Garrett v Freeman

1 HIS HONOUR: The defendant, Geoffrey Noel Freeman, has pleaded not guilty to two offences against s 118D(1) of the National Parks and Wildlife Act 1974 ("the NPW Act").

(1) A person must not, by an act or an omission, do anything that causes damage to any habitat (other than a critical habitat) of a threatened species, an endangered population or an endangered ecological community if the person knows that the land concerned is habitat of that kind. ….

3 The charges allege that the offences were committed by a corporation, Port Macquarie-Hastings Council, and the individual defendant is charged in his capacity as a person concerned in the management of that corporation: s 175B(1) of the NPW Act. That section relevantly states: (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that: (a) the corporation contravened the provision without the knowledge (actual, imputed or constructive) of the person, or

(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation. …

4 Each charge alleges that between approximately 15 September 2003 and 19 December 2003, at Partridge Creek, Port Macquarie, in the State of New South Wales, whilst acting as a person concerned in the management of Port Macquarie-Hastings Council (formerly Hastings Council), the defendant committed an offence against s 118D(1) of the NPW Act by reason of s 175B(1) of that Act, in that the council caused damage to the habitat of a threatened species by undertaking the construction of road works on land at Partridge Creek, knowing that the land concerned was habitat of that kind. The first charge (No. 50043 of 2005) alleges that damage was caused to the habitat of the threatened species Tyto capensis, the Grass Owl. The second charge (No. 50044 of 2005) alleges that damage was caused to the habitat of the threatened species Pseudomys gracilicaudatus, the Eastern Chestnut Mouse. The maximum penalty for an offence against s 118D(1) of the NPW Act is $110,000 or imprisonment for one year or both.

5 "Damage" and "habitat" are not defined in the NPW Act. A "threatened species" is defined in s 5 of the NPW Act as having the same meaning as in the Threatened Species Conservation Act 1995, ("the TSC Act"), which at the time of these offences included a species specified in Sch 2 of that Act. At the time of these alleged offences Sch 2 listed the following species, inter alia: Tyto capensis Grass Owl Pseudomys gracilicaudatus Eastern Chestnut Mouse

6 On the second day of the hearing Mr I J Hemmings and Mr E Y Ozen, appearing for the defendant, submitted that the proceedings were defective ab initio and should be dismissed on the ground that the proceedings were brought in the wrong name ("Stephen Garrett for and on behalf of The Director-General of the Department of Environment and Conservation"). I rejected the submission but granted leave to the prosecutor to amend the summonses to show the prosecutor's name as "Stephen Garrett": Stephen Garrett for and on behalf of the Director-General, Department of Environment and Conservation (NSW) v Freeman [2006] NSWLEC 322.

7 At the close of the prosecutor's case on the seventh day of the hearing, Mr Hemmings submitted that there was no case for the defendant to answer, relying upon s 731 of the Local Government Act 1993, which protects a councillor or an employee acting in good faith from any actions, liability, claim or demand. I rejected the submission, holding that the section does not apply to criminal proceedings: Garrett v Freeman (No. 2) (2006) 145 LGERA 459. Both of these decisions were subsequently affirmed by the Court of Criminal Appeal: Garrett v Freeman (2006) 147 LGERA 96.

8 On the fourteenth day of the hearing, during the course of the defendant's evidence, Mr Hemmings applied by way of notice of motion for an order that I disqualify myself from further hearing these proceedings on the ground of reasonable apprehension of bias. I found, for reasons which I stated, that there could be no reasonable apprehension of bias and I dismissed the notice of motion: Garrett v Freeman (No. 3) [2007] NSWLEC 139. The hearing thus continued and concluded on the seventeenth hearing day.

9 A statement of facts was agreed to between the prosecutor and the defendant. The facts below in pars [10] - [13] are agreed to between the parties and, so far as the defendant is concerned, are admissions made under s 184 of the Evidence Act 1995.

10 At the time of the offences charged: Partridge Creek was a place within the Hastings local government area; Hastings Council was incorporated as a council under the Local Government Act 1993; the defendant was concerned in the management of Hastings Council; the defendant held the position of Director, Infrastructure Services of Hastings Council, and that position was a senior staff position within the meaning of "senior staff" in Ch 11 of the Local Government Act 1993.

11 In both of these proceedings the Grass Owl (Tyto capensis) and the Eastern Chestnut Mouse (Pseudomys gracilicaudatus) were, at the relevant time, threatened species within the meaning of that term in the NPW Act and the Partridge Creek area was habitat of those species.

12 The construction of the road running from north to the south of the western section of the Partridge Creek area (the north-south road) and the road running from the east to the west, bisecting the Partridge Creek area (the east-west road) was, at the time of the offences charged, an activity by a determining authority within the meaning of Pt 5 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act").

13 Further, the prosecutor asserts the following facts and the defendant would admit them if the word "road" was changed to "track". Hastings Council, at the time of the offences charged, constructed a road running from the south to the north of the western section of the Partridge Creek area (the north-south road), and a road running from the east to the west, bisecting the Partridge Creek area (the east-west road). At the relevant time, the defendant caused the council to construct a road running from the south to the north of the western section of the Partridge Creek area (the north-south road) and a road running from the west to the east, bisecting the Partridge Creek area (the east-west road).

14 The prosecutor has to establish, beyond a reasonable doubt, each of the elements of the offence. The prosecutor also has to negative, on the balance of probabilities, the elements of any defence open to the principal corporate offender, Hastings Council.

15 The elements of the offence under s 118D of the NPW Act are: that, a provisions of the NPW Act, namely s 118D(1), was contravened by a corporation; that Hastings Council was a corporation; that Hastings Council did a thing, namely, construct roads; that the thing caused damage to the habitat of the two threatened species; that at the time of the offence, Hastings Council knew that the land concerned was habitat of those threatened species.

16 The defences which the prosecutor must negative are, in the present case, those which appear under s 118D(2)(b)(ii) and (iii) of the NPW Act, namely: 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; or an activity in accordance with an approval of a determining authority within the meaning of Pt 5 of the EP&A Act if the determining authority has complied with that Part. The defendant relies upon those defences.

17 The defendant also relies upon the statutory defence available under s 175B(1)(a) of the NPW Act, noted in par [3] above, namely that the corporation, Hastings Council contravened s 118D(1) without the defendant's knowledge (actual, imputed or constructive). The onus is on the defendant to prove this defence on the balance of probabilities. This onus arises from the words: "unless the person satisfies the court that…"

18 The prosecution called a number of witnesses to give evidence during the proceedings. Their oral testimony and any affidavits and written statements of evidence are summarised below.

19 Mr Thor Aaso swore an affidavit read in these proceedings and gave oral evidence. Mr Aaso deposes that he has worked for Port Macquarie-Hastings Council, formerly Hastings Council, since 2001. In the period 2002-2003, his position was called environmental officer. In the period from June to December 2003 inclusive, Mr Aaso reported directly to Mr M Rogers, Environmental Services Coordinator.

20 Mr Aaso has known Mr Freeman since he joined the council in 2001. In the period 2002-2003, Mr Freeman was Director of Infrastructure Services. Mr Aaso deposes that in the second half of 2003 his degree of acquaintance with Mr Freeman was very limited. Since about February 2001, Mr Aaso has been involved in the restoration of Partridge Creek. He understands Partridge Creek area to be in the northern part of "Area 13" or Thrumster. He deposes that the program he has been involved in is called the Partridge Creek Acid Sulphate Soil Hotspot Remediation Project ("ASSR Project"), undertaken by the council and the Department of Land and Water Conservation ("DLWC"). Mr Aaso deposes that as part of the project, the council commissioned Environmental Resource Management Australia (ERM), a firm of environmental consultants, to conduct studies and to prepare a number of different reports on the potential impact of various remediation options on the environment. Among these reports was an ecological assessment entitled "Partridge Creek Acid Sulphate Soils Remediation Strategy: Ecological Assessment (October 2002)." Mr Aaso deposes that the ERM report identified at least three vulnerable species living on the Partridge Creek area, the habitats of which were likely to be significantly affected by the remediation project, namely the Grass Owl, the Eastern Chestnut Mouse and the Wallum Froglet. Mr Aaso deposes that a further survey was then commissioned from the DLWC Resource Analysis Unit and was undertaken by Mr P A Redpath, an ecologist. Mr Aaso assisted in Mr Redpath's study as the council's representative. Mr Aaso attended the Partridge Creek site with Mr Redpath to help him with Grass Owls surveys and also with the trapping of rodents from 12 August 2002 to 16 August 2002.

21 Mr Aaso deposes that after completion of Mr Redpath's survey in 2002 he developed a plan of management for the ASSR Project. The recommendations of Mr Redpath's survey were embodied in the Partridge Creek Hotspot Remediation Management Plan (April 2003). Mr Aaso points out that the management plan for the ASSR Project makes reference to the Grass Owl and the Eastern Chestnut Mouse as being threatened species. Mr Aaso deposes that he sent the draft plan of management to Mr Rogers who, as he understands, approved it. The management plan was then put on the agenda of a meeting of the council, with a recommendation by Mr Aaso and Mr Rogers that it be adopted. Mr Aaso believes the council meeting was held around April 2003; however, he was not present at the meeting. He has seen a copy of the relevant minutes at which the recommendation was adopted. Mr Aaso indicates in his oral evidence that, in fact, the council's meeting was held on 10 February 2003, but the date on the management plan is April 2003. The reason Mr Aaso gives for the discrepancy is that after the management plan was adopted at the council's meeting, they had a further discussion with Mr J E Jeayes of the North Coast Environmental Council ("NCEC"), an environmental group in the North coast of New South Wales, who submitted further recommendations to go into the management plan, which was amended as a result.

22 Mr Aaso says that he had contact with the Hastings birdwatchers group and he administered the monitoring of the Partridge Creek area which had been undertaken by that group. On one of the survey nights, 23 May 2003, Mr Aaso was present at the Partridge Creek, along with several members of the birdwatchers group, when he saw what he believed to be a owl.

23 In September 2003, Mr Aaso received a request from Mr Freeman that he provide Mr Freeman with the documents relating to the Partridge Creek remediation strategy. This was the first communication he recalls receiving from Mr Freeman on the subject. In response to this request, Mr Aaso placed the management plan and the appendices comprising the consultants' reports, including the ERM report and the Redpath survey, onto the network's I-Drive (which is common to all staff at the council). On 9 September 2003, Mr Aaso sent an email to Mr Freeman, informing him that the plan of management and the consultants' reports were accessible on that drive. Mr Aaso says that at some time after this date and before mid November 2003 , Mr Freeman initiated a conversation with Mr Aaso and Mr Rogers informing them that a few pipe culverts and an access track are going to be installed in the general area of "Area 13". Mr Aaso deposes that during this conversation either Mr Rogers or himself said words to Mr Freeman to the effect: "You need to be aware of the threatened species out there." Furthermore, Mr Aaso believes that either Mr Rogers or himself also said something which was a reference to the ASSR Project plan of management. Mr Aaso understood the reference to "Area 13" to be a reference to a strategic land use planning area which included the Partridge Creek area.

24 Mr Aaso deposes that in mid November 2003 he saw that some slashing had taken place in sedgelands on the site along an east-west axis, which later became known to him as the east-west road. He says that when he saw the slashing he became concerned because he believed it adversely affected the habitat of the Grass Owl and the Eastern Chestnut Mouse. At this time he did not see or know of any north-south road in the area. He expressed his concern to his supervisor, Mr Rogers. Because the work had the potential to impact the ASSR Project, sometime later he also communicated the information to Mr M Tulau of the DLWC. Mr Aaso deposes that it was at about this time that he and Mr Rogers met Mr Freeman in the council car park and had a conversation with him about the slashing at Partridge Creek. Mr Aaso gave oral testimony that this conversation was after he saw slashing and before the road had been constructed. According to Mr Aaso, Mr Rogers and Mr Freeman had a conversation to the following effect: [Rogers] We noticed that slashing is happening at Partridge Creek. Can you tell us why? You know that there are threatened species out there area [sic].

In cross-examination Mr Aaso conceded that he does not recollect that he (that is, Mr Aaso) directly brought to Mr Freeman's attention that there were threatened species on the land. I thus conclude that it was only Mr Rogers who brought to Mr Freeman's attention that there were threatened species on the land. 25 Mr Aaso deposes that Mr Freeman did not say that a road would be constructed. One to three weeks after this conversation, Mr Aaso went to Partridge Creek and, where there had been slashing, he saw clay had been put down on the east-west road. Within a week of that site visit and before Mr Rogers sent the email of 17 November 2003, to which I will refer below, Mr Aaso went out to the site with Mr Rogers. Mr Aaso deposes that nothing had changed between visits. Mr Aaso discussed the matter with Mr Rogers and Mr Aaso gathered that Mr Rogers decided to send an email to Mr Freeman about the road construction on 17 November 2003. Mr Aaso indicates that he was sent a copy of the email from Mr Rogers and he saw the email the day it arrived on is computer. Around this time Mr Aaso returned to the Partridge Creek area and saw that the road works continued. At about this time, after this visit to the site, Mr Aaso approached Mr P M Owens, the council's planning manager, about the road. 26 Mr Aaso further states that sometime within perhaps about a month of discovering the east-west road being constructed he saw that there was a road running from north to south which intersected with the western end of the east-west road. It was constructed along what he recalls was an old track running along roughly the same axis. However, he states that before the east-west road was constructed (and before the path for it was slashed) he had been in the same area a number of times and he knew of no track which existed before construction of the east-west road along which the road was subsequently constructed.

27 Mr Aaso received a number of enquiries about the road construction. In response to one of those enquiries from Mr Jeayes, Mr Aaso sent Mr Jeayes an email on 19 December 2003. At the time Mr Aaso wrote the email, the events he described in it were much fresher in his memory. Relevantly that email states: Approximately 2 months ago Geoff Freeman mentioned that a few pipe culverts and an access track was going to be installed in general area [sic] of Area 13. He was advised by both myself and Matt Rogers to be aware of the Threatened Species and reference was made to the Partridge Creek PoM.

Approximately 4 weeks ago slashing of the Threatened species habitat for survey lines was noticed, Geoff Freeman was questioned in this matter and made ware [sic] of the Threatened species, their habitat and in particular the roosting site of the grass owl that was slashed. 28 Mr Aaso deposes that he received a notice under s 193 of the Protection of the Environment Operations Act 1997 ("the POEO Act") in July 2005. In response to that notice, he provided to Donovan Oates Hannaford, a firm of solicitors acting for the council, a number of documents to be forwarded to the Department of Environment and Conservation ("DEC").

