Garrett v Freeman - [2007] NSWLEC 389 - NSWLEC 1995 case summary — Zoe

NSWNSWLEC

Garrett v Freeman

[2007] NSWLEC 389

Land and Environment Court (NSW)|1995-05-11|Before: Lloyd J, Talbot J, Professor Barry J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1995-05-11

Before

Lloyd J, Talbot J, Professor Barry J

Source

Original judgment source is linked above.

Judgment (280 paragraphs)

[1]

INTRODUCTION 1 - 8 AGREED FACTS 9 - 13 THE ISSUES 14 - 17 THE PROSECUTOR'S EVIDENCE 18 - 93 Mr Thor Aaso 19 - 28 Mr Scott Anthony Beaumont 29 - 33 Mr Jason Berrigan 34 - 39 Mr Anthony Ward Bischoff 40 Mr Michael Andrew Coulter 41 - 44 Mr Stephen Debus 45 - 46 Professor Barry J Fox 47 - 48 Mr John Edward Jeayes 49 - 53 Mr Franklin John Lyon 54 Ms Maria Alma Matthes 55 - 60 Mr Jack Anthony Moody 61 - 62 Ms Katrina Louise O'Reilly 63 Mr Peter Matthew Owens 64 - 71 Mr Philip Anthony Redpath 72 - 77 Mr Matthew Rogers 78 - 85 Mr William Llewellyn Saunders 86 - 88 Mr Trevor Graham Schubert 89 Mr Bernard James Smith 90 - 93 THE DEFENDANT'S EVIDENCE 94 - 159 Mr Geoffrey Noel Freeman 95 - 150 Mr Steven Thomas Miles 150 - 158 Ms Lisa Jane Essex-Evans 159 THE PROSECUTOR'S SUBMISSIONS 160 THE DEFENDANT'S SUBMISSIONS 161 FINDINGS 161 Inconsistencies in the defendant's evidence 162 - 227 When was the car park conversation with Mr Rogers and Mr Aaso? 162-166 Was there a council's file? 167 - 168 When did the defendant become aware of threatened? species on the site? 169 - 178 Had the defendant done any REFs before? 179 - 181 When was the REF undertaken? 182 - 191 Does the REF involve an eight part test? 192 - 195 What was the defendant's understanding of Pt 5 of the EP&A Act? Did the defendant believe that a determination had been made under Pt 5 of the EP&A Act? 196 - 201 Was there a formal engagement of King & Campbell? 202 - 206 Did King & Campbell provide the defendant with any documents? 207 - 208 Did King & Campbell contribute to the planning of the roads? 209 - 214 How did the defendant respond to Mr Rogers's email of 17 November 2003? 215 - 216 John Jeayes 217 - 218 Section 168 NPW Act notice 219 - 223 Section 193 POEO Act notice 224 - 226 Generally 227 Findings on the evidence 228 - 267 Did the council know, at the time of the offence, that the land was habitat of the two threatened species? 228 Did the council do a thing, namely, construct roads? 229 Did the construction of the roads cause damage to the habitat of the threatened species? 230 - 237 Was the act that constituted the offences essential for the carrying out of an activity within the meaning of Pt 5 of the EP&A Act and did the determining authority comply with that Part? 238 - 252 Section 175B 253 Is, or was, Hastings Council a corporation? 254 Was the defendant a person who is a director of the corporation or a person concerned in the management of the corporation? 255 Did Hastings Council contravene s 118D without knowledge (actual, imputed or constructive) of the defendant? 256 - 267 CONCLUSION 268

[33]

· On 28 May 2004, Mr Beaumont attended the Partridge Creek site with Mr P A Redpath, a regional ecologist from the Department of Infrastructure, Planning and Natural Resources ("DIPNR"). Video footage was taken on the site, with commentary from Mr Redpath regarding the Eastern Chestnut Mouse and Grass Owl previously located by him in that vicinity. 30 The video footage from Mr Beaumont's inspections of 1 April and 28 May 2004 was shown during the hearing. The video is Exhibit G in the proceedings. Footage taken on 1 April 2004 shows animal (possibly dog) prints in the mud at the edge of the road. The footage of 28 May 2004 shows the east-west road to be near an area owls were nesting in 2002. The commentary in the video is by Mr Redpath who points out that the impact of the road is most serious for owl nesting as it provides access for dogs and foxes. Fresh animal footprints were shown, the commentator, Mr Redpath, said they were probably dog prints, and the size of them indicated that such a dog could damage a grass owl. The audio portion of the second visit was admitted on the prosecutor's undertaking to call Mr Redpath. 31 Mr Beaumont details his correspondence with Hastings Council and the defendant in his affidavit. On 28 May 2004, Mr Beaumont delivered a request for information and assistance pursuant to s 169 of the NPW Act addressed to the General Manager, Hastings Council. Mr Beaumont received a response on 22 June 2004, signed by Mr Freeman. On 7 December 2004, Mr Beaumont sent a notice under s 193 of the POEO Act further requesting information and records, to the General Manager, Hastings Council. On 4 January 2005 Mr Beaumont received a response from Mr Freeman to the s 193 notice. 32 Mr Beaumont also refers in his affidavit to the interview he conducted with Mr Freeman. On 6 April 2005 he sent an urgent facsimile to the office of Mr S T Miles, solicitor of Donovan Oates Hannaford, and to the General Manager Hastings Council, requiring the council to nominate a representative for interview pursuant to s 203 of the POEO Act. Mr Beaumont received a response on 7 April 2005 to the facsimile he sent to Mr Miles, which nominated Mr Geoffrey Freeman as the council's representative for interview. Hence on 12 April 2005 Mr Beaumont, in company with Mr J Bentley from the DEC, spoke to Mr Freeman in an office of the National Parks and Wildlife Service, Port Macquarie. In attendance with Mr Freeman was Mr Miles. After informing Mr Freeman of the nature of the investigation and confirming Mr Freeman was aware of the interview process, an audio-recorded interview was conducted and a copy of the interview was given to Mr Freeman at the conclusion of the interview. 33 I have read the transcript of interview as annexed to Mr Beaumont's affidavit and which was subsequently tendered by the defence and admitted in evidence by consent for all purposes (Exhibit 1). A relevant fact arising from the interview is that Mr Freeman indicates that he did not recall having seen the letter from Ms K L O'Reilly, dated 26 June 2002 (to which I later refer) and which he was shown during the interview. Mr Freeman believes he may not have received the letter as it would have been allocated to his personal assistant and referred directly to Mr G Sharp.

