Environment Protection Authority v Whites Timber Products Pty Ltd; Environment Protection Authority v White's Haulage Pty Ltd

R v Nguyen [2002] NSWCCA 183 R v Visconti [1982] 2 NSWLR 104 Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 Secretary, Department of Planning and Environment v AGL Energy Ltd; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2 Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 Silvano v R (2008) 184 A Crim R 593; [2008] NSWCCA 118 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 Texts Cited: Macquarie Dictionary (online ed, accessed October 2024) Judicial Commission of New South Wales Sentencing Bench Book (SBB 60, November 24) Category: Sentence Parties: Environment Protection Authority (Prosecutor) Whites Timber Products Pty Ltd (Defendant) White's Haulage Pty Ltd (Defendant) Representation: Counsel: H El-Hage SC (Prosecutor) Dr J Smith (Defendants)

Solicitors: Environment Protection Authority (Prosecutor) Kennedy Cooke Lawyers (Defendants) File Number(s): 2023/296768, 2023/296769, 2023/296771, 2023/296779, 2023/296780, 2023/296782

JUDGMENT Local Land Services Act 2013 (NSW) (as at date of offences - September to November 2021) Biodiversity Conservation Act 2016 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Statement of agreed facts Evidence Affidavit of Mr Dennis White dated 20 May 2024 Oral evidence of Mr Dennis White Affidavit of Mr Justin White dated 20 May 2024 Affidavit of Mr Justin White dated 3 June 2024 Oral evidence of Mr Justin White Affidavit of Mr McKean dated 18 May 2024 Objective seriousness of the offence Maximum penalty Nature of the offences Defendants' state of mind and reasons Finding on state of mind/reasons Environmental harm, s 13.12(a) BC Act A. Has the EPA established environmental harm alleged beyond reasonable doubt? EPA's proposed amended additional findings Oral evidence of expert witnesses Finding on basal area/tree retention controls/whether harm caused should be minimised because of inherently destructive forestry operation/biomass B. Regeneration of harvesting areas C. Retention and conservation of unharvested areas D. Whether southern harvesting area category 1 land (charge 2) Affidavit of Ms O'Keefe dated 13 September 2023 Affidavits of Mr Thompson dated 29 May 2024, 12 August 2024 Oral evidence of Mr Boyd (subpoenaed to attend by Defendants) D.1 As matter of fact southern harvesting area cleared Finding of fact of clearing of southern harvesting area D.2 Statutory construction of Pt 5A/Pt 5B LLS Act Finding on statutory construction Practical measures that may be taken to prevent, control, abate or mitigate that harm, s 13.12(1)(b) BC Act 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, s 13.12(1)(c) BC Act Extent to which the person who committed the offence had control over the causes that gave rise to the offence, s 13.12(1)(d) BC Act Finding on objective seriousness Subjective Factors Early guilty plea, ss 21A(3)(k), 22 No prior conviction, s 21A(3)(e) Likelihood of re-offending, s 21A(3)(g) Good character, s 21A(3)(f) Contrition/remorse, s 21A(3)(i) Assistance to authorities, ss 21A(3)(m), 23 Prospects of rehabilitation, s 21A(3)(h) Application of s 10 CSP Act to charge 2 Sentencing principles - additional matters to consider Deterrence Even handedness Application of totality principle Capacity to pay a fine Extra-curial punishment Publication order Moiety EPA's costs Penalties to be imposed Orders

JUDGMENT

1. The Defendant companies Whites Timber Products Pty Ltd (Whites Timber) and White's Haulage Pty Ltd (White's Haulage) (the Defendants) each pleaded guilty to three offences on 15 December 2023 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 the Defendants, charged separately, in two different areas of a farming property known as Doolondondale, Kybeyan Road, Kybeyan NSW (the Property) belonging to Mr Green. Mr Green has been charged and sentenced separately for similar offences in Environment Protection Authority v Green [2024] NSWLEC 81 (EPA v Green).
2. On 15 December 2023 the Defendants each entered guilty pleas to three charges as follows: 1. Proceedings 2023/00296768 and 2023/00296779, being charges that between about 20 September 2021 and about 22 November 2021, Whites Timber and White's Haulage 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 2023/00296771 and 2023/00296782, being charges that between about 20 September 2021 and about 22 November 2021, Whites Timber and White's Haulage 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 2023/00296769 and 2023/00296780, being charges that between about 20 September 2021 and about 22 November 2021, Whites Timber and White's Haulage 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).
3. A plea of guilty is an admission of all the essential elements of an offence. The Prosecutor the Environment Protection Authority (EPA) must establish beyond reasonable doubt any matter not otherwise agreed for the purpose of sentencing, R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich) at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ) citing R v Storey [1998] 1 VR 359 at 369. The Evidence Act 1995 (NSW) does not apply to sentencing matters unless an order under s 4(2) is made.

Local Land Services Act 2013 (NSW) (as at date of offences - September to November 2021)