Mr Scott Anthony Beaumont 29 Mr Beaumont is an Investigator for the prosecutor, responsible for investigating breaches of legislation administered by the DEC, including the NPW Act. He made a number of inspections of the Partridge Creek area in this role which he deposes to in his affidavit:

· On his first inspection of 1 April 2004, he saw a clay and gravel road running in a general east west direction which intersected with a roadway of similar material, running in a general north south direction. The roadway was very wet and soft. The land adjacent to the east west road consisted of grassland and water. On this date he took several photographs and made a video recording of various locations within the site. · Mr Beaumont returned to the Partridge Creek site on 2 April 2004, where he measured the distance of the north-south road to be 900 metres in length and the east-west road to be 800 metres in length.

· 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.

Mr Jason Berrigan 34 Mr Jason Berrigan, for and on behalf of Darkheart Eco-Consultancy, prepared a report for Hastings Council entitled "Flora and Fauna Impact Assessment and Mitigation Measures of Access Roads on the Partridge Creek Acid Sulphate Soil Hot Spot Remediation Project, Thrumster" dated August 2004. This report presents the findings of an assessment on the effects of construction of a roadway by the council on Partridge Creek and surrounding wetlands, and proposed measures to prevent pollution of waters and impacts on fauna and flora. Mr Berrigan provides an overview and history of the site area, including the roadways. Mr Berrigan sets out the findings of his searches relating to the on-site occurrence and potential occurrence of threatened species in the locality. Mr Berrigan notes that the Grass Owl and Eastern Chestnut Mouse had been recorded on site. Mr Berrigan's report assesses the ecological impacts of the roads. In undertaking that assessment, Mr Berrigan focuses on the potential and known impacts of the roadway construction on the soils, hydrological impacts, aquatic flora and fauna and terrestrial flora and fauna.

35 Mr Berrigan estimates that the roadway has resulted in the removal/modification of roughly 1.6744 hectares and this habitat removal occurs from the road construction; area disturbed adjacent to the road by fill spreading and subsequently being scaped back to the road; and passing bays. Mr Berrigan finds that there is also some limited potential for further habitat modification as a result of road sediment spreading by road use and erosion to adjacent areas.

36 Mr Berrigan lists a number of potential and known impacts on terrestrial flora and fauna from the construction of the subject road. The direct impacts which affect the Grass Owl, Eastern Chestnut Mouse and Wallum Froglet the most include: direct impacts such as loss of 1.644 hectares of predominantly Jointed Twig-rush/ Couch Grass Closed Sedgeland and Paspalum/Narrow Leaved Carpet Grass Tall Closed Grassland as well as a small area of Broad-Leaved Paperbark dominated forest; the loss of potential foraging, nesting and refuge resources for a number of threatened and migratory species; the potential modification of other habitat areas by altered hydrological changes; the potential modification of adjacent habitat areas by the movement of road sediment via erosion; and the prevention of recovery of native vegetation.

37 There are also numerous indirect impacts from the construction of the subject road identified by Mr Berrigan. For instance, the Grass Owl, the Eastern Chestnut Mouse and the Wallum Froglet were among the species most affected by the potential introduction/improved access for domestic pets, feral species and exotic plants via road as a passage; the cumulative addition to attrition of similar habitat in the area, contributing to range contraction of threatened species and populations of such recorded in the Hastings area; potential alteration to bushfire regime (via arson) possibly affecting weed abundance, and floristic, habitat and structural characteristics of adjacent vegetation.

38 More specifically, the significant impacts that construction of the roads have had/could have on the Grass Owl relate to habitat loss and fragmentation; road kill risk; anthropogenic impacts; exotic fauna; stormwater and water flow regime alterations; and altered bushfire regime. The most significant impacts that construction of the roads have had/could have on the Eastern Chestnut Mouse relate to habitat loss and fragmentation; physical and behavioural barrier; road kill risk; exotic fauna; stormwater and water flow regime alterations; and altered bushfire regime.

39 Mr Berrigan details in his report various mitigation measures and recommendations to counter each identified impact. The mitigation measures relate to sedimentation and erosion; access and signage; feral species control; acid sulphate soils and other water quality impacts; and water flow.

Mr Anthony Ward Bischoff 40 The prosecutor adduced evidence from Mr Anthony Ward Bischoff by affidavit. Mr Bischoff is a resident of the Port Macquarie region. He holds a scientific licence under s 132C of the NP&W Act. He uses the licence to conduct surveys over a particular area to ascertain the variety of fauna so that the survey findings can be used to help properly manage the area. In around May 2003, Mr Aaso approached Hastings birdwatchers club, of which Mr Bischoff is a member, to monitor the Partridge Creek site. As a result of that request, Mr Bischoff became involved in the monitoring. His role involved attending the Partridge Creek site on a roster system over three nights a month, to carry out fauna surveys from June - October 2003. Six surveys were to be taken per calendar month, being one post dusk and one pre dawn, over three nights. The birdwatchers club had observed the Grass Owl at the site on 20 June 2001 and twice in May/June 2003. In January 2004, Mr Bischoff attended the Partridge Creek site with Mr W L Saunders, also a member of Hastings birdwatchers club, and saw road works undertaken in the area of Partridge Creek which he believes have the potential to negatively impact on threatened species, namely the Grass Owl and possibly the Eastern Chestnut Mouse. He observed one road has been constructed directly across the main Grass Owl habitat area.

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.

44 Minutes from the council's meeting of 10 February 2003 are annexed to Mr Coulter's affidavit. They indicate that Mr Freeman was present at the meeting in the capacity of Acting General Manager and that Mr Coulter was present at the meeting. The minutes also indicate that the council made a resolution, at item 21, to approve the ASSR Project. As noted in par [43] above, Mr Coulter believes 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 meeting.

45 Mr Stephen Debus swore an affidavit that was read in these proceedings. He is an ecologist of the Zoology division of the University of New England, Armidale. Mr Debus prepared a report at the request of the prosecutor's solicitor, Mr P Barley. The report deals with questions posed to Mr Debus by Mr Barley relating to the habitat of the Grass Owl. Mr Debus' opinions in the report based on the facts which he identified in the report and by applying his specialised knowledge in raptor biology which he has obtained as a result of his studies and significant amount of field experience.

46 In his report Mr Debus indicates that Grass Owl nest sites are typically located on the ground. From his site inspection of 15 February 2006 he believes the Partridge Creek site is an appropriate Grass Owl habitat throughout all components of its life cycle. The report finds the vegetation structure, species and heights there to be typical of coastal NSW Grass Owl habitats. The report indicates that the habitat of the Grass Owl has been damaged by the construction of the roads. The roads have made the vegetation in the vicinity of the roads less desirable as a breeding site, or less conducive to successive breeding. This is because the roads have increased the potential for predation and human disturbance to the owls and their nests. Mr Debus calculates that 0.2 hectares of potential Grass Owl roosting or breeding habitat has been removed by the construction of the east-west road. The report indicates that the habitat might be further de-utilised if the road causes floodwater to back up and remain.

47 Professor Barry J Fox prepared a report for the prosecutor entitled "Partridge Creek Area - Potential Habitat for Threatened Species - Eastern Chestnut Mouse (Pseudomys gracilicaudatus) - Potential Damage to Threatened Species Habitat" which is dated April 2006. This report is based on a visit to the Partridge Creek Area on 15 February 2006. Professor Fox reports that the Partridge Creek Area is clearly suitable habitat for the Eastern Chestnut Mouse as the vegetation present falls well within the physical parameters for suitable habitat.

48 Professor Fox has no doubt that construction of the east-west and north-south roads in the Partridge Creek area has caused damage to habitat of the Eastern Chestnut Mouse. There is damage from the alienation of the actual area now occupied by the road. The potential effect of the road can influence water flow and water levels in the immediate surrounding area. There is also potential for run off carrying nutrient material from the road base onto the immediate surrounding area impacting the native vegetation, potentially changing vegetation structure and vegetation density. Furthermore, Professor Fox notes that the nature of roads, devoid of vegetation cover can act as a substantial disincentive for the Eastern Chestnut Mouse to cross the roads and hence may isolate regions of potential habitat and also deter dispersal and migration of the Eastern Chestnut Mouse. However, by far the most important potential effect on animal populations is that roads provide predators with easy access to the areas occupied by the Eastern Chestnut Mouse. Professor Fox concludes that there has been substantial damage to the Eastern Chestnut Mouse population.

49 Mr John Edward Jeayes gave evidence in the proceedings by affidavit. Mr Jeayes is Secretary of the North Coast Environment Council (NCEC), an environmental group. In about mid 2003, Mr Jeayes was approached by individuals who were concerned about the ASSR Project's impact upon threatened fauna species in "Area 13", in particular the Eastern Chestnut Mouse and the Grass Owl.

50 Mr Jeayes deposes that on 16 April 2003 he attended a meeting with Mr Rogers and Mr Aaso from Hastings Council, and Mr Talau and Mr Redpath from DIPNR. Mr Jeayes says that it was resolved at that meeting that NCEC would provide recommendations for extra precautionary measures to protect the Grass Owl and the Eastern Chestnut Mouse, which would be considered by the council. On 25 April 2003, Mr Jeayes wrote a letter to Mr Aaso which listed ideas for precautionary actions which might be taken by the council. On 4 April 2004, Mr Jeayes gave a copy of that document to Mr Beaumont.

51 Mr Jeayes deposes that it was in either December 2003 or January 2004, (but probably, I infer, in December 2003), that he received information that roading had been constructed either through or beside the habitat of both the Eastern Chestnut Mouse and the Grass Owl at the Partridge Creek site. Mr Jeayes indicates that he was informed that this work was carried out by Hastings Council's Department of Infrastructure, under the direction of its Director, Mr Freeman. As a result of receiving that information, Mr Jeayes rang Mr Aaso and had a conversation with him and that Mr Aaso responded to his request for details of the works by email the next day, on 19 December 2003. Mr Jeayes then put several questions regarding the issue to Mr Aaso in an email, which Mr Aaso passed on to Mr Freeman for reply. Mr Jeayes says that he did not receive a reply.

52 Mr Jeayes submitted a letter dated 20 January 2004, on behalf of NCEC to the Hastings Council, requesting access under the Freedom of Information Act 1989, to documents relating to the Partridge Creek roading and threatened species issues. Mr Jeayes attended the council's office building and handed this document to the staff at the front desk. On 4 March 2004, Mr Jeayes received a written reply from the council, explaining that information was on hand and had been copied. Mr Jeayes was informed that he could pick up that information, which he did a few days later.

53 On 4 April 2004, Mr Jeayes had a conversation with Mr Beaumont and as a result of that conversation, he handed Mr Beaumont numerous documents relating to the Partridge Creek site.

Mr Franklin John Lyon 54 The prosecutor adduced evidence from Mr Franklin John Lyon by affidavit. Mr Lyon has done work for Port Macquarie-Hastings Council for about 14 years, a large part of which has been slashing (grass cutting). In 2003, Mr Freeman organised to meet Mr Lyon at Thrumster. Mr Freeman told Mr Lyon he wanted the existing tracks to be slashed so they could be driven along. Mr Lyon performed slashing work in the Partridge Creek area commencing on 11 September 2003. Mr Freeman told Mr Lyon where to do the work. Mr Lyon slashed a track for what is now the east-west road sometime between 18 and 23 September 2003. Mr Lyon did this work prior to a vacation that he took, which was on 30 September 2003.

Ms Maria Alma Matthes 55 Ms Maria Alma Matthes gave evidence in the proceedings through two affidavits, sworn 20 May 2005 and 4 May 2006 and through oral testimony. Ms Matthes was a senior threatened species officer with the DEC. In her second affidavit she deposes that she left the DEC in September 2005 and has since been operating an environmental consultancy. In her employment at the DEC she prepared numerous Director-General's requirements for species impact statements. The opinions that she expressed in her first affidavit are based on her specialised knowledge of threatened species and their habitats and applicable planning requirements and law.

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.

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.

Mr Jack Anthony Moody 61 Mr Jack Anthony Moody gave evidence in the proceedings by way of a statement of evidence, an affidavit and oral testimony. In his affidavit Mr Moody attests that the opinions he expresses in his statement of evidence are based upon facts that he identifies in it and by applying his specialised knowledge in town planning. Mr Moody expresses the opinion that the environmental assessment carried out by the defendant in relation to the subject road works is seriously deficient and does not satisfy the relevant provisions of the EP&A Act and the EP&A Regulation. In particular, he does not consider that the defendant's assessment satisfies s 111 of the EP&A Act. Mr Moody highlights the deficiencies in that document as follows: a) there is no reference to any reports, documents, statements or any other information which formed the basis for completion of the checklist in the manner indicated; b) there appears to be no report or detailed assessment in accordance with cl 228(2)(f) of the EP&A Regulation which relates to "any impact on the habitat of protected fauna" (within the meaning of the NPW Act)";

c) the document is in effect a simple "checklist". There is no report, commentary or the like as would normally be prepared in order to consider the relevant factors under cl 228 of the EP&A Regulation and s 5A of the EP&A Act;

d) the 'tick a box' nature of the inquiry leads to a 'black or white' judgment, there is no middle ground or qualification;

e) there is no evidence of any conditions or ameliorative measures considered, recommended or imposed for the road works;

f) the document contains no response to the question whether the proposal will have a significant effect on the environment of protected fauna and whether a fauna Impact statement should be required. 62 Mr Moody further points out that the two reports referred to by Mr Freeman in the environmental assessment of the road works, one prepared by Mr Redpath and the other by ERM, make no mention of the subject road works and were completed for a totally different subject matter. Moreover, the report by Mr Redpath specifically highlighted the possible adverse impacts of road works generally in the area and both reports found threatened species on the subject site. Mr Moody indicated during his oral evidence that he doesn't believe one person could have carried out the assessment as required by s 111 of the EP&A Act for the works as constructed. In his view it would require a multi-disciplinary approach particularly due to the sensitivity of the area. In his experience, not only of reporting, but also of appointing consultants and overseeing assessment, there was no occasion where one person undertook both the assessment and the preparation of the report. On even small-scale projects a multi-disciplinary approach was required. He contends that in the case of the Partridge Creek road works, assessments would be absolutely essential from flora and fauna expert(s), a hydrologist, an engineer, an arborist, a person with expertise in soil and erosion management, and a town planner.