[41]

Mr Michael Andrew Coulter 41 Mr Michael Andrew Coulter swore an affidavit read in these proceedings and gave oral evidence. From January 1998 to February 2006, Mr Coulter was Director of Planning and Environment at Port Macquarie-Hastings Council. During 2001-2003, his division managed the ASSR Project at Partridge Creek. Mr Coulter deposes that the council's officer with primary responsibility for the ASSR Project was Mr Aaso, who was supervised by Mr Rogers. A plan of management was prepared for the ASSR Project which incorporated a series of recommendations in the Redpath survey, designed to mitigate the impact of the ASSR Project upon threatened species identified in the Partridge Creek area - particularly the Grass Owl and the Eastern Chestnut Mouse. Mr Coulter states that the council adopted the plan of management. 42 Mr Coulter deposes that a report regarding the ASSR Project, which he co-authored, and the plan of management were included in the papers distributed to councillors for the meeting at which ASSR Project was considered. From the minutes of that meeting which was held 10 February 2003, Mr Coulter notes that Mr Freeman was acting General Manager at that time. Notably the report on the ASSR Project, annexed to Mr Coulter's affidavit, states: A hard copy version of the Partridge Creek Hot Spot Remediation Management Plan accompanies this Report. (Councillors - this has been previously distributed). ... The Partridge Creek Acid Sulphate Soil Hot Spot Remediation Project requires assessment under Part 5 Environmental Planning and Assessment Act 1979. ... Under Part 5 of the Act, Council has the following obligations in undertaking environmental assessment. It must: - 1. Have regard to the register of critical habitat under the Threatened Species Conservation Act (S110C); 2. Take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity (S111(1)); 3. Effect on any conservation agreement; conservation area or management agreement under the Threatened Species Conservation Act (S111(2)); 4. Effect on any Wilderness Area (S111(3)); 5. Effect on critical habitat; whether there is likely to be a significant effect on threatened species, populations or ecological communities, or any other protected fauna or plants (S111(4)). … If the activity is likely to significantly affect the environment or threatened species, populations or ecological communities or their habitats, an EIS (possibly including a species impact statement) must [be] prepared and considered by Council. … 43 Mr Coulter also states that Hastings Council had an executive group comprising the General Manager and the Directors. Part of their business was to finalise the agenda and papers for the council's meetings. Mr Coulter deposes that he is sure that his report on the ASSR Project and the plan of management would have been an item for discussion by the executive group before the council's meeting on 10 February 2003. At the meeting, Mr Coulter would have made some introductory comments about it and there may have been some further discussion but the council meeting of 10 February 2003 proceeded fairly quickly through the ASSR Project agenda item.

[54]

56 In her first affidavit, Ms Matthes states that she inspected the Partridge Creek site with Mr Freeman on 29 January 2004. On this inspection Ms Matthes observed that the east west road ran through the area she believed to be the habitat of the Grass Owl, the Eastern Chestnut Mouse, and the Wallum Froglet, all of which are threatened species. Mr Freeman informed Ms Matthes that the council constructed the two roads during September 2003 for fire fighting and future development purposes. He further explained the southern end had a locked gate but the northern end was open and easily accessed from a road off Hastings River Drive. He explained that the council did not have control of the northern end and anyone could access the site from there. Ms Matthes thought that the access to the threatened species habitat provided by the roads, particularly the east-west road, was potentially a serious threat to the Grass Owl, Eastern Chestnut Mouse and Wallum Froglet. On review of the reports Mr Freeman gave to Ms Matthes during their meeting (including ERM report and Redpath survey), Ms Matthes confirmed the view that the east west road had been constructed through the known habitat of the Grass Owl, Eastern Chestnut Mouse and Wallum Froglet. At the end of the inspection, Ms Matthes explained that the threatened species habitat had clearly been damaged and that it really came down to whether the council had an appropriate approval for the works done by it and whether the works were undertaken in accordance with the approval. Mr Freeman queried what that approval would be. Ms Matthes suggested that in this case it was probably a Review of Environmental Factors (REF) under Pt 5 of the EP&A Act. Mr Freeman explained he had done a "preliminary REF" because he saw the proposed works as being what he termed "minor works" and that the council had done no detailed assessment. When Ms Matthes asked what a preliminary REF was, Mr Freeman indicated a preliminary REF was a short 'tick-a-box' document.

[55]

57 On 3 February 2004, Ms Matthes received by post from Mr Freeman copies of two maps, a copy of the preliminary REF undertaken for the roads constructed at Partridge Creek and a "with compliments" note signed by Mr Freeman. After reviewing the documents, Ms Matthes formed the opinion that there is unlikely to be a valid approval for the works undertaken in the Partridge Creek area. 58 Ms Matthes believes that the council should have a valid approval under Pt 5 of the EP&A Act for the roads prior to construction works commencing. The Rural 1(a1) zoning of the Hastings Local Environmental Plan 2001 identifies such works as being permissible without development consent. However, the effect of this is that the council would be required to assess the environmental impact of the activity in accordance with Pt 5 of the EP&A Act. Ms Matthes deposes that the most appropriate mechanism for this is the preparation of a REF to satisfy ss 111 and 112 of the EP&A Act. In order to determine whether an activity is likely to significantly affect threatened species the factors to take into account are generally considered as "assessment of significance" or eight part test assessment. Ms Matthes points out that in addressing each of these factors for consideration in the preliminary REF, the council merely ticked a box identifying the impact as "acceptable". Moreover, Ms Matthes contends the preliminary REF was prepared using outdated legislation. She deposes that cl 228 of the Environmental Planning and Assessment Regulation ("EP&A Regulation") 2000 specifies the factors to be taken into account when considering the likely impacts of an activity on the environment. The preliminary REF does not appear to have been prepared in accordance with the EP&A Regulation 2000, rather it has identified the factors under cl 82 of the EP&A Regulation 1994. However, the earlier regulation is now outdated and not relevant to the current planning process. 59 Ms Matthes deposes that the preliminary REF has no determination date, is not signed and does not identify the proposed action, other than the words "Thrumster Land Access Road" handwritten on the top of the front page. Moreover, there were no details provided in, or with, the preliminary REF in relation to threatened species and their habitat on the site, such as the location of roads, the materials to be used, what measures are to take place, and how the works are to be undertaken. Ms Matthes states that generally there would be standard information contained in, or accompanying an REF with threatened species issues. In Ms Matthes' opinion the 'tick-a-box' preliminary REF with no date, no signature and a lack of information to demonstrate that threatened species and their habitats will not be significantly impacted, cannot be seen as a reasonable examination of threatened species matters. Ms Matthes believes that this is particularly relevant, as it appears that the council knew of the presence of threatened species in the vicinity prior to the road construction. Ms Matthes states in her oral evidence that she has seen checklists used where there has been an assessment but no formal document called an REF prepared, but such checklists always have some accompanying documentation. 60 Ms Matthes has deposed that on 1 April 2004 she attended the Partridge Creek site with Mr Beaumont. She observed numerous dog prints along the north-south and east-west roads. This observation raised additional concerns that the roads could lead to threatened species being further impacted by feral dogs gaining improved access to the site. Ms Matthes deposes that the council prepared and determined an REF, dated 20 May 2004, for proposed sediment and erosion control measures, which identified that the preliminary REF provided by Mr Freeman was not likely to be valid.

[62]

