Environment Protection Authority v Green

Environment Protection Authority v Green - [2024] NSWLEC 81 - NSWLEC 2024 case summary — Zoe

JUDGMENT

The Defendant Mr Green has pleaded guilty to three offences arising under s 60ZZA(1) of the Local Land Services Act 2013 (NSW) (LLS Act). The offences arise from native forestry operations carried out by contractors, Whites Timber Products Pty Ltd and White's Haulage Pty Ltd, charged separately, in two different areas (the harvesting areas) on the Defendant's farming property known as Doolondondale, Kybeyan Road, Kybeyan NSW (the Property).
On 17 November 2023 the Defendant entered guilty pleas to three charges as follows: 1. Proceedings 2023/00296757, being a charge that between about 20 September 2021 and about 22 November 2021, Michael Green failed to retain the minimum number of habitat trees required (being at least 20 habitat trees per 2 hectares), in contravention of clause 4.2(1) of the PNF Code and s 60ZZA(1) of the Local Land Services Act 2013 (NSW) (LLS Act) (Charge 1). 2. Proceedings 2023/00296758, being a charge that between about 20 September 2021 and about 22 November 2021, Michael Green reduced the stand basal area (in the southern harvesting area) to a mean below the minimum limit of 12 m2 /ha in Table A, in contravention of clause 3.1(1) of the PNF Code (read together with clause 3.1(2)) and s 60ZZA(1) of the LLS Act (Charge 2). 3. Proceedings 2023/00296760, being a charge that between about 20 September 2021 and about 22 November 2021, Michael Green reduced the stand basal area (in the northern harvesting area) to a mean below the minimum limit of 16 m2 /ha in Table A, in contravention of clause 3.1(1) of the PNF Code (read together with clause 3.1(2)) and s 60ZZA(1) of the LLS Act (Charge 3).
On 15 December 2023 Whites Timber Products Pty Ltd entered guilty pleas to equivalent charges to charges 1-3 in proceedings 2023/00296768, 2023/00296769 and 2023/00296771.
On 15 December 2023 White's Haulage Pty Ltd entered guilty pleas to equivalent charges to charges 1-3 in proceedings 2023/00296779, 2023/00296780 and 2023/00296782.
A plea of guilty is an admission of all the elements of an offence. The Prosecutor must establish beyond reasonable doubt any matter not agreed. The Evidence Act 1995 (NSW) does not apply in sentencing matters unless an order under s 4(2) is made.
The offences charged are strict liability offences. It is not part of the elements of the offence that the Defendant intended to commit the offence (s 60ZZA(3)(a) of the LLS Act does not apply). As the offence is a native vegetation offence as defined under the Biodiversity Conservation Act 2016 (NSW) (BC Act) the objects of the BC Act and the provisions in Part 13 Criminal and civil proceedings apply to these offences.

[3]

Local Land Services Act 2013 (NSW)

The LLS Act provides relevantly as follows: Part 1 Preliminary … 3 Objects of Act The objects of this Act are as follows - … (e) to ensure the proper management of natural resources in the social, economic and environmental interests of the State, consistently with the principles of ecologically sustainable development (described in section 6 (2) of the Protection of the Environment Administration Act 1991), (f) to apply sound scientific knowledge to achieve a fully functioning and productive landscape, … Part 5B Private native forestry Division 1 Preliminary 60ZQ Definitions: Part 5B (1) In this Part - forestry operations means - (a) logging operations - namely the cutting and removal of timber from land for the purpose of timber production, or … 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, … private native forestry code of practice, in relation to forestry operations, means a code made under Division 2 in relation to those operations and in force. private native forestry plan means a private native forestry plan approved (or taken to be approved) under this Part and in force. … 60ZR Objects of Part The objects of this Part are - (a) to authorise the carrying out of private native forestry in accordance with principles of ecologically sustainable forest management, and (b) to protect biodiversity and water quality (including threatened species, populations and ecological communities under Part 7A of the Fisheries Management Act 1994) in connection with private native forestry operations, and (c) to enable landholders to carry out forestry operations in a sustainable manner in areas of the State to which this Part applies, and … Division 4 Enforcement and other provisions 60ZZA Offence of contravening requirements of plan or code of practice (1) A person who contravenes a requirement imposed by a private native forestry plan or by an applicable private native forestry code of practice is guilty of an offence. Maximum penalty - (a) for an offence that was committed intentionally and that caused or was likely to cause significant harm to the environment - (i) in the case of a corporation - $5 million, or (ii) in the case of an individual - $1 million, or (b) for any other offence - (i) in the case of a corporation - $2 million, or (ii) in the case of an individual - $500,000. (2) This section applies to requirements (however described) imposed on relevant landholders or on persons carrying out forestry operations and whether arising before, during or after the carrying out of forestry operations. (3) The higher maximum penalty under this section does not apply unless - (a) the prosecution establishes (to the criminal standard of proof) that the offence was committed intentionally and caused or was likely to cause significant harm to the environment, and (b) the court attendance notice or application commencing the proceedings alleged that those factors applied to the commission of the offence. ... 60ZZB Enforcement functions of EPA (1) The Environment Protection Authority has the function of monitoring the carrying out of forestry operations to which this Part applies and the function of enforcing compliance with the requirements for forestry operations under this Part. (2) The Biodiversity Conservation Act 2016 contains provisions relating to the enforcement of this Part, and accordingly - (a) functions under Part 11 of this Act (Powers of authorised officers) are not exercisable in relation to any matter arising under this Part, and (b) proceedings for an offence against this Part or the regulations under this Part cannot be instituted under Part 12 of this Act (Enforcement provisions) and that Part does not apply to any such alleged offence. …

[4]

Biodiversity Conservation Act 2016 (NSW)

The BC Act provides relevantly as follows: Part 1 Preliminary … 1.3 Purpose of Act The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular - (a) to conserve biodiversity at bioregional and State scales, and (b) to maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change and provide for the needs of future generations, and (c) to improve, share and use knowledge, including local and traditional Aboriginal ecological knowledge, about biodiversity conservation, and (d) to support biodiversity conservation in the context of a changing climate, and (e) to support collating and sharing data, and monitoring and reporting on the status of biodiversity and the effectiveness of conservation actions, and (f) to assess the extinction risk of species and ecological communities, and identify key threatening processes, through an independent and rigorous scientific process, and (g) to regulate human interactions with wildlife by applying a risk-based approach, and … 1.6 Definitions (1) In this Act - … damage habitat includes damage caused by - (a) removing or relocating any part of the habitat, and (b) activities that prevent the continued use of the habitat by animals. … habitat includes - (a) an area periodically or occasionally occupied by a species or ecological community, and (b) the biotic and abiotic components of an area. … native vegetation legislation means any of the following provisions and any regulations or other instruments or requirements issued or made under those provisions - … (b) Part 5B (Private native forestry) of the Local Land Services Act 2013, … native vegetation offence means any offence under the native vegetation legislation. … Part 13 Criminal and civil proceedings Division 1 Criminal proceedings … 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, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee, (f) whether the offence was committed for commercial gain. (2) The court may take into consideration other matters that it considers relevant. … Division 3 Ancillary court orders … 13.20 Orders for restoration and prevention (1) The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow) - (a) to prevent, control, abate or mitigate any damage to animals or plants, or their habitat, caused by the commission of the offence, or (b) to make good any resulting damage to animals or plants or their habitat, or (c) if the offence relates to damage to the habitat of a threatened species or ecological community or to a declared area of outstanding biodiversity value - to retire biodiversity credits of a specified number and class (if applicable), or (d) to prevent the continuance or recurrence of the offence.

