, you referred to the fact that this arose under the site-specific operating conditions, but under the Coastal IFOA spatial dataset information is used frequently and very routinely. A. That's correct. Q. Yes. And so it's not, you're not suggesting that this kind of error couldn't happen again? A. No, I'm suggesting it should not happen again and that's because when you have a site-specific operating condition you have to develop new processes specific to each site, and the maps were manually updated, as I understand, in our geospatial system, whereas the - so we have a normal process of ...(not transcribable)... that automates that, that, that part of the process. This was a bit of a unique situation. Q. Well, it's not that unique, is it? It's not all spatial dataset data is automated. There is a need at times for a manual interpretation of spatial datasets that are provided by the EPA? A. Look, it's probably going beyond my understanding of it, but what I've learnt from my team is that the dataset is automated from a mapping point of view where the maps are prepared. The site-specific operating conditions - and bearing in mind this was all happening immediately after the Black Summer fires. This was I think one of the first SSOCs, so we were trying to develop the processes at the same time. This had a manual part to it, which I understand we don't have. It's part of the normal CIFOA, you know, processes.
I do not accept that the circumstances giving rise to the error in spatial mapping were unique because they required manual data entry. Rather, the error occurred due to a failure to implement adequate systems to properly transition to a new process as necessitated by the SSOCs. It is entirely conceivable, if not likely given the impact of climate change on native vegetation, that FCNSW will have the need for SSOCs again.
I find that FCNSW failed to take the preventative measure of implementing a robust process for reviewing the operational map to ensure that all of the ESAs were properly identified on it. In addition, I find that Chaudhary's evidence of the steps that FCNSW has taken to prevent future similar incidents was unhelpful given its highly generalised content.

[24]

Contrition and Remorse

Pursuant to s 21A(3)(i) of the CSPA, remorse is only a mitigating factor if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
In Waste Recycling Preston J suggested at least four ways by which an offender may demonstrate genuine contrition and remorse, which are relied upon without repetition (at [204], [210], [212] and [214]). I respectfully adopt and apply his Honour's analysis in the present proceedings.
In his affidavit, Chaudhary expressed contrition as follows: 10 On my behalf and that of FCNSW, I express sincere regret and remorse that FCNSW employees failed to properly prepare maps recording the ESA areas required for retention and that harvesting occurred within one of those areas. 11 I have read the report of Dr Julian Wall, date 9 November 2024. While I am aware that the precise nature of harm to Yambulla State Forest is still in dispute, I accept that the harvesting resulted in the harvesting of 53 trees that should have been retained, the loss of biomass and impacts on habitat after the fires. I also acknowledge that the failure to map the ESAs resulted in machinery entering one of the polygons in circumstances where this was not permitted. I regret to have caused any harm to the environment.
Chaudhary and Linda Broekman, FCNSW's Senior Compliance Manager, were present for the sentencing hearing on behalf of FCNSW (T1:18). However, Chaudhary was required to be present for cross-examination and left as soon as it was concluded.
The Chaudhary affidavit was filed late in breach of the Court's timetable. Leaving aside delay, the affidavit constitutes no more than a bare expression of contrition and remorse, the kind of which was cautioned against in Waste Recycling (at [203]). Moreover, FCNSW has not taken any steps to remediate the harm caused by the commission of the offences (Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51; (2013) 199 LGERA 1 at [80]). In addition, it has not wholly accepted responsibility for the environmental harm caused by the commission of the offences insofar as it rejects the refugial status of polygon 2.
I therefore give only limited weight to FCNSW's expression of contrition through Chaudhary.

