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

Environment Protection Authority v Whites Timber Products Pty Ltd; Environment Protection Authority v White's Haulage Pty Ltd - [2024] NSWLEC 135 - NSWLEC 2024 case summary — Zoe

Catchwords

[2014] NSWLEC 67 Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 4) (2014) 212 LGERA 1[2014] NSWLEC 74 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297[2012] NSWLEC 69 Environment Protection Authority v Grafil Pty Ltd[2006] NSWLEC 419 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189[2006] NSWLEC 242 Hawkesbury City Council v Saed [2022] NSWLEC 34 Johnson v R (2004) 78 ALJR 616[2004] HCA 15 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Lowe v R (1984) 154 CLR 606[1984] HCA 46 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Plath of Department of Environment and Climate Change v FishPlath of Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386[2010] NSWLEC 144 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355R v Houlton (2000) 49 NSWLR 383[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

Judgment (51 paragraphs)

[1]

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)

[2]

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

[3]

Legislation Cited (10)

JUDGMENT Local Land Services Act 2013(NSW)

at date of offences - September to November 2021) Biodiversity Conservation Act 2016(NSW)

northern harvesting area and total southern harvesting area). Local Land Services Act 2013(NSW)

Environment Operations Act 1997(NSW)

Local Land Services Act 2013(NSW)

Biodiversity Conservation Act 2016(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Criminal Procedure Act 1986(NSW)

Fines Act 1996(NSW)

Evidence Act 1995(NSW)

Cases Cited (58)

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

[4]

JUDGMENT

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).
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).
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.
The offences charged under Pt 5B of the LLS Act are strict liability offences. The EPA has the function of enforcing compliance with the requirements of forestry operations under Pt 5B, s 60ZZB(1). The offence is committed pursuant to s 60ZZA(1)(b). It is not part of the elements of the offence that the Defendants intended to commit the offence (ss 60ZZA(1)(a), (3)) of the LLS Act does not apply). As the offences are native vegetation offences as defined under the Biodiversity Conservation Act 2016 (NSW) (BC Act) the objects of the BC Act and the provisions in Pt 13 Criminal and civil proceedings apply to these offences, see also s 60ZZB(2) of the LLS Act.
The northern harvesting area (charge 3) is approximately 20 hectares and the southern harvesting area (charge 2) is approximately 22 hectares (collectively the harvesting areas). These areas are within two larger northern and southern areas of the Property intended to be harvested for timber (total northern harvesting area and total southern harvesting area).

[5]

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

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). ...

[6]

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.

[7]

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 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).

[8]

Statement of agreed facts

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 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. 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.
The harm identified in the EPA's proposed amended additional findings arises from all offences collectively.

[9]

Oral evidence of expert witnesses

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.
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.
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.
Having a higher basal area in the retained areas beyond the harvesting areas of 30m2 to 40m2 compared to a basal area of 12m2 improves habitat and food depending on how it is already occupied by animals which would need to be displaced by incoming animals from the cleared areas. Associate Professor Brack agreed that the measures for cleaning up the site identified by Mr Dennis White including removing excessive debris would have assisted in the regeneration of the harvesting areas.
In re-examination, Associate Professor Brack confirmed that the 95% and 99% confidence ranges relate to the range of basal area based on the sweeps. The key points of his evidence are the derivation of a mean.
In cross-examination Dr Wall agreed that he had not seen Ms Roach's survey of the harvesting areas, see below in [135]-[138]. None of the ecological characteristics identified in Dr Wall's report were endangered ecological communities. No injured native animals were identified. The identification of likely native animal species was based on a species list generated by BioNet a government register of records from around that area within about 10km of the Property. He was confident these species would have occurred throughout the forest. When asked whether the vibration and activities of a forestry operation would cause most animals to move he agreed many of those identified were capable of moving. Some species do not move quickly and would struggle to move away. A number of logs extracted from the harvesting areas (inventory data did not specify from which area) were large enough to suggest that the trees would have been over 100 years old. Dr Wall was aware the southern harvesting area had been heavily harvested in the 1990s. He had not seen evidence about the mid storey prior to the harvesting activities the subject of the proceedings.
Dr Wall agreed that the PNF Code refers to whole numbers not decimals. He agreed that a stand basal area of 10.7m2 per hectare could be fairly rounded to 11m2 for the northern harvesting area and compared to 12m2 (that control was recently reduced from 16m2), the difference would (still) be 10%. He agreed that a difference of say 5% would be more significant in the context of environmental harm. He agreed that the closer the extent of compliance with the basal area required the less the environmental harm. His estimate of the loss of biomass of 70-95% includes both the authorised and the unauthorised clearing. He is unable to distinguish between loss arising from authorised and unauthorised clearing. A light burn that can be carried out to facilitate regeneration in accordance with forest silvicultural practices could potentially impact individual frogs, ground dwelling mammals and reptiles.