[5]

Crimes (Sentencing Procedure) Act 1999 (NSW)

Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) states: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors. The sentence must reflect both the objective circumstances of the offence and the personal (subjective) circumstances of the defendant. In Chief Executive, Office of Environment and Heritage v Fish (No 2) (2014) 202 LGERA 188; [2014] NSWLEC 67 I stated: 9 The Court must apply the instinctive synthesis approach to sentencing by identifying all the relevant factors, discussing their importance and making a "value judgment as to what is the appropriate sentence given all the factors of the case": Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] unanimously following Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51] per McHugh J. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant: see Veen v R [1979] HCA 7; (1979) 143 CLR 458 at 490; Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472-473, 490-491. The sentence should not exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances": Veen (No 2) at 472, 485-486, 490-491, 496; Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

[6]

Statement of Agreed Facts

The Statement of Agreed Facts (SOAF) filed on 12 April 2024 (annexures and figures omitted) stated as follows: BACKGROUND The landowner 1. At all material times, Michael James Green (DOB: 31 May 1958) was the registered owner of the property 'Doolondondale', Kybeyan Road, Kybeyan NSW 2631 (the Premises). The contractors 2. Whites Timber Products Pty Ltd ACN 647 042 751 (Whites Timber) was contracted by Michael Green to undertake forestry operations on the Premises pursuant to a Timber Supply Agreement signed 24 September 2021. At all material times, the sole director of this company was Dennis Gordon White. 3. Whites Timber engaged White's Haulage Pty Limited ACN 105 861 327 t/as Whites Harvesting (White's Haulage) as a subcontractor, to carry out forestry operations on the Premises. At all material times, the sole director of this company was Dennis White's son, Justin Rodney White. Harvesting Area 4. Forestry operations were conducted in two distinct areas on the Premises, being the: a. northern harvesting area within Lot 29 DP 750547 and Lot 30 DP 750547. This area is approximately 20 hectares and prior to the relevant forestry operations, contained 'Tablelands Hardwood' trees more than 25 metres tall (the northern harvesting area); and b. southern harvesting area within Lot 96 DP 750547. This area is approximately 22 hectares and, prior to the relevant forestry operations, contained 'Tablelands 2 Hardwood' trees less than 25 metres tall (the southern harvesting area). This area had been subject to forestry operations in around the 1990s. Together, the Harvesting Area. Applicable Private Native Forestry Code 5. The Private Native Forestry Code of Practice for Southern NSW, published in the Gazette on 8 February 2008 (PNF Code), was in force at all material times. 6. At all material times, the PNF Code included the following clauses: "2.1 Forest Operation Plan … (5) A Forest Operation Plan must contain the following: … (b) A written component that provides: … (vii) details of tree marking activities (where applicable) … 3.1 Single tree selection and thinning (1) Single tree selection and thinning operations must not reduce stand basal area below the limits specified in Table A. (2) The minimum stand basal areas in Table A must be calculated in accordance with the Silvicultural Guidelines for the Code of Practice for Private Native Forestry prepared by Department of Environment and Climate Change and available at www.environment.nsw.gov.au/pnf. Table A: Minimum stand basal areas for single tree selection and thinning operations Broad forest type Stand height (70% of stand basal area was removed; ii. loss of animals shortly after the forestry operation, from exposure, predation and competition; iii. forced displacement of many species due to removal of most living biomass that provided protection, foraging habitat, roosting habitat, and nesting habitat; iv. forced displacement of many bird species due to loss of vertical connectivity between living canopy of large trees and understorey vegetation via removal of all mid-storey shrubs and all young eucalypts; v. forced displacement of many species due to loss of lateral connectivity between patches of forest or individual trees because of the magnitude of gapping (i.e. creation of forest clearings); and vi. mortality and/or forced displacement of frogs due to loss of moisture in the ground layer. j. The Forestry Operations also resulted in the following potential environmental harm to hollow-dependent animals, ground-dwelling mammals, arboreal mammals (including bats), birds, and frogs that occupied the forest immediately adjacent to Harvesting Area: i. high wind events associated with storm activity could result in a heightened level of habitat degradation and loss (e.g. windthrow of standing trees); ii. increased exposure to the elements (wind, rain, frost) and increased exposure to predation by native and exotic fauna could result in further losses of animals; and iii. potentially higher likelihood of desiccation along the edge of the Harvesting Area, as air movement and sunlight penetration can be much higher along forest edges throughout the day. Harm to bats k. As a result of the Forestry Operations there was likely harm to bats that are known to reside in forests in the local region, due to a major reduction in the volume of foliage and decorticating bark, and the number of hollows, with a commensurate loss of bat roost sites. l. The Forestry Operations also resulted in potential harm to bats that are likely to have occupied forests immediately adjacent to (i.e. within about 20 metres of) Harvesting Area. This is because trees within these zones are more exposed to windthrow during severe storms. Harm to reptiles m. The Forestry Operations resulted in potential harm to some reptile species that resided in the Harvesting Area due to significant disturbance to the ground layer (including rocks), and loss of tree and shrub biomass. Wildfire refugium n. The Premises is adjacent to Wadbilliga National Park. In 2019-2020, Wadbilliga National Park was extensively impacted by bushfires. Given its proximity, the Harvesting Area would have acted as a wildfire refugium for fauna species displaced by the Wadbilliga National Park bushfires. Resultantly: i. The Harvesting Area would have provided refuge for resident and displaced native animals during and immediately after the wildfire, and a place from which species could recolonise into surrounding forest as it recovered. ii. These animals would have perished from the Forestry Operations or shortly after the Forestry Operations due to exposure or predation. The likelihood of predation is much higher where there is no adjacent refuge habitat. The opportunity to forage for food in surrounding forests is compromised where there is little foraging habitat nearby. iii. The Forestry Operations would have compromised the refugial capacity of the Premises through significant loss of canopy cover, living foliage (including nectar and fruits), living stems, branches and bark, tree hollows; and damp and protected understorey/litter/coarse woody debris. 69. In his 14 September 2023 expert report (based on a field visit on 14 July 2023), Associate Professor Brack's found that: a. There is no observable successful seedling regeneration. The only regeneration was coppice on some tree stumps (e.g., green shoots on the base of some stumps). While no formal regeneration survey was undertaken, it is estimated that less than 50% of any random 10 m2 plots would be considered as "stocked". Therefore, it is unlikely that the Harvesting Area will achieve the 50% stocking threshold within two years of harvesting as required by the PNF Code, especially given harvesting occurred 20-22 months previously. It is noted however that Brown Barrel regeneration is known for being variable, and can often only appear after lengthy delays of 3-5 years. b. After the Forestry Operations, stand basal area was reduced substantially to about 20% of the initial stand basal area, which significantly impacts habitat availability, shelter, food resources and biodiversity. Similarly, the number of trees per hectare substantially dropped from an average stocking of 175 - 500 down to a very low level of less than 10 trees ha-1. c. Depending on weather, such a reduction in stand basal area would also negatively impact erosion and water quality as rainfall would not be slowed by a contiguous canopy and would run over the ground at higher speed, collecting debris and reducing infiltration. Although not specifically mentioned in the PNF Code, the substantial reduction in stand basal area will increase CO2 and other greenhouse gas emissions more than if the harvesting had been compliant, especially as large volumes of waste wood were left on site to decay. d. Reduction below the minimum number and diversity of habitat trees is likely to cause intense competition for the limited number of habitats/food resources and consequently lead to the loss of less aggressive indigenous species, as well as reduce tree species diversity. PRACTICAL MEASURES TO PREVENT, CONTROL, ABATE OR MITIGATE ENVIRONMENTAL HARM 70. The following practical measures could have been employed to prevent, control, abate, or mitigate the environmental harm: a. Pre-harvest marking of trees should have been undertaken in accordance with Silvicultural Guidelines, to ensure an adequate number of recruitment trees were retained in situ. b. Improved operational response to basal area sweeps that were undertaken as the Forestry Operations progressed to ensure that minimum basal areas limits were not breached. c. Felling of non-commercial non-eucalypts should have been avoided, to maintain a high plant species richness and a higher canopy cover, and to facilitate vertical and lateral connectivity. d. The timing of the Forestry Operations could have been delayed until autumn, to mitigate the impact of harvesting on juvenile animals, including fledglings and nestlings.