1. The charges arise under Part 5B of the LLS Act. Part 5A arises in relation to one issue identified by the Defendants. 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 5A Land management (native vegetation) Division 1 Preliminary … 60B Meaning of "native vegetation" (1) For the purposes of this Part, native vegetation means any of the following types of plants native to New South Wales - (a) trees (including any sapling or shrub or any scrub), (b) understorey plants, (c) groundcover (being any type of herbaceous vegetation), (d) plants occurring in a wetland. … 60C Meaning of "clearing" native vegetation For the purposes of this Part, clearing native vegetation means any one or more of the following - (a) cutting down, felling, uprooting, thinning or otherwise removing native vegetation, (b) killing, destroying, poisoning, ringbarking or burning native vegetation. 60D Other definitions In this Part - category 1-exempt land means areas of the State to which this Part applies designated as category 1-exempt land on the native vegetation regulatory map. category 2-regulated land means areas of the State to which this Part applies designated as category 2-regulated land on the native vegetation regulatory map (including category 2-vulnerable regulated land that is so designated). … regulated rural area means any area of the State to which this Part applies that is category 2-regulated land. Division 2 Native vegetation regulatory map 60E Purpose of native vegetation regulatory map The purpose of the native vegetation regulatory map is to designate areas of the State to which this Part applies - (a) where the clearing of native vegetation is not regulated under this Part (category 1-exempt land), and (b) where the clearing of native vegetation is regulated under this Part (category 2-regulated land), … 60F Transitional arrangement until preparation of maps (1) This section applies to an area of the State to which this Part applies during the period from the commencement of this Part until the area has been designated on a native vegetation regulatory map (the transitional period). (2) For the purposes of this Part, the area is taken, during the transitional period, to be - (a) category 1-exempt land, if this Part requires the land to be designated as category 1-exempt land on the native vegetation regulatory map, or (b) category 2-regulated land, if this Part requires the land to be designated as category 2-regulated land on the native vegetation regulatory map (except as provided by paragraph (c)), or … (4) A provision of this Part that determines the relevant categorisation of land by reference to a reasonable belief of the Environment Agency Head about a particular matter is to be construed, for the purposes of this section, as a reference to what a reasonable person would believe about the matter. (5) The Environment Agency Head may, in connection with any legal proceedings against a landholder, issue a certificate that the land described in the certificate is (for the reasons set out in the certificate) category 1-exempt land or category 2-regulated land (including category 2-vulnerable regulated land). The certificate is, in those legal proceedings, prima facie evidence of the category of the land during the transitional period. … 60H Category 1-exempt land mapping (1) Land is to be designated as category 1-exempt land if the Environment Agency Head reasonably believes that - (a) the land was cleared of native vegetation as at 1 January 1990, or (b) the land was lawfully cleared of native vegetation between 1 January 1990 and the commencement of this Part. … Division 3 Regulation of clearing of native vegetation in regulated rural areas 60N Unauthorised clearing of native vegetation in regulated rural areas - offence (1) A person who clears native vegetation in a regulated rural area is guilty of an offence unless the person establishes any of the following defences - (a) that the clearing is for an allowable activity authorised under Division 4 and Schedule 5A, (b) that the clearing is authorised by a land management (native vegetation) code under Division 5, (c) that the clearing is authorised by an approval of the Panel under Division 6, (d) that the clearing is authorised under section 60O (Clearing authorised under other legislation etc), (e) that the clearing is the carrying out of a forestry operation authorised under Part 5B (Private native forestry). … (3) For the purposes of this section, clearing of native vegetation is not authorised as referred to in subsection (1) unless the conditions to which the authorisation is subject (including any conditions of a land management (native vegetation) code relating to the clearing or any certificate or approval issued or granted for the clearing) are complied with. This subsection extends to conditions that impose obligations on the person who clears the native vegetation that are required to be complied with before or after the clearing is carried out. (4) This section does not operate to preclude the commission of an offence under the Environmental Planning and Assessment Act 1979 or the Biodiversity Conservation Act 2016 in relation to the clearing of native vegetation. … 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 … 60ZS Area of State to which this Part applies (1) This Part applies to any area of the State, other than the following - (a) a State forest or other Crown-timber land within the meaning of the Forestry Act 2012, (b) a plantation within the meaning of the Plantations and Reafforestation Act 1999, (c) national park estate and other conservation areas referred to in section 60A (b), (d) land that is declared as a marine park or an aquatic reserve under the Marine Estate Management Act 2014, (e) land that is subject to a private land conservation agreement under the Biodiversity Conservation Act 2016, (f) land that is subject to be set aside under a requirement made in accordance with a land management (native vegetation) code under Part 5A, (g) land that is or was subject to a requirement to take remedial action to restore or protect the biodiversity values of the land under Part 5A or under the Biodiversity Conservation Act 2016, the Native Vegetation Act 2003 or the National Parks and Wildlife Act 1974, (h) land that is subject to an approved conservation measure that was the basis for other land being biodiversity certified under Part 8 of the Biodiversity Conservation Act 2016 or under any Act repealed by that Act, (i) land that is an offset under a property vegetation plan made under the Native Vegetation Act 2003 that remains in force or is a set aside area under a Ministerial order under Division 3 of Part 6 of the Native Vegetation Regulation 2013 that remains in force, (j) any area in which forestry operations cannot be carried out because of the requirements of any other Act or statutory instrument or any agreement or court order. … 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. If any such allegation in the notice or application is not established by the prosecution, the lower maximum penalty under this section applies (whether or not the notice or application is amended). ...

Biodiversity Conservation Act 2016 (NSW)

1. 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.

Crimes (Sentencing Procedure) Act 1999 (NSW)

1. 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.
2. Section 21A of the CSP Act identifies numerous matters which a court must take into account where relevant 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).

Statement of agreed facts

1. The Statement of agreed facts (SOAF) dated 10 May 2024 states as follows (annexures excluded): 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 Hardwood' trees less than 25 metres tall (the southern harvesting area). This area had been subject to forestry operations in around the 1990s. c. 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 . 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. 8. In his 14 September 2023 expert report (based on a field visit on 14 July 2023), Associate Professor Brack 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.

Oral evidence of expert witnesses

1. In cross-examination Associate Professor Brack confirmed that he did not consider any areas beyond the two areas where harvesting occurred. He was surprised by the quantity of timber that remained on the site which could have been removed for processing and sale. Associate Professor Brack did his own survey to determine the level of tree retention using the point to plant method and remote sensing (charge 1). He took 17 samples in the northern harvesting area, one sample showed 13 trees retained. Less than 10% of the samples complied with the PNF Code. Two sample points in the northern harvesting area with more than 10 trees per hectare were observed. While he identified for example 13 trees per hectare he was not able to determine which were reject trees or growing trees so that his very conservative approach was to assume all were retained. The PNF Code has different requirements for habitat trees and trees to be retained (in the absence of habitat trees). He is 95% sure the range is between 5 and 8 trees per hectare in the northern harvesting area and 99% sure that the range is between 3.5 and 9.5 trees per hectare. For the southern harvesting area, the upper and lower 95% mean is between 6 and 9.3 trees per hectare. He is 99% sure that the range is between 5.7 and 9.69 trees per hectare. The mean is the best point estimator and around that point estimate there is a range of both plus and minus values.
2. In relation to charges 2 and 3, Associate Professor Brack considered the EPA data of 19 samples taken in both the northern and southern harvesting areas. In the northern harvesting area on one basal sweep the stand basal area was identified as 19m2 per hectare (compliant with the PNF Code). He identified that basal area controls applicable to the northern harvesting area under the PNF Code have recently been revised down from 16m2 to 12m2 per hectare for a practical reason of forest management and a scientific reason that this resulted in better regeneration for like demanding species. He agreed the PNF Code referred to whole numbers.
3. The maximum productive range, referring to the productive capacity of an area taking into account competition between trees and access to soil and sunlight inter alia, is 8m2 to 15m2 per hectare as set out in the Silvicultural Guidelines. In the northern harvesting area 10.7m2 per hectare was identified which could be 11 if whole numbers applied. That fell within the maximum productive range.

Habitat trees/retention trees insufficient (charge 1)

1. The EPA submitted that the environmental harm arising from charge 1 is particularly egregious given the long-lasting nature of the harm. Hollow‑bearing trees, which are an essential resource for birds and arboreal mammals, were felled. Dr Wall opined that the absence of recruitment trees means that hollow-bearing trees are not likely to be replaced for at least a century. Hollow-dependent species will be unable to breed or roost for many decades.
2. The Defendants submit below that on the balance of probabilities the evidence demonstrates that only a low level of actual harm could have arisen from the forestry operation being in breach of the PNF Code requirement pursuant to charge 1. This is on the premise that the number of recruitment trees retained was on the 99% probability of less than 9.69 trees per hectare for the southern harvesting area and 9.5 trees per hectare for the northern harvesting area (when the PNF Code required 10 per hectare). The same logic is applied to charges 2 and 3, see below in [110]-[111].
3. Associate Professor Brack's evidence is that the mean is the most relevant estimation and is consistent with the requirements of the PNF Code. The northern harvesting area retained a mean of 6.6 trees per hectare (with a 95% confidence range of 5-8 living trees per hectare and 99% confidence range of 3.5-9.5 trees per hectare). The southern harvesting area retained a mean of 7.7 living trees per hectare (with a 95% confidence range of 6-9 living trees per hectare and 99% confidence range of 5.7-9.69 trees per hectare). The confidence intervals are a statistical measure of confidence of the range based on the basal sweeps.
4. The Defendants submitted that on the proper application of Olbrich if the EPA wishes to use statistics to establish environmental harm the Court 'may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt'. Accordingly it would not be open to use Associate Professor Brack's statistical 'ranges', what is required is to consider the more favourable results presented.
5. In relation to the PNF Code requirement for 10 recruitment trees to be retained per hectare, on the balance of probabilities, the evidence demonstrates that only a low level of actual harm could have arisen from the forestry operation being in breach of the PNF Code requirements pursuant to charge 1. At its highest the EPA's evidence in relation to harm is less than one tree per hectare (or 10,000 square metres) was removed.