Ms Katrina Louise O'Reilly 63 Ms Katrina Louise O'Reilly swore an affidavit which was read in these proceedings. Since 2001 she has been employed as a resource compliance manager with DIPNR at the Grafton regional office. She states that in June 2002 she received a preliminary alleged breach information form describing some recent native vegetation clearing at the Partridge Creek area. In response to that information, Ms O'Reilly undertook a site inspection and sent an advisory letter to the council on 26 June 2002 referring to the clearing activity. The letter of 26 June 2002 was addressed to the general manager, Mr B Smith, and also marked for the attention of Mr J Sharp and Mr G Freeman. The letter draws attention to the fact that a number of threatened species, including the Eastern Chestnut Mouse and the Grass Owl, were recorded as inhabiting the area where the slashing and under-scrubbing of native vegetation has occurred.

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.

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.

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:

[Rogers] There is slashing taking place out at Partridge Creek. Why is that? There are threatened species in the area and I have concerns about how they might be affected.

[Freeman] It is part of preliminary investigations. 82 According to Mr Rogers, Mr Freeman did not say anything to the effect that a road would be constructed. I must note here that under cross-examination Mr Rogers contradicted this saying that he did not recall informing Mr Freeman there were threatened species in the area. He corrected himself under re-examination, however, stating that he had indeed warned Mr Freeman about the presence of threatened species in the area when they met in the car park. Mr Rogers stated that he made the inconsistent statement due to the pressure of being in court. I accept this: the terms of the conversation are consistent with the evidence of Mr Aaso as to what was said, which I have noted in par [24] above. In his oral evidence, Mr Rogers also indicated that he doesn't know if Mr Freeman was aware of the existence of threatened species on the site before their meeting in the car park but he would have to assume that Mr Freeman would have read this in a council report or some such document.

83 In his affidavit Mr Rogers says that sometime after this conversation with Mr Freeman, Mr Aaso told him of the construction of the road at Partridge Creek. Within a day or two of this conversation with Mr Aaso, he went with Mr Aaso out to the Partridge Creek area. This visit was either the day before or the day of his email of 17 November 2003 to Mr Freeman. On this visit, Mr Rogers and Mr Aaso drove along part of the north-south road. Intersecting with that road and in the vicinity of where he had seen the slashing, there was the east-west road, which had been substantially constructed. Mr Rogers found it surprising that a road had been built without his knowledge and it caused him concern that it had been built through a threatened species habitat. He was concerned about the impact the road would have on the hydrology of the area considering the ASSR Project. He felt he needed to inform whoever was responsible for the road of the threatened species concerns. As he believed Mr Freeman was likely to be aware of the road being constructed, he emailed him on 17 November 2003.

84 In the email to Mr Freeman, Mr Rogers used the words "As you would be aware...". Mr Rogers points out that this is because he was assuming Mr Freeman had been present at the council's meeting on 10 February 2003 where the plan of management for the ASSR Project was adopted and that Mr Freeman would have been aware of its contents. The email of 17 November 2003 annexed to Mr Rogers' affidavit relevantly states: The road is located right through and [sic] area that has been identified as habitat for two threatened species, namely the Eastern Chestnut Mouse and the Grass Owl. As you would be aware we have had to make special provision in our ASS remediation proposal to cater to this constraint and I am concerned that Council may be open to criticism in relation to any impact of the current works on threatened species.

85 According to Mr Rogers, Mr Freeman never responded to his email and Mr Rogers had no conversation with Mr Freeman about it. Mr Rogers was not aware of any REF having been done for the road construction. Mr Rogers had no conversation with Mr Freeman about a REF for the road. He deposes that in circumstances where there were threatened species involved he would expect a proper REF to be carried out to ensure that the requirements of the EP&A Act are complied with and to ensure that threatened species are not harmed as a result of such works.

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.

Mr Trevor Graham Schubert 89 Mr Trevor Graham Schubert swore an affidavit in these proceedings. He is Maintenance Co-ordinator for Port Macquarie-Hastings Council. He was in 2003, and continues to be, responsible to Mr Toft and ultimately to the Director of Infrastructure Development, who was in 2003 Mr Freeman. Mr Schubert deposes that he co-ordinated the construction of the east-west and north-south roads. Mr Schubert deposes that the works were done in late 2003. He had a meeting on site with Mr Freeman a few weeks before the works started. Mr Freeman told Mr Schubert that he wanted to build a road from the south to the north to enable the council and others to carry out survey work for proposed subdivisions in the area. Mr Schubert deposes that Mr Freeman told him where both roads were to be built. During the construction of the north-south road, Mr Freeman told Mr Schubert that he wanted another road built, running from the north-south road in an easterly direction. Mr Freeman showed Mr Schubert where he wanted it to run from and to. Mr Schubert deposes that there was already a track where both roads were built. Mr Schubert estimates that it took three months to complete the road works.

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.

94 The defendant called two primary witnesses to give evidence during these proceedings, namely himself and his solicitor. Their evidence is summarised below. The defendant also relied upon an affidavit of a third witness. Mr Geoffrey Noel Freeman 95 Mr Geoffrey Noel Freeman swore an affidavit in the proceedings and gave oral testimony. I now summarise his evidence. Mr Freeman states in his affidavit that at the time of the construction of the "tracks" he was the Director of Infrastructure Services with Hastings Council. Throughout 2002 and 2003, Mr Freeman also was, as part of his duties as the Director of Infrastructure Services, the council's appointed Local Emergency Management Officer.

96 Mr Freeman deposes that after June 2000 the council carried out general maintenance of the Partridge Creek site, which included regular slashing of grassland areas. In about May - June 2003, Mr Freeman was aware that a proposal put forward by the council's Planning Director for the future planning of the area to use significant portions of the council's land for industrial purposes. Mr Freeman was concerned that use of the council's land for industrial purposes only was not the highest and best use of the council's land holding.

97 Mr Freeman deposes that he engaged on behalf of the council King & Campbell, a firm of consultant town planners, to assist in preparing land capability options for the site. He deposes that on or about 5 September 2003, he attended the Partridge Creek site with Mr A Thorne and Mr A Campbell from King & Campbell to discuss the future use potential and constraints of the site. During that inspection of the site, Mr Freeman determined that some additional slashing was required within the site to assist in locating survey lines for the King & Campbell assessment. Mr Freeman instructed Mr F Lyon to carry out the slashing. Slashing was then carried out for the survey purposes at the site.

98 Furthermore, during the inspection of the site the issue of the inundation of the site from the ASSR Project arose in discussion with the consultants and the consultants wanted information about the ASSR Project. Mr Freeman deposes that he asked Mr Aaso and other council officers to meet the consultants from King & Campbell and provide to them maps and survey levels previously undertaken of the site. That meeting was arranged for 9 September 2003. During this telephone conversation with Mr Aaso, Mr Freeman also asked for access to Mr Aaso's reports on the ASSR Project. Mr Freeman states that the reason he became interested in these reports was to provide information to King & Campbell as to projected inundation and survey levels on the subject site. Upon accessing the I-Drive (the council's information system), Mr Freeman deposes that he found listed within the file "Partridge Creek" a number of files, including documents prepared by Mr Redpath, ERM, Collins, the plan of management and other reports in word format. The figures and maps associated with most of the documents were listed separately from the document that they related to. Mr Freeman deposes that he was able to access the map associated with the ERM report without needing to open the ERM report itself. Mr Freeman states that he printed the map out and provided it to King & Campbell. He states that he did not read the report itself or any other report relating to the Partridge Creek area at all at that time.

99 Having spent time on the site and having regard to his previous knowledge of the site, it was apparent to Mr Freeman that better access needed to be provided within the land. According to Mr Freeman, the purposes for that access were as follows: internal access between portions of the land without having to go through private land; bush fire fighting; reliable access for council investigations with regard to the future sewerage treatment plant; general maintenance and management; and to overcome the fact that existing tracks being impassable due to inundation. Mr Freeman deposes that those purposes were within his delegation as the Director of Infrastructure and were his responsibility and he carried out the works in good faith for those purposes.

100 Moreover, Mr Freeman states that the access tracks that were in existence on the site were of too poor quality to risk putting fire trucks on them during the 2002 fires and they would become impassable once the inundation resulting from the ASSR works occurred. 101 On 17 September 2003, Mr Freeman met with Mr M Toft, the council's maintenance engineer, and Mr R Jordan, the council's maintenance supervisor on site. After that meeting, Mr Toft and Mr Jordan recommended that Mr Freeman speak with Mr T Schubert, the council's rural roads construction supervisor. Mr Freeman met with Mr Schubert on site within the next day or two. Mr Freeman deposes that Mr Schubert advised him about the most appropriate way to construct access tracks across the site. Mr Freeman was concerned about disturbing the acid sulphate soils on the site and made it clear to Mr Schubert that construction on the site should be careful not to disturb the soils. Mr Freeman deposes that he instructed Mr Schubert to commence the construction of the "tracks". 102 In September 2003, "tracks" were constructed in a north-south and east-west direction across the site. Prior to the construction, there were a number of tracks used in an ad hoc manner across the site. Having decided to build the new tracks, Mr Freeman made the following enquiries and directed the following works to be carried out:

· Slashing of existing grass and vegetation in the area where the tracks were to be built; · Meeting with engineering staff on site to determine the most suitable way to construct the tracks;

· Meeting with Mr Schubert; · Laying of geo-textile fabric over the existing ground surface; and,

· Laying of soil and clay material over the geotextile layer. 103 Mr Freeman believed that the works were necessary to execute the council's functions, including planning for the provision of sewerage services, future planning for the "Area 13" or Thrumster growth area, maintenance of the council owned land, and an obligation under the Rural Fires Act 1997 to prevent the occurrence of or minimize the danger of the spread of bushfire.

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.

107 Mr Freeman deposes that the REF pro forma document that he used for the Pt 5 assessment was obtained from the council's computer system and he believes that the checklist was the standard document used for the review of Pt 5 assessments. Mr Freeman used the REF checklist to make sure he had considered all the matters that he needed to. He ticked the boxes to indicate that he had considered each matter. In order to do the Pt 5 Assessment, Mr Freeman considered all the reports and other materials available to him on the I-Drive. Mr Freeman was satisfied that the reports already in existence were adequate to cover the proposed road works and there was no need to commission further reports. In carrying out the REF, Mr Freeman deposes that he had reviewed the ERM report, the Redpath report, the Collins report and the plan of management for the ASSR Project. Mr Freeman deposes that the review process for the "tracks" that he carried out included a consideration of those documents as well as other considerations including the council's mapping system, previous damage done to the site by previous owners, the need for formal tracks, the fact that the formalized "tracks" would have less impact than the existing tracks and the proposed inundation from the ASS project, the "tracks" were only for council's use in the management of the property, the impact of bushfires and likely improvement in fire fighting capability, and the current physical conditions of the site.

108 Mr Freeman formed the view that the road works were acceptable and that there were no significant impacts from the proposed works such as to require an EIS or SIS or any further investigation. Mr Freeman deposes that he carried out an eight part test, stating that page three of the council's pro forma preliminary REF includes the eight questions required to be considered for the eight part test. Mr Freeman considered the detailed eight part test that had been prepared by Mr Redpath to satisfy himself about those eight matters as it was against Mr Redpath's consideration for the impact of the ASSR project as a whole that he assessed the potential impacts arising from the construction of the "tracks". Mr Freeman concluded that the activity was not likely to have a significant effect on the environment and also that no further assessment was required to satisfy the eight part test. Having formed that view, Mr Freeman allowed the works to continue. Mr Freeman deposes that he honestly believed he had satisfied what was required of him under Pt 5 of the EP&A Act.

109 Mr Freeman deposes that on 17 November 2003 he received an email from Mr Rogers again expressing concern about the works. Mr Freeman recalls that he verbally advised Mr Rogers that he had reviewed the reports and that in his opinion there were no unacceptable impacts.

110 Mr Freeman explains in his affidavit the composition and role of the council's executive group. Mr Freeman says that the executive group reviews the electronic format of the council's meeting agenda a week prior to the meeting and before the reports are published. Mr Freeman deposes that only those reports raised by members of the group were discussed. Mr Freeman deposes that reports are usually attached to the agenda for councillors in an electronic format, although sometimes councillors receive hard copy reports. Neither the Redpath report or the plan of management for the ASSR Project were attached electronically to the agenda at the council meeting. Mr Freeman deposes that they were not considered in detail at either the executive group review meeting or the council meeting. Mr Freeman deposes that at this meeting, he was Acting General Manager. He deposes that he does not recall any discussion regarding threatened species and that there was very little discussion at all about the project, either at the council meeting or the meeting of the Executive Group. 111 Mr Freeman gave oral testimony in the proceedings over three consecutive days. When giving oral testimony, Mr Freeman had a copy of his affidavit (as described above) and a copy of his record of interview with Mr Beaumont on 11 April 2005. Mr Freeman agreed that when he spoke to Mr Beaumont on 11 April 2005, he was being careful to tell him the truth, he was trying to give him a complete account of his involvement with the construction of the roads and he was trying to be accurate in what he said to Mr Beaumont.

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.

115 Mr Freeman states that he only became aware that the roads were constructed on land which was considered to be environmentally sensitive, during the actual construction of the roads. The significance of the roads was to allow for access to the site to carry out strategic planning in relation to future development options of the site. Later in oral testimony, Mr Freeman stated that the primary reason for the "tracks" was for maintenance purposes. Mr Freeman's motivation for the roads was for the maintenance and management of the property. Mr Freeman denied that a motivation was to implement council strategic planning as well.

116 When cross-examined about the role of King & Campbell, Mr Freeman states that it was he who decided on the location of the roads and King & Campbell had no role in determining the location of the roads. Mr Freeman stated that he did give King & Campbell a brief. When asked where that brief is, Mr Freeman stated that it would be on council's file: it would be a letter of instruction to undertake the planning work on that site. Mr Freeman did not refer to its existence or cause it to be produced in response to the s 169 notice under the NPW Act or s 193 notice under the POEO Act because he did not see King & Campbell's work to be at all related to the existence of the roads.

117 Mr Freeman confirmed that he did ask King & Campbell to produce a document and that they did in fact produce a planning layout - a residential layout for the southern area of site. Those documents were finalised in 2006 and King & Campbell would have produced some preliminary sketches and done work during 2004, 2005 and 2006. Mr Freeman again stated that there was a letter of engagement with King & Campbell, which could be found on council's record system.

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.

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.

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.

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.

