Hornsby Shire Council v Devaney

KEY ISSUES: Environmental Offences :- sentencing - clearing rural land of trees and vegetation without development consent - plea of guilty - first defendant, an experienced earthmoving contractor, wrongly advised young client, the second defendant, that no council approval was required - parity of sentencing - whether first defendant should be convicted and fined and second defendant discharged on condition that she enter into a good behaviour bond - whether alternatively second defendant should be convicted and, if so, whether she should be fined having regard to her low level of culpability and means

Crimes (Sentencing Procedure) Act 1999 ss 10(1)(b), 10(3), 17, 21A, 22 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 76A(1)(a), 125, 126(1), 126(3), 149 Fines Act 1996 s 6 Threatened Species Conservation Act 1993 Sch 2

Byron Shire Council v Fletcher (2005) 143 LGERA 155; Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349; Council of Camden v Tax (2004) 137 LGERA 368; Environment Protection Authority v Barnes [2006] NSWCCA 246; Environment Protection Authority v Davis [2005] NSWLEC 643; Environment Protection Authority v Peters [2006] NSWLEC 612; CASES CITED: Garrett v Langmead [2006] NSWLEC 627; Hornsby Shire Council v Moit [2001] NSWLEC 50; Laurentiu & Becheru v The Queen (1992) 63 A Crim R 402; Rahme (1989) 43 A Crim R 81; R v Thompson (2000) 49 NSWLR 383; Veen v The Queen (1979) 143 CLR 458; Veen v The Queen (No 2) (1988) 164 CLR 465

PROSECUTOR: Mr T Howard SOLICITORS: Home Wilkinson Lowry

1ST DEFENDANT: LEGAL REPRESENTATIVES: Mr A Perkins, solicitor SOLICITORS: Colin Biggers & Paisley

2ND DEFENDANT: Ms A Benson, in person SOLICITORS: N/A

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: The defendants have each pleaded guilty to an offence under s 125 of the Environmental Planning and Assessment Act 1979 (EPA Act). The offence is that they carried out development by clearing trees and vegetation on rural land, being development which required development consent under the provisions of an environmental planning instrument which applied to the land, where development consent had not been obtained and was not in force with respect to the development, contrary to s 76A(1)(a) of the EPA Act.

2 The land is known as 27-29 Peebles Road, Arcadia. The relevant environmental planning instrument is the Hornsby Shire Local Environmental Plan 1994 as amended (Hornsby LEP). The land was at all material times zoned within the Rural AA (Large Holdings - Agricultural Landscapes) zone under the Hornsby LEP. Pursuant to cl 7 of the Hornsby LEP and the zoning table with respect to the Rural AA zone, development for the purpose of land clearing was at the relevant time permissible only with development consent.

3 The clearing work was carried out by the defendant Mr Allan Devaney, an experienced earthmoving contractor, acting on the instructions of the defendant Ms Amanda Benson, a young person who was leasing the land from a company controlled by her parents.

4 By consent, the two matters were heard together with evidence in one being evidence in the other.

AGREED FACTS 5 The following facts are agreed:

1. Between about 10 and 12 October 2005, each of the defendants carried out development for the purposes of "land clearing", as that expression is defined in the Hornsby LEP.
2. The development was carried out on land within the Hornsby Shire comprising Lot 1 in DP 802425, known as 27-29 Peebles Road, Arcadia (the property).
3. The development principally comprised the use of a "CAT" excavator with an attached scraper to remove and otherwise clear trees, vegetation and bushland over an area of approximately 0.42 hectares on the property, for the purpose of constructing a horse arena which Ms Benson proposed to use. In the course of the development, vegetation, including trees, and soil were pushed from the cleared area into a number of stockpiles (7 stockpiles of vegetation and a number of stockpiles of soil) on the edge of the cleared area. The cleared area was, roughly, a rectangular area, which was left devoid of vegetation and topsoil by virtue of the carrying out of the subject works. Photographs of the cleared area and cleared vegetation and soil are in evidence.
4. Mr Devaney was at all relevant times working as an earth moving contractor, trading as "Glenorie Earthmoving". Mr Devaney was contracted by Ms Benson for commercial reward to carry out the land clearing works and, pursuant to that contract, Mr Devaney carried out the land clearing works as directed by Ms Benson.
5. Ms Benson retained Mr Devaney for the purpose of carrying out the land clearing works and directed him to carry out those works in the area in which those works were carried out.
6. At the time of the offence, between 10 and 12 October 2005, the property had just been purchased by Ms Benson's parents through their corporate vehicle. The property had been transferred to that corporate vehicle on 7 October 2005, being the date of settlement of the sale of the property to the corporate vehicle from the previous owners.
7. At all relevant times Ms Benson had care and control of the property on behalf of that corporate vehicle and had authority from it to engage persons to carry out work on the property.
8. At all relevant times the Hornsby LEP applied to the property. The property is and was at all relevant times zoned Rural AA (Large Holdings - Agricultural Landscapes) under the Hornsby LEP.
9. The Hornsby LEP relevantly defined the following terms: land clearing means the removal or destruction of bushland or vegetation including shrubs, groundwater and trees;