Mr Peter Matthew Owens 64 Mr Peter Matthew Owens swore an affidavit read in these proceedings and he gave oral evidence. Mr Owens has worked for Port Macquarie-Hastings Council since November 1995. Mr Owens is currently employed as Planning Manager and has been in this position since December 2002. He says that his immediate manager both now, and in the period June to December 2003, was Mr Coulter. When the council is preparing to undertake works such as the construction of a road on its own land, Mr Owens' role is to ensure compliance with the EP&A Act. He has to determine what requires development consent or a Pt 5 approval or what is exempt development. He is aware, and was aware in the period of June through to December 2003, that development consents and Pt 5 approvals needed to take into account whether the land concerned had on it habitat of any species which are or were threatened species under the TSC Act. 65 Mr Owens states that in the period from June to December 2003, he was aware that some works did not require development consent, as specified in the Hastings Local Environmental Plan 2001 ("the LEP"), and that some works were exempt development under the EP&A Act. Clause 8 of Sch 5 of the LEP did not require development consent for certain road works. However, Mr Owens believes a road constructed through a wetland area or threatened species habitat would not have been exempt under the LEP. 66 Mr Owens deposes that in the period from June to December 2003, the development control planners in his department, himself or Mr Coulter would have determined whether consents or approvals were required for anything which was development under Pt 4 or an activity under Pt 5 of the EP&A Act. In that period he was aware that threatened species as listed in the TSC Act were likely to be found in the area west of Port Macquarie airport. However, he could not say specifically if there were any in the exact area of Partridge Creek. 67 In the period from June to December 2003, Mr Owens was aware of the ASSR Project. He recalls that, before September 2003, there was a mouse found in the area to which the ASSR Project relates, which was identified as a threatened species. He also deposes that he is aware that an owl is often found in areas where that mouse was found because they have a predator/prey relationship. Further, he is aware that the owl concerned had been identified as a threatened species. He became aware of these species by talking to Mr Aaso and Mr Rogers. 68 Mr Owens deposes that during his time as Planning Manager, he has usually been informed of any road works on the council's land for new public roads, but he is not informed of operational works, such as fire trails. In the period from June to December 2003, if the council was constructing a road on its own land and threatened species were an issue he would expect to be contacted. When contacted on such occasions he provides advice. Mr Owens was not contacted by anyone in relation to the construction of the roads at Partridge Creek. He deposes that had it been brought to his attention that threatened species were a consideration in planned road works then a suitable environmental investigation would need to be done first as a standard requirement. This would need to satisfy the requirements of the TSC Act and Pt 5 of the EP&A Act. 69 Mr Owens refers to the old pro-forma document, which the council used for reviewing REFs, entitled "Thrumster Land Access Road", annexed to his affidavit. (This is the same document prepared by Mr Freeman, which Mr Freeman says satisfies Pt 5 of the EP&A Act.) Mr Owens deposes that on its own the document is not, and was not in 2003, a complete REF. He indicates that the form completed was used in the past as a prompt for what to look for when reviewing an REF. It was a check sheet that was used to assess the REF. Mr Owens refers to a document underneath a letter dated 18 May 2004 from Mr G Freeman to Mr G Davey, Manager, Conservation Programs and Planning, entitled "Review of Environmental Factors: Proposed Erosion & Sediment Controls Partridge Creek Access Track." He deposes that the document comprises 25 pages and is the type of document his department receives and received around 2003 by way of an REF for assessment and approval under Pt 5 of the EP&A Act. Mr Owens believes that the three-page REF assessment sheet which was completed for the ASSR Project is not an REF, it is an assessment sheet. He deposes that an REF will state what work has been proposed and where it has been proposed and all the studies that have been done. 70 Mr Owens deposes that a review of environmental factors undertaken under Pt 5 of the EP&A Act is assessed in relation to its adequacy and whether it suitably deals with the impacts that are likely to occur. Further work might be required in a case where threatened species have been identified in an area where works were proposed and there was a potential for impact on those species, or if the assessment did not adequately deal with those impacts, and any amelioration measures. He states that in any situation where a road was to be constructed and it traversed the habitat of threatened species, the proponent would be questioned about exactly what was being proposed. Then the council would ask the proponent to undertake the appropriate flora and fauna studies done and then to prepare an REF for assessment by the council. Mr Owens' department would conduct the assessment. In the period from June to December 2003, when an REF was assessed by his department, a copy of the REF and the assessment were usually kept. Mr Owens deposes that no REF was prepared by, or assessed in his department for works in the Partridge Creek area. Further, Mr Owens deposes that, in 2003, if the council was the proponent, in terms of an assessment under Pt 5 of the EP&A Act, the determining authority would have been the Director, Mr Coulter, or the development assessment panel (made up of management team and senior staff in Development and Environment Division plus one councillor) or Council in a council meeting. In 2003, if the council was the proponent, in terms of a Pt 5 assessment, the determining authority would have been Mr Owens or Mr Coulter. 71 In cross-examination Mr Owens indicated that he is not informed of road works when they are road repairs or rehabilitation works on existing roads. He also does not get informed about the construction of some tracks, particularly things like fire trails. Mr Owens indicated that whether investigations as to environmental impacts of the works need to be carried out depends on the circumstances of the case - sometimes it is based upon the scale of works, other times the likely impact the works will have.

[63]

Mr Philip Anthony Redpath 72 Mr Philip Anthony Redpath has sworn two affidavits in the proceedings the first affidavit on 21 October 2004 and the second affidavit on 5 April 2006. He is a regional ecologist at the Grafton office of the DIPNR. In his first affidavit, Mr Redpath states that in early 2002 he was requested to evaluate the ERM report, which was prepared as part of the ASSR Project at Partridge Creek. As a result of this, he made a recommendation that a further threatened species survey of the Partridge Creek site be prepared to determine the impacts and decide if a species impact statement ("SIS") was required. 73 On 28 May 2002, Mr Redpath made an initial inspection of Partridge Creek during the planning stage for the survey with Mr Aaso and Mr Shephard. He noted clearing by slashing was occurring in the areas to be surveyed and requested Mr Thor to ask the contractor to cease work until such time as consent has been granted for such works and the survey had been completed. As a result of this inspection and the knowledge that a potential breach of the Native Vegetation Conservation Act 1997 had occurred, Mr Redpath made a report to Ms O'Reilly, resource compliance manager of the DIPNR (then DLWC) at Grafton. On 26 June 2002, Ms O'Reilly sent an advisory letter addressed to Mr Smith, the General Manager of Hastings Council, and also marked it for attention to Mr J Sharp and Mr G Freeman, to which I have referred in par [63] above. The letter explained the relevant provisions of the Native Vegetation Conservation Act 1997 and the requirement for development consent to be sought prior to any clearing outside limited exemptions. The letter also referred to the threatened species and aboriginal sites issues associated with the subject site. From 12 August to 16 August 2002, Mr Redpath supervised and undertook a flora and fauna survey at Partridge Creek. 74 Mr Redpath deposes that the survey he conducted identified the Eastern Chestnut Mouse and the Grass Owl as both residing in the area. On 18 December 2003, Mr Aaso confirmed the representation by Mr Tulau from the Kempsey office of the DIPNR that an unsealed road through the middle of the ASSR Project site had been constructed, and their observations suggested to Mr Redpath that the road had been constructed through the middle of the Grass Owl and Eastern Chestnut Mouse habitats. 75 On 5 February 2004, Mr Redpath, accompanied by Mr R Saul from the Kempsey office of the DIPNR, drove through the Partridge Creek site on roads that were not present when he undertook his survey. Based on his observations during this site visit, Mr Redpath believes the east-west road passes directly through the area where the Grass Owls had been observed roosting. Further, he contends that the area of habitat has all the characteristics that constitute ideal Grass Owl breeding habitat. In his view the east-west road damages habitat where he believes grass owls were nesting when he observed them previously. He also observed the new road network passed through areas that contained shrubby low, heath vegetation (Wallum Heath). Mr Redpath deposes that that vegetation type is consistent with where Eastern Chestnut Mouse species were captured. It is Mr Redpath's opinion that the road added another level of impact, providing access to domestic and feral dogs and cats and foxes. This was evidenced by the presence of dog tracks in the soft-side margins of the road during his site inspection of 28 May 2004. Further, Mr Redpath observed the Grass Owl was easily disturbed. In his opinion, the presence of a road within close proximity to breeding sites has the potential to affect the Grass Owl's behaviour. 76 In his second affidavit, Mr Redpath deposes that he does have specialised knowledge in the design, conduct and interpretation of flora and fauna assessments, particularly for the purposes of assessing development proposals. He deposes that the area between PCS-002 and PCS-007 (part of the Partridge Creek site) was an area Grass Owls were observed to be roosting. With the raising of the water levels pursuant to the ASSR Project, that area would be ideal breeding habitat for the Grass Owl. However, that area has now been dissected by the east-west road and thus that part of the habitat of the Grass Owl has been obliterated. 77 Mr Redpath contends that for the purposes of the 2002 study, he traversed the Partridge Creek area extensively. They used existing tracks where possible. He says, therefore, "with confidence" that there was no track which occupied the road-line now occupied by the east-west road. Similarly, he believes that there was no track which occupied the road-line now occupied by the north-south road. On top of the opportunity for easier access by predators it is Mr Redpath's opinion that the construction of the north-south road and the east-west road has the potential to affect the habitat of both the Grass Owl and the Eastern Chestnut Mouse because of the potential for the roads to interfere with the hydrological conductivity (the lateral passage of water flows through the soil profile) of the area. Moreover he believes the construction of the north-south and the east-west roads has provided opportunity now which previously did not exist for the incursion of weeds into the habitat of both the Grass Owl and the Eastern Chestnut Mouse in the Partridge Creek area. The east-west road dissects the very area where a pair of owls were roosting during the 2002 study. In Mr Redpath's opinion there is a strong likelihood that, if the Grass Owl were breeding there in 2003, then their roost or nest complex would have been destroyed by the construction of the east-west road.