134 Mr Freeman was cross-examined regarding the time that he prepared the REF. He stated that he prepared the REF after the commencement of the construction of the roads and the road works had definitely commenced at the time he had the conversation with Mr Aaso and Mr Rogers that caused him to undertake the REF. In hindsight, looking at the dates of the slashing and of the commencement of the road works, Mr Freeman thinks that he was in error in saying to Mr Beaumont in the interview that it was in September because it was definitely after the slashing had been completed. He has had an opportunity to check council's records in relation to the completion of the slashing. It was during October that Mr Freeman engaged in the exercise of reviewing the environmental factors. Mr Freeman was informed via email on 9 September 2003 as to where the reports resided on the system. It wasn't until after the conversation that Mr Freeman had with Mr Rogers and Mr Aaso that he actually generated those reports in a printed fashion and sat down and read them and undertook the assessment, but prior to doing that assessment he spoke to Mr Rogers and Mr Aaso about the conflict between the outcomes of the reports.

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.

144 On the third day of his cross-examination, Mr Freeman was cross-examined in relation to the s 169 notice under the NPW Act and the s 193 notice under the POEO Act. This evidence is described in more detail in my previous judgment: Garrett v Freeman (No. 3) [2007] NSWLEC 139 at [18] - [24]. Mr Freeman stated that he sought legal advice in relation to each of the notices that the council received from the DEC in terms of the response provided and the information provided. Mr Freeman acknowledged that par 1 of the s 169 notice under the NPW Act asked for a very wide category of documentation. He agreed that there is no doubt that he knew that as at May 2004 council had a large amount of documentation in relation to the relevant land. Mr Freeman stated that he arranged for various staff who would have access to that material to compile that information and provide it to him, which was then the basis of his response to the DEC. Mr Freeman confirmed that he did provide the information. The documents that were produced in response to that notice included electronic versions of all the reports. All of the other information that related to that site was provided to Mr Beaumont in response to that notice. Mr Freeman stated that the information would have gone back as an attachment to his letter of 18 June 2004. Mr Freeman acknowledged that his letter does not state at the conclusion that it is attaching any documents. Again, I refer to my previous judgment which discusses the terms of this letter.

145 When Mr Freeman was questioned as to whom he asked to prepare the documentation that he wanted to provide to the DEC, Mr Freeman stated that he provided copies of the letter to his personal assistant, Mr Rogers and Mr Aaso. Mr Freeman, in response to the prosecutor's assertion that no documentation was provided at all in response to the s 169 notice under the NPW Act except for the two-page letter of 18 June 2004, stated that the response was provided on legal advice. Mr Freeman acknowledged that it may be the case that the only documents provided in response to the s 169 notice was the two-page letter. Mr Freeman accepts that his letter of 18 June 2004 in response to the statutory notice does not make specific reference to any of the paragraphs of the notice by number or content, or to any of the categories of documentation or information sought under the s 169 notice. Mr Freeman recalled that in response to the s 169 notice, Mr Aaso provided all of the electronic reports, including maps, photographs and other information relating to all of his work relating to Partridge Creek to the DEC. Mr Freeman requested staff to provide information to him in terms of the documentation - it was compiled together and forwarded by him to Mr Beaumont in response to the request. Mr Freeman stated that some of the information may have been provided separately, but it was in response to those requests. Mr Freeman was unable to explain why it is that his response, the letter of 18 June 2004, does not contain any reference to the documentation sought in par 1 of the s 169 notice, other than that was the response that was provided on advice at that time. Mr Freeman stated that a whole range of information was provided to Ms Matthes in early 2004. Mr Freeman indicated that he did not supply Ms Matthes with anything after that concerning the notice of 28 May 2004.

146 Mr Freeman disagreed with the prosecutor's suggestion that he had a consciousness of guilt about his involvement in this matter. He stated that Ms Matthes told him that she had some concerns and he needed to talk to other people about the matter. Mr Freeman does not believe that Ms Matthes said that she would have concerns depending upon whether there was an approval under Pt 5 of the EP&A Act and that the he had asked her what sort of approval (was required).

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.

151 Mr Steven Thomas Miles gave oral evidence. Mr Miles is a solicitor of Donovan Oates Hannaford, Port Macquarie. Mr Miles indicated that he has had involvement with the matters the subject of these proceedings for his firm and he is the solicitor on the record for the defendant. Mr Miles provided advice primarily to the council during the course of 2004 in relation to the answering of statutory questions issued by various government authorities, although it was Mr Freeman who was the council officer who Mr Miles primarily dealt with.

152 Numerous documents of correspondence between Mr Miles, Hastings Council and the DEC, which were drawn from Mr Miles' file in this matter, were tendered through Mr Miles, including a facsimile from council to Donovan Oates Hannaford dated 24 June 2004 (Exhibit 5); Mr Miles' letter of 29 June 2004 (Exhibit 6); a facsimile of 14 December 2004 and annexures (Exhibit 7); three pages of handwritten notes dated 20 December 2004 that were made by Mr Miles after a conference with Mr Freeman (Exhibit 8); a letter on Donovan Oates Hannaford letterhead with a sent by fax stamp of 21 December 2004 with accompanying draft letter for council to send to the DEC prepared by Mr Miles (Exhibit 9); a facsimile from Hastings Council to Mr Miles dated 27 January 2005 together with a copy of a letter dated 20 January 2005 from Mr Beaumont of DEC to Hastings Council (Exhibit 10); a letter on Donovan Oates Hannaford letterhead dated 18 February 2005 addressed to Mr Beaumont of DEC (Exhibit 11); a document on DEC letterhead dated 25 February 2005 addressed to Donovan Oates Hannaford (Exhibit 12); a document of 9 March 2005 on Donovan Oates Hannaford letterhead to Legal Services Branch of DEC being in response to a letter of 25 February 2005 (exhibit 13); a letter on DEC letterhead dated 11 March 2005 (Exhibit 14); a letter dated 22 March 2005 drafted by Mr Miles sent to DEC (Exhibit 15); a letter dated 23 March 2005 from DEC to Donovan Oates Hannaford (Exhibit 16), and, a letter of 29 June 2004 from council (Exhibit 17).

153 Mr Miles' evidence was principally directed to the matters described in my previous judgment, noted above. The conference notes made by Mr Miles on 20 December 2004 were prepared with a view to answering the statutory notice under s 193(1) of the POEO Act. Mr Miles stated that when he wrote that note, he wrote down answers or notes of answers to the specific paragraphs in the notice following his discussions with Mr Freeman on those particular paragraphs. Mr Miles could not recall, during cross-examination, whether Mr Freeman sought his assistance with the response to the notice of 28 May 2004. Mr Miles did not have any file notes to that effect. Mr Miles noted that if Mr Freeman contacted him in relation to that notice, then he would have given him assistance. It is possible that Mr Freeman did not contact Mr Miles at all about that notice until the fax (Exhibit 7) dated 14 December 2004. Mr Miles stated that he may or may not have made a note of advice that he gave but that would depend on the advice that he gave and the complexity of it.

154 Mr Miles had no recollection of contributing to the drafting of Mr Freeman's response to the s 169 notice contained in the letter of 18 June 2004 sent from Mr Freeman to Mr Beaumont, which was attached to a facsimile sent by Mr Freeman to Mr Miles on 24 June 2004. The fact that there is no draft of the letter of 18 June 2004 on his file tends to suggest to Mr Miles that he did not contribute to the drafting of that letter.

155 Mr Miles agreed that it is a fair inference to draw that as far as he's concerned, with reference to exhibits, that Mr Freeman never sent any documents to the DEC other than by way of his reply. Mr Miles acknowledged that he would have received instructions from Mr Freeman when preparing his letter of 29 June 2004. Mr Miles assumed that he considered the requirements of s 169(3) of the NPW Act in order to advise Mr Freeman as to how to respond to the complaint that he had not adequately responded to the s 169 notice of 28 May 2004. Mr Miles further assumed that he would have advised the council of its obligations under s 169 and he would have tried to form the view as to whether Mr Freeman's letter of 18 June 2004 was in fact a breach of s 169(3). While Mr Miles cannot remember whether he asked Mr Freeman what documents he had in relation to the works on the land, Mr Miles assumed that he did ask Mr Freeman what documents there were as described in the notice in relation to the land. Mr Miles agreed that it is likely that Mr Freeman told him in relation to the s 169 notice that there was a quantity of documents that related to the land. Mr Miles stated that it is highly unlikely that he didn't tell council that it was to comply with the notice. If Mr Miles had instruction from Mr Freeman that he didn't have the documents of information that was sought in the notice, then Mr Miles stated that it is likely that he would have put that in the letter.

156 The handwritten notes (Exhibit 8) are notes that Mr Miles made during his conversation with Mr Freeman on 20 December 2004, to assist him in drafting a response for the council to the s 193 notice. Mr Miles agreed that the information contained in his handwritten notes would have been obtained from Mr Freeman. It is a record of notes that Mr Miles took at the meeting with Mr Freeman in relation to the s 193 notice. By letter dated 21 December 2004 (Exhibit 9) Mr Miles forwarded to council, marked to Mr Freeman's attention, a draft letter to send to the DEC in response to its s 193 notice. Mr Miles did not think that it would be reasonable to assume that Mr Freeman, in the conference with him on 20 December 2004, never told him that he had emails about the construction of the roadways. Mr Miles could think of no explanation or reasonable reason as to why, if Mr Freeman had told him that he had documentation relating to the construction of the roadway, he would not have ensured that the information was conveyed to the DEC in response to the notice. Mr Miles considers it highly likely that the content of par 1 of the answer to the notice, as drafted by him, was based upon the instructions of Mr Freeman. (This evidence again relates to my previous interlocutory judgment.)

157 Mr Miles stated that it is highly likely that he gave Mr Freeman advice in relation to paragraphs of the letter of 20 January 2005 from Mr Beaumont to Hastings Shire Council (Exhibit 10), which letter expressed concern that council appears to have failed to comply with the notice. Mr Miles stated that it is likely that he got instructions from Mr Freeman about the content of the letter from DEC dated 11 March 2005 (Exhibit 14). Mr Miles acknowledged that, at some stage, he must have learned that the answer given in the s 193 notice was wrong regarding documents referred to in the preparation of the REF. Mr Miles agreed with the statement that he appreciated that there was a conflict between the answer that was provided to par 6 of the s 193 notice and the instructions that he must have at some stage obtained from his client that he did refer to documents in the preparation of the REF. Mr Miles stated that the answer - that there are no documents - appears to be incorrect. The source of that answer followed upon Mr Miles' meeting with Mr Freeman on 20 December 2004. (See again my previous interlocutory judgment.)

158 In re-examination, Mr Miles stated that it was his understanding that Mr Freeman provided reports to the DEC or their representative. Mr Miles indicated that he was aware of the fact that Mr Freeman had provided Ms Matthes of the DEC with a copy of the preliminary REF. Although Mr Miles cannot recall when he became aware of that, he stated that it was early on in the piece. A document was extracted from the files of Mr Miles' firm and was identified by Mr Miles as a s 193 notice dated 26 July 2005 (Exhibit 18). Mr Miles further identified a file copy of a covering letter dated 15 August 2005, sending documents and a compact disc of documents in relation to the s 193 notice dated 26 July 2005 to the DEC (Exhibit 19). Mr Miles was further cross-examined on these documents. Mr Miles was questioned about the differing responses to the s 193 notice of July 2005 and the s 193 notice of December 2004. The prosecutor pointed out that Mr Miles attended an interview with Mr Freeman on 11 April 2005. The prosecutor suggested that the different responses to the s 193 notices was due to the fact that Mr Freeman disclosed to the DEC the existence of a large quantity of documents that related to the Partridge Creek land in the interview of 11 April 2005. Mr Miles was unable to recall the reason as to why the s 193 notice responses differed and so was unable to agree with the prosecutor's proposition; however, Mr Miles was unable to think of any other explanation as to why there was a different response to the s 193 notice of 2005 and the s 193 notice of 2004.

159 Ms Lisa Jane Essex-Evans gave evidence in these proceedings by an affidavit. Ms Essex-Evans is an administrative assistance employed by the Council. Ms Essex-Evans deposes that during June-July 2002, she was working as the personal assistant to Mr Freeman. She deposes that one of her duties in that role was to allocate the daily incoming mail to the appropriate section of the Infrastructure division if Mr Freeman was not available to do it. Ms Essex-Evans describes the procedure for allocation of the incoming mail and deposes that if Mr Freeman was available, he would usually review all of the incoming mail and he would allocate it to the appropriate council officer or section of the Infrastructure division. If Mr Freeman was not available to do the allocation then Ms Essex-Evans states that she would do the sorting of the mail and its allocation. In allocating incoming mail to the appropriate section, Ms Essex-Evans would write letters on the correspondence action form, which was attached to the front of the letter. Ms Essex-Evans deposes that if she allocated the letter to the sewerage section, she would write "IS" for Infrastructure Sewerage. The correspondence action form on the letter dated 26 June 2002 (to which I have referred in par [62] above) from the DLWC has the initials "ISJS" in the "Person Referred To" section of that form. Ms Essex-Evans recognises the initials "IS" to be in her writing and those initials indicate to her that she allocated that letter to the sewerage section of the infrastructure division. Ms Essex-Evans says that after she had allocated the daily incoming mail to the various sections of Infrastructure, she would deliver the mail to those sections. She would not give the mail to Mr Freeman unless she had allocated it to him.

160 Mr D A Buchanan SC, appearing for the prosecutor, relies upon the following submissions:

(1) The elements to an offence under s 118D(1) of the NPW Act are: (a) that a provision of the National Parks and Wildlife Act 1974 was contravened by a corporation, that is - Hastings Council, a corporation, contravened sub-s 118D(1) - that is - (i) Hastings Council did a thing, namely construct the subject roads, (ii) that thing caused damage to habitat of a threatened species under the Act, and (iii) at the time of the offence, Hastings Council knew that the land concerned was habitat of a threatened species; (b) at the time of the contravention, the defendant was a person concerned [in] the management of the corporation, that is - the defendant was concerned in the management of Hastings Council

(2) The only relevant defences to a charge of committing the principle offence in the circumstances of this case would be under s 118D(2)(b)(ii) or (iii) of the NPW Act, namely: (2) It is a defence to a prosecution for an offence against this section if the accused proves that the act constituting the offence: …

(ii) an activity by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or (iii) an activity in accordance with an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, … (3) Under s 175B(1) of the NPW Act there are three alternative statutory defences. They are made out if the defendant satisfies the Court on the balance of probabilities that when the corporation contravened s 118D of the NPW Act: (a) it did so (i) without actual knowledge of those matters on the part of the defendant, and (ii) it did so without imputed knowledge of those matters on the part of the defendant, and (iii) it did so without constructive knowledge of those matters on the part of the defendant, or (b) the defendant was not in a position to influence the conduct of Hastings Council in relation to its causing damage to the habitat of threatened species by constructing the roads, knowing that the land concerned was habitat of that threatened species, or (c) the defendant, (i) if in such a position to influence the conduct of Hastings Council in relation to its causing damage to the habitat of threatened species by constructing the roads, knowing that the land concerned was habitat of that threatened species, (ii) used all due diligence to prevent the contravention by Hastings Council. (4) The principal offence is an offence of strict liability. (5) Partridge Creek was habitat of the Grass Owl and the Eastern Chestnut Mouse.