bushland means land on which there is vegetation which is either a remainder of the natural vegetation of the land or is still representative of the structure and floristics of the natural vegetation 10. The land clearing works were carried out in an area on the property which contained vegetation, trees and bushland. 11. The land clearing works involved the removal and destruction of bushland, vegetation, shrubs and trees. 12. The land clearing works involved the destruction and removal of approximately 55 trees in total, of which 49 trees had been alive prior to removal. 13. Pursuant to clause 7 of the Hornsby LEP and the zoning table with respect to the Rural AA zone, "land clearing", as defined in the Hornsby LEP, is development that may only be carried out with development consent. Thus the land clearing works the subject of the charge comprised development which, at the time of the commission of the offences, could only be carried out with development consent pursuant to clause 7 and the zoning table of the Hornsby LEP. 14. There was no development consent obtained or in force with respect to the property permitting the carrying out of the land clearing works. No other relevant consents or approvals, either pursuant to the council's Tree Preservation Order, or otherwise, had been obtained in relation to the removal of the trees and vegetation at the time of the commission of the offences. None of the 49 live trees that were removed were covered by the exemptions set out in paragraph 3(a) to (h) of the Tree Preservation Order. 15. There were no sediment and erosion controls in place during the clearing of the land at the relevant date. Sediment fences were put in place on the western side of the cleared area, running north/south, by the time of the second inspection by Council officers on 13 October 2005. 16. Each of the defendants has co-operated with the prosecutor at all material times. 17. Neither of the defendants has any prior convictions for environmental offences.

OTHER EVIDENCE 6 Unchallenged evidence, which I accept, in the prosecution case was given by the following: (a) Rebecca Maiden, an environmental protection officer employed by the prosecutor council; (b) Craig Martin, a tree management officer employed by the prosecutor council; (c) Jamie Slaven, an environmental scientist employed by the prosecutor council; (d) Reece Bosward, a practicing arborist.

7 There was tendered in Ms Benson's case her statutory declaration of 2 March 2007. There was read in Mr Devaney's case his affidavit of 13 March 2007. Both were cross-examined by counsel for the prosecutor. I accept Ms Benson's evidence, without qualification. I generally accept Mr Devaney's evidence subject to the comments which appear below. Evidence of Rebecca Maiden 8 Ms Maiden, a council environmental protection officer, testified that on 12 October 2005 she attended the property with council officers Jamie Slaven and Craig Martin. She could see that excavation work had been undertaken. Two men were standing next to an excavator with whom she had a conversation. One of them told her that they were doing the work there and that the owner was at the house. She requested them not to undertake any further works until they spoke to the owner.

9 The council officers proceeded to the house where they had a conversation with Ms Benson. She told them that she was not the property owner, her parents were, but that she was doing the work and was constructing a horse arena for which she did not have a development consent. She explained: We have only removed dead trees so that we could construct the horse arena. There was no large excavation or changes in the levels so I didn't think it was necessary. I spoke with the contractor about it but we didn't' think that it was required.

10 They all drove together to the other side of the property. By this time the contractors had left the site. Ms Benson told them that she had selected that area "because it was mostly dead from the fires, there weren't many big trees here and it was pretty crappy". The following exchange occurred: Ms Maiden: So you didn't think that you would need development consent?

Ms Benson: No, I asked the contractor and he advised that I wouldn't need anything from council

11 Ms Benson said that she personally directed the contractors to do the work.

12 Ms Benson was told that the works constituted development without consent and that she was required to submit a development application if she wanted to undertake such works; that the development application allowed for the assessment of the proposal to ensure that there would not be any environmental impacts; that it appeared that a large amount of vegetation removed was alive when removed; and that no sediment fencing had been installed to prevent sediment disturbed from the earthmoving works from leaving the property and polluting areas down slope.

13 Ms Benson said that she was really sorry, she didn't think that they were doing anything wrong. She was told that the council would issue a clean-up notice to cease all works and install and maintain sediment fencing. She was given a verbal direction to cease all works and have the sediment fencing installed by 14 October. It was explained to her what sediment fencing was and she said she would organise it.

14 An area of bushland approximately 0.42 hectares had been cleared. A CAT excavator was present on the site. It was observed that there were seven stockpiles of vegetation including trees and a number of stockpiles of soil, removed from the cleared area, located on the remaining native vegetation around the edges of the cleared area. Photographs were taken to illustrate the extent of the clearing.

15 At approximately 1.30 pm the two contractors returned to the site and the council officers had a conversation with them. The older contractor identified himself as Allan Devaney, the defendant. Mr Devaney said that Ms Benson had asked the contractors (a) to clear about a 60 m x 20 m area so that she could construct a horse arena and that the reason she gave was that it would be nice to ride her horse there with the views; (b) he was not aware that he was required to have development consent to undertake works such as these; (c) he was not aware that there was a tree preservation order which operates in Hornsby Shire requiring consent to remove trees which are greater than 3 metres in height; (d) most of the trees were dead and they didn't look that great; (e) the work started on the Monday; (f) after he was told that Ms Benson had been given a verbal clean-up direction to cease all works and install a sediment control fence around the area, he said he would attend to the sediment fence after speaking to Ms Benson first.

16 On Friday 14 October 2005, Ms Maiden again attended the property accompanied by the council's Meredith Bormann, for the purpose of delivering the clean-up notice prepared for the property. Ms Benson was not present but they spoke to a person who identified himself as her husband. He said that they had put up the sediment controls as instructed. He said that he was sorry, they didn't think it would cause a problem. He said, "We were advised that we didn't need to deal with the council to clear the land". Upon being asked who advised them of that he said "The contractor who cleared the land for us".

Evidence of Craig Martin 17 Mr Craig Martin, a tree management officer employed by the council, substantially corroborated Ms Maiden's evidence as to the conversations with Ms Benson and Mr Devaney on 12 October 2005. He said that the conversation on 12 October 2005 between Ms Maiden and Ms Benson included the following: Maiden: Is there an approval or an application for development consent for the land clearing/earthworks on the site

Benson: No, but I asked the contractor to clear the site of dead trees to construct a horse arena. 18 Ms Benson identified the contractor as Mr Devaney and gave Mr Craig his phone number. He rang Mr Devaney and arranged for him to return to the site to discuss the matter.