[64]

Mr Matthew Rogers 78 Mr Matthew Rogers swore an affidavit read in the proceedings and gave oral testimony. In 2003, Mr Rogers was employed by Port Macquarie-Hastings Council as its Environmental Services Coordinator. He had held that position since 2000. In 2003 and continuing today, Mr Aaso was and is a member of his staff. Mr Rogers says that in 2003 he reported to the Manager of Building and Environment, Mr D Pensini, who was responsible to Mr M A Coulter. He also confirms that Mr Freeman was Director of Infrastructure Services in 2003. 79 Mr Rogers became familiar with the Partridge Creek area particularly because of the ASSR Project undertaken in that area in 2003. The council and the DIPNR jointly funded the ASSR Project on this site. He states that as part of the ASSR Project there were two studies of the ecology of the area, one by ERM and the other by Mr P Redpath. In mid 2002 ERM provided the council with an ecological assessment (entitled, as noted above, "Partridge Creek Acid Sulphate Soils Remediation Strategy: Ecological Assessment (October 2002)") which identified that there were at least three vulnerable species living in the Partridge Creek area, the habitats of which were likely to be significantly affected by the remediation project: the Wallum Froglet, the Grass Owl and the Eastern Chestnut Mouse. As a result of recommendations made in the ERM report a survey was commissioned from an ecologist, Mr P Redpath. Mr Redpath prepared a report entitled "Partridge Creek Acid Sulphate Soil Hotspot Remediation Project Targeted Fauna Survey and Eight Part Test Assessment" (December 2002). Both studies showed that there were threatened species at Partridge Creek. This was prior to the construction of the north-south and east-west roads. 80 Mr Rogers states that in August 2002, when he was at Partridge Creek with Mr Aaso and Mr Redpath, he saw what he believed to be a Grass Owl in the area. He had numerous discussions with Mr Aaso as to how best to manage the ASSR Project so as to minimise harm to the threatened species identified in the reports. In April 2003, Mr Rogers was present at a meeting with Mr Jeayes, secretary of the NCEC. They discussed the ASSR Project and particularly its impact on the Eastern Chestnut Mouse and Grass Owl. Mr Rogers deposes that a plan of management for the ASSR Project was developed - Partridge Creek Hotspot Remediation Management Plan (April 2003). Mr Rogers deposes that there was a council report drafted by Mr Aaso for the council meeting on 10 February 2003 titled "Item 21 Partridge Creek Acid Sulphate Soil Hotspot Remediation Project." 81 Mr Rogers is unsure of the exact date, but some weeks and possibly two months before 17 November 2003, he attended the Partridge Creek area. He saw that slashing of vegetation had taken place, in the vicinity of what is now the east-west road and, from his experience of slashing, that slashing appeared to be fairly recent. Mr Rogers believes the slashing was within 100 metres of where he sighted the Grass Owl in August 2002. Again Mr Rogers is unclear about the date, but he believes that it was shortly after the site visit, he had a brief conversation with Mr Freeman in the council car park. Mr Aaso was present. Mr Rogers recalls that he had the following conversation with Mr Freeman:

[70]

Mr William Llewellyn Saunders 86 An affidavit sworn by Mr William Llewellyn Saunders was read in these proceedings and Mr Saunders gave oral evidence. He has been involved in bird watching for the last twenty years. While he has no formal qualifications, he has done previous bird atlassing (the recording of bird species in various areas, then placing those records into a central computer). He became involved in the Partridge Creek area prior to 1998. For two years, from February 2001 to early 2003, he attended the site regularly recording bird species. Mr Saunders attests that on 20 June 2001, near the windmill near the old council house at the Partridge Creek site, he flushed out a Grass Owl. Mr Saunders recorded the sighting. He has been back to the site many times since and has seen a roadway which has been constructed over the wetland. Mr Saunders estimates the area where he first saw the Grass Owl to be within 500 meters of the roadway as it now stands. 87 Mr Saunders deposes to the details of a meeting he had with Mr Freeman on 21 January 2004. At about 11am, Mr Saunders arrived at the office of Mr Freeman with his wife. When in the office, Mr Saunders produced a copy of the ASSR Project's plan of management, final draft of January 2003. Mr Freeman informed Mr Saunders that he believed he (that is, Mr Freeman) was at the Hastings Council meeting when the plan was adopted and he has a copy of the plan. Mr Saunders also produced the Partridge Creek ASSR Project Targeted Fauna Survey and eight part test assessment by Mr Redpath. Mr Freeman said he had a copy of the document. Mr Freeman further stated that he had both documents before the roads were planned and he was aware of their contents. Mr Freeman, in response to a question put forward by Mr Saunders regarding the requirements for an EIS, indicated that he was fully conversant with such requirements, and that he didn't consider that an EIS was required before the roads were constructed. Mr Freeman stated that he saw no reason to seek legal advice in relation to that, as he didn't believe it to be a designated wetland. In his oral evidence, Mr Saunders confirmed that Mr Freeman said in conversation that he had all the documents before he constructed the roads and he decided he didn't need to conduct a review. 88 Mr Saunders took a contemporaneous record of the meeting. Those contemporaneous records indicate that Mr Saunders also mentioned, in the meeting with Mr Freeman, that the reports stressed that the Grass Owl was sensitive to habitat disturbance and that the road had been sited within 100 meters of where it was known to be breeding. He informed Mr Freeman that the road would give easier access to predators, had reduced the habitat of the threatened species and would further divide the area.

[72]