(6) Construction of the roads damaged habitat of the Grass Owl and the Eastern Chestnut Mouse.

(7) The Council constructed the roads. The prosecutor submits that there are two different ways in which to prove the element of the offence that the principal corporate offender, Hastings Council, did the thing that, as a separate element, caused damage to the habitat of threatened species - namely the construction of the subject roads. The first is by operation of s 159A of the NPW Act and evidence satisfying its provisions. Apart from s 159A, the prosecutor submits that there is an abundance of evidence that the roads were constructed by the council, by its Director of Infrastructure Services, Mr Freeman. The other way in which to prove that the council constructed the roads is by way of admission.

(8) The council had knowledge that the land was habitat of that kind. Three separate submissions are made on this point.

1. Section 118D(4) of the NPW Act The prosecutor submits that by force of statute, the prosecutor proves that, for the purposes of s 118D(1), Hastings Council knew that the land concerned was habitat of that kind, namely habitat for the threatened species particularised in each charge. Section 118D(4) of the NPW Act provides:

In proceedings for an offence under this section in respect of an act or an omission of a person that causes damage to any habitat (other than critical habitat) of a threatened species… it is to be conclusively presumed that the person knew that the land concerned was habitat of that kind if it is established that: (a) the act or omission occurred in the course of the carrying out of development or an activity for which development consent under Part 4 of the Environmental Planning and Assessment Act 1979 , or an approval to which Part 5 of that Act applies, was required but not obtained …

The defendant admits the subject road works were an activity by a determining authority within the meaning of Pt 5 of the EP&A Act . The prosecutor submits that any suggestion that the defendant gave Pt 5 approval to the road works should be rejected. Furthermore, the prosecutor submits that the evidence establishes that the determining authority was not the defendant, but was either Mr Owens or Mr Coulter.

The prosecutor submits that: it having been established that (i) the acts charged occurred in the course of the carrying out of an activity; (ii) for which approval to which Pt 5 of the EP&A Act applied, was required; (iii) which approval had not been obtained, then s 118D(4) operates to conclusively deem that when it built these roads Council knew that the land concerned was habitat of the threatened species alleged in each charge.

2. Common law - identification or attribution theory If the submissions above on s 118D(4) NPW Act are not accepted, the prosecutor submits that the same result would be achieved by application of the common law as to corporate liability by identification and/or corporate liability by attribution.

3. Section 175B(4) of the NPW Act If it were necessary to do so, the prosecutor would also rely upon the provisions of s 175B(4) of the NPW Act for their own force and effect. By virtue of s 220 of the Local Government Act 1993 and ss 50(1) and 21(1) of the Interpretation Act 1987, proof that an officer or employee of the Council had knowledge that Partridge Creek was relevant habitat is evidence that Council had that knowledge. (9) The council failed to comply with Pt 5 of the EP&A Act. The only relevant defence to a charge of committing the principal offence in the circumstances of this case is under s 118D(2)(b)(ii) - 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. In the agreed statement of facts, the defendant admits that the construction of the roads was an activity by a determining authority within the meaning of Pt 5 of the EP&A Act. The council was the determining authority.

As to whether the prosecutor has proved that the council failed to comply with Pt 5 of the EP&A Act :

1. Section 111 of the EP&A Act - review of environmental factors The prosecutor relies upon Moffitt JA's decision in Parramatta City Council v Hale (1982) 47 LGRA 319 as to the obligation imposed by s 111 of the EP&A Act and the approach to be taken when drawing inferences from evidence as to the degree of consideration given or not given to particular matters.

The Court should take into account the following: a) the failure of the defendant to respond to Mr Rogers' of 17 November 2003 email; b) the defendant's failure to tell Mr Rogers and Mr Aaso what he was planning to do; c) the failure of the defendant to consult Mr Rogers or Mr Aaso or his fellow director, Mr Coulter, as to the possible or likely environmental impact of construction of the roads or as to the possible or likely impact upon habitat for the Owl and the Mouse; d) the failure of the defendant to consult Mr Owens or to submit to the Planning Department the "preliminary REF"; e) the failure to retain environmental consultants to undertake an environmental assessment of the scheme for the road works, specifically, the failure to obtain any reports from fauna or flora experts, including an arborist, an hydrologist/hydrological engineer and an expert in soil and erosion management - or any species impact statements; f) the failure to prepare any construction plans, surveys, sediment and erosion control plan or any construction details at all for the road works project; g) the deficiencies in the defendant's "preliminary REF" identified by Mr Moody;

Moffitt JA in Hale pointed out, at 340, that a decision to carry out a development might be so unreasonable in all the circumstances as to support an inference that relevant considerations were not taken into consideration. The prosecutor submits that in addition to the above submissions that precisely this conclusion should be drawn about the defendant's decision to construct these roads in the circumstances of: being told by Mr Rogers that there were threatened species in the area; his knowledge as to the data which Council had as to the presence of threatened species; his behaviour in relation to the "preliminary REF".

The prosecutor submits that the defendant's "preliminary REF" was not an REF at all but a checklist used in council to record an assessment of an REF. The prosecutor contrasts the defendant's "preliminary REF" with several other REF's - the REF held to be adequate in Jugiong Quarries Pty Ltd v Water Administration Ministerial Corporation, NSWLEC, Talbot J, 11 May 1995, unreported); the REF submitted by the defendant to the National Parks and Wildlife Service by letter 18 May 2004; and REF for the Partridge Creek acid sulphate soil hotspot remediation project. The documents consulted by the defendant related to the works the subject of the ASSR Project, which did not investigate the likely impact on the habitat of the relevant threatened species of the works that the defendant undertook.

2. Section 112 of the EP&A Act - no EIS or SIS On an objective assessment of the evidence either as before the Court now or as was available to council at the time, the construction of the roads was likely to significantly affect the environment or threatened species within the meaning of s 112(1) of the EP&A Act . By undertaking their construction without obtaining an EIS or SIS, council failed to comply with the requirements of s 112(1).

The Court would be satisfied on the totality of the evidence that the construction of the roads brought matters in cl 228(2) of the EP&A Regulation 2000 into play and accordingly that it was "likely to significantly affect the environment" within the meaning of that expression in s 112(1).

Further, or in the alternative, the prosecutor submits that the Court would be satisfied that construction of the roads would be likely to significantly affect threatened species, being both the Owl and the Mouse - and for that reason was likely to affect the environment. Accordingly, in failing to obtain an EIS or an SIS, the council failed to comply with Pt 5 of the EP&A Act .

The Court will be satisfied that council had no defence under s 118D(2)(b)(ii) and (iii) of NPW Act in relation to the principal offence, on the basis that either or both - (a) it failed to comply with s 111 of the EP&A Act , and/or (b) in circumstances where construction of the roads was likely to significantly affect the environment and/or threatened species, council failed to obtain an EIS or an SIS as required under s 112 of the EP&A Act .

There is further reason why the defence available at law to Council under s 118D(2)(b)(iii) of the NPW Act has been disproved. The Part 5 activity was not carried out in accordance with an approval of a determining authority within the meaning of Pt 5 of the EP&A Act . This is because there was no approval of a determining authority within the meaning of s 118D(2)(b)(iii) of the NPW Act . (10) The defendant's liability under s 175B(1). By virtue of s 220 of the Local Government Act 1993, at the time of the offences charged Hastings Council was a statutory corporation. The defendant admits in the statement of agreed facts that at that time he was concerned in the management of Hastings Council. (11) Defences:

Section 175B(1)(a) of the NPW Act - defendant's lack of knowledge

The Law Section 175B(1)(a) of the NPW Act requires the defendant to satisfy the Court that the principal offence was committed without his knowledge. The prosecutor assumes that there will be no defence under s 175B(1)(a) in respect of the principal elements of the offence. Since the principal offence is not committed if, relevantly, the acts done were essential to an activity by the council under Pt 5 of the EP&A Act and the council purportedly complied with Pt 5, it is conceded that the defendant has a defence under s 175B(1)(a) if he satisfies the Court that he did not know that the road works were essential to something which in fact satisfied the definition of an "activity" by a "determining authority" under Pt 5 and did not know that the determining authority did not comply with Pt 5 - or, for the purposes of s 118D(2)(b)(iii), he did not know that there was no approval within the meaning of s 118D(2)(b)(iii) and he did not know that the council had not complied with Pt 5.

Accordingly, the defendant has a defence if he can prove that he had no knowledge of such facts or circumstances as would demonstrate that the council did not comply with Pt 5 (and, in relation to s 118D(2)(b)(iii), that there was no approval within the meaning of that sub-paragraph). However, the legislature has provided that to establish this defence, the defendant has to prove not only that he had no actual knowledge that Council failed to comply with Pt 5. He has to prove also that he had no imputed or constructive knowledge that council failed to comply with Pt 5 (and, in relation to s 118D(2)(b)(iii), that there was no approval within the meaning of that sub-paragraph). The prosecutor submits that failure to prove any one of these forms of knowledge means that the defendant fails to make out this statutory defence.

In summary, the prosecutor submits that, to succeed with the statutory defence, the defendant has to prove that: a) he had no actual knowledge that the council had not complied with Pt 5 and that there was no approval within the meaning of s 118D(2)(b)(iii); b) no-one in council who possessed knowledge which would be imputed to him knew that the council had complied with Pt 5 and that there was no approval within the meaning of s 118D(2)(b)(iii); and c) it cannot be said he reasonably ought to have known that the council had not complied with Pt 5 and that there was no approval within the meaning of s 118D(2)(b)(iii).

Actual knowledge With reference to various cases dealing with the possession or importation of illegal drugs, the prosecutor submits that in the ordinary case actual knowledge can be proved by way of inference and actual knowledge can consist of a belief in the likelihood, in the sense that there was a significant or real chance, of the fact to be known. Relating this to the facts of the case, actual knowledge on the part of the defendant, consisting in at least a belief in the likelihood that the council caused damage to threatened species habitat, council knowing that the land on which the roads were built was such habitat, and that there had been no compliance with Pt 5, can be inferred from all the circumstances of this case.

The prosecutor submits that actual knowledge can be inferred from a conclusion that the defendant adopted a position of "wilful blindness" as to the existence of the facts which comprised the principal offence.

Imputed knowledge The prosecutor submits that, when it comes to local government authorities, the " Carltona principle" ( Carltona Ltd v Commissioners of Works [1943] 2 All ER 560) extends to at least three situations: (a) councils are deemed to have knowledge of their LEP ( Lakeside Plaza Pty Ltd v Legal & General Properties No 2 Ltd (1992) 76 LGRA 60 per Stein JA at 65; Springer v Woollahra Municipal Council (Lloyd J) (2000) 108 LGERA 392 at 406, 408); (b) circumstances where an officer exercises the decision-making power of the person or body given the responsibility for making the decision ( Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257 at 270); (c) material in the possession of the Council will generally be treated as being in the possession of the councillors in the absence of evidence to the contrary ( Shroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 per Ipp AJA at 67, Spigelman CJ & Sheller J agreeing; Gee v Council of the Sydney City Council (2004) 137 LGERA 157 (Pain J); Gunning Sustainable Development Association Inc v Upper Lachlan Council (2005) 138 LGERA 281 (Talbot J) at 298)

Constructive knowledge The prosecutor submits that the defendant has failed to prove that he did not have constructive knowledge as to the existence of the facts consisting in the principal offence. The defendant departed from the usual course in investigation of the environmental impact of his proposal to construct the roads. In the circumstances, he showed at least negligence in that investigation, not making the due inquiry which an honest person would have made. He reasonably ought to have known that there had been no proper inquiry into the environmental impact of the proposal.

The Evidence The prosecutor submits that the evidence in this case establishes that the defendant:

· had actual knowledge that the roads were constructed; · knew that the Partridge Creek wetlands was habitat for the Grass Owl and the Eastern Chestnut Mouse as threatened species; · had knowledge that Partridge Creek did not contain habitat declared to be critical habitat; · had actual knowledge, imputed knowledge, and/or constructive knowledge that the construction of the north-south and the east-west roads at Partridge Creek would damage threatened species habitat, specifically the Grass Owl and the Eastern Chestnut Mouse; · has failed to prove that he did have knowledge (actual, imputed or constructive) that, at the time the principal offences were committed, the council failed to comply with Pt 5 of the EP&A Act

The prosecutor submits, based upon the principles identified in authorities and applying them to this case, that the Court could not be satisfied that the defendant had used all due diligence to prevent the contravention of s 118D by the corporate defender. Mistake of fact

The prosecutor submits that there is no room for the operation of mistake of fact in this case. While the defendant has available to him the statutory defence as to lack of knowledge under s 175B(1)(a), that defence excludes the operation of a defence of mistake of fact.

The prosecutor submits that mistake of law is not a permissible defence: Director-General of Department of Land and Water Conservation v Greentree [2002] NSWLEC 102; Ostrowski v Palmer (2004) 218 CLR 493; Environment Protection Authority v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289 (NSWCCA) at 304. (12) The prosecutor also submits that there is a serious issue as to the defendant's credit as a witness of truth on issues which are critical to the case. Four particular aspects of the defendant's conduct which reflect upon his veracity include: (1) the changing story as to when the REF was done; (2) concealment of documents and obstruction of the investigation; (3) concealment of involvement of others and obstruction; and, (4) failure to respond to contemporaneous inquiries.

The prosecutor made detailed submissions on concealment and obstruction. These submissions relate to the defendant's failure to comply with statutory notices; the defendant's claim of responding on legal advice; the defendant's instructions to Mr Miles were either lies or were designed to obstruct the investigation; and the defendant's claim that documents were supplied in response to the notices. The prosecutor submits that the statements and conduct of the defendant can and should be used to assess how much credit can be given to him as a reliable source of information out of court and as a reliable witness in court. The prosecutor points to Edwards v The Queen (1993) 178 CLR 193 at 208-209 as authority that statements found to be lies can amount to an implied admission of guilt. The prosecutor also made submissions regarding how evidence of consciousness of guilt must be dealt with.