19 They then began an investigation to the extent and nature of the works. Mr Slaven and he walked around and inspected the cleared area. He observed that numerous mature trees had been pushed over and placed in a number of piles on the property: The majority of the trees which I saw lying on the ground had turgid green leaves. Sections of the felled stems had live cambium exposed. The exposed areas of cambium were sticking to my touch. Based on these observations, it is my opinion that these trees had at the time I saw them been very recently been pushed over.

20 The next day, Thursday 13 October 2005, Mr Martin again inspected the site with council's tree management officer Aroha Rzepecky and Mr Slaven. Mr Devaney and his son were present and were completing the installation of the siltation barrier fence.

21 Mr Martin and Ms Rzepecky systematically inspected the various piles of fallen trees and vegetation in and adjacent to the cleared area. He individually marked with spray paint a number on each separate tree and identified each separate tree by tracing it from its rootball. In relation to each specimen, he dictated to Ms Rzepecky his nominated tree number, the dimensions of the tree, its species and its condition. He also measured and called out the dimensions and each pile of trees/vegetation. Ms Rzepecky wrote down this information as he called it out and she made various rough sketches of the piles.

22 Mr Martin was asked by Mr Devaney why he wasn't marking the dead logs in the piles. He said that he was marking some large dead stems with rootballs and estimating the presence of dead wood in piles mixed with much other debris, and he was mainly marking trees that were live when felled to document the extent of clearing out. Mr Devaney said: It's common practice in the industry to clear without approval or to begin jobs before full approval was finalised, because councils take too long to assess projects. 23 He inspected the council's register of consents granted for removal of trees pursuant to the council's Tree Preservation Order. From his inspection, it was apparent that there were no consents granted by the council for the removal of trees which he saw in the piles on the site. There were numerous trees in those piles which were of species and dimensions which were the subject of the council's Tree Preservation Order.

24 A file note was made of the exercise which he carried out with Ms Rzepecky at the property. It includes an outline of the types of trees cleared and the condition of the trees. Apart from six dead trees out of the 55 trees identified in the table, none of the trees recorded fall within the exemptions set out in the Tree Preservation Order.

Evidence of Jamie Slaven 25 Mr Jamie Slaven, an environmental scientist employed by the council, substantially corroborated Ms Maiden's evidence of the conversations with Ms Benson and Mr Devaney on 12 October 2005.

26 On that day he observed in the northern portion of the property a recently cleared area that was rectangular in shape and approximately 0.42 hectares in size as determined from pacing out the distance. No sediment and erosion controls were in place at that time.

27 In his opinion, the cleared area would have contained similar vegetation to the bushland surrounding the cleared area. That bushland was in good condition and was in a post-bushfire regeneration state. The dominant tree species in the surrounding bushland were Red Bloodwood, Scribbly Gum, Stringybark, Grey Gum and Sydney Red Gum. The vegetation cleared included the first three of these tree species as well as a number of species of understorey flora which he listed.

28 He observed piles of slashed/cleared vegetation and excavated soil (sandstone) on the edge of the cleared area in the surrounding bushland. There were seven piles of vegetation surrounding the cleared area with an eighth pile located in an adjoining horse paddock to the south. The piles were numbered around the cleared area. A map was prepared by the Parks and Landscapes Team under his supervision showing the location of the vegetation piles. The piles contained native vegetation and the majority of vegetation within the piles contained live green foliage. A number of trees were obviously bushfire affected with epicormic foliage growth and burnt trunks. A list of the native species he observed in the vegetation piles was prepared.

29 He observed at the initial inspection and in the following site inspection on 13 October 2005, that in the surrounding bushland was a population of Tetratheca glandulosa, a vulnerable species listed under Schedule 2 of the Threatened Species Conservation Act 1993. These plants were observed in close proximity to the cleared area on all sides and near the piles of vegetation and soil, the majority being on the northern and eastern side. In his opinion, it is likely that the area cleared would have contained that vulnerable species. If an ecological assessment was undertaken as part of a development application, consideration would have been given to ameliorate and mitigate the impacts on the local population of the vulnerable species through appropriate conditions of consent. During the two inspections of the property he took photographs of the vulnerable species in the immediately surrounding bushland and some of the trees which had been removed.

Evidence of Reece Bosward 30 Reece Bosward, a practicing arborist, testified that on or about 5 September 2005 he received a telephone call from Ms Benson who asked him to provide a quotation for tree removal services at the property (unrelated to the matter the subject of the present proceedings). The conversation included the following: Benson: Is council consent required to fell trees on the property?

Bosward As a rough rule of thumb, any living tree over five metres in height which is not on the council's exempt from protection list or less than three metres from the dwelling should be considered as requiring approval.

Evidence of the defendant Mr Devaney 31 Mr Devaney testified that in September 2005 he was contacted by Ms Benson who said that she would like to clear some land to create a dressage arena for her horses; the area was about 60m x 20m; and that there were some dead trees still standing which would need to be removed. She told him that, apart from the good views enjoyed from the intended site, she had chosen the location because many of the trees in the location were dead or "crappy".

32 They started the land clearing work on Monday 10 October 2005. It was necessary to bring down a number of trees. In his opinion, many were badly burnt and dead, while others were substantially burnt but with some limited foliage sprouting from the trunks. The job was an unusual one for him because it was not his practice or business to fell trees or remove stumps; that was a job he left to others.