[7]

Defendant's affidavit sworn 21 May 2024

The Defendant's affidavit sworn on 21 May 2024 states that the Defendant has lived on the Property nearly all his life. The Property has been in his family since 1836 and the Defendant has owned the Property for 47 years. The Defendant has three sons two of whom live in the area and are engaged in farming. The Defendant is hoping through succession planning to assist them so they may continue farming on some of the family's original land grant. Mixed farming has been undertaken on the Property through the generations. Currently the Defendant conducts predominately sheep and cattle grazing for meat and wool production. Timber harvesting has always been an aspect of the farming operation to assist with farm income.
The Defendant is a member of the NSW Farmers Federation and has been an active member of the Nimmitabel and Numeralla Fire Brigades since secondary school. The Defendant has also been an active member of the Rural Lands Protection Board, now Local Land Services (LLS), including as a director of the local branch for six years during which time he helped further the Co-operative Wild Dog/Fox Management Plan. The Defendant has been involved in community activities as a member of the Nimmitabel Show Society for 47 years and through active involvement with the Nimmitabel Campdraft for over 30 years.
The Defendant has integrated a range of land management techniques, Indigenous cultural practices and developed a relationship with a local ecologist to implement projects for the Property's ecological management. The forested areas of the Property have increased during his management. During the 2019-2020 fires the Defendant helped suppress spot fires which saved his Property and a significant area of the adjoining Wadbilliga National Park/ Brogo Wilderness for which he received a certificate of recognition.
The Defendant has participated in a number of studies and projects including a Doolondondale bird study in 2012, involvement with the Kybeyan Co-operative Wild Dog Program and engaging with the Upper Snowy Landcare network to support the movement of koalas across the Property.
The Defendant makes the Property available to the National Parks and Wildlife Services and LLS for their biannual feral animal shooting programs. He works with Indigenous land managers in running his farm and is vigilant of invasive species of flora and fauna on the Property.
The Defendant requested a survey of vegetation regrowth in the areas that have been harvested by a person named Regina Roach. Ms Roach's occupation is not specified. (I note that the report dated 18 May 2024 was not prepared in accordance with the expert witness code of conduct.) The report identifies regrowth vegetation in the harvesting areas.
The Defendant noted different regimes have governed how and when tree harvesting could take place on the Property. A southern area of the Property which the Defendant did not own at the time was harvested extensively in and around 1990. The most recent commercial harvesting on the Property was in 2007-8. Under the regime at the time forestry operations were permitted to remove 50% of standing vegetation. Approximately 375ha was harvested at that time.
Since harvesting was stopped the Defendant has employed a different contractor, South Coast Timber, and continued harvesting in an area between the northern and southern harvesting areas. Forestry in those areas is now nearly complete. The Defendant took a very active role in the planning and processing of the harvesting. He is unaware of any issues with this area of harvest.
The Defendant is prepared to lock up an area for conservation that would otherwise have been part of future harvesting activity of 73ha. If covered by a conservation agreement there would be an overall reduction in the value of the Property.

[8]

Defendant's oral evidence

In evidence in chief the Defendant stated that he attended an LLS workshop and obtained information about the Private Native Forestry Code of Practice for Southern NSW (PNF Code) (published in the Gazette on 8 February 2008). The Defendant selected Whites Timber Products Pty Ltd and White's Haulage Pty Ltd as contractors as they had experience working in the local area. During operations the Defendant visited the harvesting areas sporadically. The Defendant stated his busiest month was in October and therefore he did not make many visits in that month. A long wet period began in November which made it difficult to visit the harvesting areas. The Defendant stated there was a gap between stopping operations on 22 November 2021 and contacting LLS on 14 December 2021 because logs and machinery needed to be removed and the Defendant required a finished product to do a full assessment.
The Defendant stated that he has since engaged another contractor to harvest other areas of the Property. The Environment Protection Authority (EPA) has come out to inspect such operations and has not raised any concerns.
In cross-examination, the Defendant stated he made more casual visits to the harvesting areas in November when he could given the wet conditions, once a week at a maximum. He stopped operations in November because of concerns with the quantity and quality of the operations. He was concerned about the extent of the clearing taking place and the number of trees being removed. He was also concerned with the basal threshold and that the minimum number of habitat trees was not being left. He was aware of the PNF Code requirements from the seminars held by LLS and the fact sheets they supplied and the Defendant had signed the PNF Plan with LLS in August 2021. He understood that forestry operations must be carried out in accordance with the PNF code. During his inspections he could not go onto the whole area of operations on the harvesting areas due to safety concerns. He could see the timber on the log dump. His observations were mostly confined to what he could see from the onsite office.
The Defendant had inspected the areas of northern and southern operations in October. Generally, he would visit the northern harvesting area more often than the southern harvesting area. The Defendant agreed that he had some concerns in October which he raised with the contractors about habitat trees not being marked and basal area density not being complied with. The Defendant had observed that no trees were marked for retention to which the contractors responded they knew what they were doing. The Defendant stated he did not have a good working relationship with the contractors. He was not authoritative enough with the contractors nor confident as he felt constrained by contractual requirements and was new to the PNF scheme.
When asked if he thought of contacting LLS in November the Defendant responded that he understood their role did not include making site visits to adjudicate disagreements. He did not approach them until 14 December 2021 because he needed to assess the situation once the finished product was known.

[11]

Nature of the offence

The three offences offend against the objects in the LLS Act and the BC Act. The objects of the LLS Act in Pt 1 ss 3(e), (f) of the LLS Act include the management of natural resources in accordance with the principles of ecologically sustainable development (as defined in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW)) and to apply scientific knowledge to achieve a productive landscape. The objects of Pt 5B Private native forestry include in s 60ZR(a) authorising private native forestry in accordance with the principles of ecologically sustainable forestry management, defined to include maintenance of forests for present and future generations, values such as forest biological diversity, sustainability of forest ecosystems, the health and vitality of native forest ecosystems, and native heritage values, s 60ZQ(1) LLS Act. Another object in s 60ZR(b) is to protect biodiversity and water quality in connection with private native forestry operations. In s 1.3 of the BC Act the purpose of the Act includes conservation of biodiversity and the maintenance of diversity and quality of ecosystems inter alia.
The SOAF identifies the scheme for the management of private native forestry under the LLS Act. As the Prosecutor submitted, the PNF Code is an essential ingredient of the regime in Pt 5B of the LLS Act, which seeks to regulate the carrying out of a private native forestry operation. The Code plays a significant role in the scheme of Pt 5B. It contains safeguards and minimum standards/requirements (such as the minimal stand basal area requirements), is intended to protect forests and ensures the carrying out of forestry operations in accordance with principles of ecologically sustainable forest management as identified in the SOAF at par 6.
The relevant requirements of the PNF Code are identified in the SOAF par 6, including the required tree density (minimum stand basal areas for single tree selection and thinning operations). For (tree) stand height of less than 25m, 12m2/ha is required. For (tree) stand height of more than 25m, 16m2/ha is required. Controls in s 4.2 of the PNF Code for the retention of habitat trees are identified. The Silvicultural Guidelines for the Code of Practice for Private Native Forestry (February 2013) (Silvicultural Guidelines) which inform the calculation of basal area are identified in the SOAF par 8 and identify that the requirements are not set to achieve maximum yield but have been developed to take into account all forest values.
The Defendant agreed to a private native forestry plan with LLS, SOAF pars 12-14. The agreement under the PNF Code between the Defendant and the contractors through the making of a forestry operation plan is identified in SOAF pars 21-25. No habitat trees were marked in the survey plan undertaken by the contractors, SOAF par 26.
The SOAF at pars 63-64 identifies in detail how the three charges give rise to breaches of the PNF Code according to Associate Professor Brack. Charge 1 concerns the failure to preserve sufficient density of habitat trees, identifying the importance of such trees for nesting, shelter and food for a wide variety of fauna. Charges 2 and 3 arise from the failure to maintain the required number of trees to a significant extent in the northern harvesting area and southern harvesting area, as identified in the SOAF par 64(b), (c), contrary to the PNF Code.
The offences clearly undermine the objects of the statutory scheme for the sustainable operation of native forestry on private land.