161 Mr I J Hemmings and Mr E Y Ozen, appearing for the defendant, rely upon the following submissions:

(1) The relevant chronology for the commencement of any works (tracks or otherwise) within Partridge Creek and during the charge period was as follows: · 11 September 2003 - slashing commenced; · 18-23 September 2003 - slashing for tracks carried out; · Approximately 19 September 2003 - instructions given to Mr Schubert to commence construction of tracks; · 24 September 2003 - pipes laid as part of the construction of the tracks. · The construction of the tracks then continued "spasmodically" over the next three months. (2) The car park conversation, between Mr Rogers, Mr Aaso and Mr Freeman in the council car park, was some time after a date within the range 11 September - 30 September 2003. The prosecution has been unable to exclude the following chronology: · Slashing had commenced; · Construction of the tracks had commenced (although possibly only minor parts of those works); and · Then the car park conversation took place. (3) The effect of the car park conversation was to bring to the defendant's attention - for the first time - the existence of threatened species on the land. (4) The defendant relies upon s 175B(1)(a) of the NPW Act. The defendant submits that:

· When the Council contravened s 118D(1), the defendant did not know that the land concerned was habitat of the two threatened species. · To the extent that it is then relevant, upon obtaining that knowledge, the defendant, as Council's delegate, complied with the requirements of Pt 5 of the EP&A Act. (5) The section 118D offence may only be committed where a person knows that the land concerned is the habitat of a threatened species. The council (being the relevant person for the purpose of s 118D(1)) had that corporate knowledge. That corporate knowledge is irrelevant for the purposes of s 175B as s 175B provides for a separate offence. The defendant submits that the starting point for a consideration of the knowledge for the purposes of s 175B is not the corporate knowledge. It must be a consideration of the defendant's knowledge (whether that be actual, imputed or constructive). Further, the defendant submits that the words "actual, imputed or constructive" are not operative rather they are descriptive. (6) The defendant did not have knowledge that the land concerned was habitat for either the Eastern Chestnut Mouse or the Grass Owl.

· 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.

(10) The defendant made a number of submissions regarding consciousness of guilt. The defendant submitted that before a person's conduct can be relied upon as evidence of a consciousness of guilt, four conditions must first be satisfied: · The conduct was deliberate · The conduct related to a material issue · The motivation for the conduct was a realisation of guilt and fear of the truth · The conduct must be established by other independent evidence (11) The defendant acted in accordance with legal advice and met what he perceived to be the obligations of the council at the time. There is no inference adverse to the defendant's credit available to the prosecutor in this case.

162 A significant number of inconsistencies were observed in the defendant's record of interview, his affidavit and his oral evidence. As a result of these inconsistencies, the defendant's evidence can only be relied upon to the extent that it happens to be corroborated by evidence that is independent of his testimony.

When was the car park conversation with Messrs Matt Rogers and Thor Aaso?

163 In the record of interview (at Q161), the defendant states that officers advised him of threatened species prior to the commencement of the road works, in early to mid-September 2003, when there was a slashing contractor working an area and working down along the north-south road.

164 The defendant also states (at Q407 to Q411) that the discussions with Mr Rogers were in September/October 2003 - slashing works would have been undertaken generally at that time and it was early in the project - certainly prior to the east-west road going in, or any parts of the north-south road going anywhere near that area.

165 In his affidavit, noted above in par [104], the defendant states that the car park conversation was after slashing had been completed. He states that it either preceded or was contemporaneous with the commencement of the construction of the access tracks. The defendant states that the car park conversation was approximately a month after slashing had started.

166 In oral evidence, noted in par [126] above, the defendant states that the car park conversation was in October. The defendant also states that it was mid to late October (par [119]). The defendant, however, later states, as noted in pars [126] and [132] above, that it was in early to mid October.

167 The defendant states in oral evidence (12 March 2007, at 17.42) that there was not a council file to his knowledge. When the defendant was asked (12 March 2007, at 24.40) whether he gave King & Campbell a brief, he responded that he did. When asked where that brief is, the defendant stated that it would be on council's file (12 March 2007 at 24.44).

168 Once the defendant had completed the REF, he stated (13 March 2007 at 38.26-28) that 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 kept by the defendant contained paper file of maps and other issues and the planning documents that were being generated by the council's planning department in relation to the investigation of the Thrumster urban growth area (13 March 2007 at 38.31-35). There was also a paper copy of the Redpath report, the ERM report and the management plan in that file (13 March 2007 at 38.39; 38.42 and 38.47). This file was in existence from some date in October 2003 (13 March 2007 at 39.10-15). It had Thrumster landholding noted on it (13 March 2007 at 39.22).

When did the defendant become aware of threatened species on the site?

169 In the record of interview (at Q149 to Q150), the defendant states that in June 2002, he was "aware generally that there were threatened species issues on the site." He says that he was "generally aware that there were threatened species issues on council land holding, both… in terms of at the northern end of the site, where they particularly relate to that area, but also at the southern end of the site where we have koala habitat and so on."

170 In response to Q152 in the record of interview, which asks what the defendant's knowledge was of threatened species on the site where the two roads were constructed by council, the defendant states that to his knowledge, the threatened species that were relevant were the chestnut mouse and the grass owl.

171 The defendant states in the record of interview (at Q153) that he became aware of the threatened species on the site as council, as part of the assessment for the acid sulphate control project, had a number of environmental studies done as part of that project.

172 In the record of interview (at Q160-Q161), the defendant states that officers advised him that he needed to be aware of threatened species being recorded on the site, prior to the commencement of the road works, in early to mid September 2003, when there was a slashing contractor working an area and working down along the north-south road.

173 The defendant indicates (at Q223) that he was not aware of the eastern chestnut mouse and the grass owl being recorded on the site in April 2003. He states (at Q224) that he became aware of those species on that site when he had the discussions with Mr Rogers and Mr Aaso. Although, the defendant notes that he did mention earlier that he was generally aware that there were threatened species issues when the acid sulphate project was being put together prior to that date, but he was not involved in any of the specifics of that.

174 The defendant indicates in the record of interview (at Q407 to Q409) that he understood, based on his discussions with Mr Rogers and the Redpath report, that the chestnut mouse existed primarily to the south of the track. The discussions with Mr Rogers would have been in that period, September/October 2003. When asked whether it was before clearing, the defendant states (at Q410) that we would have been undertaking the slashing works generally at that time and that it would have been early in the project - certainly prior to the east-west road going in, or any parts of that north-sough road being anywhere near that area.

175 The defendant indicated in oral evidence (at 12 March 2007 at 17.55) that he was not aware at the time that the roads were constructed that they involved the construction of roads upon land considered to be environmentally sensitive. The defendant stated that he became aware of that during the construction of the roads.

176 As a result of conversation in the car park, the defendant was aware that Messrs Aaso and Rogers had concerns in relation to the project, but there was no detailed discussion of their knowledge of the threatened species on the site (12 March 2007 at 31.41-31.44). The defendant stated that he knew that Messrs Aaso and Rogers had knowledge of Partridge Creek being habitat for threatened species no later than at the time of the conversation in the car park (12 March 2007 at 31.55-32.01). The defendant indicated (12 March 2007 at 32.05) that from no later than that time he knew that there was a threatened species constraint at least at Partridge Creek.

177 The defendant indicated in oral evidence (at 12 March 2007 at 39.13) that the first time he became aware of threatened species issues in relation to the site was when Mr Rogers and Mr Aaso had the car park conversation. When the defendant was questioned about his response given to Q224 in the record of interview, the defendant responded that the answer he gave to that question (noted in par [173] above) was a true answer. The defendant's explanation (12 March 2007 at 39.40-44) is that he was unaware of specific threatened species issues in relation to the owl or the mouse. The defendant referred to the report (the report presented to council at the meeting of 10 February 2003 of which he was aware as a result of being the chair of the executive group that vetted the paper), which makes general reference that the council must consider the environmental issues and it talks about the issues generally but there is no discussion of the existence of those or the level of impact on the site.

178 The defendant stated in oral evidence (12 March 2007 at 47.13-.21) that he did not know anything in respect of specific records about threatened species that might be affected by the subject works at Partridge Creek - he had not read any of the environmental assessment reports that relate to Partridge Creek up until he accessed them on the I-Drive. The defendant stated that he had no prior knowledge in relation to the mouse or the owl in relation to or prior to the work that was undertaken (12 March at 47.21-23). The defendant stated that the threatened species that he, Mr A Campbell and Mr A Thorne had knowledge of when looking at the site earlier was the koala (12 March 2007 at 47.28-33). The defendant stated that koalas have been a known constraint of the Thrumster urban development area and had been for some time and was the major focus of the development considerations in the area (12 March 2007 at 47.40-43). The defendant indicated (12 March 2007 at 47.49) 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.

179 The defendant states, in response to Q247 in the record of interview asking how many REFs the defendant would have filled out in his role with Hastings Council, that he "had probably done a couple of those in the past."

180 In his oral evidence (12 March 2007 at 77.20-27), the defendant stated that he has not done REFs himself in the past. The defendant confirmed (12 March 2007 at 77.50) that he had not done "a couple of [REFs] in the past" as he said in response to Q247 of record of interview.

181 Later in oral evidence (13 March 2007 at 36.5) the defendant, when asked how many times he had filled in forms like [the preliminary REF], stated "a couple of times".

182 The defendant's reply to Q110 in the record of interview, whether the defendant was aware of any reporting and assessment that was undertaken for the works on the land, was that an REF in terms of determining the potential impact was undertaken prior to these works proceeding.

183 In the record of interview (at Q241), the defendant states that the REF was completed prior to the road works actually starting. Some slashing had been done on the site and Mr Rogers and Mr Aaso spoke to defendant about it. The defendant states that he said "I'll undertake an REF to see exactly where we sit in terms of going ahead with this project."

184 The defendant states (at Q242 to 243) that the REF was put together after the slashing had partly occurred - slashing had occurred primarily along the north-south road at the point in time and the defendant did not believe that any had occurred on the east-west road at that point in time.

185 Later in the record of interview (at Q252), the defendant states that the REF was done and placed on the file "in early - it might have been mid to late September". The defendant states (at Q292) that it was completed mid to late September. When the defendant was asked why the defendant's response to the s 193 notice under the POEO Act indicated the REF was prepared between October and November 2003, the defendant's reply was that it might have been as late as October, but he thought that it was September, but it might have been early October (at Q293, Q295, Q300).

186 The defendant states in the record of interview (at Q308) that he does not believe that the REF was filled in after the commencement of the road works, but certainly the slashing works would have commenced on the site. The defendant recalls that Mr Rogers' email to the defendant mentions that he noticed slashing on the site and the defendant spoke to Mr Rogers subsequently and undertook the REF. The defendant states that he didn't believe that the road works commenced at that time in terms of the physical road works.

187 In the defendant's affidavit (at par [86]) the defendant states 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 (also at par [86] of the defendant's affidavit).

188 In his oral evidence (at 12 March 2007 at 41.45), the defendant indicated that to his knowledge, the construction of the roads had started and was underway and no assessment had been made under the EP&A Act. The defendant gave oral evidence that before he did the assessment under Pt 5 of the EP&A Act, the southern crossing of Partridge Creek had been completed and work on the section just north and including the Francois drain on the north-south road (12 March 2007 at 41.58-42.02).

189 Later in oral evidence (at 13 March 2007 at 7.34-40 and 15.41-42) the defendant stated that the [REF] form was filled in around October 2003 - after the car park conversation early to mid October.

190 The defendant stated (12 March 2007 at 82.44 and 13 March 2007 at 14.55-58) that he prepared the REF after the commencement of the construction of the roads. The defendant (13 March 2007 at 15.08-11) thinks that he was in error in saying in the record of interview that it was in September because it was definitely after the slashing had been completed.

191 The defendant was asked in cross-examination about his response that he provided to the s169 NPW Act notice, which stated, "whilst carrying out the survey work for the track an REF checklist was undertaken…" The defendant stated in oral evidence (13 March 2007 at 19.26-35) that the REF wasn't undertaken while carrying out survey work and that that is incorrect. The defendant states that his response to the s 169 NPW Act notice does indicate that the REF was done earlier in the work (13 March 2007 at 19.41-53). When the prosecutor asked the defendant (13 March 2007 at 20.01) whether he agreed that he's in fact made a number of different statements on the subject of when it was that he prepared the REF, the defendant replied with "it would appear so" (13 March 2007 at 20.04).

Does the REF involve an eight part test? 192 When the defendant was asked in the record of interview (at Q315) whether the REF includes an eight part test, he answered "no". 193 In his affidavit (at par [91]), the defendant states that he carried out an eight part test as the pro forma preliminary REF includes the eight questions required to be considered for the eight part test.

194 In his oral evidence, the defendant stated that when he completed the pro forma, he reviewed the eight part test (12 March 2007 at 79.28-37). In undertaking the preliminary REF, the defendant stated in oral evidence (13 March 2007 at 44.05-13), that he reviewed the eight part test heads of consideration that were provided in the Redpath report.

195 The prosecutor pointed out to the defendant that his oral evidence conflicts with a response the defendant gave in the record of interview (at Q315). The defendant stated that he had not prepared a lengthy typed up or handwritten document that stepped through each of those eight tests and that is why the defendant said in the record of interview that the REF did not include an eight part test (13 March 2007 at 44.39-46).

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 The defendant states in the record of interview (at Q195) that he was not aware prior to, during or after the road construction that council did not appear to have the appropriate approvals in place. The defendant states in the record of interview (at Q198) that he was not informed at any time that council was not following the EP&A Act.

197 The defendant describes his understanding of Pt 5 of EP&A Act in the record of interview (at Q200 to Q205). He states that Pt 5 is activities undertaken where development consent is not required, but an approval under that Part of the Act is. His answer goes on to say that normally Pt 5 only applies to where a formal EIS or a formal REF is undertaken. When asked what approval did council have to construct the roads, the defendant states that his understanding is that the scope of the road is minor works, and there was no formal approval required. The defendant states that he formed the opinion that there would not be significant impacts, based on the council pro forma / REF checklist assessment which was completed.

198 The defendant explains (at Q232) that his understanding of a REF is that Council has an REF checklist, which it used on a preliminary basis to determine whether there are likely impacts from a project, and whether or not further examination investigation is required, or possibly approvals gained.