33 He understood that the fire damage evident at the site occurred during the fires of December 2002. Much of the area was burnt out during those fires.

34 He testified that, overall, the majority of trees cleared by him were badly burnt and dead, while a minority of the trees were burnt but still viable (approximately 9). In any event, he now realises that permission must be obtained before felling even dead trees. I understood this to be evidence of his perception.

35 He said that he sincerely regretted his actions in felling the trees without getting a development consent or ensuring that the land owner had such a consent before proceeding with the works. He said that he is not in the practice or business of tree felling, and erred in electing to do such work on this occasion.

36 He has spent 41 years working in the excavation industry and says that he has always taken care to work within the law. He has never been fined or cautioned or received a complaint from council or any other statutory body. He believes he has a very good record and reputation, now somewhat blemished because of this incident.

37 He denied advising Ms Benson or her then partner that development consent or approval from council was not required.

38 He has not sought to deny any wrongdoing and has at every step co-operated with council to try and rectify the damage.

39 In cross-examination Mr Devaney was asked whether he quite commonly carried out work for the purpose of constructing horse arenas. He answered that he prepared the land but normally did not touch the trees.

40 In cross-examination, Mr Devaney said that at the time of doing the work he did not think development consent was required because the trees looked dead. He also said that he did not accept that 49 of the 55 trees were alive and insisted that they were dead. This appears to contradict the Statement of Agreed Facts, which had earlier been tendered by consent.

41 Importantly, he admitted in cross-examination that he told Ms Benson he did not think development consent was required because the trees looked dead. He did not disclose this conversation in his affidavit evidence where he stated: "At no time did I advise Ms Benson or her then partner…that development consent or approval from Council was not required". I consider that the latter statement was misleading. Ms Benson was asked by the investigating council officers whether she though she would need development consent and she replied that she had asked the contractor and he had advised that she would not need anything from council. A similar statement was made by her then partner to the investigating council officers. Ms Benson's evidence in these proceedings was that Mr Devaney told her that he did not think there was any need to seek any kind of approval from council for this work. I accept her evidence.

42 He promptly installed the sediment control fence required by council without cost to Ms Benson..

43 During the hearing he consented to an order that he fund half of Ms Benson's cost of obtaining a Bushland Restoration Plan if an order was made against her (to which she consents) that she implement such a plan. However, he did not consent to contribute to the cost of carrying out the work pursuant to such a plan.

44 A large number of references were tendered which confirmed that Mr Devaney was a hard working, honest person of integrity who is well respected in the community.

Evidence of the Defendant Ms Benson 45 Ms Benson testified that her major concern when leasing the property was bushfires. The property is surrounded by dense bushland and when she took over the lease the whole property was neglected and overgrown. No bushfire prevention or hazard reduction measures had been undertaken since the 2002 fires. The proposed arena site looked to her like it had already been destroyed by the fires. It was where the full force of the fire had come through the property and to her it seemed that most of those trees were dead or so badly fire damaged that they may as well have been dead. A letter was tendered in evidence from her neighbour Dr Fahey which confirmed that a massive bushfire went through his property in 2002. He stated that the cleared area provides a partial fire break against the passage of wild fire spreading on to his property. For that reason he would prefer that the cleared area be kept clear of trees.

46 Ms Benson testified that she thought she was doing the right thing by having the arena built in an area where it would serve a dual purpose. She thought it could also act as a buffer zone against future fires and help to protect the horses, show jumps, the rest of the property and neighbouring properties. She thought she was doing the right thing from a bushfire management perspective. She now understands the environmental consequence of choosing that area and expresses sorrow.

47 The lovely views which she mentioned to Mr Devaney had nothing to do with her motivation for choosing the particular area for clearing.

48 She admitted that she acted without sufficient deliberation and regrets acting with such haste when deciding to have the arena built at the proposed site. She said that she wanted to start to make the area safe and that she had read many signs on local roads advising residents to prepare their properties for the forthcoming bushfire season so she felt she was doing the right thing. She admitted that she was stupidly under the impression that any kind of work that involved bushfire protection did not require consent from the local council. She now understands that she was wrong in thinking this.

49 Importantly, she testified that the contractor whom she engaged to carry out the work "actually told me he didn't think there was any need to seek any kind of approval from council for this type of work". Ms Benson suggested that this was corroborated by the evidence in the affidavit of Rebecca Maiden where it is recorded that Mr Devaney said on 12 October 2005 that "we didn't think that one was needed here" in response to the question "Do you usually commence work for people without checking whether or not development consent is required?" She also said in evidence "As a professional who had been working as an excavator and specialising in riding arenas in this district for decades, I saw no reason to question his advice". That last sentence was admitted as evidence of her understanding. However, Mr Devaney's evidence in cross examination (to which I have earlier referred) establishes that there was substance to her understanding because in answer to the question whether he quite commonly carried out work for the purpose of constructing horse arenas, he said that he prepared the land but did not normally do trees.

50 Ms Benson referred to information sent in December 2006 by the council to property owners which stated, "Some land owners have suggested that the current spate of illegal activities can be attributed to the uncertainty among land owners as to what activities can be carried out and the care and control required to protect the natural environment". She said that information is still not being sent to those leasing property (such as herself).

51 She was unaware that a development application must be submitted to council before constructing a riding arena. She referred to other persons who had constructed riding arenas with no council consent.