Basal area (charges 2, 3)

1. The EPA submitted that the Defendants suggest that in some of the locations where a basal sweep was carried out there was either next to no infringement or perhaps compliance with the PNF Code. This is an inappropriate approach as the Court is not focusing on areas where there was a higher or lower count recorded. The focus is on the mean.
2. The Defendants submitted that in relation to the northern harvesting area there is a 99% probability that across that area less than 10.7m2 per hectare (rounded to 11) was achieved, however there were areas sampled which achieved 19m2 (100-97.5%) and 14m2 (90%) when 16m2 per hectare was required by the PNF Code at the time of the offence. This has now been reduced to 12m2 per hectare for the practical and ecological reasons explained by Associate Professor Brack in oral evidence. The reduction of basal area of 1m2 per hectare would not be considered 'substantial' and would otherwise properly fall at the low end of the scale.
3. In relation to the southern harvesting area there is a 99% probability that across that area less than 6.3m2 per hectare was achieved, however there were areas sampled which show 9m2 (90%) when 12m2 per hectare was required by the PNF Code. The reduction of basal area of 3m2 per hectare would not be considered 'substantial' and would otherwise properly fall at the low end of the scale particularly when considering that 9m2 per hectare falls within the Silvicultural Guidelines' 'maximum productive range' of between 8‑15m2 per hectare to 'allow the trees to fully occupy and exploit the soil and sunlight over the entire site' (Associate Professor Brack's report p 29).
4. As Dr Wall explained in oral evidence the closer the extent of compliance with the basal area the less significant the environmental harm.
5. According to Associate Professor Brack's report, no threatened or endangered tree species were identified in the FOP for the harvesting areas, and there was no evidence that any threatened fauna species identified within 10km visited or regularly used the harvesting areas.
6. Given that burning is permitted after forestry operations and is part of usual silvicultural practice, impacts on frogs and other ground dwelling mammals does not increase the objective gravity of the offences.

Finding on basal area/tree retention controls/whether harm caused should be minimised because of inherently destructive forestry operation/biomass

1. The Defendants accepted that contravention of the PNF Code caused actual harm to the environment in the harvesting areas but submitted the harm was much less than was alleged by the EPA.
2. Section 13.12(a) of the BC Act refers to harm or likely harm caused by the commission of an offence. Harm is not defined in the BC Act. The dictionary meaning is to 'injure', 'damage', 'hurt', Macquarie Dictionary (online ed, accessed October 2024). Similar provisions exist in s 241 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). The POEO Act does include a definition of harm to the environment (alteration of the environment, widely defined, which causes degradation). In Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (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 (EPA v Waste Recycling) 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.
3. While potential harm is not synonymous with likely harm in that it has a lower threshold of application, it has been considered relevant in many statutory contexts considering environmental harm and can be considered under s 13.12(2).
4. In relation to charges 2 and 3, extracts from Associate Professor Brack's reports are set out above which identify his statistical approach based on a number of basal area sweeps being conducted, from which sample points are taken, used to derive a mean or medium residual basal area. Associate Professor Brack found that the residual basal area is less than 10.7m2 per hectare for the northern harvesting area and 6.3m2 per hectare for the southern harvesting area. Tables 6 and 7 show the results of various basal area sweeps which show a range of 2m2 to 19m2 for the northern harvesting area, and 1m2 to 9m2 for the southern harvesting area. The Defendants sought to interpret Associate Professor Brack's statistical methodology in a way which minimised the extent of the reduction in the basal area the subject of charges 2 and 3 as a result of the Defendants' forestry operations. The Defendants criticised the EPA's experts' approach of determining the extent of harm by applying averages over the northern and southern harvesting areas submitting that this is what the Defendants also did, therefore suggesting that Associate Professor Brack's approach to compliance with the PNF Code was inconsistent.

B. Regeneration of harvesting areas

1. The Defendants tendered a report dated 18 May 2024 of Ms Roach former interpretive assistant/discovery ranger for NSW National Parks and Wildlife Service on the ecology of the regenerating harvesting areas. The same report was tendered in EPA v Green by Mr Green the defendant. According to Ms Roach the 'two wet summers post harvesting along with the decomposition of fine debris (bark and leaves), and the soil disturbance from harvesting machinery has produced an ideal environment for the proliferation and germination of plants not previously active on the site at the time of the harvesting'. As Ms Roach's report was not prepared in accordance with the expert witness code of conduct and she did not engage directly with the evidence of Associate Professor Brack and Dr Wall it is difficult to do more than note that regeneration is occurring. Whether the species regenerating addresses the loss of trees arising from the offences is not known.
2. 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. In his opinion it is unlikely the harvesting areas will achieve the 50% stocking threshold within two 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.
3. I note the Defendants were excluded from the harvesting areas by Mr Green and could not undertake the usual activity after logging which is aimed at encouraging regeneration.
4. That regeneration is occurring according to the report by Ms Roach tendered by the Defendants can be accepted but the recovery of mature trees will take decades if not more than a century to replace. The loss of mature trees that have been cut down unlawfully is not overcome by noting that regeneration is occurring in the short term.

C. Retention and conservation of unharvested areas

1. The Defendants submitted that on the balance of probabilities the evidence demonstrates that only a low level of actual harm could have arisen from the forestry operations in breach of the PNF Code requirements pursuant to charges 1-3 based on the non-disturbance of trees outside the southern and northern harvesting areas. Mr Justin White attested to his intention to retain areas beyond the southern and northern harvesting areas in his affidavit evidence. As the EPA submitted, the issue before the Court is the conduct and harm arising from the forestry operations within the harvesting areas, namely the land covered by charges 1-3. That the Defendants did not intend to undertake harvesting in other portions of the PNF area is not a relevant consideration in relation to the assessment of environmental harm arising from these offences. I have considered this topic in the context of the Defendants' state of mind as set out above in [74]-[75].