Mr Bernard James Smith 90 Mr Bernard James Smith swore an affidavit that was read in these proceedings and gave oral evidence. In 2000, Mr Smith was appointed General Manager of Hastings Council. In late 2000, Mr Freeman was appointed Director of Infrastructure Services. According to Mr Smith, Mr Freeman held that position until 2005 when he was appointed Director of Water and Natural Resources. Mr Freeman's responsibilities in 2003 extended to the construction of roads on land owned by the council. Mr Freeman reported directly to Mr Smith. In 2003, Hastings Council had an executive group comprising Mr Smith; the Directors; the Finance Manager; and the Manager, Governance and Executive Services. Mr Freeman took an active role in the executive group, which was (and is) the core management group for the council. Mr Smith believes that in 2003, on the basis of delegations of authority which the council had made, the Director, Planning and Environment; the Director, Infrastructure Services (who was Mr Freeman); the Manager, Technical Services; and, the Manager, Planning had delegations to make determinations under Pt 5 of the EP&A Act. 91 Mr Smith deposes that both now and in 2003, whenever the council is preparing to undertake works such as the construction of a road on the council's land, the person whose responsibility it is to ensure compliance with the EP&A Act is the director responsible for that activity. Mr Smith refers to a letter, annexed to his affidavit, which was addressed to him, dated 26 June 2002 that was sent by Ms O'Reilly. He states that if the letter was received by the council, it would have come into Central Records and then been allocated to the appropriate officer. He is not able to say to whom the letter did go to but he believes that it should have gone to Mr Sharp and Mr Freeman as requested in the letter. As noted in par [63] above, the advisory letter of 26 June 2002 from Ms O'Reilly refers to the clearing of native vegetation at Partridge Creek, notes the terms of the Native Vegetation Conservation Act 1997 and the council's legal obligations under that Act. Relevantly the letter states: "You should also be aware that the "Ecological Assessment" report for the Partridge Creek Acid Sulphate Soil Remediation Strategy prepared by Environment Resource Management Australia, for Hastings Council June 2002 recorded a number of threatened species which inhabit the immediate area where the slashing has occurred." 92 Mr Smith deposes that in 2003 he was aware of the ASSR Project and that a number of studies were conducted as part of planning for the ASSR Project. From memory, he first became aware of an issue of threatened species in the Partridge Creek area as a result of community concerns regarding the council's activities in the area. From the minutes of the council's meeting on 10 February 2003, Mr Smith says that at that meeting the council approved a plan of management for the ASSR Project. Also from those minutes, Mr Smith says that he appointed Mr Freeman to act as General Manager in his absence during February 2003 and it was the responsibility of Acting General Manager to oversee the preparation of the papers for the council's meeting. 93 Mr Smith deposes that in 2003 he travelled along the north-south track after the council works had been undertaken. He can also recall travelling by vehicle over existing tracks before the works were undertaken, but he believes he only travelled north-south, not east-west. Mr Smith sent a letter to Mr Saunders on 16 March 2004. The first three paragraphs of the letter relate to the Partridge Creek works. Mr Smith believes that Mr Freeman, for Mr Smith to sign, drafted the letter. Relevantly the letter says: "Council's Director of Infrastructure approved the track construction in his capacity as head of that Division of Council." Mr Smith believes he recognises the handwriting, and he certainly recognises Mr Freeman's signature, on the "with compliments" slip that was attached to the preliminary REF sent to Ms Matthes as being that of Mr Freeman.

[82]

104 At the time that Mr Freeman commenced the works, in September 2003, he states that he was not aware that the site was habitat of either the Eastern Chestnut Mouse or the Grass Owl. Mr Freeman deposes in his affidavit that he never received the letter of 26 June 2002 which Ms K O'Reilly sent, even though the letter was clearly marked for his attention. Mr Freeman describes in his affidavit the usual practice within the council with regard to letters that it receives. Mr Freeman states that if he were unable to review correspondence for distribution on a given day, his personal assistant would review, mark and distribute that correspondence. Mr Freeman deposes that he did not see the letter from Ms O'Reilly, based on the fact that he has no independent recollection of ever having seen it; he had an acting personal assistant at the time who marked and forwarded mail for him if he was busy; on the day the letter was received in records, his diary indicates that he had a day of appointments; markings on the marking slip were not in his handwriting; and his then personal assistant confirms that it is her handwriting. Mr Freeman deposes that he did not read the letter, did not personally receive the letter and did not cause it to be marked or distributed. Furthermore, Mr Freeman deposes that no officer within the council discussed the contents of the letter with him prior to starting the works. 105 Mr Freeman recalls a conversation with Mr Rogers and Mr Aaso in the council car park, which took place approximately a month after slashing had started. Mr Freeman deposes that he is not able to recall the date of the conversation, but that it occurred after the slashing had been completed and either preceded or was contemporaneous with, the commencement of the construction of the tracks. Following the conversation in the car park, Mr Freeman read the reports by accessing them on the I-Drive. As a result of reading these reports at this time, Mr Freeman became aware of the threatened species on the site. Mr Freeman states that prior to this he did not know and did not suspect that the works may affect threatened species. 106 Upon reading the reports, Mr Freeman formed the view that the Redpath survey and the ERM report were somewhat contradictory with respect to the impact of the ASSR Project on threatened species. Shortly after the car park conversation and after reading the reports, Mr Freeman saw Mr Aaso (and he is not sure, but Mr Rogers may also have been present) in the corridor of the office and Mr Freeman asked him about the relevance and relationship of both of the reports. Mr Freeman deposes that Mr Aaso told him that there had been some concern regarding the ERM report and that it was the Redpath report that the management plan for the ASSR Project relied upon. Mr Freeman then reviewed the Redpath report again and also the Collins report. Following this, Mr Freeman deposes that it became clear to him that he needed to conduct a Pt 5 assessment of the proposed works. Mr Freeman deposes that he carried out the Pt 5 assessment in the latter part of October 2003, sometime after the discussion in the corridor with Mr Aaso. At the time that assessment was carried out slashing for both tracks had been completed and construction works of the north-south "track" had commenced.

[87]

112 Mr Freeman indicated that he caused an "Excel" spreadsheet to be created, which recorded the job costs allocated to the construction of the road. Mr Freeman acknowledged that the document does not appear to include the cost of vegetation slashing by Mr Lyon. Mr Freeman stated that the spreadsheet was most likely prepared in December 2004, in response to an inquiry from the DEC and Mr Freeman recalls that it was produced in response to the statutory notice under s 193 of the POEO Act. 113 Mr Freeman discussed the role of King & Campbell, stating that they were engaged by him to assess the development potential of council's landholding. Mr Freeman described how he walked the site with representatives of King & Campbell prior to the construction of the road. Mr Freeman stated that King & Campbell contributed to the planning of the two roads. Mr Freeman stated that he formed the view regarding the need for the road and that King & Campbell were engaged primarily to look at the development potential of the land but while doing that Mr Freeman discussed in general terms with Mr Campbell and Mr Thorne the best place to provide the roads. Mr Freeman states that there is also no reference in the spreadsheet to King & Campbell because they were not involved at all in the road construction per se. Mr Freeman acknowledges that there is no reference, in the interview with Mr Beaumont on 11 April 2005, to King & Campbell. Mr Freeman agreed that he hired King & Campbell and consulted them on the question of where the best place would be to provide the interconnection links. King & Campbell did not provide any documentation in relation to the advice they gave regarding the roads. 114 Mr Freeman met with engineering staff of Hastings Council, Mr Toft and Mr Jordan, on site. There was no engineering plan or drawing, written conceptual description, construction management plan, sediment and erosion control plan, environmental management plan, council file or any documents of any kind of works method statements that were brought into existence for the construction of the two roads at Partridge Creek.