52 She did not recall the conversation to which Mr Reece Bosward deposes.

53 Ms Benson said that this is an isolated incident and that she has never had so much as a parking fine. She said that she would never knowingly break the law and that as soon as it was brought to her attention that what she had done was wrong, she made every effort possible to try to make amends and rectify the damage she had caused, long before the council commenced its prosecution.

54 She broke her neck in March 2006 in a riding accident and enlisted the help of a friend, Mr Cormack, to try to resolve the matter. He contacted the council on numerous occasions but found the council to be dismissive and unresponsive. A corroborative letter from Mr Cormack was tendered in evidence which confirms her exceptional concern and efforts to have the area regenerated.

55 On 14 July 2006, she instructed her solicitor to forward a letter on her behalf for council's consideration. The letter explained her motivation for choosing the particular area for the arena and stated that she was "prepared to replant the number of trees that have been removed and to carry out such other remediation measures as council considers is reasonably necessary in the circumstances". She offered to do everything possible "to regenerate the area and rectify the area". She also informed the council of her present circumstances and bleak financial situation. In the letter she asked that what funds she did have be "allocated towards the regeneration process".

56 Ms Benson has very limited means. She has an equestrian business that mostly involves driving around to equestrian centres and private properties in the local area and giving riding lessons and schooling people's horses. Clients also pay her to ride their horses in competition for them. After she broke her neck in March 2006 in a horse-riding accident, her earning capacity dwindled for a few months while she was incapacitated. She is now riding again but lost many clients when she could not ride or drive as a result of her accident. She has had to terminate the retainer with her solicitor as she could not afford his services and has had to represent herself. For day-to-day living she is currently relying on support from her parents. However, they are going through a bad time as her father has a terminal illness and they are experiencing the worst drought on record on their farm. Her 2005 taxable income was $19,523. Currently her income is $375 per week and her expenses are $246 per week comprising rent, food, power and telephone. In addition she has a liability of $17,000 for her motor vehicle and the weekly repayment thereon is $129 per week. Her assets mainly comprise a motor vehicle valued at $20,000. Her remaining assets total $3,700. She has only a nominal amount in the bank.

57 She said that the harm to this site is not irreparable. On the recommendation of Jamie Wright from council, she obtained advice from Sydney Bush Regeneration Company. She also obtained advice from Integrated Resource Planning Environmental Consultants. Representatives from both companies inspected the site so that they could put together a tree and vegetation plan. A letter from the latter dated 1 March 2007 states that the area is regenerating well; the soil mounds should be removed to return the area to its natural appearance; the damage to the site is not irreparable; and the bushland will regenerate well with minimal intervention.

58 She said that she has been open and honest in her conduct with council officers at every stage of the matter and made an early guilty plea.

59 She said that due to her injury last year and divorce from her husband she does not have the financial capacity to pay a fine. She asked that whatever surplus money she has beyond her daily living go towards the tree and vegetation management plan and regeneration of the area, that the charge be dismissed and that she enter into a good behaviour bond.

60 Several character references were tendered in evidence which confirm Ms Benson's high character and that she was extremely upset about the charge as she genuinely thought she was doing nothing wrong. Sentencing considerations relating to both defendants 61 The sentence must reflect the objective gravity or circumstances of the offence and the subjective circumstances of the defendant: Veen v The Queen (1979) 143 CLR 458 at 490; Veen v The Queen (No 2) (1988) 164 CLR 465 at 472. Matters constituting objective and subjective circumstances were canvassed by Preston CJ in Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349. Objective circumstances include the maximum statutory penalty; the seriousness of the environmental harm; the defendant's state of mind at the time of the offence including whether it was a knowing and deliberate breach of the law; the reasons for committing the offence; the need for general deterrence; and the prevalence of the offence. Subjective circumstances include whether the defendant has any prior convictions; the character of the defendant; whether the defendant is likely to re-offend; remorse; whether, and if so when, the defendant pleaded guilty or indicated an intention to plead guilty; the degree of pre-trial disclosure; and assistance to law enforcement authorities.

62 Section 21A of the Crimes (Sentencing Procedure) Act 1999 requires the Court to take into account the specific aggravating and mitigating factors referred to therein that are relevant and known to the court, as well as "any other objective or subjective factor that affects the relative seriousness of the offence". Those specific aggravating factors are generally not relevant to cases that come before this Court except for the factor that "the offender has a record of previous convictions". Some of those specific mitigating factors referred to in s 21A are relevant to cases that come before this Court, including the present case, and are reflected in the list of subjective circumstance referred to above.

63 Under s 22, the Court must take into account the fact that the offender has pleaded guilty and when the offender pleaded guilty, or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. The utilitarian value of the guilty plea has been assessed by the Court of Appeal to be in the range of 10 to 25 percent: R v Thompson (2000) 49 NSWLR 383.

64 The maximum penalty for this offence is $1,100,000: s 126(1) EPA Act, s 17 Crimes (Sentencing Procedure) Act 1999. This indicates the seriousness of the offence.

65 Objectively, the offences are fairly serious. Native vegetation over a significant rural area was cleared without development consent. It included 55 trees, understorey and, probably, a vulnerable species. I accept that 49 of the trees were alive when cleared as stated in the Statement of Agreed Facts and in the evidence of experienced and expert council officers who made a contemporaneous note of their observations. I prefer that evidence to the evidence of Mr Devaney (which conflicted with the Statement of Agreed Facts) that most of the trees were dead, although I accept that that was his perception. The area was in a state of post-bushfire regeneration at the time of the clearance. The harm to the environment was significant; however, on the evidence, implementation of the proposed Bushland Restoration Plan should be effective. The land was of some significance, although its significance should not be overstated. The development would have been permissible with development consent, so this is not a case where the development was prohibited. However, it is a case where assessment of the impact of the development would have been required before development consent was given.