[13]

Extent of the harm caused or likely to be caused by the commission of the offences, s 13.12(a) BC Act

The harm identified in the supplementary SOAF arises from all three offences collectively. Harm is not defined in the LLS Act or the BC Act. The greater the environmental harm caused the greater the culpability of a defendant, per s 21A(2)(g) of the CSP Act which provides that substantial harm is an aggravating factor in sentencing.
In Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 4) (2014) 212 LGERA 1; [2014] NSWLEC 74 at [49] I considered the meaning of likely harm as 'a real or not remote chance or possibility regardless of whether it is less or more than a fifty percent chance' citing Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 at [44].
In Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Preston CJ held at [145]: 145 Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life.
In Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71 at [26] the terms likely harm and potential harm were found to be of similar effect in the context of s 215 of the POEO Act which is in similar terms to s 13.12 of the BC Act and preceded the BC Act.
The northern harvesting area is approximately 20ha. The southern harvesting area is 22ha and was harvested previously in the 1990s. The Supplementary SOAF identifies actual, likely and potential harm in the harvesting areas according to Dr Wall ecologist. The actual impacts of reduction in nesting/breeding habitat, foraging habitat, overall canopy cover, vertical and lateral connectivity reduction, moisture in the ground affecting frog habitat and the capacity for the forest ecosystem to recover in the long term are identified. Actual harm includes harm to the structure and function of the forest system including from the loss of recruitment trees, harm to hollow-dependent animals, ground-dwelling mammals and arboreal mammals, birds and frogs. Such harm will take a long time to repair due to the absence of recruitment trees. Likely environmental harm caused includes harm to bats.
Potential environmental harm arises in adjacent forest areas, from greater exposure to the elements resulting in further habitat loss, increased predation and harm to bats and reptiles. Loss of wildfire refugium for fauna species displaced by the Wadbilliga National Park bushfires through loss of canopy cover, living foliage and protected understorey is identified.
Following an inspection on 14 July 2023, Associate Professor Brack found there was no observable successful seedling regeneration, only coppice on some tree stumps in the harvesting areas. It is unlikely the harvesting areas will achieve the 50% stocking threshold within 2 years as required by the PNF Code. The effects of the substantial reduction in stand basal area are identified as habitat, shelter, food and biodiversity loss and a low number of trees per hectare with consequent negative effects of erosion and decline in water quality. A likely reduction in numbers of less aggressive indigenous species due to competition for habitat and food and reduction in species diversity is identified. The loss of forest will result in the increase in carbon dioxide and other greenhouse gases.
The Defendant submitted that the Supplementary SOAF makes clear that the harm cannot be apportioned as between the offences as may be possible in relation to other offences. The nature of the charges themselves means that the harm, particularly concerning charge 1 (loss of habitat trees), is unable to be distinguished from the harm caused by charges 2 and 3. It is relevant to the application of the sentencing principles that the three offences overlap. On a purely mathematical basis the reduction of trees in the northern harvesting area was slightly less (16m2/ha to 10.7m2) compared to the southern harvesting area (12m2/ha to 6.3m2/ha).
The Defendant submitted it is also important to bear in mind that the carrying out of any forestry operations will, by their very nature, cause harm. So much is contemplated by the guidelines that are put in place. The Silvicultural Guidelines acknowledge that the 'minimum disturbance thresholds' provide an optimum range, SOAF at par 8. To acknowledge this harm is not to discount or disregard the actual and potential harm caused by this offending. The harm occasioned by going outside of the optimum range provided is the harm that the Court is concerned to address. A recognition that any forestry operation will cause some disturbance, is simply to note that, when considering the extent of harm caused by the offences, it is relevant for the Court to turn its mind to the condition of the receiving environment in order to accurately assess the extent of the harm. This is not to suggest that there is something mitigating in favour of the Defendant because of the state of the environment. The Defendant acknowledges and takes responsibility for the impact of his offending conduct on his land.
The Defendant submitted that another feature of the southern harvesting area is that it had previously been logged (Supplementary SOAF par 69a). As the Supplementary SOAF makes clear, this has an impact on the assessment of the area's ability to regenerate. Even an expert of the standing of Associate Professor Brack is unable to distinguish between the impact of that earlier harvesting on the current regeneration as distinct from the impact of the current offences. [The basis for this submission based on the Supplementary SOAF is unclear.]
I find that the actual, likely and potential for harm to the environment caused by the three offences collectively is substantial or likely to be substantial. While I note the southern harvesting area had been harvested previously in the early 1990s that difference is reflected in different basal area controls applicable to that area because the trees are smaller. Those controls were substantially breached in the course of the forestry operation resulting in markedly less trees in that area. The reduction in tree numbers in the northern harvesting area was substantial in the context of the basal area controls. The failure to identify habitat trees also had significant environmental harm consequences. The Defendant's submission that the harm caused by the offences should be measured in relation to the environmental harm of lawful forestry activities cannot have much weight given the extent of harm agreed in the Supplementary SOAF. The Supplementary SOAF is directed to the circumstances underpinning the three offences. The extent of harm caused by the three offences collectively is an aggravating factor under s 21A(2)(g) of the CSP Act.

[23]

Assistance to authorities, ss 21A(3)(m), 23

Section 21A(3)(m) of the CSP Act identifies assistance to authorities as a mitigating factor. Section 23 provides as follows: 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters - (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed) (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must - (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason. (5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.
The Sentencing Bench Book states: [12-215] Broad scope of s 23(1) Section 23 takes an expansive approach to what constitutes "assistance": R v XX [2017] NSWCCA 90 at [53]. …voluntary disclosure to law enforcement authorities of otherwise unknown guilt also falls within the ambit of s 23: CMB v Attorney General for NSW (2015) 256 CLR 346 at [41], [71]; Panetta v R [2016] NSWCCA 85 at [33]-[34]; Le v R [2019] NSWCCA 181 at [50]-[52]; Ahmad v R [2021] NSWCCA 30 at [24]. A discount granted for this type of assistance is commonly referred to as an Ellis discount (from R v Ellis (1986) 6 NSWLR 603 discussed further below at [12‑218] Voluntary disclosure of unknown guilt - Ellis discounts). … [12-218] Voluntary disclosure of unknown guilt - the Ellis principle In R v Ellis (1986) 6 NSWLR 603, decided before the enactment of s 23, the court held that an offender who voluntarily discloses their involvement in serious crime about which the police had no knowledge was entitled to a "significant added element of leniency". In R v Ellis, not only did the respondent plead guilty, but he voluntarily disclosed to police for the first time his involvement in seven armed robberies. The degree of leniency afforded to an offender in cases of this kind will vary depending on the likelihood of discovery of the offence: R v Ellis, per Street CJ at 604. Although since at least CMB v Attorney General for NSW (2015) 256 CLR 346, it has been accepted that assistance of this kind may entitle an offender to a reduced sentence under s 23, R v Ellis and the cases which have considered it provide guidance as to why such assistance may justify a sentence discount under s 23: see R v SS [2021] NSWCCA 56 at [43]-[44], and the discussion at [59]-[65]. In Ryan v The Queen (2001) 206 CLR 267, McHugh J discussed the extent to which leniency may be extended pursuant to R v Ellis, saying at [15], that: The statement in Ellis that "the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency" is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case. …
I note that ss 23(2)(f), (g), (h) of the CSP Act do not apply, in particular that the Defendant has not obtained any benefit in providing the assistance that he did. Considering subs (a)-(e), (i) the Defendant provided substantial assistance to the authorities in notifying LLS of his concerns in December 2021, consenting to an inspection of the harvesting areas on the Property and fully co-operating in the subsequent investigation. Had the Defendant not approached LLS with this reliable information it is unlikely that the offences would have come to the attention of the relevant authorities including the EPA. The reporting to the LLS was timely and followed the Defendant stopping the forestry operation on his land due to his concerns. A substantial reduction in penalty is warranted in light of these circumstances and will be identified below in accordance with s 23(4).