D. Whether southern harvesting area category 1 land (charge 2)

1. The Defendants submitted at the substantive hearing that, as a consequence of the southern harvesting area being category 1 for the purpose of Pt 5A of the LLS Act, Pt 5B did not apply to that area so that no PNF Plan under Pt 5B was required for the forestry operation the subject of the offences. At a further short hearing after the substantive hearing the Defendants submitted that they did not dispute that Pt 5B applied and had pleaded guilty on that basis, which appears to be a different position to that taken at the substantive hearing.
2. Further, the Defendants submitted at the further short hearing that the partial clearing of the southern harvesting area, which the EPA accepted had occurred in unidentified areas, would enable a finding that parts of the area was category 1. Under questioning by the Court the Defendants' position was that there could be patches of category 1 land within the southern harvesting area including down to a single tree being cleared. The ramifications of this argument were not fully explored and it is unnecessary to resolve whether such an approach to the statutory scheme is correct as the primary focus of argument by the Defendants was on the basis that the whole of the southern harvesting area had been cleared in the 1990s.
3. The application on the Defendants' case of Pt 5A was submitted to be solely to enable the submission that the severity of any environmental harm arising from the charge 2 offences under Pt 5B should be substantially reduced (and to support a s 10 CSP Act application in relation to charge 2) because the possibility existed that the trees could all have been cleared meaning 'cutting down, felling, uprooting, thinning or otherwise removing native vegetation' or 'killing, destroying, poisoning, ringbarking or burning native vegetation' under s 60C of the LLS Act without approval being required. If this submission is accepted the Defendants submit that no or minimal environmental harm could arise in relation to the southern harvesting area as that was able to be cleared in any event under Pt 5A.
4. Conceptually this argument does not appear to be relevant in that the hypothetical clearing of native vegetation on land if permitted under Pt 5A does not address the environmental harm caused by the offences the Defendants have pleaded guilty to under Pt 5B. The hypothetical possibility that other legal means existed to permit removal of trees in the southern harvesting area when the offences were committed does not appear to be relevant given the guilty plea entered by the Defendants. If the Defendants wished to argue the application of Pt 5A they should not have pleaded guilty to the charges under Pt 5B. I make these observations before dealing with the reasonably extensive factual and legal arguments made as I consider it is strictly unnecessary that these arguments be resolved. Even if I do find that Pt 5A could apply to the southern harvesting area in the relevant period there are no sentencing consequences because there is no evidence or rational basis to find that the environmental harm of the offences under Pt 5B, which I have found has occurred above in [115]-[134], is diminished by that theoretical possibility. The submission that any harm which arose was consistent with what was permitted under the legislative scheme is speculative in the absence of any facts.

Affidavit of Ms O'Keefe dated 13 September 2023

1. In an affidavit dated 13 September 2023 Ms O'Keefe EPA officer affirmed that on 5 September 2023 she contacted Mr Boyd to make enquiries about comments Mr Boyd had made following a record of interview on 15 August 2023. Ms O'Keefe understood that during this conversation Mr Boyd expressed the following: 1. It was Mr Boyd's opinion that approving a PNF Plan under Pt 5B of the LLS Act would designate the land area subject of the PNF Plan as category 2 - regulated land (category 2); 2. Mr Boyd clarified his concerns that it was not clear during the 'Native Vegetation Regulation Map Transitional period' if Mr Green as a reasonable person had access to historical aerial imagery of the Property to determine if the land was category 1 or otherwise prior to applying for a PNF Plan; 3. Mr Boyd thought that LLS could have given more consideration to categorising Mr Green's land prior to approving the PNF Plan and expressed that further consideration needs to be given to whose role it is to categorise land before approving a PNF Plan; 4. It was Mr Boyd's opinion that Mr Green's land could be categorised as category 1; 5. Based on aerial imagery that Mr Boyd had obtained from the Environment and Heritage Group he thought Mr Green's PNF area was subject to intensive harvesting in the 1990s. All that was left on the property from this 1990 'pulp' harvesting activity were trees that were not commercially viable; 6. Mr Boyd advised that on Mr Green's property Mr Boyd had observed in-field evidence of historical harvesting and what was left on the property was potentially regrowth; and 7. Mr Boyd considered that the historical harvesting had to have been conducted lawfully as before the State Environmental Planning Policy 46 - Protection and Management of Native Vegetation (1995) there had been no protection from clearing native vegetation except where it was on land that was steep, sensitive or highly erodible.

Affidavits of Mr Thompson dated 29 May 2024, 12 August 2024

1. Mr Thompson solicitor for the Defendants in an affidavit dated 29 May 2024 stated that he received emails from Mr Boyd attaching satellite imagery of the Property circa December 1989, December 1990, December 1991 and 29 October 1996 annexed to his affidavit. Three of the images dated December 1989, December 1990 and December 1990 contained an area identified by red marker which he understood were digitally added by Mr Boyd. A further affidavit of Mr Thompson annexed enlarged versions of the images attached to his earlier affidavit.

Oral evidence of Mr Boyd (subpoenaed to attend by Defendants)

1. Mr Boyd was subpoenaed to attend by the Defendants. In examination-in-chief Mr Boyd stated that his role concerned the approvals process under Pt 5B of the LLS Act and an extension service assisting forestry industry stakeholders to understand the private forestry approvals process. Mr Boyd has been an employee of the LLS for 10 years and has been working in the forestry industry for 25 years. Mr Boyd was issued a subpoena to produce a series of historical aerial images of the Property (the aerial images were attached to the affidavit of Mr Thompson dated 29 May 2024, see above in [147]). Mr Boyd confirmed that a red circle on an image dated December 1998 was drawn by him and indicated the southern harvesting area.
2. Mr Boyd visited the southern harvesting area on multiple occasions, first in March 2022 after the harvesting the subject of the proceedings and most recently in December 2023. Mr Boyd was referred to an aerial image dated 28 November 2021 annexed to the affidavit of Dr Jones EPA acting director of operations dated 24 May 2024. The image has red crosshatching to show the southern harvesting area. Mr Boyd was asked relative to the image to indicate where he went during his site inspection in March 2022. Mr Boyd accessed the area via the 'dog fence' and the connecting road on the lower south-eastern corner of the red crosshatched area. He then traversed the road to the west. Mr Boyd followed the access track to the very edge of the westernmost area of the brown barrel forest. He undertook traverses to the north of the access track. Mr Boyd did not walk the entire perimeter of the southern harvesting area. He went to set points and was able to observe the perimeter from these locations. Mr Boyd went to forested areas outside the southern harvesting area. He observed stumps from prior clearing both within and outside the southern harvesting area. In Mr Boyd's opinion these stumps reflected a heavy harvesting operation which would align with the high intensity harvesting operations undertaken in the early 1990s by the NSW Government.
3. Mr Boyd attended a recorded interview with the EPA on 15 August 2023. Following the recorded interview Ms O'Keefe called Mr Boyd on 5 September 2023. Mr Boyd confirmed that he recalled saying words to the effect of those summarised above in [146].
4. In cross-examination Mr Boyd confirmed that FOPs are agreements between the harvesting contractor and the landowner which do not require LLS approval. Prior to the undertaking of forestry operations LLS approves a PNF Plan. Mr Boyd accepted that a senior land service officer approved the PNF Plan the subject of these proceedings. The PNF Plan specified that all operations must be carried out in accordance with the PNF Code referred to in Pt 5B of the LLS Act. That officer had delegation under Pt 5B of the LLS Act to approve the PNF Plan. Asked why Mr Boyd did not approve the PNF Plan Mr Boyd answered 'because under the LLS delegation, senior land services hold the delegation to approve plans'. At the time of the PNF Plan Mr Boyd stated he had delegation and had approved other PNF Plans. The PNF Plan puts the landholder and contractors on notice of what the plan authorises, which would otherwise not be permitted unless the land was unregulated.