66 As regards subjective circumstances, both defendants have no record of previous convictions, are of good character, are unlikely to re-offend, and are remorseful. They both pleaded guilty at the earliest available opportunity and provided assistance to the prosecution from the outset.

Sentencing considerations relating to Mr Devaney 67 It was submitted on behalf of Mr Devaney that his perception was that many of the trees were dead; his perception was reasonable because they were in a post-bushfire state; this was not a pristine forest; development for clearing or for a riding school was permissible with development consent; the plea of guilty was entered as soon as reasonably possible; Mr Devaney said at the outset that he would not walk away from anything and he was true to his word; he has suffered stress and anxiety; he consented to an order that he pay half Ms Benson's cost of obtaining a Bushland Restoration Plan if an order was made against her to obtain and carry out the works in such a plan; and he was not aware of the need for assessment of the impact of the development before it was carried out. I accept those submissions subject to the following qualifications.

68 Mr Devaney knew that some of the trees were alive even though his mistaken perception, as I accept, was that most were dead from the effect of bushfires. He knew that development consent was required to remove living trees. He understood that there was an understorey of shrubs. His perception that most of the trees were dead was not entirely reasonable. Once he inspected the trees and the understorey for the purpose of clearing them he should have observed, if he had exercised reasonable care as an experienced contractor, that most of the trees were alive, as was the understorey.

69 Mr Devaney has been in the business of earthmoving for decades. In my view, it was incumbent on him to be aware of, or to have checked if there were, legal constraints before carrying out clearing activities. It is true that tree clearing was not generally part of his activities and that he generally left that particular activity to others. Nevertheless, he assumed responsibility for that activity on this occasion.

70 Significantly, he conceded in cross-examination that he advised Ms Benson that development consent was not required because the trees looked dead. In his earlier affidavit he said that at no time did he advise Ms Benson or her partner that development consent or approval from council was not required. Consequently, I consider that his affidavit evidence was misleading.

71 There should be consistency in sentencing. The prosecutor referred me to a number of decisions of this Court where penalties have been imposed for offences in relation to the unlawful destruction of trees. A number of those decisions were reviewed in Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at [105] by Preston CJ. I have had regard to them but with some caution for each case needs to be considered having regard to its particular circumstances. Three of these cases warrant analysis as follows

72 In Council of Camden v Tax (2004) 137 LGERA 368 the defendant pleaded guilty to a charge of removing a substantial number of trees without development consent in contravention of s 76A of the EPA Act thereby committing an offence under s 125(1). The court found that the defendant was aware that development consent was required if trees other than saplings were to be removed and that he knew that the trees were not saplings. His professed concern about bushfires was found to be unrealistic and was not accepted. The defendant was contrite and remorseful. An order was made against the defendant requiring the rehabilitation of a one acre portion of property which would enable appropriate trees to re-grow. In view of the seriousness of the offence and the fact that the defendant knew that in authorising the activity he was breaching the law, the imposition of a penalty of $45,000 would have been required. However, having regard to the mitigating factors, including the early plea, contrition and cooperation and the fact that rehabilitation works would be undertaken, it was appropriate to reduce the penalty. However, the necessary message of general deterrence should be communicated to the community. The penalty was reduced to $30,000. McClellan CJ said at [28] - [29]: 28 The necessity for the protection of vegetation in the community is now accepted in virtually every area of the state. Special legislation has been provided in relation to rare species and ecological communities but beyond that legislation, as the Local Environmental Plan in this case illustrates, steps have been taken to ensure that in areas where development may be appropriate, decisions with respect to the grant of development consent are taken after regard is had to the value and significance of the vegetation on any parcel of land. As this Local Environmental Plan makes plain, that protection has been extended even to land which is otherwise identified as suitable for rural or rural-related uses.

29 Accordingly, in imposing a penalty in this particular case, it is most important to ensure that that penalty sends a message to the general community that before any activity is taken which may cause the demise of any tree development consent must be obtained from the local council. Unless that message is sent and received by the community, there will be difficulties in ensuring that the objective of carefully considering the necessity to retain vegetation in many areas, but particularly rural areas, is achieved. 73 In Hornsby Shire Council v Moit [2001] NSWLEC 50 the defendant - like Mr Devaney - was in the business of earthmoving. In the course of that business he removed or destroyed approximately 49 trees without the council's consent. He was charged with two offences, breaching a tree preservation order and carrying out development without council consent. There was potential for environmental harm. A discount of twenty percent was allowed for a relatively early plea of guilty. The defendant agreed to carry out a remediation plan and was ordered to do so. Lloyd J said at [19]: "I am mindful of the fact that the defendant's business includes earthmoving so that he, more than anyone else perhaps, ought to have been aware that clearing the land of forty-nine trees was an activity which was unlawful in the absence of any consent. It also seems from the evidence that the defendant was aware of the need for an assessment of the impact of development before development is carried out". His Honour concluded that the case called for a combined penalty for the two offences of $50,000, which he reduced to $40,000 on account of the plea of guilty. This sum was apportioned as to $27,000 to the first offence and as to $13,000 to the second offence. In comparison, it may be said in Mr Devaney's favour that there is no suggestion that he was aware of the need for an assessment of the impact of the development before carrying it out, he had the mistaken perception that most of the trees were dead from bushfires; and he is entitled to a full twenty five percent discount for his plea of guilty at the earliest opportunity.