[10]

Habitat trees/retention trees insufficient (charge 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.
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].
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.
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.
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.
In light of the oral evidence given by Associate Professor Brack and giving the Defendants the benefit of the EPA's statistical range 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. Associate Professor Brack estimated that the 'number of trees pre-harvest would have been 175-500 ha-1' so in terms of the extent of actual harm, giving the Defendants the benefit of the EPA's highest statistical range, of the 500 pre-harvest trees removed, the Defendants were only required to retain 10 recruitment trees per hectare and retained 9.69 trees instead in the southern harvesting area (or of the 500 trees they removed 490.31 instead of the required 490). On no basis could the removal of 0.31 trees per hectare be considered 'substantial' and would otherwise properly fall at the low end of the scale.
Dr Wall accepted that 'the retained habitat trees were likely to contain hollows' (Dr Wall's report par 62) and agreed in cross-examination that in accordance with the PNF Code only five hollow bearing trees were required to be retained. He agreed that for example of the 9.69 trees retained per hectare in the southern harvesting area there was a chance that at least five of those would have in fact been hollow bearing trees in compliance with the PNF Code.

[11]

Basal area (charges 2, 3)

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.
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.
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).
As Dr Wall explained in oral evidence the closer the extent of compliance with the basal area the less significant the environmental harm.
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.
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.

[12]