[27]

Prior Convictions of FCNSW

FCNSW has a lengthy record of prior convictions for environmental offences (s 21A(2)(d) and (3)(e) of the CSPA): 1. on 12 June 2004 the Court convicted FCNSW (formally the Forestry Commission of New South Wales) of one offence against s 120(1) of the Protection of the Environment Operations Act 1997 ("the POEOA") for causing the construction of a dirt road in the Chichester State Forest in such a manner that parts of it collapsed and resulted in pollutants entering the waters of the forest. The Court ordered FCNSW to pay a monetary penalty of $30,000 and awarded costs to the EPA (Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751 ("Chichester State Forest")); 2. on 8 June 2011 the Court convicted FCNSW of one offence against s 175(1)(a) of the NPWA insofar as it breached a condition of a threatened species licence contrary to s 133(4) of that Act by conducting bushfire hazard reduction burning in the Smokey Mouse exclusion zone of the Nullica State Forest. The commission of the offence was caused by the inadequate shading of the exclusion zone on the relevant map. The Court ordered FCNSW to pay $5,600 to a project to improve the Smoky Mouse monitoring sites in the South East Forests National Park and awarded 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 ("Nullica State Forest")); 3. on 10 July 2013 the Court convicted FCNSW of one offence against s 120(1) of the POEOA for polluting waters and one offence against s 133(4) of the NPWA for breach of its threatened species licence arising from hazard reduction burns in the Mogo State Forest. The cause of the commission of the offences was inadequate training of persons involved in the preparation of a burn plan which resulted in an inaccurate plan. The Court ordered FCNSW to pay a total monetary penalty of $35,000 to be directed towards a project in the affected area. Legal and investigation costs were awarded to the EPA (Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101 ("Forestry Commission")); 4. on 5 October 2017 the Court convicted FCNSW of one offence against s 133(4) of the NPWA for breach of its threatened species licence arising from its failure to conduct a thorough search for rocky outcrops in the Glenbog State Forest, which were consequently not identified on the harvest plan. The Court fined FCNSW $8,000, ordered it to publish a notice in the Bega District News in relation to its commission of the offences, and awarded costs to the EPA (Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132 ("Glenbog State Forest")); 5. the Batemans Bay Local Court convicted FCNSW of one offence against s 69SA(1) of the Forestry Act for carrying out unlawful harvesting operations which resulted in the removal of four hollow bearing trees in Mogo State Forest. That Court fined FCNSW a total of $20,000 with 50% payable to the EPA as moiety, awarded the EPA costs in the amount of $84,340, and made a publication order (Environment Protection Authority v Forestry Corporation of NSW (Mogo State Forest prosecution) (Local Court (NSW), Dick LCM, 15 November 2023, unrep)); 6. on 9 June 2022 the Court convicted FCNSW of four offences contrary to s 2.14(4) of the BCA. The offences related to the carrying out of harvesting activities in koala and rainforest exclusion zones in the Wild Cattle Creek State Forest. The Court fined FCNSW a total of $135,600 with 50% payable to the EPA as a moiety, awarded costs in the sum of $150,000 to the EPA, and ordered FCNSW to publish notices in The Sydney Morning Herald and the Coffs Coast News of the Area in relation to its commission of the offences (Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 70 ("Wild Cattle Creek")); and 7. on 22 June 2022 FCNSW was convicted of three offences contrary to s 69SA(1) of the Forestry Act in that it failed to mark the boundary of an ESA in breach of its threatened species licence and consequently carried out harvesting operations in bat roosting exclusion zones in the Dampier State Forest. The Court fined FCNSW a total of $225,000, with $45,000 to be paid to the Australasian Bat Society Inc and 50% to be paid to the EPA as a moiety. The Court ordered FCNSW to pay the EPA's legal and investigation costs, and made publication orders (Dampier State Forest).
The EPA submitted that the two most comparable cases to the present proceedings were Dampier State Forest and Wild Cattle Creek.
FCNSW submitted that less weight ought to be attributed to its history of offending because it has not previously committed an offence similar to the harvesting and mapping offences.
FCNSW's submission must be rejected. It has a significant history of unlawfully carrying out forestry operations, which is exactly what the mapping and harvesting offences are (Wild Cattle Creek and Dampier State Forest). In addition, it has previously been convicted for failing to mark the boundary of ESAs and exclusion zones in breach of environmental approvals (Dampier State Forest and Wild Cattle Creek). I therefore take into account its extensive antecedents.