D.1 As matter of fact southern harvesting area cleared

1. The Defendants sought to prove on the balance of probabilities that the southern harvesting area was cleared of native vegetation between 1 January 1990 and 25 August 2017 (Pt 5A Div 2 commenced on 25 August 2017) as provided in s 60H(1)(b) or as at 1 January 1990 (s 60H(1)(a)). The EPA accepted that some harvesting had occurred in the southern harvesting area but disputed that the evidence established that the whole area had been cleared.

Defendants' submissions - factual basis established

1. Based on satellite imagery showing clearing of the southern harvesting area it was at all material times category 1 under the LLS Act. The issue of categorisation of the land was first identified by Mr Boyd. In her affidavit Ms O'Keefe stated she had conducted a recorded interview with Mr Boyd as part of her investigations during which Mr Boyd had flagged the issue and was further clarified in a discussion between Ms O'Keefe and Mr Boyd, see above in [146]. Consistent with Mr Boyd's evidence the satellite imagery of the southern harvesting area from December 1989 to December 1991 and circa October 1996 attached to the affidavit of Mr Thompson dated 29 May 2024 demonstrates that forestry operations had been undertaken within the southern harvesting area prior to the commencement of Pt 5A of the LLS Act: 1. The satellite imagery stamped December 1989 depicts the southern harvesting area was more densely vegetated than observed in 1991; 2. The satellite imagery date stamped December 1990 depicts that in December 1990 timber harvesting operations had been conducted in areas within the southern harvesting area; and 3. The satellite imagery date stamped December 1991 depicts that by December 1991 extensive timber harvesting had occurred or was occurring within the southern harvesting area.
2. In cross-examination both Associate Professor Brack and Dr Wall agreed in response to a general question that some harvesting had occurred in the southern harvesting area. The statement was made in the context of the FOP that heavy harvesting occurred more than 25 years ago.
3. Mr Boyd confirmed in oral evidence that the southern harvesting area was the subject of 'heavy harvesting' and that a reasonable person would believe for the purposes of s 60F(5) and s 60H(1) of the LLS Act that the land was cleared of native vegetation prior to the commencement of Pt 5A.
4. Pursuant to s 60H(1)(a) or (b) the southern harvesting area was therefore cleared of native vegetation as at 1 January 1990 or alternatively was lawfully cleared of native vegetation between 1 January 1990 and the commencement of Pt 5A of the Act and would therefore be designated category 1.

EPA's submissions - factual basis lacking

1. The Defendants have to establish on a factual basis that the whole southern harvesting area was cleared in the 1990s. The EPA does not dispute that parts of the southern harvesting area have been the subject of historical clearing in the 1990s.
2. While Mr Boyd gave oral evidence about intensive forestry operations having been undertaken within or around the southern harvesting area in the 1990s, his oral evidence does not establish that the whole area was cleared. During his inspection in March 2022 Mr Boyd did not walk across the whole of the southern harvesting area and only gave evidence regarding parts of the southern harvesting area. Mr Boyd's evidence that he saw stumps both inside and outside the southern harvesting area cannot alone establish that wholesale clearing occurred across the whole of the southern harvesting area. None of the aerial imagery that has been put before the Court including photographs supplied by Mr Boyd establishes that the whole of the southern harvesting area was cleared. Mr Boyd is in no better position to say what was cleared than the Court. His experience, see above in [153], is that he is not an expert in giving evidence about aerial imagery.

Finding of fact of clearing of southern harvesting area

1. I find that the Defendants have proved on the balance of probabilities that the southern harvesting area was subject to heavy harvesting in the 1990s on the basis of the Defendants' evidence above. This satisfies LLS Act s 60H(1)(b). This circumstance is also reflected in the basal area control applying under the PNF Code in the southern harvesting area which reflects the assumption that the area was subject to heavy harvesting and the trees are smaller than the northern harvesting area.

D.2 Statutory construction of Pt 5A/Pt 5B LLS Act

1. The interaction if any between Pts 5A and 5B of the LLS Act arises to be considered as a matter of statutory construction. In accordance with well‑established principles legislation must be read as a whole so as to give effect to all sections wherever feasible, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ). The plain meaning of words in their context should be considered, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; [1981] HCA 26 at 305 (Gibbs CJ) cited in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 at [42], Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [25]-[28] (Bell P).
2. While Mr Boyd's views about the construction of the LLS Act and the different view of the more senior LLS officer Mr Rodda in correspondence is summarised above in [146], [152]-[154], none of that material is relevant to the statutory construction task required and I do not need to consider it further except to note that the Defendants' submissions largely relied on Mr Boyd's opinions. The arguments considered below are those presented by the parties at the substantive hearing.
3. As no native vegetation regulatory map under Pt 5A s 60E of the LLS Act presently exists in relation to the southern harvesting area the transitional provisions in s 60F apply. Section 60H(1)(b) specifies that land is designated as category 1 if the Environment Agency Head reasonably believes that the land was lawfully cleared of native vegetation between 1 January 1990 and the commencement of this Part (25 August 2017). Under s 60F(4) a reasonable belief of the Environment Agency Head is to be construed as what a reasonable person would believe about the matter.

Defendants' submissions

1. The Defendants largely relied on Mr Boyd's views of the operation of Pt 5A. The statutory effect of land being category 1 is that it falls outside the definition of 'regulated rural area' under s 60D of the LLS Act and clearing of native vegetation would not constitute an offence or otherwise be 'unauthorised clearing' pursuant to s 60N to which Pt 5B of the LLS Act applied. Consequently a PNF Plan was not required to permit the lawful clearing of native vegetation in the southern harvesting area. If the southern harvesting area is found to fall under category 1 the clearing of the southern harvesting area pursuant to charge 2 is a technical offence and not properly associated with any environmental harm. Under s 60F(2)(a) and (4) the southern harvesting area is category 1 land given a factual finding that it was cleared between 1990 and 2017.