[91]

118 Mr Freeman acknowledged that one explanation for why he had not been told that requirements of the EP&A Act were not being followed in relation to the construction of the roads was that relevant people did not know that the roads were being constructed. Mr Freeman stated that the planning division was well aware of the work that King & Campbell were doing, but they were not aware, to Mr Freeman's knowledge, that there was an activity being undertaken by the council on that land with which the requirements of the EP&A Act might need to be engaged. Moreover, Mr Freeman indicated that they were not aware that he was undertaking any sort of assessment process under the EP&A Act in relation to the roads. 119 Mr Freeman stated that he had no involvement with the ASSR Project. His understanding of the assessment that was done for the site was purely to determine the impact of flooding and inundation on that site. Mr Freeman stated that he hadn't had any briefing or had been aware at all of what the specific issues were in relation to the site. To Mr Freeman's knowledge, his division was not involved in the project in any significant way. Mr Freeman stated that he was not aware of the extensive consultation within council between council's environment section, the infrastructure services division, particularly the sewage section, and the planning section. 120 As a result of the conversation in the car park with Mr Aaso and Mr Rogers, Mr Freeman was aware that they had concerns in relation to the project, but they did not discuss in detail their knowledge of the threatened species on the site. They did advise Mr Freeman to review the literature that had been done on that site to determine whether or not an EIS was required for that particular work. Mr Freeman knew that Mr Aaso and Mr Rogers had knowledge of Partridge Creek being habitat for threatened species no later than the time of the conversation in the car park. So, from no later than that time, Mr Freeman indicated that he knew that there was a threatened species constraint at least at Partridge Creek. Mr Freeman recalled that the car park conversation occurred in mid to late October. By that stage, Mr Freeman believed that geotextile or clay had started to be put down. Mr Freeman acknowledges that it may have been that at the northern end of the site there was only slashing at that time. Mr Freeman later stated that the car park conversation with Mr Aaso and Mr Rogers was after the construction of the roads had commenced. Mr Freeman stated that he consulted Mr Aaso and Mr Rogers about the apparent conflict between the outcomes of the ERM report and the Redpath report. That was the extent of Mr Freeman's consultation with Mr Aaso and Mr Rogers.

[92]

121 Mr Freeman denied that he kept the construction of the roads a secret within the council, stating that the work was well known in his division and within other divisions and the general manager was aware of the construction. Mr Freeman acknowledged that he did not respond to Mr Rogers' email of 17 November 2003. Instead, Mr Freeman verbally told Mr Rogers that he had done an assessment and did not believe that there were environmental issues in relation to the roads. Mr Freeman indicated that he did receive Mr Jeayes' email of 19 December 2003 complaining of the construction of the roads, but he did not answer it. Mr Freeman also received an email from Mr Tulau of the DLWC complaining of the construction of the roads, but he did not answer it. Mr Freeman did not believe in the nature of those emails that he had an obligation to engage with those gentlemen and chose not to. Mr Freeman denied that he did not respond to Mr Jeayes or Mr Talau because he had a guilty conscience. It was at that point in time that Mr Freeman had further discussions with Mr Aaso and Mr Rogers. It was not at that point in time that Mr Freeman told Mr Rogers that no assessment had been done. 122 Mr Freeman met Mr Saunders early in January and explained to him that he thought the council had done all that it needed to do in terms of assessment of the road before proceeding. 123 Mr Freeman stated that the Planning Environment Division did not have a role at all in these matters within the council. Development consent was not required for a road. It only required a Pt 5 assessment under the EP&A Act to determine if an EIS was required. The reason why Mr Freeman undertook the project in the fashion that he did was because he saw it as very minor works providing internal connection within land holdings of council. 124 Mr Freeman confirmed that the first time he knew that there was a threatened species issue in relation to the site was when Mr Rogers and Mr Aaso said something to him in the car park conversation. When Mr Freeman was questioned about a response he gave in the interview with Mr Beaumont, in which he stated he was aware generally that there were threatened species issues when the acid sulphate project was being put together prior to the discussions with Mr Aaso and Mr Rogers, Mr Freeman said that he was unaware of the specific threatened species issues in relation to the owl or the mouse. 125 To Mr Freeman's knowledge the construction of the roads had started and was underway and no assessment had been made under the EP&A Act. Mr Freeman knew that no such assessment had been undertaken at the time that the road works commenced. Before Mr Freeman did the assessment under Pt 5 of the EP&A Act, the southern crossing of Partridge Creek had been completed and work was being done on the section just north and including the Francois drain on the north-south road.

[93]

126 Mr Freeman was cross-examined about the timing of the car park conversation, the slashing and the construction of the roads. Mr Freeman stated that he read the reports on the I-Drive after the car park conversation although access to the reports on the I-Drive had been provided before the car park conversation. Mr Freeman stated that answers that he provided in his interview with Mr Beaumont, where he indicated that council's environmental staff had advised him in early to mid September prior to the road works commencing that he needed to be aware of threatened species on the site, were not entirely correct. The car park conversation, in which concerns were raised by Mr Aaso and Mr Rogers, did not occur until after the slashing had been completed because it was that slashing that alerted them to the issue and by the time the slashing was completed, the road from that southern end had been started. Mr Freeman states that the slashing was not completed until late in September. It was into October before he had the conversation in the car park. The invoices attached to Mr Lyon's affidavit, which related to slashing of vegetation at the site, were not provided by council in response to the statutory notice due to an oversight on Mr Freeman's part. Mr Freeman states that the slashing started early in September and extended through most of that month and the road works started in and around the end of September going forward through into October. The car park conversation occurred early to mid October. 127 Mr Freeman again said that he did not know anything about threatened species that might be affected by the subject works at Partridge Creek as he had never read any of the environmental assessment reports that relate to Partridge Creek up until he accessed them on the I-Drive. He had no prior knowledge in relation to the mouse or the owl in relation to or prior to the work that was undertaken. The threatened species that he and Mr Campbell and Mr Thorne of King & Campbell had knowledge of was the koala. Mr Freeman accepted that he was aware that threatened species were an issue in the area generally and particularly in relation to the koala at the time that he went out to the site with King & Campbell on 5 September 2003. When Mr Freeman was alerted to the issue, he states that he did an assessment of the site based on a standard council pro forma document to determine whether or not he should stop work or whether an EIS was necessary for the work. Mr Freeman did not see any reason to read council's acid sulphate soil remediation plan of management. Mr Freeman had not read the plan of management for the ASSR Project when the decision was made to proceed with the roads. 128 Mr Freeman stated that it was not his intention to "construct" roads. It was not his intention to construct sealed roads and there was no intention to have blue metal put on top of the "tracks" when they were initially constructed. Mr Freeman was aware that Mr Schubert placed blue metal gravel on a section of the east-west road at one point during the exercise. Mr Freeman did not agree that the dimensions of the road that he constructed were dramatically greater than the dimensions of any of the tracks already on the land. Mr Freeman conceded that the habitat of the grass owl and the eastern chestnut mouse has been diminished as a result of his construction of the roads. Mr Freeman acknowledged that with regard to the east-west road, there was no track there before that vegetation was slashed. 129 Mr Freeman acknowledged that he has read the acid sulphate soil remediation project plan of management, but was not aware that, unless the plan of works for that project was modified, its original scheme would have had a significant impact on the habitat of the grass owl and the eastern chestnut mouse at Partridge Creek. When Mr Freeman was asked whether the council knew, as at least February 2003, that if the scheme of works for the ASSR Project was not modified, there would be a significant impact to the grass owl and eastern chestnut mouse populations, he answered that he was totally unaware of that at that time. Mr Freeman accepts that there are references to threatened species, the grass owl and the eastern chestnut mouse, in the management plan for the ASSR Project and agrees that there would be no excuse for the council not knowing (of the presence of those species). 130 Mr Freeman indicated that he read both the ERM report and the Redpath report in October 2003. Mr Freeman admitted that he had no doubt that by the time he had read the plan of management, the ERM report and Redpath report that the grass owl and the eastern chestnut mouse species were sensitive to loss of habitat. From the reports, Mr Freeman recalled that mice population were found at either end of the site. Mr Freeman acknowledges that neither the ERM report nor the Redpath survey canvassed the impact upon these threatened populations of the road works.

