Natural Resources Access Regulator v Green Leaf Australia Group Pty Limited; Natural Resources Access Regulator v Xiuming Lin

table of contents A. INTRODUCTION B. LEGISLATION C. DIRECTIONS OF LAW D. RELEVANT LEGAL PRINCIPLES E. EVIDENCE IN THE PROSECUTION CASE Evidence of Jennifer Davis (Days 1, 2, 3 and 6) Evidence of Leann Davidson (Day 1) Evidence of Claire McGarity (Day 2) Exhibit 34 Evidence of Alexander Martin Stuart (Spatial Analyst) (Days 4 and 5) Evidence of Dr Lachlan Copeland (Botanist) (Day 5) Evidence of Mark Bonner (Day 6) Evidence of Roger Newport (Day 7) Evidence of Meiqin Chen (Day 7) F. EVIDENCE IN THE DEFENCE CASE G. FINDINGS Time Limitation Jurisdiction of the Natural Resources Access Regulator to Initiate and Maintain the Prosecution Proceedings Application of s 392 of the WM Act Specific Issues Dam 1A (Charge 5) Dam 1B (Charge 6) Dam 4 (Charge 1) Dam 4 (Charges 7 and 13) Dam 5 (Charge 2) Dam 5 (Charges 8 and 14) Dam 6 (Charge 9) Dam 7 (Charge 10) Dams 8A and 9 (Charge 3) Dam 8A and 9 (Charges 11 and 15) Dam 8B (Charge 4) Dam 8B (Charges 12 and 16) Some Concluding Remarks Reasons for Findings on the Admissibility of Exhibits 38 to 41 H. VERDICTS AND ORDERS

A. INTRODUCTION

1. Green Leaf Australia Group Pty Limited and Mr Xiuming Lin were each charged with several offences laid by the prosecutor, the Natural Resources Access Regulator, under the Water Management Act 2000 (NSW).
2. In these reasons, where it is appropriate in context, I will refer to the Natural Resources Access Regulator as 'the prosecutor'. I will also refer to the Water Management Act 2000 as 'the WM Act'.
3. The WM Act provides a comprehensive statutory regime for the sustainable and integrated management of the water sources of New South Wales for the benefit of both present and future generations. It also encourages the sharing of responsibility for the sustainable and efficient use of water between the government and water users (WaterNSW v Harris (No. 3) [2020] NSWLEC 18 at [414]).
4. Mr Lin was a director of Green Leaf Australia Group Pty Ltd at all material times and all sets of proceedings against him, and that company, have been heard together. Sixteen charges were brought against the company, and there were 16 charges also brought against Mr Lin personally.
5. By agreement of the parties, but subject to one matter which I outline later in these reasons, all documentary and oral evidence which was tendered or given at the hearing was taken to have been adduced in each separate proceeding. These reasons are in respect of the determination of all 32 charges.
6. For the purposes of these remarks, I will refer to Green Leaf Australia Group Pty Limited as 'the company'.
7. Where it is appropriate to do so in context, I will refer to the company and Mr Lin collectively as 'the defendants'.
8. The defendants were charged with offences under Part 3 of Chapter 3 of the WM Act, and each were alleged to have been committed after 1 July 2016. The relevance of this date is explained later. The offences and their particulars, with the exclusion of the prosecutor's reliance on extended liability, which I will explain later, were identical for each defendant.
9. The charges against the company were as follows (which are set out verbatim from each of the Court Attendance Notices, albeit omitting what is referred to as 'Annexure A' in each notice).