Finding on statutory construction

1. As the EPA submitted Pt 5A and Pt 5B of the LLS Act deal with different subject matters. Part 5B is concerned with the carrying out of forestry operations, defined in s 60ZQ(1). Part 5A is concerned with the regulation of native vegetation clearance. The two parts have different work to do.
2. Part 5B applies to any area of the State, except for those specified areas in s 60ZS(1)(a)-(j). None of the specified areas include category 1 or category 2 land as identified in Pt 5A so that such areas are not excluded from the operation of Pt 5B.
3. The statutory context does not suggest that category 1 or category 2 land is excluded from the application of Pt 5B: 1. Part 5B is concerned with specific activities, ie forestry operations; 2. The highly prescriptive nature of Pt 5B suggests that if the legislature intended for category 1 or category 2 land to fall outside Pt 5B, the LLS Act would have provided for such an outcome; and 3. Section 60N(1)(e) in Pt 5A provides that it is a defence to an offence for clearing native vegetation in regulated rural areas defined as category 2 if the clearing carried out was authorised under Pt 5B. That reinforces the proposition that LLS Act Pts 5A and 5B operate separately. If there was a legislative intent to permit a landholder to rely on the categorisation of the land as category 1 or category 2 for the purposes of any offence under Pt 5B, that would have been provided for in the LLS Act.
4. The Defendants referred to s 60ZZ(2)(b) which permits a landholder to surrender a PNF Plan. This general provision was submitted to enable the 'status quo' of permitting clearing of the southern harvesting area under Pt 5A. Section 60ZZ(2)(b) is a general provision enabling the surrender of a PNF Plan. No circumstances are identified to inform when a surrender might occur. The terms do not support any inference that its purpose is to assist in maintaining the 'status quo' the Defendants rely on in relation to Pt 5A.
5. No statutory construction basis exists to apply Pt 5A to a native forestry operation to be undertaken under Pt 5B. Even if parts of the southern harvesting area could be category 1 or category 2, that is not a factor relevant to whether the requirements of Pt 5B apply to a native forestry operation.

Practical measures that may be taken to prevent, control, abate or mitigate that harm, s 13.12(1)(b) BC Act

1. Practical measures could have been taken to avoid the harm caused. The SOAF at par 60 identified three agreed practical measures that could have been taken by the Defendants: 1. Pre-marking of trees in accordance with the Silvicultural Guidelines to ensure an adequate number of recruitment trees; 2. Improved operational response to basal area sweeps; and 3. Felling of non-commercial eucalypts should have been avoided.
2. The Defendants accepted that the first two practical measures could have been taken by them. The Defendants accepted that they had direction and control over the forestry operations and that the marking of habitat trees was a practical measure that was available to them.
3. In relation to 'felling of non-commercial non-eucalypts should have been avoided', the Defendants accepted that to an extent this measure could have been taken. I also accept the Defendants' submissions that the felling of non-commercial non-eucalypts is not a measure which related to the harm arising from the specific provisions of the PNF Code which were breached to which s 13.12(1)(b) of the BC Act is being applied. It is also a fact of logging operations that there is substantial collateral damage and it is inevitable that some non‑commercial species will be damaged and destroyed as a result of legitimate felling, processing and extraction of trees. The Defendants also submitted that, as attested to by Mr Dennis White, they would usually have undertaken measures to encourage regeneration and were prevented from doing so by their exclusion from the Property by Mr Green. One of the measures to ameliorate impacts identified by Associate Professor Brack was reduction of coarse woody debris which would usually be undertaken following a forestry operation.

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, s 13.12(1)(c) BC Act

1. The Defendants accepted that harm arising from the offences was foreseeable.

Extent to which the person who committed the offence had control over the causes that gave rise to the offence, s 13.12(1)(d) BC Act

1. The Defendants had control and direction of the forestry operations during the charge periods.
2. The EPA did not submit the offences were committed for commercial gain, s 13.12(1)(f).

Finding on objective seriousness

1. In light of all the above circumstances, I find that charge 1 is at the low end of the mid-range of objective seriousness for each Defendant. Charges 2 and 3 fall within the middle of the mid-range of objective seriousness for each Defendant.

Subjective Factors

1. A number of subjective factors arise for consideration in sentencing the Defendants under the CSP Act.

Early guilty plea, ss 21A(3)(k), 22

1. The recognition of the utilitarian value of a plea of guilty of 25% was identified in the guideline judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160] (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ agreeing). As the Defendants pleaded guilty early they should obtain the full discount.

No prior conviction, s 21A(3)(e)

1. The Defendants have no prior convictions for native vegetation offences in NSW. Mr Dennis White has been working in the forestry industry for about 40 years.

Likelihood of re-offending, s 21A(3)(g)

1. I accept the Defendants' submission that by reason of the Defendants' early plea of guilty, its remorse for the offence and the decision by the Defendants not to engage in future private or state forest hardwood contracts, the Court would be satisfied on the evidence that the Defendants would not reoffend. Mr Dennis White through his company no longer intends to work in the business of forestry. Mr Justin White has moved to softwood harvesting.

Good character, s 21A(3)(f)

1. The Defendants are companies. Evidence of good character was directed to their directors. Mr Dennis White read a letter from Mr Skelton of Kothes Accounting Group stating that Mr Dennis White has been a client for over 30 years. Mr White has run his business with integrity, honesty and ethics. He always complied with Australian Tax Office requirements and has a strong work ethic. Mr Skelton was informed of the EPA prosecution and that his reference would be used for court proceedings. The affidavit sworn by Mr McKean a former employee of White's Haulage, see above in [59] described Mr Justin White as an honest and hard working person who has always paid his workers on time and been a fair and reasonable boss.
2. I accept that Mr Dennis White and Mr Justin White as directors of their respective companies are of good character.

Contrition/remorse, s 21A(3)(i)

1. The EPA submitted the Court should be sceptical about the remorse of the Defendants beyond the guilty pleas. The Defendants sought to challenge the basis for charge 2 and to point to irrelevant matters in an attempt to justify and minimise the offending conduct.
2. The Defendants with the benefit of legal advice are able to challenge matters on sentence and I do not consider that undermines the directors of the Defendants' expressions of remorse and genuine regret for commission of the offences, see above in [24], [36]. The directors were present throughout the hearing.
3. Remorse is better demonstrated through 'the offender taking actions', EPA v Waste Recycling at [203]. Mr Justin White is committed to minimising the potential for similar incidents occurring in the future and has made positive decisions with the commercial operations of his company to not engage in future private or state forest hardwood contracts.

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

1. I accept the Defendants have fully cooperated with the EPA both in the investigation and conduct of these proceedings including complying with all EPA requests for information and documentation and attending recorded interviews.
2. The Defendants also relied on their assistance to the EPA with the preparation of the SOAF to assist with the expeditious and efficient determination of these proceedings. In Ace Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 Leeming JA held that such participation does not fall within s 21A(3)(m) at [96].

Prospects of rehabilitation, s 21A(3)(h)

1. The Defendants submitted they are of good character and have attempted to learn from the incident. Whites Timber is not continuing in operation. White's Haulage has taken reasonable steps to minimise the occurrence of an event like this in future, as set out in Mr Justin White's affidavit dated 20 May 2024 pars 56-60. The Defendants have good prospects of rehabilitation.

Application of s 10 CSP Act to charge 2

1. The Defendants submitted that the application of s 10 of the CSP Act would be appropriate in relation to charge 2 if they proved on the balance of probabilities that the whole of the southern harvesting area has been cleared so that no conviction is recorded.
2. In deciding whether to make an order referred to in subs (1), the court is to have regard to the person's character, antecedents, age, health and mental condition, the trivial nature of the offence, the extenuating circumstances in which the offence was committed, any other matter that the court thinks proper to consider (subs (3)). The factors identified in subs (3) are disjunctive and non-exhaustive, R v Paris [2001] NSWCCA 83 at [42] (Simpson J). None of the factors are conclusive but all must be taken into account, R v Paris at [43], [48] (Ipp AJA), [49] (Wood CJ at CL), Application by Attorney General (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSWCCA 303 at [131] (Howie J).
3. The dismissal of charges under s 10 reflects the willingness of the legislature to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character, R v Nguyen [2002] NSWCCA 183 at [50] (Bergin J, Stein JA and Carruthers AJ agreeing).
4. In any event, the Defendants had made genuine and honest efforts to obtain advice and comply with the requirements of the PNF Code as to the calculation of basal area including following advice from LLS. The Defendants have no prior convictions, have shown contrition and remorse and are unlikely to re-offend. The Defendants should be given a second chance to maintain their reputation.
5. I have not accepted the Defendants' submission about the statutory construction of the LLS Act above so that Pt 5A has no application. The charge 2 offences are not 'technical' or trivial given the failure to comply with the PNF Code, and the level of environmental harm caused. I do not exercise my discretion to apply s 10 to the Defendants for charge 2.