[94]

131 Mr Freeman understood at the time he undertook the eight part test that the species would be vulnerable to predators if predators were given greater access to the habitat of the species. He took that into account and did not believe that it was significant in this case. Mr Freeman stated that he thought the roads had minimal impact on habitat and still believes that the construction of the roads had minimal impact on habitat of the two threatened species. Mr Freeman did not accept that the damage that the road works have in fact caused to threatened species habitat was predictable at the time he considered the construction of the roads in 2003. Mr Freeman was unsure of the range of the mice in the area and did not recall sections of the report that detailed their range. Mr Freeman however, stated that he did take into account where the mice occurred as part of his eight part test. Mr Freeman indicated that he read Redpath survey before he did his eight part test. 132 Mr Freeman stated that his present understanding of Pt 5 requirements has not changed since 2003. Mr Freeman stated that he had not done REFs himself in the past and that he had not in fact done "a couple of those in the past" as he said in the interview with Mr Beaumont. Mr Freeman was aware in late 2003 that there was a number of staff at council who regularly did REFs. It was Mr Freeman's decision not to have people with more experience than himself undertake a review of environmental factors in this case because of his view that these works were minor works. Mr Freeman formed the view, after reading the reports, that there were significant issues and that council needed to undertake the checklist. Mr Freeman understood that the test for whether or not a full or proper review of environmental factors was required was whether or not there are going to be significant impacts, not necessarily the scale of the work. When Mr Freeman completed the pro forma document he also reviewed the eight part test. Mr Freeman acknowledged that he completed his preliminary REF and applied his eight part test without reference to any plans or drawings or documents to show the scale or scope or location of the works proposed. Mr Freeman restated that he carried out environmental assessment to satisfy Pt 5 of the EP&A Act after the roads had started to be constructed. 133 Mr Freeman indicated that he did not access reports in relation to Partridge Creek acid sulphate soil remediation project until on or shortly after 9 September 2003. Mr Freeman saw no reason at that time as to why he needed to access the written reports. The information that Mr Freeman had when completing the checklist was the information provided by Mr Aaso - copies of the relevant reports that had been done in relation to the Partridge Creek land. Mr Freeman again states that he filled in the checklist after the conversation in the car park in early to mid October 2003. Mr Freeman was aware in 2003 that there was a technical services section, which prepared reviews of environmental factors. Mr Freeman noted that programs that are programmed through the technical services area take months and years to come to fruition.

[96]

135 Mr Freeman was cross-examined in relation to a response given to the s 193 notice under the POEO Act which stated that a final decision was made to construct roads on the land after the completion of the REF. Mr Freeman's evidence was that there were two decision points in relation to the road. Mr Freeman stated that he met Mr Schubert on site and made a decision and asked him to proceed with the works and got his advice in relation to the best way to undertake the works - this was the decision to start with the road works. Mr Freeman then explained that there were then concerns raised by Mr Aaso and Mr Rogers, which is when he undertook the REF assessment and made a decision that it was appropriate for the road works to continue. Mr Freeman did not accept that the answer to the s 193 notice was misleading and he did not believe that a decision was made to construct the roads on the land shortly after 5 September 2003. 136 Mr Freeman was also cross-examined in relation to a response given to the s 169 notice under the NPW Act which stated that "whilst carrying out the survey work for the track an REF checklist was undertaken…" Mr Freeman stated in oral evidence that that response to the s 169 notice is incorrect and the REF was not undertaken while carrying out survey work. Mr Freeman agreed that his response is misleading in that it indicates that the REF was done earlier in the work. Mr Freeman also agreed that it appears as though he has made a number of different statements on the subject as to when he prepared the REF. On 17 September Mr Freeman met with Mr Toft and Mr Jordan on site and at that point in time the slashing had been completed in its entirety. Mr Freeman met with Mr Schubert within the next week after that so the decision to proceed with the work was based upon the advice Mr Schubert gave him. The decision to proceed with the road was made a week or so after that meeting on 17 September. At that time there had been no REF assessment done of the works. The issue in relation to slashing raised by Mr Aaso and Mr Rogers had not been raised with Mr Freeman at that point in time as he had already commissioned Mr Schubert to commence work. 137 Mr Freeman gave further oral evidence as to the role of King & Campbell. Mr Freeman re-stated that King & Campbell were not engaged to assess the road works options. Mr Freeman walked the site on 5 September 2003 and made a number of decisions about where slashed lines were needed to allow some survey work to be done across that site to determine levels so an assessment about the future development potential could be made. Mr Freeman made the decision in relation to the most obvious location providing the shortest links across the grassland. It wasn't an engagement, or a question that he put to King & Campbell, at any time in relation to the location of road works. 138 Mr Freeman accepted that he was Acting General Manager of the council on 10 February 2003 and in the period before that. Mr Freeman agreed that the role of Acting General Manager involves chairing the executive committee, being ultimately responsible for ensuring that the papers were prepared for council meetings, and being responsible for ensuring that the council complies with its legal obligations under legislation in respect of activities which it undertakes. Mr Freeman acknowledged that the ASSR Project matter was on the agenda for the council's meeting on 10 February 2003. Mr Freeman rejected the suggestion that he needed to be in a position to advise the mayor and the councillors about matters on the agenda at the meeting of council while he was acting general manager. He stated that it would have been Mr Coulter's responsibility to respond to legal issues at the meeting. Mr Freeman stated that he was aware of Pt 5 of the EP&A Act probably for the last 15 years. Mr Freeman acknowledged that, throughout 2003, the road works were an activity of the council under Pt 5 of the EP& A Act. Mr Freeman acknowledges that a hard copy version of the management plan for the ASSR Project was circulated to councillors. Mr Freeman stated that it was Mr Coulter's obligation to advise the council in relation to the report should the matter come up for discussion as each director is responsible to respond to the reports on the agenda in their particular area. 139 In relation to "the paper" (I assume he was referring to the report) prepared by Mr Coulter for the Partridge Creek ASSR Project, Mr Freeman acknowledged that he knew that a review of environmental factors prepared in accordance with the best practice guidelines for Pt 5 of the EP&A Act had determined that that activity was not likely to significantly affect the environment and therefore an EIS was not required. Mr Freeman stated he was not familiar with the best practice guidelines for Pt 5 of the EP&A Act. He stated that he only skimmed the report. Mr Freeman stated that he did not read the Partridge Creek ASSR Project's review of environmental factors. Mr Freeman believes that for the scale of the project, his own preliminary REF was adequate to determine whether or not the activity was going to have any significant environmental impact. Mr Freeman stated that he spent a couple of hours on completing the preliminary REF. Mr Freeman indicated that he has filled in forms like the preliminary REF checklist only a couple of times. The lack of date and lack of signature on the preliminary REF which is in evidence is due to an omission on Mr Freeman's part. Once Mr Freeman had completed the REF, he filed it with other papers that he had in relation to the Thrumster land investigation that he was undertaking at that time. The file was a paper file kept by Mr Freeman, which contained maps and other documents, the planning documents that were being generated by the council's planning department in relation to the investigation of the Thrumster urban growth area, a copy of Mr Redpath's survey, the ERM report and the management plan for the ASSR Project. The file did not contain a copy of the ASSR Project's REF. Mr Freeman indicated that this file was located in his office and it was in existence from some date in October 2003 onwards. 140 Mr Freeman stated that he told Ms Matthes about his preliminary REF on 29 January 2004. He did not recall specifically telling anyone else about the REF prior to this, but did advise Matt Rogers that he had made an assessment. Mr Freeman acknowledged that as far as he can identify, no other person can corroborate that the preliminary REF existed before January 2004. Mr Freeman did speak to Mr Saunders on 21 January 2004 and Mr Freeman told him that there was no EIS prepared for the site. Mr Freeman stated that he told Mr Saunders that sufficient environmental assessment in respect of the roadway had been done to discharge the council's obligations. Mr Freeman did tell his lawyers that he told Mr Saunders on 21 January 2004 that an assessment had been done. Mr Freeman indicated that Mr Saunders showed no interest in the information that an environmental assessment had been done. Mr Freeman rejected the suggestion put forward by the prosecutor that he did not make any reference to the environmental assessment in his conversation with Mr Saunders. 141 In undertaking the preliminary REF, Mr Freeman stated that he reviewed the eight part test heads of consideration that were provided in the Redpath report. Mr Freeman acknowledged that his response in the record of interview with Mr Beaumont that the REF does not include an eight part test was not true. Mr Freeman stated that he may have been mistaken. Mr Freeman acknowledged that one explanation of why he said in the interview that no eight part test was included in the REF was that nothing approaching the thoroughgoing environmental assessment comprising the eight part test was involved in his preliminary REF. The other explanation is that he had not prepared a lengthy, typed up or handwritten document that stepped through each of those eight tests and that is why Mr Freeman said in the interview that the REF did not include an eight part test. 142 Mr Freeman is aware that Pt 5 of the EP&A Act applies to any activity of the council. He believes that he did an assessment adequate for the impact of the road, the scale of the project and the knowledge that he had on the site and the information that was available. Mr Freeman acknowledged that Pt 5 does apply to minor works. Mr Freeman did think that he only needed an REF, in terms of a larger formalised document, if there were to be significant impacts from the proposal. Mr Freeman accepts that he knew that there were issues with the land in relation to environmental sensitivity by the time he completed that document and he knew that there were legislative requirements that applied to his works. Mr Freeman acknowledged that he only undertook the preliminary REF because of his conversation with Mr Aaso and Mr Rogers as they highlighted to him the concerns on that site and he realised that he needed to make sure that council had discharged its obligation in relation to the track and any assessment that may be required. Mr Freeman does not believe that at that stage he told Mr Aaso and Mr Rogers that the project was going ahead. Following that conversation, Mr Freeman did not hear from them until Mr Rogers' email in November and after that Mr Freeman sent a note that he had done the assessment and did not believe that there was an issue. Mr Freeman notes that the major issues raised by Mr Aaso and Mr Rogers were in relation to the owl. 143 Mr Freeman does not accept that he knew at the time that he embarked upon the roads construction that the land was habitat for the owl and the mouse, being threatened species. He accepts that he came to that view when he read the reports and undertook the assessment. He was not aware of it at the time the slashing was undertaken, or at the time that works initially commenced at the southern end. Mr Freeman does not believe that the loss of vegetation as a result of the construction of the roads was significant, but agreed there was certainly a loss of vegetation. Mr Freeman stated that he does not recall saying to Mr Beaumont in the interview that he lacked knowledge as to whether or not and to what extent the eastern chestnut mouse and the grass owl moved across the vegetation on the site.