[29]

Deterrence, Denunciation and Retribution

The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at [569]-[570] per Brennan J).
The penalty imposed by the Court must serve as a general deterrent (Axer at [359], Camilleri's Stock Feeds at [701] and Bentley at [139]; and see also s 3A(b) of the CSPA). In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of sentencing for environmental crime (at [66]-[68]). Those principles are applied here without repetition.
Embedded in the determination of the appropriate sentence to be imposed on FCNSW is an element of general deterrence in order to ensure that those conducting forestry operations, including contractors engaged by FCNSW, operate in a manner that is compliant with licence conditions, does not offend the legislative regime regulating forestry operations in the State and that does not cause environmental harm (Camilleri's Stock Feeds at [701], Axer at [357], Wild Cattle Creek at [183] and Dampier State Forest at [91]).
In relation to specific deterrence (s 3A(b) of the CSPA), the EPA submitted that because FCNSW continues to hold the Coastal IFOA permitting it to undertake forestry operations, has a pattern of environmental offending, has not provided any compelling evidence of measures taken by it to prevent its reoffending, and does not accept the true extent of harm that it has caused by its offending, the penalty imposed upon FCNSW must serve to deter it from future criminality and reinforce its overriding responsibility to ensure that its activities are carried out lawfully (Veen at 477, R v Abboud [2005] NSWCCA 251 at [33] and R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [54]). I accept this submission and find that specific deterrence must form a part of the imposition of an appropriate penalty in these proceedings.
Finally, the Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and making FCNSW accountable for its actions.

[32]

Costs

On 19 March 2024 Pritchard J made an order, by consent, that FCNSW pay the EPA's costs for all proceedings as agreed or assessed. It is not apparent, however, what statutory power was exercised in making the order. Pursuant to s 215 of the Criminal Procedure Act 1986 ("CPA"), a Court generally has the power to make an order for professional costs only at the conclusion of summary proceedings. Section 215(1) relevantly states: 215 When professional costs may be awarded to prosecutor (1) A court may at the end of summary proceedings order that the accused person pay the following costs to the registrar of the court, for payment to the prosecutor, if the accused person is convicted or an order is made against the accused person - (a) such professional costs as the court considers just and reasonable,…
Accordingly, out of abundant caution I will order FCNSW to pay the EPA's professional costs pursuant to s 257B of the CPA.
The EPA submitted that the quantum of any monetary penalty should not be reduced to take account of the award of costs merely because FCNSW has agreed to pay the EPA's costs voluntarily (Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50] and Secretary, Department of Planning and Environment v Khouzame [2024] NSWLEC 54 at [125]-[126]).
An award of costs does not result in a commensurate reduction in any monetary penalty imposed. Rather, I have taken the fact of the payment of costs by FCNSW, which both the EPA and FCNSW agreed will be substantial, into account as a factor in mitigation.
The EPA additionally sought an order for its investigation costs and expenses pursuant to s 13.23 of the BCA in the sum of $5,932.40. Section 13.23 relevantly provides that: 13.23 Orders regarding costs and expenses of investigation (1) The court may, if it appears to the court that the Office of Environment and Heritage has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the Environment Agency Head the costs and expenses so incurred in such amount as is fixed by the order. … (3) In this section - costs and expenses, in relation to the investigation of an offence, means the costs and expenses - (a) in conducting any inspection, test, measurement or analysis, or (b) of transporting, storing or disposing of evidence, during the investigation of the offence.
The amount claimed by the EPA is made up of expenses that it submits were incurred during the investigation of the offences, including conducting interviews, issuing and reviewing responses to statutory notices, and inspecting the Forest.
FCNSW contended that the expenses described by the EPA did not fall within the definition of "costs and expenses" in s 13.23 of the BCA, because: 1. the EPA's description of the costs did not provide sufficient detail for the Court to be satisfied that they fell within the ambit of s 13.23 of the BCA (T65:17-32); 2. the EPA is a publicly funded regulator. The evidence was obtained by the EPA's internal investigators and was funded as part of monies allocated by the Government. Properly construed, the provision relates to expenses associated with engaging external service providers to assist in the EPA's investigation, not for reimbursement of resources already within the EPA's budget; and 3. similarly, there is no warrant to construe the provision as authorising an award of costs for the EPA officers who carried out the investigation as part of their ordinary duties. To interpret the section in this way would result in s 13.23(3) having no work to do.
In my view, because the burden rests with the EPA to establish beyond reasonable doubt that the costs claimed fall within s 13.23(3) of the BCA and because the Court has not been furnished with sufficient evidence to support the EPA's assertions that the sum of $5,932.40 is made up of "costs and expenses" that meet that statutory definition contained in that provision, I decline to make an order for investigation costs.

