60 Clearly, the defendant was conscious of the fact that its actions could occasion environmental harm. This is evident from the statement contained in its letter to the Department of Planning of 21 May 2009 in which it identified pre-clearance surveys undertaken by it (see [30] above). Having identified the potential for harm, it must also be recognised that the measures that were, in fact, taken by the defendant, are measures that no doubt contributed to the ultimate determination by the prosecutor that the harm occasioned by the actions of the defendant was "minimal".
61 While not resiling from the acknowledgement that the environmental harm that resulted from the conduct of the defendant was minimal, the prosecutor submitted that whether approval for the work would have been given had that approval been sought in advance is unknown. There is substance in that submission. I am not satisfied beyond reasonable doubt that had application been made to erect a fence on the approximate line of the boundary of ML1606, it would have been refused. However, I am not satisfied on the balance of probabilities that, had prior consideration been given to the location of this boundary fence, it would have been approved in the precise location in which it has been erected and, more importantly, I am not satisfied that the extent of clearing for such a fence, even if erected in its present location, would have been sanctioned.
62 Reference has earlier been made at [33] to the consideration given to the location of the fence and the extent of clearing in the Department of Planning assessment report prepared in response to the defendant's modification application of June 2009. As the report makes clear, the authors of that report considered that clearing of a corridor between 7.1 and 16.3 metres wide was excessive, a width of 4 metres being considered appropriate. Had this been the conditional approval given and work undertaken in accordance with it, self-evidently the extent of vegetation loss would have been less than that which has in fact been incurred.
63 Having regard to all of these matters, I find that the commission of the offence did cause actual environmental harm. However, as the prosecutor has accepted that the harm is "minimal", with short to medium term rather than medium to long term effect, I accept the prosecutor's concession that the harm occasioned should not be considered an aggravating factor when determining the appropriate penalty to be imposed upon the defendant: cp s 21A(2) of the CSP Act.
State of mind of the defendant
64 An offence against s 125(1) of the EPA Act is a strict liability offence and hence mens rea is not an element of it. However, a strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one which is not so committed (Hardt v Environment Protection Authority [2007] NSWCCA 338 at [53]; (2007) 156 LGERA 337 at 348).
65 Both the material contained in the Statement of Agreed Facts and the evidence of Mr Callow identify why it was that clearing of vegetation took place. It was to fulfil the obligation to fence ML1606 imposed by cl 6 of the Agreement which, in turn, had its genesis in proceedings brought by the defendant under the Mining Act. By reason of that obligation and its genesis, the need for an approval under the EPA Act was not appreciated.
66 The plausibility of this explanation can readily be accepted in respect of the clearing of the western boundary of ML1606 which, according to paragraph 32 of the Statement of Agreed Facts, took place between 8 and 10 December 2008. Whilst the reasons for clearing the southern and north-eastern boundaries of the mining lease remain the same as those which founded the clearing in December 2008, the circumstances in which the clearing of those boundaries took place do not attract the same level of "innocence" to the defendant's explanation.
67 It will remembered that by letter dated 21 April 2009, the Department of Planning had conveyed to the defendant the opinion that the clearing work hitherto carried out was development that required consent (sic) under the EPA Act and that no such consent having been obtained, the clearing work was unlawful (see [22]). The subsequent letters from the defendant did not challenge this assertion. Yet, in the face of the asserted unlawfulness by the Department, clearing along the southern and north-eastern boundaries of ML1606 took place between 5 and 13 May. Moreover, as I have earlier indicated at [27], the letter from the defendant responding to the Department's letter of 21 April gave no indication that further clearing work was to commence the following day.
68 The circumstances arising from the sequence of events that I have just identified were raised with the defendant in the course of submissions. No "innocent" explanation was offered, it being said that it was "incautious" of the defendant to have proceeded with work once the Department of Planning had indicated the position which it did on 21 April.
69 As an entity conducting a very significant coal mining project, I would have to assume that the defendant is sufficiently well resourced to enable it to secure legal advice. Extracts from the records of the Australian Securities and Investment Commission which were tendered to me, show that the defendant is a wholly owned subsidiary of a public company. Even if it had not initially occurred to those responsible for the defendant's operations at Ulan that implementing either its contractual obligation or its perceived obligations under the Mining Act also necessitated the obtaining of approval under the EPA Act, once it was on notice that the partial clearing that had been carried was asserted by the Department of Planning to be unlawful, there was no rational reason to believe that further clearing could continue without, at least, seeking legal advice as to its obligations. No evidence of any such advice having been sought was tendered.
70 Objectively judged, the actions of the defendant in May 2009 cannot be considered in the same light as those actions which it took in December 2008. The former bear less favourably upon the defendant than do the latter, a circumstance which bears upon the gravity of the offence which the defendant committed.
Foreseeability of risk of harm to the environment
71 I have already identified the evidence that bears upon the foreseeability that harm might be occasioned to the environment by reason of the actions of the defendant in clearing vegetation as it did. I accept that the measures which it took were directed to reducing the harm that, absent those measures, would otherwise have been occasioned.
Practical measures - control over causes
72 The obvious practical measure that the defendant could and should have taken was to refrain from clearing until approval had been obtained from the prosecutor. This observation is particularly pertinent to the clearing that took place in May of 2009. Although the evidence does not reveal the proportion of the overall clearing that then took place, the fact that it took place in the circumstances that I have outlined, supports the observation that it was both realistic and practical for the defendant to refrain from carrying out the work which was then undertaken. The defendant had complete control over the causes of harm to the environment by the actions which it carried out.
Conclusions on objective circumstances
73 Although the environmental harm occasioned by the commission of the offence may, in the context that I have discussed, be regarded as "minimal", when taken together with the other factors which I have described, particularly the loss of EEC and the carrying out of further clearing after the Department of Planning had indicated that clearing along the western boundary was unlawful, I consider that the offence should be seen as being of low to medium objective gravity. As the prosecutor submitted, the objective seriousness of the offence is also informed by the circumstance that failure to carry out prior environmental impact assessment of the activity resulted in a lost opportunity "to achieve the(…) four pillars of ecologically sustainable development" (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 at [71]; (2006) 145 LGERA 234 at 246). It is the harm to the integrity of the planning system which lies at the heart of the offence in this case (Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [72]).
Subjective circumstances
74 Section 21A(3) of the CSP Act identifies those mitigating factors to be taken into account when determining the appropriate penalty for an offence. In addition, subsection (1)(c) enjoins the Court to take into account any other "subjective factor that affects the relative seriousness of the offence."