[100]

147 Mr Freeman rejected the suggestion made by the prosecutor that the reason he wrote the letter of 18 June 2004 and the way it did not respond directly or at all to the paragraphs of the s 169 notice under the NPW Act was because he wanted to slow down and hinder the investigation. Mr Freeman stated that the response was provided on advice to the DEC. He stated that he would have drafted some of the letter and sought advice in terms of how best to respond to this request and provided that response based on that advice. The advice was to provide the response that was provided and that is what Mr Freeman stated that he did. Mr Freeman stated that he got advice personally from Mr S Miles from Donovan Oates Hannaford. Mr Freeman sought advice by providing a copy of the notice to Donovan Oates Hannaford seeking advice in terms of the response and copy of the draft response before it went. 148 In relation to the s 193 notice under the POEO Act, Mr Freeman understood the reference to "the land" in the notice to be the land on which the roads were built. Mr Freeman acknowledged that his letter of response to that notice dated 24 September 2004 states: "Apart from other information and documents referred to in this letter there is no documentation in response to paragraph 1 of your notice." This is also discussed in greater detail in my previous judgment. Mr Freeman indicated that there are no documents otherwise referred to in the letter. Mr Freeman believed that all of the information had either been provided or was provided in conjunction with these documents. Mr Freeman does not agree that he knew the statement he made in his response, that "there is no documentation", was untrue. Mr Freeman reiterated that the information that was being sought had already been provided. Mr Freeman does not agree that he was deliberately trying to obstruct the investigation. Mr Freeman acknowledged that he knew that it was investigation essentially into his conduct. Mr Freeman stated that he sought advice and provided a response in accordance with that advice. Mr Freeman indicated that Mr Miles gave him legal advice that it at least was all right to respond to the request for all documentation in relation to the land by saying there is no documentation. Mr Freeman does not believe that that was because he told Mr Miles that there was no documentation. Mr Freeman acknowledged that he discussed with Mr Miles how he should respond to paragraph 1 of the notice. Mr Freeman believes that he told Mr Miles that he had a large quantity of documentation in relation to the land. 149 The prosecutor questioned Mr Freeman regarding the response given to the request in the notice for a copy of all documents referred to in the preparation of the REF. Mr Freeman stated that the response, in his letter dated 24 September 2004, was that "there are no documents." Mr Freeman agreed that there are two ways of approaching his answer to the question regarding documentation used in the preparation of the REF - the answer is either true and was at the time Mr Freeman signed the letter, and the other is that it was untrue. Mr Freeman acknowledged that he prepared the REF and that he did use documents in undertaking the assessment. Mr Freeman acknowledged that it would appear that the statement in the letter that "there are no documents" is untrue. Again, I refer to this evidence in more detail in my previous interlocutory judgment - Garrett v Freeman (No. 3) [2007] NSWLEC 139 at [18] - [24]. 150 Mr Freeman stated that there were no specific documents that were generated to support the road construction. So in terms of specific documents relating to the roadway, which is what he believed he was responding to here, there were no specific documents. Mr Freeman stated that all the documents relating to the land generally had been provided to the department. Mr Freeman in re-examination indicated that he either emailed or posted to Ms Matthes various documents, including the REF assessment he had undertaken of the track, shortly after their meeting in January 2004.

[150]

· The defendant did read the ERM report and the Redpath report. However, that was not until after the car park conversation. The conversation took place after the construction of the road had commenced. · There was no need for the defendant to access generally the information on the I-Drive. It was only after the conversation in the car park that the defendant did access the entirety of that information (and thereby obtained knowledge of the existence of habitat). · The defendant did have the plan of management for the ASSR Project and the Redpath report before the construction of the roads, but for the installation of some pipes. · The chronology is: (i) commence construction of the roads; (ii) found out about the threatened species; (iii) carried out the Pt 5 assessment; and, (iv) formed the view that it was appropriate to continue the work. (7) From the date of the commission of the offence by the council until the defendant first acquired the relevant knowledge, the defendant has the benefit of the s 175B(1)(a) defence. (8) Section 118D(2) contains some defences for the principal offence. One of those is that the act constituting the offence was essential for the carrying out of an activity by a determining authority within the meaning of Pt 5 of the EP&A Act if the determining authority has complied with that Part (s 118D(2)(b)(II)). Once the defendant, as delegate for the determining authority, carried out his Pt 5 assessment to his knowledge the determining authority had complied with the requirements of Pt 5. The defendant submits that the Court would be satisfied that the defendant did not have knowledge of any of contravention of s 118D(1). To the contrary, the defendant's knowledge was that the requirements of Pt 5 had been complied with. That knowledge is a question of fact, not a question of law. (9) The defendant submits that the Pt 5 approval process is a multi-stage process. There is no necessity for any formal documentation rather the review and determination process is a mental one. The defendant performed a dual Pt 5 role being both the proponent and the determining authority. The defendant rejects the prosecutor's submission that for the purposes of Pt 5 of the EP&A Act the determining authority must be different bodies. The defendant also submits that the prosecutor's submission that the defendant was not the determining authority is simply wrong.