[78]

The spatial data sets that were used in the preparation of the operational map the subject of the mapping offence were provided to FCNSW on 26 March 2024. They were emailed by the EPA's Principal Policy Officer, Roger Bluett, to FCNSW, including to Dean Kearney, Daniel Tuan, Clohesy and Justin Williams.
Along with the spatial data sets, the email enclosed a PDF Map. The attachments were described as "maps and accompanying data layers of 'unburned areas', 'partially burned areas'...that apply to the site specific operating conditions for the Yambulla State Forest compartments 299A". The EPA was satisfied that the data set adequately showed "unburned" and "partially burned" areas within compartment 299A.
On 26 March 2020 Clohesy forwarded the data set contained in the email to FCNSW's Harvest Planner, Julia Clark. Clark was instructed to interpret and compare the spatial data set against the previous data provided by the EPA, which she had created on 18 March 2020, to confirm the accuracy of the operational maps for the compartment.
At 11:03 am on 26 March 2020 Clark submitted the operational map to Clohesy for approval. She stated in her email that "layers for compartment 299A checked and are the same as previously applied". During the course of the EPA's interview with Clark as part of its investigation into the commission of the offences, Clark admitted that she made a mistake with the data when preparing the map (discussed below at [61]). Clohesy approved the operational map at 11:34 am. However, FCNSW did not check the approved operational map against the PDF map supplied by the EPA.
Clohesy was aware of the requirement that polygons over 0.05 ha were to be protected in accordance with the SSOCs and reflected on any operational map.
Two areas that were required to be identified, namely, an "unburned" and "partially burned" area, were not included on the operational map prepared by FCNSW. The areas should have been identified on the operational map as two polygons.
The sizes of the polygons were approximately 0.35 ha to the east ("polygon 2") and 0.08 ha to the west ("polygon 1"). Because they were greater than 0.05 ha and less than one ha in size, they were Category 1 ESAs under the SSOCs.
The omitted polygons from the operational map are depicted below with polygon 1 in pink and polygon 2 in blue, both indicated by red arrows:

[141]

(e) at a "strategic level", Dr Wall said that FESM was "very good" and that it was "subject to robust quality assurance procedures" (T5:42-6:07). He noted, however, that "FESM doesn't behave...at a very local scale" but that FESM assisted at a landscape level to identify the severity of the fire (T7:10-19);

(f) by reference to FESM, Dr Wall agreed that the surrounding Forest conformed with the part-medium and part-high fire severity within polygon 2 (T8:07-9:08). However, having regard to photographic evidence he conceded that he was "not totally confident that FESM is telling the correct picture" and that polygon 2 was "light to moderately burnt" (T9:10-17). He later clarified this evidence by stating that at a landscape level, FESM demonstrated that the polygon had "proportionally more medium impacted fire scar than the surrounding country, which is more high to extreme" (T19:46‑20:12);

(g) he could not determine the boundaries of the ESAs as shown in the photographs and video footage (T12:24-32, 14:33-36 and 16:01-05). Dr Wall conceded that it was possible that the photographs depicted areas outside the ESAs, but he stated that he was looking at the trees that were located in the subject site (T16:41-50). He also agreed that if the photographs depicted areas outside of the ESAs, then they indicated a medium intensity fire both inside and outside the polygon (T13:06-12);