199 The defendant states (at Q235) that Council had no actual approval to carry out the activity.

200 The defendant explained in the record of interview (at Q250) that the review was purely to undertake and make a determination whether or not further approvals or whether projects should proceed or not. The defendant didn't believe there was a need to make a formal determination under the EP&A Act in that regard.

201 The defendant states in the record of interview (at Q422) that the checklist that was undertaken determines whether a formal REF or a formal approval of an REF under Pt 5 is required. The defendant states that if he formed the view that there are impacts, an REF would have been undertaken or an activity to have formal approval under Pt 5.

Was there a formal engagement of King and Campbell?

202 The defendant makes no reference to King & Campbell in the record of interview.

203 The defendant stated in oral evidence that planning consultants were engaged by him to determine the development potential of the land to achieve the highest and best use (12 March 2007 at 14.42-52, 16.10-11, 16.41-53 and 23.42-44).

204 The defendant was asked in cross-examination (12 March 2007 at 24.41) whether he gave King and Campbell a brief and the defendant responded that he did. When asked where that brief is, the defendant's answer was that it would be on council's file - it would be a letter of instruction to undertake the planning work on that site (12 March 2007 at 24.44-46).

205 The defendant stated (12 March 2007 at 28.19) that there was a letter of engagement.

206 In oral evidence, the defendant stated that it was not an engagement or a question that the defendant put to King and Campbell at any time in relation to the location of road works (13 March 2007 at 23.05-07).

Did King & Campbell provide the defendant with any documents?

207 The defendant said in oral evidence (12 March 2007 at 16.35) that King and Campbell did not provide the defendant with any documentation in relation to the advice they gave in relation to the roads and the defendant did not seek any.

208 The defendant later stated that he asked King & Campbell to produce a document (12 March 2007 at 27.19) and that they did in fact produce a planning layout, a residential layout for the southern area of land (12 March 2007 at 27.22-24). The defendant states that King & Campbell finalised that in 2006 and that King & Campbell would have produced some preliminary sketches and done work in 2004, 2005 and 2006 (12 March 2007 at 27.28-34).

Did King and Campbell contribute to the planning of the roads?

209 The defendant stated in oral evidence (12 March 2007 at 14.57) that King & Campbell contributed to the planning of the roads and (12 March 2007 at 15.47) that he discussed with Mr Campbell and Mr Thorne the best place to provide the roads.

210 The defendant agreed in oral evidence (12 March 2007 at 16.16) that King & Campbell were consulted on the question of where the best place would be to provide the interconnections.

211 The defendant stated (12 March 2007 at 24.12-23) that it was he who decided the location of the roads.

212 The defendant stated (12 March 2007 at 25.23-26) that King & Campbell had no role in determining the location of the roads. They assisted the defendant on site to identify the major constraints that impacted on that site during the course of a couple of inspections.

213 When asked by the prosecutor (13 March 2007 at 22.41-42) whether the defendant consulted planning consultants, King & Campbell, in respect of his road works, the defendant's response (13 March 2007 at 22.43-45) was "King & Campbell… were looking at the development potential of the site. They weren't engaged to assess the road works options."

214 The defendant outlined in his oral evidence (13 March 2007 at 22.54-23.07) how he walked the site with King & Campbell on 5 September 2003 and made a number of decisions about where to provide some slashed lines to allow some GPS survey work to be done across that site to determine levels so they could make an assessment about the future development potential. Out of that the defendant 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 the defendant put to King and Campbell at any time in relation to the location of the road works.

How did the defendant respond to Mr Rogers' email of 17 November 2003?

215 The defendant stated (12 March 2007 at 34.44) that he did not respond to Mr Rogers' email of 17 November 2003. The defendant stated that his response to Mr Rogers when he saw him subsequently was that he had done an assessment and he did not believe that there were environmental issues in relation to the roads (12 March 2007 at 34.49-52). Also the defendant states in the record of interview (at Q169 and Q172) that he responded to Matt's email verbally.

216 The defendant stated (13 March 2007 at 56.07-18) that following the conversation with Mr Rogers and Mr Aaso, he did the assessment and he did not hear from either of them until Mr Rogers' email in November and after that he sent a note that he had done the assessment and did not believe that there was an issue. The defendant did not recall saying anything further to Mr Aaso and Mr Rogers other than those conversations on the issue.

217 The defendant states in the record of interview (at Q296), in response to the question of how he checked his dates at the time he was preparing his response to the s 193 notice, that all the information related to this had been compiled in response to a request from Mr Jeayes and there was a collation of emails and contacts.

218 The defendant stated in oral evidence (at 12 March 2007 at 35.05) that he did not answer Mr Jeayes' email of 19 December 2003.

219 The defendant agreed in oral evidence (14 March 2007 at 2.49) that there is no doubt that, as at May 2004, the defendant knew that council had a large amount of documentation in relation to the lots of land [at Partridge Creek]. The defendant states that he arranged for various staff, who would have access to that material, to compile that information and provide it to the defendant, which was then the basis of his response to the DEC (14 March 2007 at 2.52-54). The defendant stated (14 March 2007 at 3.11-13) that he did provide it, but he arranged for staff in various sections of the council to collate that information. The documents that were provided in response to that notice included the electronic versions of all the reports (14 March 2007 at 3.26-27).

220 When the prosecutor informed the defendant (14 March 2007 at 5.22-24) that no documentation was provided at all, except for the defendant's two page letter dated 18 June 2003, the defendant replied (14 March 2007 at 5.25-26) that the response was provided on advice from his own - council's own legal advice.

221 The defendant acknowledged (14 March 2007 at 5.34-35) that it may be the case that the only document provided in response to the s 169 notice was the two-page letter.

222 The defendant could not explain, in his oral evidence (14 March 2007 at 7.23-24) why it was that his response did not contain any reference to the documentation sought in par 1 of the s 169 notice, other than that was the response that was provided on advice at that time.

223 When asked (14 March 2007 at 9.19-22) why the defendant didn't provide the name, address and phone numbers of individuals involved in the works as per par 2 of the notice, the defendant states that response was provided on advice (14 March 2007 at 9.23-24).

224 The defendant stated (14 March 2007 at 14.15) that he did not know paragraph one of the response ("no documentation") to be untrue. The defendant stated, in response to the question of how he could not have know that response to be untrue as at December 2004, that the information that was being sought here had already been provided (14 March 2007 at 14.21-22)

225 The defendant agreed (14 March 2007 at 15.29) 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.

226 With regard to par 6 of the notice, which requests all documents referred to in the preparation of the REF, the defendant indicated that he did refer to documents when undertaking the assessment and that his answer provided in response to the notice ("there are no documents") appears to be untrue in the context (14 March 2007 at 16.57-17.05).

227 In addition to the inconsistencies in the defendant's evidence, noted above, when giving his evidence the defendant's answers to questions were generally evasive, long-winded and self-serving. I listed an example of his evasiveness in my previous judgment: Garrett v Freeman (No. 3) [2007] NSWLEC 139 at pars [18]-[24]. These matters and the defendant's constantly changing version of events lead to the conclusion that his evidence can only be relied upon if it is independently corroborated. To be blunt, I am unable to believe the defendant except where his evidence is independently corroborated.

Did the Council know, at the time of the offence, that the land was habitat of the two threatened species?

228 I have noted that the prosecutor relies on the presumption arising under s 118D(4), noted in par [160(8)] above. It is not necessary, however, to have recourse to s 118D(4). There is ample evidence which establishes beyond a reasonable doubt that the council knew that the land was habitat of the two threatened species. That evidence is found in the following undisputed facts: (a) In mid 2002 the council commissioned the report of ERM to provide an ecological assessment of the Partridge Creek Area. That assessment, entitled " Partridge Creek Acid Sulphate Soils Remediation Strategy: Ecological Assessment" (October 2002) , provided to the council, identified at least three vulnerable species, the habitat of which were likely to be significantly affected by the remediation project: the Wallum Froglet, the Grass Owl and the Eastern Chestnut Mouse.

(b) As a result of recommendations made in the ERM report, the council commissioned a fauna survey from the DLWC Resource Analysis Unit which was then undertaken by Mr Redpath. Mr Redpath prepared his report in December 2002 entitled " Partridge Creek Acid Sulphate Soil Hotspot Remediation Project Targeted Fauna Survey and 8 Part Test Assessment ." That survey identifies the presence of the threatened species, the Grass Owl and the Eastern Chestnut Mouse.

(c) After the council received Mr Redpath's survey, Mr Aaso prepared a plan of management for the Partridge Creek ASSR Project, which embodied Mr Redpath's recommendations, and which became known as the " Partridge Creek Hotspot Remediation Management Plan. " The plan of management identifies the presence on the land of the threatened species, the Grass Owl and the Eastern Chestnut Mouse.

(d) Although the plan of management is dated April 2003, it was adopted by the council at its meeting on 10 February 2003. The undisputed evidence of Mr Coulter, the council's Director of Planning and Environment, is that the plan of management together with a report that he co-authored regarding the ASSR Project were both distributed to the councillors for that meeting.

(e) The plan of management and appendices (which included the ERM report and the Redpath survey and which in turn identified the presence of the two threatened species on the land) were placed on the council's I-Drive information system by Mr Aaso some time either on or before 9 September 2003 as stated by Mr Aaso (par [23] above).

(f) On 26 June 2002, Ms O'Reilly, Resource Compliance Manager of DLWC, sent a letter to the General Manager of the council regarding slashing that had occurred on the land, advising that a number of threatened species inhabit the immediate area where the slashing occurred, and that these included the Eastern Chestnut Mouse and the Grass Owl, inter alia .

(g) Both Mr Aaso and Mr Rogers, and to a lesser extent, Mr Coulter, worked for the council in the Partridge Creek ASSR Project and were fully aware of the threatened species on the land and were aware of the measures which were recommended and adopted to mitigate the impact of that project on the threatened species.

Did the Council do a thing, namely, construct roads?

229 It is an agreed fact that the council, at the time of the alleged offences, constructed a "track" running from the south to the north and another from the east to the west through the Partridge Creek area. Although, the defendant says that the appropriate description is a "track" rather than a "road", the photographs tendered in evidence clearly show substantial dirt roads sufficient to carry two-way traffic. Moreover, the evidence clearly establishes that the roads were constructed with geotextile fabric laid on the existing ground surface and then surfaced with clay gravel, complete with such features as a culverts and the like. It is self-evident that the council constructed what can only be described as roads.

Did the construction of the roads cause damage to the habitat of the threatened species?

230 Again, the undisputed evidence leads to the inevitable conclusion that the answer is, beyond a reasonable doubt, a resounding "yes", and to a significant extent.

231 The evidence is found in various places. Mr A W Bischoff, a member of the Hastings birdwatchers club and who holds a scientific licence under s 132C of the NPW Act, has been involved in monitoring the Partridge Creek area by carrying out fauna surveys. Mr Bischoff was not cross-examined. When he went to the site in January 2004, he observed that one road had been constructed directly across the main Grass Owl habitat area.

232 Mr S Debus, an ecologist of the Zoology division of the University of New England and who inspected the area on 15 February 2006, believes that it is an appropriate Grass Owl habitat which has been damaged by the construction of the roads. Mr Debus was not cross-examined. According to Mr Debus the roadwork has made the vegetation in the vicinity of the road less desirable as a breeding site or less conducive to successive breeding, because the roads have increased the potential for predation and human disturbance. He calculates that 0.2 hectares of potential Grass Owl roosting or breeding habitat has been physically removed by the construction of the east-west road.

233 Mr P A Redpath visited the site of the roads both before and after their construction. He said that the roads were not present when he did his original survey in 2002. He again visited the area on 5 February 2004 and 28 May 2004, after the roads had been constructed. It is Mr Redpath's opinion that the roads add another level of impact, providing access to the area for domestic and feral dogs and cats, and foxes, as evidenced by the presence of dog tracks in the margins of the road. On top of the opportunity for easier access for predators, it is his opinion that the roads have 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 of the area; and have provided the opportunity now which did not previously exist for the incursion of weeds into the habitat of both species.

234 Professor B J Fox, whose report was admitted into evidence without objection, states that the Partridge Creek area is clearly suitable habitat for the Eastern Chestnut Mouse. Professor Fox reports that he has no doubt that construction of the east-west and north-south roads in the Partridge Creek area has caused damage to habitat of the Eastern Chestnut Mouse. There is damage from the alienation of the actual area now occupied by the road. The potential effect of the road can influence water flow and water levels in the immediate surrounding area. Professor Fox says that by far the most important potential effect is that roads provide predators with easy access to the areas occupied by the Eastern Chestnut Mouse. Professor Fox, as noted above in par [48], concludes that there has been substantial damage to the Eastern Chestnut Mouse population.

235 Mr J Berrigan, whose report was also admitted into evidence without objection, assessed the ecological impacts of the roads. The report focussed on the potential and known impacts of the roadway construction on the soils, hydrological impacts, aquatic flora and fauna and terrestrial flora and fauna. Mr Berrigan reports that the roadway has resulted in the removal/modification of habitat. Mr Berrigan noted that the significant impacts that construction of the roads have had/could have on the Grass Owl relate to habitat loss and fragmentation; road kill risk; anthropogenic impacts; exotic fauna; stormwater and water flow regime alterations; and altered bushfire regime. Furthermore, the most significant impacts that construction of the roads have had/could have on the Eastern Chestnut Mouse relate to habitat loss and fragmentation; physical and behavioural barrier; road kill risk; exotic fauna; stormwater and water flow regime alterations; and altered bushfire regime.

236 Ms M A Matthes, as noted in par [56] above, was a senior threatened species officer with the DEC until she set up her own Environmental Consultancy in September 2005. When she went to the Partridge Creek area on 1 April 2004 she observed numerous dog prints along both the north-south and east-west roads, which raised concerns that the road could lead to the threatened species being further impacted by feral dogs gaining improved access.

237 None of the expert evidence described above is disputed. I accept it without reservation. It clearly establishes beyond a reasonable doubt that the construction of the roads has caused significant damage to the habitat of the two threatened species in this case.

Was the act that constituted the alleged offences essential for the carrying out of an activity within the meaning of Part 5 of the EP&A Act and did the determining authority comply with that Part?

238 It is an agreed fact that the construction of the roads in question was, at the time of the offences charged, an activity within the meaning of Pt 5 of the EP&A Act.