[25]

Deterrence

General deterrence is an important element for an offence of this nature. I considered the meaning of general deterrence in Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 at [98]-[99] as follows: 98 Section 3A(b) of the CSP Act states that one of the purposes for a court in imposing a sentence is to prevent crime by deterring offenders. Sentences imposed in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. 99 The sentence must ensure that the offender is held accountable for its actions and is adequately punished. The sentence must deter the offender from committing similar offences in the future. Further, the sentence of the court needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597…
Specific deterrence as referred to in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477 (Mason CJ, Brennan, Dawson, Toohey JJ) refers to a defendant who displays: uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.
This is the Defendant's first offence of any kind. While the Defendant continues to employ contractors to undertake forestry operations on his land, his actions in advising LLS of the circumstances which have given rise to these offences demonstrate that he is aware of his obligations under the PNF Code. A repetition of these types of offences is unlikely in these circumstances and specific deterrence does not need to be considered.

[27]

Application of totality principle

The Sentencing Bench Book states: [8-200] The principle of totality Where a court sentences an offender for more than one offence … the aggregate or overall sentence must be "just and appropriate" to the totality of the offending behaviour. The High Court has quoted DA Thomas' exposition of the common law principle (below) on at least three occasions, the most recent being Johnson v The Queen (2004) 78 ALJR 616 at [18]: In Mill [Mill v The Queen (1988) 166 CLR 59 at 63] Wilson, Deane, Dawson, Toohey and Gaudron JJ adopted a statement from Thomas, Principles of Sentencing … at pp 56-57 [footnotes omitted]: "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'." … The court in EPA v Barnes, above, at [50] suggested that if the sentencer believes that the totality principle requires an adjustment to the fines which may otherwise be appropriate, the amount of each fine should be altered by the approach taken by the first instance judge in Johnson v The Queen (2004) 78 ALJR 616 (discussed below), of reducing individual sentences and then aggregating each to determine a total fine amount.
The three charges arise from the same course of conduct being the private native forestry operation in two separate areas on the Property. The offences are inter-related given their temporal, spatial and causal connections. As identified above in [54], the significant environmental harm caused by all three offences has of necessity to be considered collectively in that attribution of harm to any individual offence is not feasible given the nature of the activity giving rise to the offences. These circumstances suggest that the totality principle should be applied in setting the level of fines to be imposed as the overall culpability of the Defendant in relation to the three offences needs to be considered in determining the penalties for each offence.

[32]

Orders

The Court orders: 1. In proceedings 2023/00296757: 1. The Defendant is convicted of the offence against section 60ZZA(1) of the Local Land Services Act 2013 (NSW) as charged. 2. The Defendant is to pay a fine in the amount of $52,500. 1. In proceedings 2023/00296758: 1. The Defendant is convicted of the offence against section 60ZZA(1) of the Local Land Services Act 2013 (NSW) as charged. 2. The Defendant is to pay a fine in the amount of $37,500. 1. In proceedings 2023/00296760: 1. The Defendant is convicted of the offence against section 60ZZA(1) of the Local Land Services Act 2013 (NSW) as charged. 2. The Defendant is to pay a fine in the amount of $22,500. 1. In proceedings 2023/00296757, 2023/00296758 and 2023/00296760: 1. Pursuant to section 122 of the Fines Act 1996 (NSW) a moiety of 50% of any fine determined by the Court be paid to the Prosecutor. 2. Pursuant to section 257B of the Criminal Procedure Act 1986 (NSW), the Defendant is to pay the Prosecutor's legal costs as agreed or as may be determined under section 257G of the Criminal Procedure Act. 1. Pursuant to sections 13.20(1)(a) and 13.20(1)(b) of the Biodiversity Conservation Act 2016 (NSW), the Defendant, at his expense, is to: 1. Immediately cease any forestry operations, grazing, and other agricultural activities in the Harvesting Area until at least three years after compliance with Order 5(d) (or unless otherwise approved by the Environment Protection Authority). 2. If grazing cannot otherwise be prevented, the Defendant is to erect fencing around the Harvesting Area to comply with this order. 3. Within three weeks of the date of this order, notify the Environment Protection Authority in writing of independent and suitably qualified expert(s) the Defendant proposes to engage for the purposes of compliance with Order 5(d). If the Environment Protection Authority provides notice the proposed expert(s) are not approved, the Defendant must provide the Environment Protection Authority with a list of other independent and suitably qualified expert(s) within two weeks of such notice. If the Environment Protection Authority does not approve these further proposed experts, the Environment Protection Authority may nominate suitably qualified expert(s) for the Defendant to engage. If the Environment Protection Authority nominates such suitably qualified expert(s), the Defendant must engage the expert(s). 4. Within three months of the Environment Protection Authority approving suitably qualified expert(s) the Defendant is to obtain advice from the expert(s) as to the most appropriate method of dealing with the Harvesting Area to promote regeneration and the optimal timeframe for implementing that method. This advice is to be provided to the Environment Protection Authority, in writing, within one week of it being obtained by the Defendant. The Defendant is to commence and complete the implementation of the expert's advice in accordance with the expert's advice (and within the optimal timeframe proposed by the expert but by no later than 12 months after the date of this order). 1. Harvesting Area means: the areas within Lot 29 DP 750547, Lot 30 DP 750547 and Lot 96 DP 750547 subject to forestry operations between about 20 September 2021 and about 22 November 2021, as shown in the map attached and marked Annexure A.

[74]

24. The stand basal area, as outlined in the preceding paragraph, was assessed by Dennis and Justin White based on basal area plotting they carried out over the PNF Area prior to forestry operations.

25. The FOP states in several locations, 'Trees to be protected will be marked as set out in the tree marking checklist at the end of this FOP'. This included marking habitat trees.

26. Based on the surveying carried out by Dennis and Justin White, no 'significant' trees were identified in the Harvesting Area. No habitat trees were ever marked in the Harvesting Area (either physically or using GPS). The only tree that was taped for identification had an eagle's nest.

Forestry Operations

27. Between about 20 September 2021 and about 22 November 2021, forestry operations (as described in the PNF Plan) were carried out in the Harvesting Area by Whites Timber and White's Haulage as provided for under the Timber Supply Agreement (Forestry Operations).

28. While these Forestry Operations were being carried out, there was no other clearing conducted at the Premises.

Michael Green

29. Michael Green says that, prior to or during Forestry Operations, he requested that Whites Timber and White's Haulage ensure 'any trees that would be suitable mill logs in 15 years be left unharvested.' Michael Green also advised Dennis White the objective of the Forestry Operations was to get as much royalty as possible by selecting trees appropriate for sawlogs which were of higher value.

30. In the period from about 27 September 2021 to about 1 November 2021, Michael Green occasionally inspected the Forestry Operations.

31. Michael Green inspected Forestry Operations after 1 November 2021, however access to the Harvesting Area became difficult due to wet conditions and safety concerns.

32. During inspections, Michael Green provided instructions to Whites Timber and White's Haulage regarding the Forestry Operations.

33. Whites Timber provided Michael Green with two tax invoices dated 4 October 2021, one invoice dated 7 December 2021 and one further invoice dated 17 January 2022 for timber harvested during the Forestry Operations. These four invoices reflected an amount of money paid or owing to Michael Green from Whites Timber from their carrying out of the Forestry Operations.

White's Haulage

34. White's Haulage carried out the logging, harvesting and haulage of trees during Forestry Operations.

35. White's Haulage checked the stand basal area using the 'angle count sweep' method. Justin White states that this was done three to four times per day during Forestry Operations. According to Justin White, the results of basal plots were provided verbally and not recorded.

36. During Forestry Operations, White's Haulage attended to identifying significant landscape features and threatened species.

Whites Timber

37. Whites Timber liaised with Michael Green regarding the Forestry Operations.

38. Whites Timber engaged a contractor, namely White's Haulage.

39. Whites Timber planned the Forestry Operations including preparing the FOP, preparing the boundaries, and marking trees in the Harvesting Area.