(h) based on the definition of "refugium" adopted in his report, he confirmed that polygon 2 would be a refugium if it was relatively lightly impacted by fire compared to the surrounding areas (T19:21-37);

(i) in comparing polygon 2 to the surrounding Forest, he confirmed that it "experienced a fire that was a lot less severe than the surrounding areas" (T4:39-40). Later he said that, "the potential for plants to regenerate within the subject sites, because it was a relatively light fire, would have been higher than elsewhere in the forest where...the area was subject to extreme or high intensity fire" (T18:17-20);

(j) there was a distinction between what FCNSW sought to describe as an "unburned area", being unburned areas on the ground marked for the purposes of mapping, and what he was describing as "unburned vegetation", being features of polygon 2 that persisted through the fires, such as unburned canopy (T20:46‑21:42); and

(k) his estimate of the total biomass felled by the harvesting of the 53 trees within polygon 2 was based on an assumption that all of the tree canopy in polygon 2 was retained following the Black Summer bushfires. While he conceded that the photographs indicated that there had been some loss of canopy, he nonetheless believed that, consistent with FESM, most of the canopy was intact (T23:36-24:17).

[152]

Section 13.12(1)(b) of the BCA requires the Court to take into account the practical measures that may be taken to prevent, control, abate or mitigate the harm caused by the commission of an offence.
The mapping offence arose due to Clark incorrectly inputting the spatial data into the operational map and failing to adequately review her work. Clark's supervisor, Clohesy, also failed to properly check her work despite being required to sign off on the operational map. The harvesting offence occurred due to the mapping offence. As stated above, both mistakes were inadvertent.
The EPA submitted that the principal preventative measure that FCNSW could have taken was to implement more robust processes in the finalisation of the operational map. This can hardly be cavilled with.
The EPA also contended that the SSOCs provided more liberal conditions than the previous obligations imposed on FCNSW under the Coastal IFOA in respect of surveying the proposed operational area. It argued that this ought to have indicated to FCNSW the importance of the spatial data set as a key determinative factor in the protection of an ESA. As a result, FCNSW should have been more diligent in entering the spatial data into its operational map, and moreover, it should have been supported by a process of verification.
I do not accept that the SSOCs augmented the care that FCNSW was required to take in ensuring that the spatial data was correct in respect of the ESAs. It was the status of the area as an ESA that demanded that the mapping be carried out with due care and diligence.
The EPA further submitted that FCNSW should have adopted Dr Wall's suggestion of undertaking a targeted rehabilitation process within a nearby part of the Forest by means of mitigating the harm caused by the commission of the offences. According to Dr Wall this would offset the actual loss of refugial status and the potential loss of threatened species habitat caused by the offending.
In relation to Dr Wall's proposed offset measure, Chaudhary stated that FCNSW had not considered the proposal in any detail (T28:31-29:13):

[174]

(a) on 12 June 2004 the Court convicted FCNSW (formally the Forestry Commission of New South Wales) of one offence against s 120(1) of the Protection of the Environment Operations Act 1997 ("the POEOA") for causing the construction of a dirt road in the Chichester State Forest in such a manner that parts of it collapsed and resulted in pollutants entering the waters of the forest. The Court ordered FCNSW to pay a monetary penalty of $30,000 and awarded costs to the EPA (Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751 ("Chichester State Forest"));

(b) on 8 June 2011 the Court convicted FCNSW of one offence against s 175(1)(a) of the NPWA insofar as it breached a condition of a threatened species licence contrary to s 133(4) of that Act by conducting bushfire hazard reduction burning in the Smokey Mouse exclusion zone of the Nullica State Forest. The commission of the offence was caused by the inadequate shading of the exclusion zone on the relevant map. The Court ordered FCNSW to pay $5,600 to a project to improve the Smoky Mouse monitoring sites in the South East Forests National Park and awarded 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 ("Nullica State Forest"));