74 In Byron Shire Council v Fletcher (2005) 143 LGERA 155 the defendant cleared approximately 50 trees on his land in contravention of an environmental planning instrument and of a tree preservation order, without the council's consent. The harm to the environment was low. The defendant was not aware that development consent was required to carry out the clearing activities and did not carry out the clearing in defiance of the law. However, as the defendant was in possession of a s 149 certificate under the EPA Act, proper enquiries would have revealed the necessity for the obtaining of development consent before carrying out the clearing activities. It was held that the defendant ought to have known better. The defendant had not made any attempt at remediation of the cleared land. The defendant had co-operated in the case from the time the council officers first visited the site. The defendant agreed to pay costs in the sum of $13,000. Preston CJ held that the appropriate fine was $20,000. In comparison, it may be said in Mr Devaney's favour that he carried out the siltation fence work promptly after the council required it to be done at no cost to Ms Benson, and he consents to an order that he pay half the cost of obtaining a Bushland Restoration Plan for which he has obtained a quotation in the sum of $5,027 (although he has not offered to contribute to the cost of implementing the plan). On the other hand, until his cross-examination Mr Devaney was not frank in his evidence because he did not disclose that he had advised Ms Benson that no council approval was required and created the misleading impression that he had given no such advice.

75 In the present case, taking all of the objective and subjective considerations into account, including the full utilitarian value of the early plea of guilty, I consider that the appropriate fine for Mr Devaney is $20,000. That conclusion is subject to consideration of the principle of parity in sentencing as between Ms Benson and him, which I address below.

Sentencing considerations relating to Ms Benson 76 Ms Benson seeks a good behaviour bond under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 which provides: Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: … (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years. 77 In making such an order, the Court is to have regard to the following factors set out in s 10(3): (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider 78 There are factors which weigh against the granting of a good behaviour bond, in particular, the objective seriousness of the offence and the need for general deterrence.

79 Ms Benson submitted that she should be granted a good behaviour bond for the following reasons: (a) she believed that she was doing the correct thing by having the riding arena built in an area where it would serve a dual purpose and assist with bushfire management; (b) she relied on the incorrect advice of a professional excavator, Mr Devaney. She has never owned property and due to her upbringing on a cattle property she has had no experience whatsoever with development applications; (c) she is of good character and lacks any prior convictions; (d) her current physical and financial state; (e) her genuine and proactive commitment to regeneration; (f) according to expert advice that she has obtained, the harm to the site is not irreparable and the area is regenerating well; and (g) her open and honest conduct with council officers at every stage of the matter and her early guilty plea. 80 Those factors are, in my view, proper to consider when deciding whether she should have a good behaviour bond, with the possible exception of her physical and financial state which I will assume (without deciding) should be put to one side in that context. Collectively they are weighty. Ms Benson is an inexperienced, trusting young person of the highest character with no prior convictions, who sought and relied on the advice of a very experienced earthmoving contractor, Mr Devaney, that no consent was required for this development. Her reliance on the unqualified advice of such an experienced contractor was reasonable in the circumstances. It is true that on an earlier unrelated occasion an arborist had given her some information (which I accept she does not recall), which might have been expected to put her on inquiry. However, she did in fact enquire of Mr Devaney and it was his incorrect advice that led her into error. In addition, she is remorseful and has done everything possible to try and make amends. In that regard, she consents to an order for a Bushland Restoration Plan as proposed by the prosecutor which I intend to make and which will visit her with a substantial cost which she can ill afford. She would like all her available income, little though it is, to be directed towards that plan rather than to a fine.

81 The question is whether Ms Benson should be convicted and, if so, fined or whether she should be discharged on condition that she enter into a good behaviour bond.

82 Before reaching a conclusion, it is appropriate to address the principle of parity of sentencing as between Ms Benson and Mr Devaney. "Parity in this sense does not mean equal or equivalent outcome. Suitable adjustment has to be made for any differences in the offences with which the persons involved in the common incident or transaction are charged, in the objective seriousness of their participation, and for any differences in their subjective circumstances": Laurentiu & Becheru v The Queen (1992) 63 A Crim R 402 at 420 per Wood J (Sharpe J agreeing). In my view, much greater culpability attaches to Mr Devaney's conduct than to the conduct of Ms Benson given her youth and inexperience; his considerable experience as an earthmoving contractor including for the purpose of constructing horse arenas; his assumption of responsibility in clearing the land for reward; the advice she sought from him as to whether consent was required; the advice that he gave her that it was not required; the trust that she placed in his advice; and his misleading denial in his affidavit evidence that he had given her such advice (which he did not admit until his cross-examination). In the circumstances, it was not unreasonable for a person such as her to have relied on his advice.

83 If I were minded to convict Ms Benson it would be necessary to consider whether to fine her. In that event it would be necessary to consider her very limited means because s 6 of the Fines Act 1996 provides: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. 84 A court generally should not impose a fine which an offender does not have the means to pay: Rahme (1989) 43 A Crim R 81 at 86-89 per Finlay J (Studdert J agreeing). In that case a fine was reduced on appeal from $22,000 to $5,000 because of the appellant's limited means. In considering an offender's means, the amount of any costs order should be taken into account: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [88] per Kirby J (Mason P and Hoeben J agreeing). Other cases in this Court in which the limited means of the defendant were considered in the context of s 6 of the Fines Act include Environment Protection Authority v Davis [2005] NSWLEC 643 at [30] -[32] (Lloyd J); Garrett v Langmead [2006] NSWLEC 627 at [38]-[47] where Talbot J suggested that ability to pay may also be taken into account under s 10(3)(d) of the Crimes (Sentencing Procedure) Act 1999; and Environment Protection Authority v Peters [2006] NSWLEC 612 at [14] (Jagot J).