239 A preliminary question which arises in this context is: who was the determining authority? In a sense the question does not really matter. The real question raised by s 118D(2)(b)(ii) is whether the determining authority (whoever that is) has complied with the requirements of Pt 5 of the EP&A Act. I nevertheless note the following evidence:

240 Mr Owens, who has since December 2002 held the position of Planning Manager within the council, said that his department would carry out the Pt 5 assessment and that no such assessment was done by, or in, his department for works in the Partridge Creek area. Further, Mr Owens says that, in 2003, if the council was the proponent of an activity, in terms of an assessment under Pt 5 the determining authority would have been either himself or Mr Coulter, the Director of Planning and Environment.

241 However, the council's General Manager, Mr Smith, deposed that whenever the council is preparing to undertake work such as the construction of a road on its land, the person whose responsibility it is to ensure compliance with the EP&A Act is the Director responsible for that activity.

242 As I have said, I do not need to resolve this question. Mr Freeman says that he made an assessment under Pt 5 of the EP&A Act. It was, however, not a valid assessment of the activity under that Part. What he did does not comply with Pt 5 of the EP&A Act. What he did was a mere token attempt to comply with the requirements of that Part and which merely pays lip service to the requirements of that Part. That is, the suggestion that the council by its Director of Infrastructure Services, Mr Freeman, complied with Pt 5 of the EP&A Act, or gave a valid approval within the meaning of that Part, is firmly rejected.

243 The key provisions of Pt 5 are, relevantly, ss 111 and 112. Section 111(1) requires a determining authority, in its consideration of an activity, to "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity." Moreover, s 111(4) states that without limiting sub-s (1), a determining authority must consider the effect of an activity on, in the case of threatened species and their habitats, whether there is likely to be a significant effect on those species or their habitats: and if there is likely to be a significant effect on the habitat of threatened species, then s 112 requires the preparation and assessment of an environmental impact statement. The expert evidence which I have noted in pars [231] - [236] above clearly shows that the habitat of the threatened species in the present case would be affected to a significant extent.

244 The document that purports to be an assessment under Pt 5 of the EP&A Act which was completed by Mr Freeman is nothing more than a three page 'tick-a-box' checklist. It does not even mention the threatened species which are supposed to be the subject of the assessment! Moreover, nowhere in the in the document is there any mention of whether the activity is likely to have a significant effect on the habitat of those species, as expressly required by s 111(4) of the EP&A Act. It only answers the question as to whether a significant area of known habitat is to be modified or removed, which is not the question that s 111(4) calls for.

245 The document prepared by Mr Freeman - described in the evidence as a review of environmental factors - does not come near to being an examination which takes into account "to the fullest extent possible" the effect of the activity.

246 The expert evidence on this question, which is not contradicted, is damning. I have described the criticism of the document by Ms Matthes in par [58] and [59] above, who identifies its defects. Shortly stated, the document prepared by Mr Freeman has no determination date; it is not signed; it does not identify the proposed activity other than the words "Thrumster Land Access Road" handwritten on the front page; there is no mention of the location of roads, the material to be used, or how the works are to be undertaken; and there is no mention of the threatened species whose habitat is to be affected - for all we know Mr Freeman may have been considering the impact of the activity on the koala rather than on the Eastern Chestnut Mouse or the Grass Owl.

247 I have also described the criticism by Mr Moody in par [61] above. I refer, in particular to his detailed criticism in sub-pars 61-(f) above which clearly demonstrates that there has been no compliance with the requirements of s 111 of the EP&A Act. I have no hesitation in accepting the expert evidence of both Ms Matthes and of Mr Moody. This was not an assessment within the meaning of Pt 5 of the EP&A Act.

248 Moreover, a member of the council's own staff, Mr Owens had described - in par [69] above - the purpose for which the three page REF is used within the council: it is usually a prompt sheet or check sheet for what to look for when reviewing a REF. Mr Owens goes on to describe, in his evidence, the type of document which is a REF assessment, which is typically about 25 pages in length.

249 Mr Freeman says that when he prepared the document he read and considered the reports and materials that were available to him on the council's I-Drive, which include the ERM report, the Redpath survey and the ASSR Project's plan of management. In particular, Mr Freeman says that he considered the eight part test that had been prepared by Mr Redpath in the Redpath report to satisfy himself about those matters. However, Mr Redpath's assessment is of the impact upon the threatened species habitat of the ASSR Project. It was not an assessment of the impact of the construction of the roads on the threatened species habitat. That is to say, the reports to which Mr Freeman says that he had recourse were completed for a totally different subject matter.

250 Mr I J Hemmings and Mr E Y Ozen, appearing for the defendant, submit that there is no necessity for any formal documentation of an assessment under Pt 5; rather, the review and determination is a mental one, which Mr Freeman undertook. The document that Mr Freeman prepared, however, is a written record of his mental process and a written record of the exercise that he performed. It is totally inadequate. Moreover, for the reasons I have described in par [227] above, I am not inclined to accept anything that Mr Freeman says, unless some extrinsic evidence corroborates it. The only extrinsic evidence of his mental process in performing the exercise required by Pt 5 of the EP&A Act, is the document itself.

251 Finally, the assessment under Pt 5 must be undertaken before the commencement of the activity to which it relates. In the present case the purported assessment took place after the commencement of the activity, so that even if it were a valid assessment, the determining authority has failed to comply with that Part. Mr Hemmings concedes in his submissions that construction had commenced before Mr Freeman carried out his assessment. Mr Freeman, in his own evidence, says that he believed that the geotextile fabric or the clay had been started to put down and construction of the roads had commenced, as noted in par [120] above. Mr Freeman repeated in his evidence that construction of the roads had started and was underway before he did his assessment, as noted in pars [125], [126], [132] and [134] above.

252 The prosecutor has proved that the council failed to comply with Pt 5 of the EP&A Act; that is, that the defences in s 118D(2)(b)(ii) or (iii) are negatived.

253 It follows from the above findings that the offence under s 118D is proved beyond a reasonable doubt. I also find proved beyond a reasonable doubt that the statutory defences under s 118D(2)(b) has been negatived. It is only if there is such a contravention by a corporation that the defendant could become liable under s 175B. This raises further questions for determination.

254 Yes, s 220 of the Local Government Act 1993 says so.

Was the defendant a person who is a director of the corporation or a person concerned in the management of the corporation?

255 It is an agreed fact between the parties that the defendant was concerned in the management of Hastings Council at the relevant time.

Did Hastings Council contravene s 118D of the NPW Act without the knowledge (actual, imputed or constructive) of the defendant?

256 This is the defence, available under s 175B(1)(a), upon which the defendant relies. The defendant, however, bears the onus of proving this defence on the balance of probabilities. This must be so, because the section says "unless the person satisfies the court that…", the "person" being the person who is concerned in the management of the corporation. That is, as I understand it, there is no obligation on the part of the prosecutor to negative the defence.

257 Although the defence under s 175B(1)(a) is determined on the balance of probabilities, I am able to find beyond a reasonable doubt that Mr Freeman knew before any of the road works was started that the land was habitat of the two threatened species. I have found Mr Freeman to be an unreliable witness with a constantly changing version of events, often contradicting himself, and that no reliance can be placed on anything he has said unless it is independently corroborated.

258 I have referred to evidence that Mr Freeman was the Acting General Manager of the council on 10 February 2003 when a report on the ASSR Project (ERM report) and the plan of management were placed before the council - see par [42] above. I have also referred to evidence that both the ERM report and the plan of management would have been an item for discussion by the executive group, comprising the General Manager and the Directors, before the 10 February 2003 council's meeting - see par [43] above. The ERM report states that an assessment of the project under Pt 5 of the EP&A Act was required, which must have regard (inter alia) to "whether there is likely to be a significant effect on threatened species…", and " if the activity is likely to significantly affect the environment or threatened species, populations or ecological communities or their habitats." It is inconceivable that Mr Freeman would have been unaware of the substance of the report, including the fact that threatened species had been identified on the land and that an assessment under Pt 5 of the EP&A Act was required.

259 More telling, however, is the fact that Mr Freeman does say that he had a meeting with Mr Saunders on 21 January 2004, which is corroborated by Mr Saunders. I accept, however, Mr Saunders' version of what took place at that meeting. Mr Saunders' evidence on this point is worth repeating: [11b] About 11am on 21 January 2004, I arrived at the office of Geoff Freeman with my wife. In Mr Freeman's office with my wife, I produced a copy of the Partridge Creek Hotspot Remediation Plan, final draft January 2003. I said to Mr Freeman, "Were you at the meeting at Hastings Council when this was adopted?" He said, "I believe I was." I said, "Do you have a copy of this plan?" He said, "I do."

I then produced the Partridge Creek Acid Sulphate Soil Hotspot Project Targeted Fauna Survey and 8 Part test assessment by Phil Redpath DLWC, dated December 2002. I said, "Do you have a copy of this document?" He said, "I do." He said, "I had both documents before the roads were planned, and I am aware of their contents."

I said, "Are you fully conversant with the requirements for EIS or review of EIS where designated wetlands and endangered fauna is concerned, particularly were [sic] there is ongoing research by the Department of Land and Water Conservation into endangered species?" He said, "I am and don't consider that one was required before the roads were constructed. I saw no reason to seek legal advice from the council's legal representatives or the Department of Land and Water Conservation. I don't believe it is a designated wetland and as far as I know, there's no definitive definition of a designated wetland." He also said, "I have not discussed legal requirements with any council staff, and no staff had bought [sic] to my notice any action taken in relation to the roads was illegal."

I went straight home and typed a record of that meeting with Mr Freeman which my wife and I both initialled. Attached to this affidavit as Annexure E is a copy of those notes. 260 Mr Saunders was not cross-examined on par [11b] of his affidavit nor on the content of what he said, other than questions directed to how contemporaneous were his notes of that meeting. The contemporaneous notes annexed to the affidavit confirm the content of par [11b]. I have no reason to doubt that Mr Saunders was telling the truth. I accept his evidence unreservedly. It demonstrates an admission by Mr Freeman that he had the reports and was aware of their contents before the roads were planned - which would include the references to the habitat of the two threatened species on the land. It also shows that Mr Freeman was aware of the requirements for, or review of, an EIS where endangered fauna is concerned and that he did not consider one was required before the roads were constructed.

261 The admission to Mr Saunders is consistent with the evidence of Mr Aaso. In response to a request from Mr Freeman, Mr Aaso had placed the management plan for the ASSR Project with the appendices comprising the ERM report and the Redpath survey on the council's network I-Drive and then, on 9 September 2003, sent an email to Mr Freeman informing that this material was accessible on that drive. This was before any work had started on the construction of the roads and before Mr Lyon started slashing the tracks prior to the road construction work.

262 I have described the evidence of the conversation between Mr Aaso, Mr Rogers and Mr Freeman in the council's car park. There is some uncertainty as to when this conversation took place, but it was before Mr Freeman carried out his purported REF. I accept the versions of that conversation given by Messrs Aaso and Rogers in their evidence, which I have set out in pars [24] and [81] above, in which Mr Freeman did not deny the assertion by Mr Rogers that he (that is, Mr Freeman) knew that there are threatened species in the area. I accept Messrs Aaso and Rogers' versions for the reasons I have stated in par [227] above. This, I find, is further evidence that Mr Freeman knew of the presence of threatened species in the area before any work was commenced on the construction of the roads. It was after his conversation in the council's car park with Messrs Aaso and Rogers and after construction of the roads had commenced that Mr Freeman thought that he should do something in the nature of an assessment of the impact, as he himself acknowledged (see par [143] above).

263 I find that Mr Freeman, knowing that the area over which the roads were to be constructed comprised the habitat of threatened species, also knew that an assessment of the impact of that activity was required under Pt 5 of the EP&A Act. Moreover, Mr Freeman's own evidence is that he was aware of Pt 5 of the EP&A Act and knew that an assessment was required under that Part (pars [123], [138] and [142] above). He must have known this because he subsequently purported to make such an assessment, albeit a token attempt (pars [106] and [132] above).

264 It is self-evident that the construction of the roads through the habitat of threatened species would damage that habitat. If Mr Freeman did not have actual knowledge of this fact then, as submitted by the prosecutor, he adopted a position of "wilful blindness" as to the existence of a fact which comprised the principal offence, in which event that knowledge can be imputed.

265 I have found that although the construction of the roads was an activity within the meaning of Pt 5 of the EP&A Act, there was no compliance with the requirements of that Part - see pars [238] - [252] above. That is, the defence under s 118D(2) is not available. Since Mr Freeman says that he was aware of Pt 5, then he would also have been aware of the fact that it required the determining authority to "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity." It is also self-evident that a purported assessment of the activity under Pt 5 of the EP&A Act which does not even mention the threatened species whose habitat is to be damaged could not satisfy the requirement to "examine and taken into account to the fullest extent possible" all matters affecting that environment. I have noted that Mr Freeman says that he took into consideration the ERM report and the detailed eight part test that had been prepared by Mr Redpath (in the Redpath survey). I have also noted that Mr Redpath's assessment, however, was clearly not an assessment of the impact of the roads (which were not then planned) but an assessment which was carried out for a totally different subject matter, a fact that Mr Freeman acknowledged in his evidence (par [130] above).

266 Mr Freeman was not only aware of the requirement of Pt 5 of the EP&A Act, he knew that Pt 5 applies to any activity of the council: see par [142] above. Mr Freeman says that he honestly believed that he was satisfying what was required of him under Pt 5 of the EP&A Act. I have previously concluded, for the reasons given in par [227] above, that Mr Freeman's evidence cannot be accepted unless it is independently corroborated. The only independent corroboration is, as I have noted, the totally inadequate checklist or REF which does not even mention the particular threatened species whose habitat it is supposed to assess, and which falls far short of the requirement to examine and take into account "to the fullest extent possible" all matters affecting that environment. From Mr Freeman's admission he was aware of Pt 5, the requirements of that Part can be imputed to Mr Freeman, being a legal obligation imposed on all determining authorities. Alternatively, I find that Mr Freeman had constructive knowledge of the requirements of Pt 5: "constructive" denoting an act, statement, or other fact having an effect in law though it may not have that effect in fact (The Oxford Companion to Law, 1980, Clarendon Press, Oxford). In short, I find that if Mr Freeman did not have actual knowledge that Pt 5 had not been complied with, then he had either imputed or constructive knowledge that the requirements of Pt 5 had not been complied with.

267 I find therefore, on the balance of probabilities, that the defendant has not established the defence under s 175B(1)(a) of the NPW Act on which he relies. Conclusion

268 For the reasons explained above, I find each of the offences with which Mr Freeman is charged to be proved beyond a reasonable doubt. The proceedings should be re-listed for further hearing and submissions on penalty and costs.

I hereby certify that the preceding 268 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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