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

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.
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.
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).
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.
The Defendants also stated that to the extent that averaging is not permitted by the PNF Code it is inconsistent to determine the extent of harm by applying a statistical range for the basal area. These submissions are not consistent with the provisions of the PNF Code and the Silvicultural Guidelines applicable in order to comply with the PNF Code. The Silvicultural Guidelines state that to ensure stand basal area is assessed during any forestry operation in compliance with the PNF Code, the minimum stand basal area will be applied as an average over the relevant operational area of a forestry harvesting operation. A note in the Silvicultural Guidelines states that calculations undertaken during a harvesting operation to ensure the average stand basal area complies with the PNF Code cannot include areas within the FOP boundary that are yet to be harvested. Averaging across an area of forestry operations is fundamental to the implementation of the PNF Code and the Silvicultural Guidelines. As already canvassed, the Defendants' error was to average across an impermissibly wide area. Associate Professor Brack's approach is consistent with the regulatory scheme.
My observation about averaging being fundamental is important to understanding the nature of the EPA's expert evidence and the attempt by the Defendants to undermine this by focussing on one end of the possible statistical range which was identified by Associate Professor Brack and applied by Dr Wall in drawing his conclusions about the extent of environmental harm. The statistical evidence of Associate Professor Brack is based on identifying the mean of the basal sweep of trees remaining in the respective harvesting areas considered in relation to the different basal area controls which apply in relation to charges 2 and 3. The Defendants emphasised the 99% figure for each area as being the top of the statistical range applied by Associate Professor Brack as the sole figure to be considered. The basis for doing so is said to be the burden of proof of beyond reasonable doubt requiring the 99% figure to be applied and essentially ignoring the rest of Associate Professor Brack's statistical evidence. This criticism is misconceived as it does not reflect the nature of this evidence.
Application of the onus of proof borne by the EPA of beyond reasonable doubt does not require that only the 99% value be used, and that submission does not accurately reflect the methodology applied by Associate Professor Brack. The higher figure simply provides greater certainty about the range to be applied. It follows that I consider the evidence of Associate Professor Brack which underpins the additional findings sought by the EPA in relation to contraventions of the PNF Code set out above in [93] in relation to charges 2 and 3 should be accepted. No criticism was otherwise made about Associate Professor Brack's approach and it was not undermined in cross-examination. As set out above the correct approach statistically to this evidence is to recognise that the range reflects the averaging of data.
In relation to charge 1, an extract of Associate Professor Brack's report assessing the level of tree retention statistically is set out above in [90] with his conclusion that the northern harvesting area shows 6.6 trees per hectare and 7.7 trees per hectare for the southern harvesting area when the average required 10 trees per hectare. A similar criticism to charges 2 and 3 was made about Associate Professor Brack's statistical analysis in relation to tree retention rates and that criticism is also rejected for the same reasons here. Application of the upper 99% confidence values only is not appropriate as it does not reflect the correct application of the statistical methodology. Cross‑examination questions asking how 9.69 trees per hectare relates to 10 trees per hectare in the PNF Code for the southern harvesting area, and 9.5 trees per hectare for the northern harvesting area are irrelevant. The submission that the highest the expert evidence gets to regarding loss is one tree per hectare is not a correct representation of the statistical evidence. The Defendants' submission that Associate Professor Brack's evidence can support only a finding of low level environmental harm is not accepted.
Dr Wall considered the evidence of Associate Professor Brack and other information provided by the EPA in providing his report on environmental harm based on the absence of habitat and retention trees (charge 1), and the failure to preserve the required basal areas (charges 2, 3). Dr Wall considered that few if any recruitment trees were retained and that a substantial number of larger and older trees appear to have been harvested. Dr Wall identified actual environmental harm to the structure and function of the forest system in the harvesting areas, harm to hollow-dependent animals, ground dwelling mammals, arboreal mammals, birds and frogs, harm to bats and harm to reptiles. His report also addressed potential harm to hollow-dependent animals, ground dwelling mammals, arboreal mammals including bats, birds and frogs which inhabited the forest adjacent to the harvesting areas due to greater wind and weather exposure and potentially higher likelihood of desiccation. He provided an opinion on the likelihood of harm caused by the commission of the offences to bats due to the reduction in suitable habitat with potential for harm to bats in adjacent forest. Likely harm is not synonymous with potential harm, which arguably has a lower threshold. Under s 13.12(2) of the BC Act the Court can consider other matters it considers relevant and I will consider potential harm as described by Dr Wall.
While Dr Wall was asked similarly to Associate Professor Brack about the application of the top of the range of values, and the appropriate application of whole figures rather than decimals, I do not consider that altered or undermined the opinions about harm that he expressed.
The Defendants relied on the change in basal areas requirements for the northern harvesting area being reduced from 16m2 to 12m2 per hectare after these offences were committed to submit that environmental harm should be considered to be minimised. While that control if in place at the time of the offences would have meant a different comparison of the range identified by Associate Professor Brack the failure to comply with the PNF Code would have remained.
In relation to charge 1, the Defendants sought to minimise the loss of hollow bearing trees based on the conservative assumption by Associate Professor Brack that all trees that were retained were habitat or recruitment trees. As some of the upper range of confidence represented by 9.69 trees per hectare in the southern harvesting area may have contained an average of five hollow bearing trees this was submitted to reduce the harm caused from that identified by Dr Wall. The acceptance of a possible average of five trees at the top end of the range is not a finding which applies to the whole southern harvesting area.
An unfair submission was made by the Defendants' counsel that Dr Wall lacked diligence and his evidence should be given substantially less weight because he incorrectly identified a control at one point of his report in relation to the retention of trees. Dr Wall corrected two other similar references at the outset of his oral evidence and referred correctly to the relevant control in another paragraph in his report. Dr Wall was well aware of the applicable controls. His evidence of substantial impacts arising from all the charges was not otherwise disturbed in cross-examination.
That no threatened or endangered species are recorded in the harvesting areas can be noted but that submission does not negate the harm otherwise found to be caused to fauna species generally resulting from the loss of habitat.
The Defendants relied on the maximum productive range in the Silvicultural Guidelines which appears under a heading 'Economic considerations' in the chapter 'Social and economic factors' to suggest that the environmental harm caused by failing to comply with the explicit basal area controls in the PNF Code is reduced in severity. Such a matter is not obviously a relevant ameliorating factor in assessing environmental harm for charges 2 and 3. For clarity I note that while Associate Professor Brack used the term maximum productive range, the Silvicultural Guidelines use the term optimum post‑harvesting basal areas.
The Defendants emphasised the inherently harmful nature of forestry operations on flora and fauna in emphasising that light reduction burns after logging were permitted, which would likely impact on ground dwelling mammals and frogs to submit that harm from the offences should be assessed (minimised) in that light. Dr Wall agreed in cross-examination that a post-logging fire, a common silvicultural practice, could affect ground dwelling mammals and frogs suggesting according to the Defendants that any harm Dr Wall identified would be likely to occur anyway. Dr Wall did not agree unequivocally with that submission in cross-examination in that he emphasised light burning is permissible.
That the environment in the southern harvesting area may have been disturbed or modified prior to the forestry operations is not a mitigating factor in the context of these offences. I held in EPA v Green at [47]: … 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. …
That Associate Professor Brack agreed in cross-examination that the areas intended to be retained by the Defendants which were permitted to be cleared resulted in an improvement relative to these being cleared pursuant to the PNF Code in diversity of species, seeds to promote regeneration, providing habitat and food does not reduce the environmental harm arising from these offences. In oral evidence Associate Professor Brack confirmed that whilst a higher stand basal area will improve species diversity, the retention of trees near the harvesting areas would only provide benefit if the trees retained are close to the cleared area (for example, 50-100 metres). If trees are away from the harvesting areas, that wouldn't be 'particularly useful'.
In relation to loss of biomass, which includes vegetation in the mid-storey, Dr Wall's opinion was about the total loss arising from lawful and unlawful harvesting. The difficulty in differentiating between the two means that the impact of his opinion in terms of attributing harm to loss of vegetation, not just trees the subject of the charges, should be given less weight. I accept the Defendants' submissions in that regard.
But for the loss of biomass considered in the last paragraph, I do not consider the various matters identified by the Defendants overcome in any substantial way the expert evidence called by the EPA. In largely accepting the expert evidence relied on by the EPA I consider that the environmental harm caused by the offences viewed collectively was significant. I have accepted above the evidence of Associate Professor Brack and Dr Wall in relation to the adverse impacts of all the charges in light of the application of the basal area controls and habitat tree and retention tree controls required under the PNF Code. 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 as another harm by Dr Wall.