Sentencing principles - additional matters to consider

Deterrence

1. General deterrence is an important element for an offence of this nature. I considered the meaning of general deterrence in Plath 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…
2. Specific deterrence as identified to in Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477 (Mason CJ, Brennan, Dawson and 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'.
3. The EPA submitted there is need for specific deterrence particularly in the case of White's Haulage which continues to operate in the forestry industry (albeit in softwood harvesting). The oral evidence from Mr Justin White was that despite the contents of the FOP and despite what was said on the signature page binding him to the PNF Code his view was and remains that he had no obligation to ensure the PNF Code was complied with. This demonstrates that Mr Justin White lacks insight so as to warrant specific deterrence. Although Whites Timber claims to have not operated since 22 November 2021, it remains a registered corporation.
4. I accept the Defendants' submission that the need for specific deterrence is limited. The Defendants have shown genuine contrition and remorse and have already suffered significant financial impacts with flow on personal impacts to the directors. The Court can have confidence based on the steps taken by the Defendants to negate the risk of any such incident reoccurring. Given the financial position of Whites Timber, devoid of assets and employees, there are little if any prospects that the business will be resurrected.

Even handedness

1. Comparable cases can be considered in relation to the principle of even handedness whereby like offences should receive like penalties, see R v Visconti [1982] 2 NSWLR 104 at 107 (Street CJ, Lee and Maxwell JJ agreeing). The EPA submitted that generally the sentence to be imposed should not be inconsistent with sentences imposed on different offenders involved in the commission of the same offence. Disparity may be justified where there are differing circumstances or roles played by the offenders, Lowe v R (1984) 154 CLR 606; [1984] HCA 46 at 623 (Dawson J), Environment Protection Authority v BMG Environmental Group Pty Ltd (2012) 188 LGERA 324; [2012] NSWLEC 69 at [121], R v Reid [2000] NSWCCA 166 at [16] (Hulme J, Carruthers AJ agreeing).
2. EPA v Green is the only prosecution under s 60ZZA of the LLS Act in this Court to date. The maximum penalty for these offences is greater than in EPA v Green, being $2m for a corporation. The maximum penalty is $500,000 for an individual. Mr Green was sentenced for three identical charges arising from actions contrary to s 60ZZA(1) of the LLS Act in respect of the forestry operations. Regarding charge 1 (loss of habitat trees), the Court found the objective seriousness to be at the low end of the medium range and Mr Green was fined $120,000 (before discounts), see [54], [73], [77]. In respect of charge 2 (southern harvesting area), the Court found that objective seriousness to be at the low end of the mid-level of the medium range and Mr Green was fined $150,000 (before discounts), see [54], [74], [77]. Regarding charge 3 (northern harvesting area), the Court found the objective seriousness to be at the mid-level of the medium range and Mr Green was fined $180,000 (before discounts), see [54], [75], [77]. Mr Green received a large discount on penalty due to his substantial assistance to authorities as he reported the unlawful forestry operation on his property to the LLS for which he was then charged with three offences. The total penalty of $450,000 was reduced to $112,500. Unlike Mr Green in EPA v Green the Defendants had direct control over the offending conduct and were therefore in a better position to prevent the consequential environmental harm I have found was caused by the offences.

Application of totality principle

1. 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 R (2004) 78 ALJR 616; [2004] HCA 15 at [18]: In Mill [Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 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'."
2. In Environment Protection Authority v Barnes [2006] NSWCCA 246 Kirby J (Mason P and Hoeben J agreeing) at [50] suggested that the amount of each fine should be altered by reducing individual sentences and then aggregating each to determine a total fine amount, see Sentencing Bench Book [8-200].
3. The offences arise from the same course of conduct being the PNF operation in two separate areas on the Property. The offences for each Defendant are inter-related given their temporal, spatial and causal connections. In considering the totality principle the Court will deal with the Defendants separately given that they are separate legal entities in different ownership. The totality principle will be applied in setting the level of fines to be imposed for each of the Defendants overall.

Capacity to pay a fine

1. Under s 6 of the Fines Act 1996 (NSW) the Court is required to take into account the capacity of a defendant to pay a fine in setting an amount and consider 'such information regarding the means of the accused as is reasonably and practicably available to the court for consideration'. No financial information has been placed before the Court in relation to Whites Timbers to inform the Court.
2. Information relevant to White's Haulage is before the Court. The affidavits of Mr Justin White included a profit and loss assessment by the company accountant which showed a substantial overdraft and substantial liabilities for equipment requiring large monthly payments. Mr Justin White has provided a personal guarantee under each of the associated finance loan agreements. Mr Justin White and his wife have provided a personal guarantee for the debts of the company. He expects that if White's Haulage is unable to pay its debts he may also lose the family home. In cross-examination he gave evidence about the value of his home, the amount of the mortgage and monthly repayments being made, that his wife is a teacher and they have limited savings. Although the evidence supplied does not include tax returns for the company or bank records, I accept that as it was prepared by the company's accountant that it provides a reasonable overview of the financial position of the company and otherwise accept Mr Justin White's evidence concerning his personal circumstances. White's Haulage has limited capacity to pay a fine.

Extra-curial punishment

1. The Court is able to take into account 'loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his [or her] offence or at least by reason of the offender having committed the offence', Silvano v R (2008) 184 A Crim R 593; [2008] NSWCCA 118 at [29] (James J, Hislop and Hoeben JJ agreeing). Professional ramifications may also be taken into account as extra-curial punishment, Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 4) [2021] NSWLEC 123 at [279].
2. Mr Justin White's affidavit dated 20 May 2024 sets out his view that White's Haulage has suffered financial loss attributable to the breaches. White's Haulage used to do work under subcontract for Pentarch Forests but has not been offered any work from Pentarch Forests since the EPA investigation commenced. Mr Justin White does not believe White's Haulage will be financially viable after punishment for the present offences. Mr Justin White has suffered personal stress as a result of the investigation. The financial stress impacts on his family. He believes his mental health has deteriorated as a result of the situation.
3. The EPA opposed this submission on the basis that this evidence amounted to little more than Mr Justin White's opinion that some people took a dim view of White's Haulage after the EPA commenced its investigation in October 2022. There is no evidence beyond Mr Justin White's surmising that the termination of a contract on 30 September 2024 was due to him being investigated by the EPA.
4. Contrary to the EPA's submissions I accept that Mr Justin White and his company have suffered additional adverse consequences (extra-curial punishment) from the commission of these offences given the nature and location of the hardwood forestry industry. The small number of operators and the close-knit community in which it operates inform that finding. This is confirmed by the fact that he has had to sell a large number of machines and lay off employees due to the contraction of the work his company can win. White's Haulage now undertakes different work in softwood forestry which employs fewer people, if any.