(c) on 10 July 2013 the Court convicted FCNSW of one offence against s 120(1) of the POEOA for polluting waters and one offence against s 133(4) of the NPWA for breach of its threatened species licence arising from hazard reduction burns in the Mogo State Forest. The cause of the commission of the offences was inadequate training of persons involved in the preparation of a burn plan which resulted in an inaccurate plan. The Court ordered FCNSW to pay a total monetary penalty of $35,000 to be directed towards a project in the affected area. Legal and investigation costs were awarded to the EPA (Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101 ("Forestry Commission"));

(d) on 5 October 2017 the Court convicted FCNSW of one offence against s 133(4) of the NPWA for breach of its threatened species licence arising from its failure to conduct a thorough search for rocky outcrops in the Glenbog State Forest, which were consequently not identified on the harvest plan. The Court fined FCNSW $8,000, ordered it to publish a notice in the Bega District News in relation to its commission of the offences, and awarded costs to the EPA (Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132 ("Glenbog State Forest"));

(e) the Batemans Bay Local Court convicted FCNSW of one offence against s 69SA(1) of the Forestry Act for carrying out unlawful harvesting operations which resulted in the removal of four hollow bearing trees in Mogo State Forest. That Court fined FCNSW a total of $20,000 with 50% payable to the EPA as moiety, awarded the EPA costs in the amount of $84,340, and made a publication order (Environment Protection Authority v Forestry Corporation of NSW (Mogo State Forest prosecution) (Local Court (NSW), Dick LCM, 15 November 2023, unrep));

(f) on 9 June 2022 the Court convicted FCNSW of four offences contrary to s 2.14(4) of the BCA. The offences related to the carrying out of harvesting activities in koala and rainforest exclusion zones in the Wild Cattle Creek State Forest. The Court fined FCNSW a total of $135,600 with 50% payable to the EPA as a moiety, awarded costs in the sum of $150,000 to the EPA, and ordered FCNSW to publish notices in The Sydney Morning Herald and the Coffs Coast News of the Area in relation to its commission of the offences (Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 70 ("Wild Cattle Creek")); and

(g) on 22 June 2022 FCNSW was convicted of three offences contrary to s 69SA(1) of the Forestry Act in that it failed to mark the boundary of an ESA in breach of its threatened species licence and consequently carried out harvesting operations in bat roosting exclusion zones in the Dampier State Forest. The Court fined FCNSW a total of $225,000, with $45,000 to be paid to the Australasian Bat Society Inc and 50% to be paid to the EPA as a moiety. The Court ordered FCNSW to pay the EPA's legal and investigation costs, and made publication orders (Dampier State Forest).

[178]

The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at [569]- [570] per Brennan J).
The penalty imposed by the Court must serve as a general deterrent (Axer at [359], Camilleri's Stock Feeds at [701] and Bentley at [139]; and see also s 3A(b) of the CSPA). In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of sentencing for environmental crime (at [66]-[68]). Those principles are applied here without repetition.
Embedded in the determination of the appropriate sentence to be imposed on FCNSW is an element of general deterrence in order to ensure that those conducting forestry operations, including contractors engaged by FCNSW, operate in a manner that is compliant with licence conditions, does not offend the legislative regime regulating forestry operations in the State and that does not cause environmental harm (Camilleri's Stock Feeds at [701], Axer at [357], Wild Cattle Creek at [183] and Dampier State Forest at [91]).
In relation to specific deterrence (s 3A(b) of the CSPA), the EPA submitted that because FCNSW continues to hold the Coastal IFOA permitting it to undertake forestry operations, has a pattern of environmental offending, has not provided any compelling evidence of measures taken by it to prevent its reoffending, and does not accept the true extent of harm that it has caused by its offending, the penalty imposed upon FCNSW must serve to deter it from future criminality and reinforce its overriding responsibility to ensure that its activities are carried out lawfully (Veen at 477, R v Abboud [2005] NSWCCA 251 at [33] and R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [54]). I accept this submission and find that specific deterrence must form a part of the imposition of an appropriate penalty in these proceedings.
Finally, the Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and making FCNSW accountable for its actions.

Environment Protection Authority v Forestry Corporation of New South Wales

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