[13]

B. Regeneration of harvesting areas

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.
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.
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.
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.

[15]

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

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.
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.
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.
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.
I accept the EPA's submission that the Defendants' submissions traverse their pleas of guilty to charge 2. Under s 13.12(1)(a) of the BC Act the Court must consider 'the extent of the harm caused or likely to be caused by the commission of the offence' (underlining added). The Defendants' approach requires the Court to ignore the offending conduct in relation to the southern harvesting area for the purposes of assessing harm and effectively proceed as if there was no offending conduct.
Somewhat reluctantly I therefore consider the Defendants' arguments. The Defendants must prove as a matter of fact on the balance of probabilities that all of the southern harvesting area was cleared as at 1 January 1990 (s 60H(1)(a)) or between 1 January 1990 and 25 August 2017 (s 60H(1)(b)) so that s 60H applies. The Defendants must also succeed on their statutory construction argument about the operation of the LLS Act.

[18]

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

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.
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.
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].
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.
Mr Boyd was taken to an undated letter from Dr Jones to 'Proper Officer' copying in Mr Rodda LLS director of statewide programs. Mr Boyd had seen the letter at the approximate date of issue in September 2023. The EPA was seeking clarification as to views or positions taken by the LLS as to whether the land the subject of the PNF Plan would be considered category 1. Mr Boyd accepted that the letter was addressed to Mr Rodda because he was a senior officer within the organisation. Mr Boyd was taken to another letter dated 14 September 2023 addressed to Dr Jones from Mr Rodda stating that he did not believe the Property was category 1 land.
Asked if he had any training in geographic information system software, Mr Boyd responded that had completed a Bachelor of Science and Forestry which included aerial photo interpretation using stereoscopes and a component on geographical information systems. In his role as LLS officer he is not called upon in court proceedings to give opinions about aerial imagery interpretation nor has he prepared expert reports on the subject. In his current role and in previous government organisations Mr Boyd had been involved in investigations of native vegetation clearing by providing supporting information and advice from an operational perspective. Some of those investigations proceeded to either a prosecution or enforcement proceedings. Mr Boyd had never been called to give expert evidence about the interpretation of aerial images in these enforcement proceedings or prosecutions. Asked whether this was because he did not have the requisite expertise, Mr Boyd responded that it was impossible for him to determine the reason as he had not been advised as to why he hadn't been called. Mr Boyd confirmed that there have been investigations in which he was involved that have called an expert to give evidence about the interpretation of aerial imagery.
In re-examination Mr Boyd was taken to a letter dated 13 May 2024 from the Defendants' solicitors addressed to Mr Rodda with follow up questions regarding the categorisation of the PNF area and annexing aerial imagery supplied by Mr Boyd described above in [147]. Mr Boyd confirmed that he had seen the letter at the time it was received. He believed that a response had not been provided. Asked whether certain forestry operations set out under the PNF Plan would not require LLS approval if the land was unregulated, Mr Boyd responded yes. Asked if there is a native vegetation regulatory map that applied to the land the subject of the clearing in November 2021, Mr Boyd responded no. On that basis and the belief that the land had been cleared as at 1 January 1990, Mr Boyd formed the view that the land was category 1 pursuant to s 60F of the LLS Act. If the southern harvesting area was category 1 the area could have been cleared without LLS approval according to Mr Boyd.
I will first consider whether the southern harvesting area falls under category 1 as a matter of fact (evidence), meaning whether it has been established on the balance of probabilities that the whole area was cleared.

[20]

Defendants' submissions - factual basis established

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.
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.
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.
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.

[25]

Finding on statutory construction

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.
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.
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.
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.
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.

[38]

Application of s 10 CSP Act to charge 2

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.
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).
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).
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.
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.

[40]

Deterrence

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…
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'.
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.
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.

[41]

Even handedness

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).
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.

[42]

Application of totality principle

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'."
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].
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.

[44]

Extra-curial punishment

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].
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.
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.
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.

[50]

White's Haulage Pty Limited

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.
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.
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.
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).
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.
The Court notes: 1. The Prosecutor withdraws proceedings 2023/00296770, 2023/00296772, 2023/00296781 and 2023/00296783.

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