40. Whites Timber was responsible for the onsite management of the Forestry Operations.

41. White's Haulage conducted the day-to-day Forestry Operations under the instruction of Whites Timber, including implementation of the FOP, harvesting, basal area calculations, identification of any significant landscape features, threatened species and populations.

42. Whites Timber arranged the selling of the harvested products.

Dennis and Justin White

43. During the course of the Forestry Operations, both Justin and Dennis White were onsite managers. Dennis White's role was monitoring Forestry Operations and ensuring employees were 'maximising their job and hopefully not taking too many trees out' and for getting every saw log possible.

44. Dennis White attended the Premises two to three times per week to inspect Forestry Operations and provide instructions to persons harvesting in the Harvesting Area, including with respect to basal area calculations and implementation of the FOP.

45. Dennis White and Justin White gave instructions to White's Haulage and Whites Timber employees with respect to basal area calculations and retention trees, including for operators to refer to PNF Maps and machine GPS systems and avoid interference with retention trees.

46. Dennis White had daily telephone calls with Justin White with respect to Forestry Operations, including discussing compliance with the PNF Code and FOP.

47. According to Dennis White, White's Haulage operators were experienced enough to identify any habitat trees without his instructions.

48. Justin White supervised White's Haulage's employees: however, he believes that he was 'basically an employee' of Whites Timber.

Post-harvesting

49. Around 22 November 2021, Michael Green stopped the Forestry Operations and restricted Whites Timber and White's Haulage having access to the Premises, after a disagreement between Michael Green and Whites Timber.

50. For several weeks after the Forestry Operations concluded on 22 November 2021, felled timber was removed from the Premises by Whites Timber and White's Haulage.

51. A variety of timber products, including large and small saw logs, salvage logs and pulp logs, were harvested from the Forestry Operations. Pulp logs were the most harvested.

52. At least 8,800 tonnes of pulpwood-grade timber and 985 m3 of sawlogs was harvested during Forestry Operations.

53. Throughout the Forestry Operations and after they concluded, harvested products were sold by White's Haulage and Whites Timber to timber product suppliers, including Pentarch Forestry and South Coast Timbers.

INVESTIGATION OF FORESTRY OPERATIONS

Inspections

54. Around 14 December 2021, Michael Green contacted Christine Thomson of LLS and raised concerns about the condition of the Harvesting Area following Forestry Operations, including over-harvesting, the impact on council roads and Whites Timber not providing him with log dockets.

55. On around 3 March 2022, Jeff Boyd, (Manager - Private Native Forestry, LLS) attended the Premises at the request of Michael Green. Jeff Boyd inspected the Harvesting Area, accompanied by Michael Green, Joe Green (Michael Green's son) and Brian Swan (Michael Green's acquaintance).

56. During the inspection, Jeff Boyd carried out a rapid basal assessment and determined the southern harvesting area had a maximum stand basal area of 9 m2/ha, being an area where the minimum stand basal area retention under the PNF Code was 12 m2/ha. Jeff Boyd advised Michael Green that Forestry Operations would need to be referred to the EPA due to insufficient habitat and recruitment tree retention and low retained basal area.

57. On around 3 March 2022, Jeff Boyd contacted EPA Officer Steen Gyrn and reported the concerns raised about the Forestry Operations.

58. On 25 March 2022, EPA officers Vanessa O'Keefe and Steen Gyrn inspected the Harvesting Area and completed basal assessments. Two of the three stand basal area assessments identified potential non-compliance with minimum stand basal area retention under the PNF Code. During this inspection, EPA officers took photographs of the Harvesting Area: Annexure A is a copy of two photographs of the Harvesting Area, during this inspection.

59. On 10 June 2022, EPA officers Vanessa O'Keefe, Steen Gyrn and Wade Rogers, using 19 random plots identified by Aaron Garrett (Geographic Information System & Technical Support Officer, EPA), completed a stand basal area assessment in the southern harvesting area using a dendrometer and angle count sampling. During this inspection, EPA officers took photographs of the southern harvesting area: Annexure B is a copy of two photographs taken during this inspection.

60. On 30 June 2022, EPA officers Vanessa O'Keefe and Wade Rogers, using 19 random plots identified by Aaron Garrett, completed a stand basal area assessment of the northern harvesting area. The average stand basal area from 19 plots was 9 m2/ha. The EPA officers also completed an additional waypoint (WP6) in the southern harvesting area and calculated the average stand basal area for the southern harvesting area, using this plot and the plots from the inspection on 10 June 2022, to be 4.76m2/ha. During this inspection, EPA officers took photographs of the Harvesting Area: Annexure C is a copy of two photographs taken during this inspection.

61. On 27 April 2023, EPA officers Vanessa O'Keefe and Dr Sandie Jones conducted a fourth inspection of the Premises. In the course of their inspection, they looked at the retention of recruitment and hollow-bearing trees within the northern and southern harvesting areas, as well as the heights of remaining trees. Within the northern harvesting area, they counted the number of habitat trees located within two separate 0.2-hectare plots and one 2-hectare plot. Seventeen habitat trees were found within the 2-hectare plot, four habitat trees were found within one 0.2-hectare plot and no habitat trees were found within the other 0.2-hectare plot.

62. On 14 July 2023, EPA officers Vanessa O'Keefe, Breanna Reynolds, and Dr Sandie Jones conducted a fifth inspection of the Harvesting Area with the expert, Associate Professor Cristopher Brack.

CONTRAVENTIONS OF THE PNF CODE

63. On 14 September 2023, Associate Professor Brack provided an expert opinion with respect to Forestry Operations and compliance with the PNF Code. Associate Professor Brack has been teaching and conducting research into forestry and natural resource assessment and management at various universities, including the Australian National University, since 1994. Prior to his university positions, Associate Professor Brack worked with the Forestry Commission of NSW/State Forests, including as a Senior Inventory Officer, for 16 years.

64. Following a site inspection on 14 July 2023 and a review of the EPA's inspection reports (among other things), Associate Professor Brack found that:

[75]

i. "Habitat trees provide nesting, shelter and food resources for a wide diversity of fauna. Hollow-bearing trees are essential resources for a number of birds and arboreal mammals including bats. The [PNF] Code provides for a minimum number of hollow-bearing trees where ever possible as well as "recruitment" trees to provide new hollows as currently existing hollow-bearing trees fail."

ii. Some of the harvested trees had diameter at breast height greater than 65 cm which indicates that they likely contained hollows. However, there was no evidence that habitat and recruitment trees were marked at the Premises.

iii. "It is good practice for trees that are to be retained for habitat to be physically marked, and the Code states that "details of tree marking activities" must be included in any Forest Operation Plan ([PNF] Code Section 2.1(5)(b)(vii)). The FOP [Forestry Operation Plan] in this case notes that "H" and "R" would be prominently marked on trees for this purpose. However, such marks were not obvious during my field inspection. No such marking could be identified on any of the photographs taken during the trip nor on those submitted by EPA inspection teams, and transcripts from interviews indicate that no physical marking was carried out."

iv. Based on the current average tree diameter at breast height, it is estimated that, prior to the Forestry Operations, the basal area was approximately 35 m2 ha-1 with approximately 175 - 500 trees per hectare.

v. Even taking the most conservative assumption that all standing, living trees left in the harvesting area are habitat or recruitment trees, the number of residual living trees (including potential but unidentified habitat trees, trees left to grow on and reject trees) is less that the number of habitat trees alone required under Table D of the PNF Code (i.e., 20 trees every 2 ha, or on average 10 ha-1). Table D of the PNF Code directs that where the total number of hollow bearing trees is less than 10 trees per 2 ha, sufficient additional recruitment trees must be retained to bring the total up to 20 trees per 2 ha.

vi. The northern harvesting area has a sample mean of 6.6 trees ha-1, with less than 25% of observations having 10 or more trees ha-1 (Figure 10) There is a 95% probability that the population mean is 5 - 8 standing, living trees ha-1, some of which may be hollow-bearing. The southern harvesting area contains slightly more living trees (Figure 11) with a sample mean of 7.7 and 25% of the observations having 10 or more trees ha-1 with a 95% probability that the population mean is 6 - 9 standing, living trees ha-1. Although upper confidence range is close to 10, there is a 99% probability that the population number is less than 9.69 living, standing trees ha-1."