Publication order

1. The EPA seeks an order that the Defendants publish details of the offences in accordance with s 13.25(1)(a) of the BC Act. The objectives of general and specific deterrence would be served by the proposed publication orders.
2. Mr Justin White opposes the making of a publication order in relation to White's Haulage due to the potentially adverse reputational and financial consequences of doing so. He gave oral evidence that there were potentially adverse reputational and financial consequences for White's Haulage following publication of the judgment in EPA v Green.
3. I consider that a publication order in relation to White's Haulage does amount to extra-curial punishment for the reasons I have already considered above in [208]-[211]. While Mr Justin White through his company has been able to continue work since the EPA commenced its investigation this has been much reduced and in a different category of activity being softwood forest.
4. The publication order will be made in relation to Whites Timber not be in relation to White's Haulage.

Moiety

1. The EPA seeks 50% of any fine be payable to it as provided by s 122 of the Fines Act. The award of a moiety to a prosecutor is discretionary, Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 at [157]. One circumstance justifying the making of a direction pursuant to s 122(2) is when a prosecutor does not have an independent right to recovery of investigation costs, Secretary, Department of Planning and Environment v AGL Energy Ltd; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2 at [143] citing Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 at [62]. Such an order has also been made to enable contribution to the work undertaken generally by the prosecutor. It is appropriate to make the order under s 122(2) sought by the EPA.

EPA's costs

1. The EPA's professional costs are payable under ss 257B, 257G of the Criminal Procedure Act 1986 (NSW). The Defendants submitted that in imposing a penalty the Court should take into account that the Defendants will agree to pay the EPA's substantial legal costs, Environment Protection Authority v Barnes at [78], [88]. The EPA submitted payment of the prosecutor's costs is not generally a reason for reducing a penalty and something more would be required, Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50].
2. The Defendants have agreed to pay the EPA's costs as agreed or assessed. The parties have not reached agreement on the amount of costs. These are likely to be substantial given the level of dispute about matters such as the extent of environmental harm. Some consideration to legal costs will be given but the extent of these does arise from decisions the Defendants made presumably on advice about challenging environmental harm.

Penalties to be imposed

1. I will impose the following penalties on Whites Timber, 1. charge 1 $200,000 reduced by 25% to $150,000, 2. charge 2 $450,000 reduced by 25% to $337,500, 3. charge 3 $450,000 reduced by 25% to $337,500.
2. Further reductions will be made in application of the totality principle so that the fines will be reduced as follows, 1. charge 1 fine of $100,000, 2. charge 2 fine of $300,000, 3. charge 3 fine of $200,000.
3. In light of the substantial mitigating circumstances including consideration of capacity to pay I will impose the following penalties on White's Haulage, 1. charge 1 $100,000 reduced by 25% to $75,000, 2. charge 2 $200,000 reduced by 25% to $150,000, 3. charge 3 $200,000 reduced by 25% to $150,000.
4. Further reductions will be made in application of the totality principle so that the fines will be reduced as follows, 1. charge 1 fine of $50,000, 2. charge 2 fine of $130,000, 3. charge 3 fine of $90,000.
5. Whites Timber's total fine is $600,000. White's Haulage's total fine is $270,000.

Whites Timber Pty Ltd

1. The Court orders in proceedings 00296768 of 2023 (charge 1): (1) Whites Timber Products Pty Ltd ACN 647 042 751 is convicted of the offence against section 60ZZA(1) of the Local Land Services Act 2013 (NSW) as charged. (2) Whites Timber Products Pty Ltd ACN 647 042 751 is to pay a fine of $100,000.
2. The Court orders in proceedings 00296769 of 2023 (charge 3): (3) Whites Timber Products Pty Ltd ACN 647 042 751 is convicted of the offence against section 60ZZA(1) of the Local Land Services Act 2013 (NSW) as charged. (4) Whites Timber Products Pty Ltd ACN 647 042 751 is to pay a fine of $200,000.
3. The Court orders in proceedings 00296771 of 2023 (charge 2): (5) Whites Timber Products Pty Ltd ACN 647 042 751 is convicted of the offence against section 60ZZA(1) of the Local Land Services Act 2013 (NSW) as charged. (6) Whites Timber Products Pty Ltd ACN 647 042 751 is to pay a fine of $300,000.

White's Haulage Pty Limited

1. The Court orders in proceedings 00296779 of 2023 (charge 1): (7) White's Haulage Pty Limited ACN 105 861 327 is convicted of the offence against section 60ZZA(1) of the Local Land Services Act 2013 (NSW) as charged. (8) White's Haulage Pty Limited ACN 105 861 327 is to pay a fine of $50,000.
2. In proceedings 00296780 of 2023 (charge 3): (9) White's Haulage Pty Limited ACN 105 861 327 is convicted of the offence against section 60ZZA(1) of the Local Land Services Act 2013 (NSW) as charged. (10) White's Haulage Pty Limited ACN 105 861 327 is to pay a fine of $90,000.
3. In proceedings 00296782 of 2023 (charge 2): (11) White's Haulage Pty Limited ACN 105 861 327 is convicted of the offence against section 60ZZA(1) of the Local Land Services Act 2013 (NSW) as charged. (12) White's Haulage Pty Limited ACN 105 861 327 is to pay a fine of $130,000.
4. In proceedings 2023/00296768, 2023/00296769, 2023/00296771, 2023/00296779, 2023/00296780, 2023/00296782: (13) Pursuant to section 122 of the Fines Act 1996 (NSW), a moiety of 50 percent of any fine determined by the Court, be paid to the Prosecutor. (14) Pursuant to section 257B of the Criminal Procedure Act 1986 (NSW), the Defendants are each to pay the Environment Protection Authority's legal costs as agreed or as may be determined under section 257G of the Criminal Procedure Act 1986 (NSW).
5. In proceedings 2023/00296768, 2023/00296769, 2023/00296771: (15) Pursuant to section 13.25(1)(a) of the Biodiversity Conservation Act 2016 (NSW), Whites Timber Products Pty Ltd ACN 647 042 751 at its expense is to: a. within 60 days of the date of this order, cause a notice at a minimum size of 139mm x 129mm to be published within the first 12 pages of the following publications with the text of such notice and the defendant's logo (of reasonable size) to be as set out in Annexure A to these orders: 1. Bega District News; 2. Monaro Post; and 3. Australasian Timber Magazine. (16) Within 7 days of the date of publication of the notices referred to in Order 15, Whites Timber Products Pty Ltd ACN 647 042 751 must provide the Prosecutor with a complete copy of the notices as published pursuant to those orders.
6. The Court notes: 1. The Prosecutor withdraws proceedings 2023/00296770, 2023/00296772, 2023/00296781 and 2023/00296783.

Annexure A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2024