85 Ms Benson's means are very limited, as set out above at [56]. In my view, she has no financial capacity to pay any fine on top of the s 126(3) consent order to carry out the works required by the Bushland Restoration Plan proposed by the prosecutor and the order to pay the costs of the proceedings against her which the prosecutor indicated would be likely to be in the order of $20,000. If I were to convict her, in all the circumstances I would decline to fine her having regard to her means, relatively low degree of culpability and other mitigating circumstances.

86 The cumulative weight of the circumstances in Ms Benson's favour and the considerable differences between the two offenders to which I have referred, lead me to the conclusion that she should not be convicted but should be discharged on a good behaviour bond for a term of two years. Those differences also lead me to confirm that Mr Devaney should be convicted and fined as discussed earlier.

(1) In proceedings 50035 of 2006 Hornsby Shire Council v Allan Leslie Devaney: (i) The defendant is convicted of the offence charged. (ii) The defendant is fined the sum of $20,000. (iii) By consent, the defendant is to pay to Amanda Benson half the cost of preparation of the Bushland Restoration Plan referred to in order (ii) in proceedings 50034 of 2006 against her, upon that cost being ascertained by her and communicated to him in writing. (iv) The defendant is to pay the prosecutor's costs. (v) The exhibits may be returned.

(2) In proceedings 50034 of 2006 Hornsby Shire Council v Amanda Benson:

(i) The defendant is discharged on condition that she enter into a good behaviour bond for a term of two years. (ii) Pursuant to section 126(3) of the Environmental Planning and Assessment Act 1979 the defendant is ordered to carry out the works described in the Bushland Restoration Plan being annexure "A" to these orders. (iii) The defendant is to pay the prosecutor's costs. (iv) The exhibits may be returned.

ANNEXURE "A" ORDERS FOR A BUSHLAND RESTORATION PLAN MADE PURSUANT TO SECTION 126(3) OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 PROPERTY: 27-29 PEEBLES ROAD, ARCADIA

A Bushland Restoration Plan ("BRP") must be prepared by a suitably qualified bush regenerator. Within 7 days of the date of the orders of the Land and Environment Court the Defendant is to submit the name of the bush regenerator chosen by the Defendant to the Council for its approval. The BRP is to be prepared within 28 days from the date of notification by the Council to the Defendant of its approval of the person put forward by the Defendant as the bush regenerator. The BRP is to be submitted to the Council for its approval 28 days or earlier from the date of the Court's orders.

The BRP is to include a site plan of the property which identifies:

· the location, boundary dimensions, site area and north point of the land; · the location of existing buildings and structures on the land; · the contours/slope (topography and aspect) including the location of escarpment/ rock outcrops; · any watercourses, stormwater drains, and riparian zones (including ephemeral and intermittent); · the area to which the bushland restoration plan applies; and · the location of any threatened species or specific threatened species habitat.

The BRP is also to provide for the following: 1. Discuss the ecological values and habitat values of the area to which the BRP applies:

· description of the vegetation communities and habitats present (in the cases of illegal land modification or clearing, a description of the former vegetation communities/structure and habitats prior to clearing), soils and geology; · current condition of the vegetation of the area to which the BRP applies; · any noxious and environmental weeds present; and · any adjoining bushland, wildlife corridor or habitat values.

Please note: Photographic evidence must be provided to support descriptions of the site. 2. To restore the site to natural bushland the proposed restoration measures must include: protection measures (i.e. fencing or barriers) for areas where natural regeneration is proposed and/or areas where revegetation works are proposed to be undertaken; · details of any walking/access tracks and/or other building structures or features within the area to which the BRP applies; · weed management techniques and proposed weed control methods across the entire area. Include a map with the different restoration treatment areas defined; · other assisted bush regeneration techniques, where required, such as brush matting and revegetation to assist natural regeneration on the site. Revegetation works should include a diversity of locally indigenous species and details of planting density and source of planting stock and mulch (NB: Plants must be of local provenance); · strategies to undertake seed collection from the site for propagation and/or proposals to obtain suitable plant material for any proposed revegetation; · vegetation management techniques proposed within any Asset Protection Zone(APZ) if required; · any linkages of the BRP with any landscape plan, bushfire mitigation measures or Species Impact Statement (SIS). 3. Schedule of works and timeline

The BRP must contain a Schedule of Works which defines: · what works are proposed; · when those works will be commenced, the period of time that the works will be undertaken, and the date the works are to be completed; · who is responsible for undertaking the works; and · method and times for monitoring works with a schedule of reporting.

The schedule of works should provide realistic proposed timeframes for any bushland restoration and/or re-vegetation work. The schedule should also have reporting timeframes which demonstrate to Council that the BRP is being implemented. In general, at least two brief reports should be provided, one after the initial protection/primary weed control/preparation and planting works are completed and one final report when the secondary and maintenance work schedule within the BRP is completed.

The BRP submitted to Council for approval must cover a time frame of a minimum of five years. A written report must be submitted to Council every six months to ensure ongoing compliance and to ensure that works are completed to the satisfaction of Council. The report must include: · works completed within the period of reporting; · photographic evidence of restoration activities at the site; · signoff by the lead bush regenerator; and · an outline of what works will be completed within the next 6 months. All restoration works must be undertaken by a qualified and experienced bush regenerator/bush regeneration company.

19/02/2008 - typographical error - Paragraph(s) 84

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