[97]

The Defendant's affidavit sworn on 21 May 2024 states that the Defendant has lived on the Property nearly all his life. The Property has been in his family since 1836 and the Defendant has owned the Property for 47 years. The Defendant has three sons two of whom live in the area and are engaged in farming. The Defendant is hoping through succession planning to assist them so they may continue farming on some of the family's original land grant. Mixed farming has been undertaken on the Property through the generations. Currently the Defendant conducts predominately sheep and cattle grazing for meat and wool production. Timber harvesting has always been an aspect of the farming operation to assist with farm income.
The Defendant is a member of the NSW Farmers Federation and has been an active member of the Nimmitabel and Numeralla Fire Brigades since secondary school. The Defendant has also been an active member of the Rural Lands Protection Board, now Local Land Services (LLS), including as a director of the local branch for six years during which time he helped further the Co-operative Wild Dog/Fox Management Plan. The Defendant has been involved in community activities as a member of the Nimmitabel Show Society for 47 years and through active involvement with the Nimmitabel Campdraft for over 30 years.
The Defendant has integrated a range of land management techniques, Indigenous cultural practices and developed a relationship with a local ecologist to implement projects for the Property's ecological management. The forested areas of the Property have increased during his management. During the 2019-2020 fires the Defendant helped suppress spot fires which saved his Property and a significant area of the adjoining Wadbilliga National Park/ Brogo Wilderness for which he received a certificate of recognition.
The Defendant has participated in a number of studies and projects including a Doolondondale bird study in 2012, involvement with the Kybeyan Co-operative Wild Dog Program and engaging with the Upper Snowy Landcare network to support the movement of koalas across the Property.
The Defendant makes the Property available to the National Parks and Wildlife Services and LLS for their biannual feral animal shooting programs. He works with Indigenous land managers in running his farm and is vigilant of invasive species of flora and fauna on the Property.
The Defendant requested a survey of vegetation regrowth in the areas that have been harvested by a person named Regina Roach. Ms Roach's occupation is not specified. (I note that the report dated 18 May 2024 was not prepared in accordance with the expert witness code of conduct.) The report identifies regrowth vegetation in the harvesting areas.
The Defendant noted different regimes have governed how and when tree harvesting could take place on the Property. A southern area of the Property which the Defendant did not own at the time was harvested extensively in and around 1990. The most recent commercial harvesting on the Property was in 2007-8. Under the regime at the time forestry operations were permitted to remove 50% of standing vegetation. Approximately 375ha was harvested at that time.
Since harvesting was stopped the Defendant has employed a different contractor, South Coast Timber, and continued harvesting in an area between the northern and southern harvesting areas. Forestry in those areas is now nearly complete. The Defendant took a very active role in the planning and processing of the harvesting. He is unaware of any issues with this area of harvest.
The Defendant is prepared to lock up an area for conservation that would otherwise have been part of future harvesting activity of 73ha. If covered by a conservation agreement there would be an overall reduction in the value of the Property.

[98]

In evidence in chief the Defendant stated that he attended an LLS workshop and obtained information about the Private Native Forestry Code of Practice for Southern NSW (PNF Code) (published in the Gazette on 8 February 2008). The Defendant selected Whites Timber Products Pty Ltd and White's Haulage Pty Ltd as contractors as they had experience working in the local area. During operations the Defendant visited the harvesting areas sporadically. The Defendant stated his busiest month was in October and therefore he did not make many visits in that month. A long wet period began in November which made it difficult to visit the harvesting areas. The Defendant stated there was a gap between stopping operations on 22 November 2021 and contacting LLS on 14 December 2021 because logs and machinery needed to be removed and the Defendant required a finished product to do a full assessment.
The Defendant stated that he has since engaged another contractor to harvest other areas of the Property. The Environment Protection Authority (EPA) has come out to inspect such operations and has not raised any concerns.
In cross-examination, the Defendant stated he made more casual visits to the harvesting areas in November when he could given the wet conditions, once a week at a maximum. He stopped operations in November because of concerns with the quantity and quality of the operations. He was concerned about the extent of the clearing taking place and the number of trees being removed. He was also concerned with the basal threshold and that the minimum number of habitat trees was not being left. He was aware of the PNF Code requirements from the seminars held by LLS and the fact sheets they supplied and the Defendant had signed the PNF Plan with LLS in August 2021. He understood that forestry operations must be carried out in accordance with the PNF code. During his inspections he could not go onto the whole area of operations on the harvesting areas due to safety concerns. He could see the timber on the log dump. His observations were mostly confined to what he could see from the onsite office.
The Defendant had inspected the areas of northern and southern operations in October. Generally, he would visit the northern harvesting area more often than the southern harvesting area. The Defendant agreed that he had some concerns in October which he raised with the contractors about habitat trees not being marked and basal area density not being complied with. The Defendant had observed that no trees were marked for retention to which the contractors responded they knew what they were doing. The Defendant stated he did not have a good working relationship with the contractors. He was not authoritative enough with the contractors nor confident as he felt constrained by contractual requirements and was new to the PNF scheme.
When asked if he thought of contacting LLS in November the Defendant responded that he understood their role did not include making site visits to adjudicate disagreements. He did not approach them until 14 December 2021 because he needed to assess the situation once the finished product was known.

[101]

The three offences offend against the objects in the LLS Act and the BC Act. The objects of the LLS Act in Pt 1 ss 3(e), (f) of the LLS Act include the management of natural resources in accordance with the principles of ecologically sustainable development (as defined in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW)) and to apply scientific knowledge to achieve a productive landscape. The objects of Pt 5B Private native forestry include in s 60ZR(a) authorising private native forestry in accordance with the principles of ecologically sustainable forestry management, defined to include maintenance of forests for present and future generations, values such as forest biological diversity, sustainability of forest ecosystems, the health and vitality of native forest ecosystems, and native heritage values, s 60ZQ(1) LLS Act. Another object in s 60ZR(b) is to protect biodiversity and water quality in connection with private native forestry operations. In s 1.3 of the BC Act the purpose of the Act includes conservation of biodiversity and the maintenance of diversity and quality of ecosystems inter alia.
The SOAF identifies the scheme for the management of private native forestry under the LLS Act. As the Prosecutor submitted, the PNF Code is an essential ingredient of the regime in Pt 5B of the LLS Act, which seeks to regulate the carrying out of a private native forestry operation. The Code plays a significant role in the scheme of Pt 5B. It contains safeguards and minimum standards/requirements (such as the minimal stand basal area requirements), is intended to protect forests and ensures the carrying out of forestry operations in accordance with principles of ecologically sustainable forest management as identified in the SOAF at par 6.
The relevant requirements of the PNF Code are identified in the SOAF par 6, including the required tree density (minimum stand basal areas for single tree selection and thinning operations). For (tree) stand height of less than 25m, 12m2/ha is required. For (tree) stand height of more than 25m, 16m2/ha is required. Controls in s 4.2 of the PNF Code for the retention of habitat trees are identified. The Silvicultural Guidelines for the Code of Practice for Private Native Forestry (February 2013) (Silvicultural Guidelines) which inform the calculation of basal area are identified in the SOAF par 8 and identify that the requirements are not set to achieve maximum yield but have been developed to take into account all forest values.
The Defendant agreed to a private native forestry plan with LLS, SOAF pars 12-14. The agreement under the PNF Code between the Defendant and the contractors through the making of a forestry operation plan is identified in SOAF pars 21-25. No habitat trees were marked in the survey plan undertaken by the contractors, SOAF par 26.
The SOAF at pars 63-64 identifies in detail how the three charges give rise to breaches of the PNF Code according to Associate Professor Brack. Charge 1 concerns the failure to preserve sufficient density of habitat trees, identifying the importance of such trees for nesting, shelter and food for a wide variety of fauna. Charges 2 and 3 arise from the failure to maintain the required number of trees to a significant extent in the northern harvesting area and southern harvesting area, as identified in the SOAF par 64(b), (c), contrary to the PNF Code.
The offences clearly undermine the objects of the statutory scheme for the sustainable operation of native forestry on private land.

[106]

In Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71 at [26] the terms likely harm and potential harm were found to be of similar effect in the context of s 215 of the POEO Act which is in similar terms to s 13.12 of the BC Act and preceded the BC Act.
The northern harvesting area is approximately 20ha. The southern harvesting area is 22ha and was harvested previously in the 1990s. The Supplementary SOAF identifies actual, likely and potential harm in the harvesting areas according to Dr Wall ecologist. The actual impacts of reduction in nesting/breeding habitat, foraging habitat, overall canopy cover, vertical and lateral connectivity reduction, moisture in the ground affecting frog habitat and the capacity for the forest ecosystem to recover in the long term are identified. Actual harm includes harm to the structure and function of the forest system including from the loss of recruitment trees, harm to hollow-dependent animals, ground-dwelling mammals and arboreal mammals, birds and frogs. Such harm will take a long time to repair due to the absence of recruitment trees. Likely environmental harm caused includes harm to bats.
Potential environmental harm arises in adjacent forest areas, from greater exposure to the elements resulting in further habitat loss, increased predation and harm to bats and reptiles. Loss of wildfire refugium for fauna species displaced by the Wadbilliga National Park bushfires through loss of canopy cover, living foliage and protected understorey is identified.
Following an inspection on 14 July 2023, Associate Professor Brack found there was no observable successful seedling regeneration, only coppice on some tree stumps in the harvesting areas. It is unlikely the harvesting areas will achieve the 50% stocking threshold within 2 years as required by the PNF Code. The effects of the substantial reduction in stand basal area are identified as habitat, shelter, food and biodiversity loss and a low number of trees per hectare with consequent negative effects of erosion and decline in water quality. A likely reduction in numbers of less aggressive indigenous species due to competition for habitat and food and reduction in species diversity is identified. The loss of forest will result in the increase in carbon dioxide and other greenhouse gases.
The Defendant submitted that the Supplementary SOAF makes clear that the harm cannot be apportioned as between the offences as may be possible in relation to other offences. The nature of the charges themselves means that the harm, particularly concerning charge 1 (loss of habitat trees), is unable to be distinguished from the harm caused by charges 2 and 3. It is relevant to the application of the sentencing principles that the three offences overlap. On a purely mathematical basis the reduction of trees in the northern harvesting area was slightly less (16m2/ha to 10.7m2) compared to the southern harvesting area (12m2/ha to 6.3m2/ha).
The Defendant submitted it is also important to bear in mind that the carrying out of any forestry operations will, by their very nature, cause harm. So much is contemplated by the guidelines that are put in place. The Silvicultural Guidelines acknowledge that the 'minimum disturbance thresholds' provide an optimum range, SOAF at par 8. To acknowledge this harm is not to discount or disregard the actual and potential harm caused by this offending. The harm occasioned by going outside of the optimum range provided is the harm that the Court is concerned to address. A recognition that any forestry operation will cause some disturbance, is simply to note that, when considering the extent of harm caused by the offences, it is relevant for the Court to turn its mind to the condition of the receiving environment in order to accurately assess the extent of the harm. This is not to suggest that there is something mitigating in favour of the Defendant because of the state of the environment. The Defendant acknowledges and takes responsibility for the impact of his offending conduct on his land.
The Defendant submitted that another feature of the southern harvesting area is that it had previously been logged (Supplementary SOAF par 69a). As the Supplementary SOAF makes clear, this has an impact on the assessment of the area's ability to regenerate. Even an expert of the standing of Associate Professor Brack is unable to distinguish between the impact of that earlier harvesting on the current regeneration as distinct from the impact of the current offences. [The basis for this submission based on the Supplementary SOAF is unclear.]
I find that the actual, likely and potential for harm to the environment caused by the three offences collectively is substantial or likely to be substantial. While I note the southern harvesting area had been harvested previously in the early 1990s that difference is reflected in different basal area controls applicable to that area because the trees are smaller. Those controls were substantially breached in the course of the forestry operation resulting in markedly less trees in that area. The reduction in tree numbers in the northern harvesting area was substantial in the context of the basal area controls. The failure to identify habitat trees also had significant environmental harm consequences. The Defendant's submission that the harm caused by the offences should be measured in relation to the environmental harm of lawful forestry activities cannot have much weight given the extent of harm agreed in the Supplementary SOAF. The Supplementary SOAF is directed to the circumstances underpinning the three offences. The extent of harm caused by the three offences collectively is an aggravating factor under s 21A(2)(g) of the CSP Act.

[142]

(1) In proceedings 2023/00296757:

(a) The Defendant is convicted of the offence against section 60ZZA(1) of the Local Land Services Act 2013 (NSW) as charged.

(b) The Defendant is to pay a fine in the amount of $52,500.

(2) In proceedings 2023/00296758:

(a) The Defendant is convicted of the offence against section 60ZZA(1) of the Local Land Services Act 2013 (NSW) as charged.

(b) The Defendant is to pay a fine in the amount of $37,500.

(3) In proceedings 2023/00296760:

(a) The Defendant is convicted of the offence against section 60ZZA(1) of the Local Land Services Act 2013 (NSW) as charged.

(b) The Defendant is to pay a fine in the amount of $22,500.

(4) In proceedings 2023/00296757, 2023/00296758 and 2023/00296760:

(a) Pursuant to section 122 of the Fines Act 1996 (NSW) a moiety of 50% of any fine determined by the Court be paid to the Prosecutor.

(b) Pursuant to section 257B of the Criminal Procedure Act 1986 (NSW), the Defendant is to pay the Prosecutor's legal costs as agreed or as may be determined under section 257G of the Criminal Procedure Act.

(5) Pursuant to sections 13.20(1)(a) and 13.20(1)(b) of the Biodiversity Conservation Act 2016 (NSW), the Defendant, at his expense, is to:

(a) Immediately cease any forestry operations, grazing, and other agricultural activities in the Harvesting Area until at least three years after compliance with Order 5(d) (or unless otherwise approved by the Environment Protection Authority).

(b) If grazing cannot otherwise be prevented, the Defendant is to erect fencing around the Harvesting Area to comply with this order.

(c) Within three weeks of the date of this order, notify the Environment Protection Authority in writing of independent and suitably qualified expert(s) the Defendant proposes to engage for the purposes of compliance with Order 5(d). If the Environment Protection Authority provides notice the proposed expert(s) are not approved, the Defendant must provide the Environment Protection Authority with a list of other independent and suitably qualified expert(s) within two weeks of such notice. If the Environment Protection Authority does not approve these further proposed experts, the Environment Protection Authority may nominate suitably qualified expert(s) for the Defendant to engage. If the Environment Protection Authority nominates such suitably qualified expert(s), the Defendant must engage the expert(s).

(d) Within three months of the Environment Protection Authority approving suitably qualified expert(s) the Defendant is to obtain advice from the expert(s) as to the most appropriate method of dealing with the Harvesting Area to promote regeneration and the optimal timeframe for implementing that method. This advice is to be provided to the Environment Protection Authority, in writing, within one week of it being obtained by the Defendant. The Defendant is to commence and complete the implementation of the expert's advice in accordance with the expert's advice (and within the optimal timeframe proposed by the expert but by no later than 12 months after the date of this order).

(6) Harvesting Area means: the areas within Lot 29 DP 750547, Lot 30 DP 750547 and Lot 96 DP 750547 subject to forestry operations between about 20 September 2021 and about 22 November 2021, as shown in the map attached and marked Annexure A.

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Judgment (143 paragraphs)

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Legislation Cited (13)

Cases Cited (41)

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