10. Charge 1: Details of Offence Description of Offence: Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: On 24 February 2021. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440. Short Particulars: On 24 February 2021, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), used a water supply work and did not hold a water supply work approval for that work. a) The defendant used a water supply work On 24 February 2021, a water supply work, being a dam situated on Lot 1013 DP 849050 at the Property (Dam 4), was used by the defendant for the purpose of storing water. Dam 4 was situated at or around GPS coordinates -30.926262 (latitude) 152.946955 (longitude) in the location labelled "Dam 4" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) The defendant did not hold a water supply work approval for that work The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. On 24 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 4. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the Defendant being in direct contravention of s 91B(1): i During the said period, Xiuming Lin (the Defendant's Director) contravened s 91B(1) of the WM Act, in that, he used Dam 4 to store water, being a dam located on the Property at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in circumstances where there was no water supply work approval for Dam 4; ii In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 2: Details of Offence Description of Offence: Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: On 24 February 2021. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440. Short Particulars: On 24 February 2021, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), used a water supply work and did not hold a water supply work approval for that work. a) The defendant used a water supply work On 24 February 2021, a water supply work, being a dam situated on Lot 1013 DP 849050 at the Property (Dam 5), was used by the defendant for the purpose of storing water. Dam 5 was situated at or around GPS coordinates -30.927430 (latitude) 152.950352 (longitude) in the location labelled "Dam 5" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) The defendant did not hold a water supply work approval for that work On 24 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 5. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the Defendant being in direct contravention of s 91B(1): i. During the said period, Xiuming Lin (the Defendant's Director) contravened s 91B(1) of the WM Act, in that, he used Dam 5 to store water, being a dam located on the Property at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in circumstances where there was no water supply work approval for Dam 5; ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 3: Details of Offence Description of Offence: Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: On 25 February 2021. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440. Short Particulars: On 25 February 2021, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), used a water supply work and did not hold a water supply work approval for that work. a) The defendant used a water supply work On 25 February 2021, a water supply work situated on Lot 1013 DP 849050 at the Property (Dam 8A and 9), was used by the defendant for the purpose of storing water. Dam 8A and 9 was situated at or around GPS coordinates -30.923685 (latitude) 152.951767 (longitude) in the location labelled "Dam 8A and 9" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) The defendant did not hold a water supply work approval for that work On 25 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 8A and 9. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the Defendant being in direct contravention of s 91B(1): i. During the said period, Xiuming Lin (the Defendant's Director) contravened s 91B(1) of the WM Act, in that, he used Dam 8A and 9 to store water, being a dam located on the Property at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in circumstances where there was no water supply work approval for Dam 8A and 9; ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 4: Details of Offence Description of Offence: Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: On 25 February 2021. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440. Short Particulars: On 25 February 2021, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), used a water supply work and did not hold a water supply work approval for that work. a) The defendant used a water supply work On 25 February 2021, a water supply work, being a dam situated on Lot 1013 DP 849050 at the Property (Dam 8B), was used by the defendant for the purpose of storing water. Dam 8B was situated at or around GPS coordinates -30.923804 (latitude) 152.952075 (longitude) in the location labelled "Dam 8B" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) The defendant did not hold a water supply work approval for that work On 25 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 8B. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the Defendant being in direct contravention of s 91B(1): i. During the said period, Xiuming Lin (the Defendant's Director) contravened s 91B(1) of the WM Act, in that, he used Dam 8B to store water, being a dam located on the Property at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in circumstances where there was no water supply work approval for Dam 8B; ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 5: Details of Offence Description of Offence: Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act) Time & Date of Offence: Between about 29 December 2019 and about 2 January 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 29 December 2019 and about 2 January 2020, the Defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), constructed a water supply work and did not hold a water supply work approval for that work. a) The defendant constructed a water supply work Between around 29 December 2019 and 2 January 2020, the defendant constructed a water supply work, in that, the defendant extended the dam wall of Dam 1A situated on Lot 1013 DP 849050 and located at around GPS coordinates -30.921575 (latitude) 152.946231 (longitude), in the location labelled "Dam 1A" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) The defendant did not hold a water supply work approval for that work Further Particulars: No person, including the Defendant, has ever held a water supply work approval for Dam 1A. c) Alternative legal basis to establish liability In the alternative to the Defendant being in direct contravention of s 91B(1): i. During the said period, Xiuming Lin (the Defendant's Director) contravened s 91B(1) of the WM Act, in that, he extended the dam wall of Dam 1A at the Property, being a dam located at around GPS coordinates -30.921575 (latitude) 152.946231 (longitude), within Lot 1013 DP 849050, in circumstances where there was no water supply work approval for Dam 1A; ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 6: Details of Offence Description of Offence: Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act) Time & Date of Offence: Between about 6 October 2016 and about 17 November 2016. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 6 October 2016 and about 17 November 2016, the Defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), constructed a water supply work and did not hold a water supply work approval for that work. a) The defendant constructed a water supply work Between about 6 October 2016 and about 17 November 2016, the defendant constructed a water supply work, in that, the defendant extended the dam wall of Dam 1B situated on Lot 1013 DP 849050 and located at around GPS coordinates -30.923143 (latitude) 152.949307 (longitude), in the location labelled "Dam 1B" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) The defendant did not hold a water supply work approval for that work Further Particulars: No person, including the Defendant, has ever held a water supply work approval for Dam 1B. c) Alternative legal basis to establish liability In the alternative to the Defendant being in direct contravention of s 91B(1): i. During the said period, Xiuming Lin (the Defendant's Director) contravened s 91B(1) of the WM Act, in that, he extended the dam wall of Dam 1B at the Property, being a dam located at around GPS coordinates -30.923143 (latitude) 152.949307 (longitude), within Lot 1013 DP 849050, in circumstances where there was no water supply work approval for Dam 1B; ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 7: Details of Offence Description of Offence: Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 13 December 2017 and about 1 April 2018. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 13 December 2017 and about 1 April 2018, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), carried out a controlled activity on waterfront land and did not hold a controlled activity approval for that activity. a) The defendant carried out a controlled activity Between about 13 December 2017 and about 1 April 2018, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in the location labelled "Dam 4" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) On waterfront land At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland. c) The defendant did not hold a controlled activity approval for the activity Further Particulars: No person, including the defendant, has ever held a controlled activity approval for the said controlled activity. d) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91E(1): i. During the said period, Xiuming Lin (the defendant's Director) contravened s 91E(1) of the WM Act, in that, he removed material, whether personally or by direction, from the Property at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in circumstances where there was no controlled activity approval for the activity; ii. In the circumstances and by reason of the defendant being the Occupier of the Property during the said period, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 91L(1)(b) of the WM Act. e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 8 (as amended without objection at the hearing): Details of Offence Description of Offence: Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 7 November 2019 and about 16 March 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 7 November 2019 and about 16 March 2020, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), carried out a controlled activity on waterfront land and did not hold a controlled activity approval for that activity. a) The defendant carried out a controlled activity Between about 7 November 2019 and about 16 March 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in the location labelled "Dam 5" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) on waterfront land At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland. c) The defendant did not hold a controlled activity approval for the activity Further Particulars: No person, including the defendant, has ever held a controlled activity approval for the said controlled activity. d) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91E(1): i. During the said period, Xiuming Lin (the defendant's Director) contravened s 91E(1) of the WM Act, in that, he removed material, whether personally or by direction, from the Property at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in circumstances where there was no controlled activity approval for the activity; ii. In the circumstances and by reason of the defendant being the Occupier of the Property during the said period, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 91L(1)(b) of the WM Act. e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 9: Details of Offence Description of Offence: Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 7 November 2019 and about 14 February 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 7 November 2019 and about 14 February 2020, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), carried out controlled activity on waterfront land and did not hold a controlled activity approval for that activity. a) The defendant carried out a controlled activity Between about 7 November 2019 and about 14 February 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.928005 (latitude) 152.950386 (longitude), in the location labelled "Dam 6" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) on waterfront land At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland. c) The defendant did not hold a controlled activity approval for the activity Further Particulars: No person, including the defendant, has ever held a controlled activity approval for the said controlled activity. d) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91E(1): i. During the said period, Xiuming Lin (the defendant's Director) contravened s 91E(1) of the WM Act, in that, he removed material, whether personally or by direction, from the Property at around GPS coordinates -30.928005 (latitude) 152.950386 (longitude), in circumstances where there was no controlled activity approval for the activity; ii. In the circumstances and by reason of the defendant being the Occupier of the Property during the said period, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 91L(1)(b) of the WM Act. e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 10: Details of Offence Description of Offence: Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 27 January 2020 and about 15 January 2021. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 27 January 2020 and about 15 January 2021, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), carried out a controlled activity on waterfront land and did not hold a controlled activity approval for that activity. a) The defendant carried out a controlled activity Between about 27 January 2020 and about 15 January 2021, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.928123 (latitude) 152.951472 (longitude), in the location labelled "Dam 7" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) On waterfront land At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland. c) The defendant did not hold a controlled activity approval for the activity Further Particulars: No person, including the defendant, has ever held a controlled activity approval for the said controlled activity. d) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91E(1): i. During the said period, Xiuming Lin (the defendant's Director) contravened s 91E(1) of the WM Act, in that, he removed material, whether personally or by direction, from the Property at around GPS coordinates -30.928123 (latitude) 152.951472 (longitude), in circumstances where there was no controlled activity approval for the activity; ii. In the circumstances and by reason of the defendant being the Occupier of the Property during the said period, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 91L(1)(b) of the WM Act. e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 11 (as amended without objection at the hearing): Details of Offence Description of Offence: Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 14 February 2020 and about 28 July 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 14 February 2020 and about 28 July 2020, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), carried out a controlled activity on waterfront land and did not hold a controlled activity approval for that activity. a) The defendant carried out a controlled activity Between about 14 February 2020 and about 28 July 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in the location labelled "Dam 8A and 9" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) On waterfront land At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland. c) The defendant did not hold a controlled activity approval for the activity Further Particulars: No person, including the defendant, has ever held a controlled activity approval for the said controlled activity. d) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91E(1): i. During the said period, Xiuming Lin (the defendant's Director) contravened s 91E(1) of the WM Act, in that, he removed material, whether personally or by direction, from the Property at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in circumstances where there was no controlled activity approval for the activity; ii. In the circumstances and by reason of the defendant being the Occupier of the Property during the said period, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 91L(1)(b) of the WM Act. e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 12: Details of Offence Description of Offence: Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 14 February 2020 and about 16 March 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 14 February 2020 and about 16 March 2020, the defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), carried out a controlled activity on waterfront land and did not hold a controlled activity approval for that activity. a) The defendant carried out a controlled activity Between about 14 February 2020 and about 16 March 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in the location labelled "Dam 8B" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) On waterfront land At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland. c) The defendant did not hold a controlled activity approval for the activity Further Particulars: No person, including the defendant, has ever held a controlled activity approval for the said controlled activity. d) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91E(1): i.During the said period, Xiuming Lin (the defendant's Director) contravened s 91E(1) of the WM Act, in that, he removed material, whether personally or by direction, from the Property at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in circumstances where there was no controlled activity approval for the activity; ii.In the circumstances and by reason of the defendant being the Occupier of the Property during the said period, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 91L(1)(b) of the WM Act. e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 13: Details of Offence Description of Offence: Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 13 December 2017 and about 1 April 2018. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 13 December 2017 and about 1 April 2018, the Defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), constructed a water supply work and did not hold a water supply work approval for that work. a) The defendant constructed a water supply work Between about 13 December 2017 and about 1 April 2018, the defendant constructed a water supply work located at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in the location labelled "Dam 4" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) The defendant did not hold a water supply work approval for that work No person, including the Defendant, has ever held a water supply work approval for Dam 4. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the Defendant being in direct contravention to s 91B(1): i. During the said period, Xiuming Lin (the Defendant's Director) contravened s 91B(1) of the WM Act, in that, he constructed Dam 4 at the Property, being a dam located at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in circumstances where there was no water supply work approval for Dam 4; ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 14 (as amended without objection at the hearing): Details of Offence Description of Offence: Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 7 November 2019 and about 16 March 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 7 November 2019 and about 16 March 2020, the Defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), constructed a water supply work and did not hold a water supply work approval for that work. a) The defendant constructed a water supply work Between about 7 November 2019 and about 16 March 2020, the defendant constructed a water supply work located at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in the location labelled "Dam 5" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) The defendant did not hold a water supply work approval for that work No person, including the Defendant, has ever held a water supply work approval for Dam 5. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the Defendant being in direct contravention to s 91B(1): i. During the said period, Xiuming Lin (the Defendant's Director) contravened s 91B(1) of the WM Act, in that, he constructed Dam 5 at the Property, being a dam located at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in circumstances where there was no water supply work approval for Dam 5; ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 15 (as amended without objection at the hearing): Details of Offence Description of Offence: Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 14 February 2020 and about 28 July 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 14 February 2020 and about 28 July 2020, the Defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), constructed a water supply work and did not hold a water supply work approval for that work. a) The defendant constructed a water supply work Between about 14 February 2020 and about 28 July 2020, the defendant constructed a water supply work located at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in the location labelled "Dam 8A and 9" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) The defendant did not hold a water supply work approval for that work No person, including the Defendant, has ever held a water supply work approval for Dam 8A and 9. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the Defendant being in direct contravention to s 91B(1): i. During the said period, Xiuming Lin (the Defendant's Director) contravened s 91B(1) of the WM Act, in that, he constructed Dam 8A and 9 at the Property, being a dam located at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in circumstances where there was no water supply work approval for Dam 8A and 9; ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 16: Details of Offence Description of Offence: Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 14 February 2020 and about 16 March 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 14 February 2020 and about 16 March 2020, the Defendant, being the registered proprietor of Lot 1013 DP 849050 located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), constructed a water supply work and did not hold a water supply work approval for that work. a) The defendant constructed a water supply work Between about 14 February 2020 and about 16 March 2020, the defendant constructed a water supply work located at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in the location labelled "Dam 8B" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". The defendant was the registered proprietor and landholder of Lot 1013 DP 849050 at all relevant times. b) The defendant did not hold a water supply work approval for that work No person, including the Defendant, has ever held a water supply work approval for Dam 8B. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the Defendant being in direct contravention to s 91B(1): i. During the said period, Xiuming Lin (the Defendant's Director) contravened s 91B(1) of the WM Act, in that, he constructed Dam 8B at the Property, being a dam located at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in circumstances where there was no water supply work approval for Dam 8B; ii. In the circumstances and by reason of the Defendant being the Occupier of the Property during the said period, the Defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 91L(1)(a) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. The charges against Mr Lin were as follows (which are set out verbatim from each of the Court Attendance Notices, albeit omitting what is referred to as 'Annexure A' in each notice).
2. Charge 1: Details of Offence Description of Offence: Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act) Time & Date of Offence: On 24 February 2021 Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: On 24 February 2021, the defendant, used a water supply work to store water at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a water supply work approval for that work. a) The defendant used a water supply work On 24 February 2021, a water supply work, being a dam situated on Lot 1013 DP 849050 at the Property (Dam 4), was used by the defendant for the purpose of storing water. Dam 4 was situated at or around GPS coordinates -30.926262 (latitude) 152.946955 (longitude) in the location labelled "Dam 4" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) The defendant did not hold a water supply work approval for that work On 24 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 4. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91B(1): i. During the said period, Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it used a water supply work, namely Dam 4, to store water, located on the Property at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in circumstances where there was no water supply work approval for Dam 4; and ii. By reason of the defendant being a director of Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the use of Dam 4, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 2: Details of Offence Description of Offence: Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act) Time & Date of Offence: On 24 February 2021 Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: On 24 February 2021, the defendant, used a water supply work to store water at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a water supply work approval for that work. a) The defendant used a water supply work On 24 February 2021, a water supply work, being a dam situated on Lot 1013 DP 849050 at the Property (Dam 5), was used by the defendant for the purpose of storing water. The Dam was situated at or around GPS coordinates -30.927430 (latitude) 152.950352 (longitude) in the location labelled "Dam 5" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) The defendant did not hold a water supply work approval for that work On 24 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 5. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91B(1): i. During the said period, Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it used a water supply work, namely Dam 5, to store water, located on the Property at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in circumstances where there was no water supply work approval for Dam 5; and ii. By reason of the defendant being a director of Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the use of the dam, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 3: Details of Offence Description of Offence: Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act) Time & Date of Offence: On 25 February 2021 Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: On 25 February 2021, the defendant, used a water supply work to store water at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a water supply work approval for that work. a) The defendant used a water supply work On 25 February 2021, a water supply work situated on Lot 1013 DP 849050 at the Property (Dam 8A & 9), was used by the defendant for the purpose of storing water. Dam 8A and 9 was situated at or around GPS coordinates -30.923685 (latitude) 152.951767 (longitude) in the location labelled "Dam 8A & 9" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) The defendant did not hold a water supply work approval for that work On 25 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 8A and 9. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91B(1): i. During the said period, Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it used a water supply work, namely Dam 8A and 9, to store water, located on the Property at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in circumstances where there was no water supply work approval for Dam 8A and 9; and ii. By reason of the defendant being a director of Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the use of Dam 8A and 9, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 4: Details of Offence Description of Offence: Using a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act) Time & Date of Offence: On 24 February 2021 Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: On 24 February 2021, the defendant, used a water supply work to store water at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a water supply work approval for that work. a) The defendant used a water supply work On 24 February 2021, a water supply work, being a dam situated on Lot 1013 DP 849050 at the Property (Dam 8B), was used by the defendant for the purpose of storing water. Dam 8B was situated at or around GPS coordinates -30.923804 (latitude) 152.952075 (longitude) in the location labelled "Dam 8B" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) The defendant did not hold a water supply work approval for that work On 24 February 2021, nor at any relevant time, did the defendant hold a water supply work approval for Dam 8B. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91B(1): i. During the said period, Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it used a water supply work, namely Dam 8B, to store water, located on the Property at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in circumstances where there was no water supply work approval for Dam 8B; and ii. By reason of the defendant being a director of Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the use of Dam 8B, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 5: Details of Offence Description of Offence: Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 29 December 2019 and about 2 January 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440. Short Particulars: Between about 29 December 2019 and about 2 January 2020, the defendant, constructed a water supply work at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 within Lot 1013 DP 849050 (the Property), in that, he extended a dam wall and did not hold a water supply work approval for that work. a) The defendant used a water supply work Between about 29 December 2019 and about 2 January 2020, the defendant constructed a water supply work, in that, the defendant extended the dam wall of Dam 1A situated on Lot 1013 DP 849050 and located at around GPS coordinates -30.921575 (latitude) 152.946231 (longitude), in the location labelled "Dam 1A" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) The defendant did not hold a water supply work approval for that work No person, including the defendant, has ever held a water supply work approval for Dam 1A. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91B(1): i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it constructed a water supply works, namely, Dam 1A to store water, located on the Property at around GPS coordinates -30.921575 (latitude) 152.946231 (longitude), in circumstances where there was no water supply work approval for Dam 1A; and ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the construction of Dam 1A, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 6: Details of Offence Description of Offence: Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 6 October 2016 and about 17 November 2016. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440. Short Particulars: Between about 6 October 2016 and about 17 November 2016, the defendant, constructed a water supply work at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 within Lot 1013 DP 849050 (the Property), in that, he extended a dam wall and did not hold a water supply work approval for that work. a) The defendant used a water supply work Between about 6 October 2016 and about 17 November 2016, the defendant constructed a water supply work, in that, the defendant extended the dam wall of Dam 1B situated on Lot 1013 DP 849050 and located at around GPS coordinates -30.923143 (latitude) 152.949307 (longitude), in the location labelled "Dam 1B" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) The defendant did not hold a water supply work approval for that work No person, including the defendant, has ever held a water supply work approval for Dam 1B. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91B(1): i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it constructed a water supply works, namely, Dam 1B to store water, located on the Property at around GPS coordinates -30.923143 (latitude) 152.949307 (longitude), in circumstances where there was no water supply work approval for Dam 1B; and ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the construction of Dam 1B, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 7: Details of Offence Description of Offence: Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 13 December 2017 and about 1 April 2018. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 13 December 2017 and about 1 April 2018, the defendant, carried out a controlled activity on waterfront land at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a controlled activity approval for that activity. a) The defendant carried out a controlled activity Between about 13 December 2017 and about 1 April 2018, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in the location labelled "Dam 4" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) On waterfront land At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland. c) The defendant did not hold a controlled activity approval for the activity Further Particulars: No person, including the defendant, has ever held a controlled activity approval for the said controlled activity. c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91E(1): i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91E(1) of the WM Act, in that it carried out a controlled activity on waterfront land by removing material at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in the location labelled "Dam 4", in circumstances where there was no controlled activity approval for the said controlled activity; and ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the controlled activity, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 363(1) of the WM Act. e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 8 (as amended without objection at the hearing): Details of Offence Description of Offence: Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 7 November 2019 and about 16 March 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 7 November 2019 and about 16 March 2020, the defendant, carried out a controlled activity on waterfront land at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a controlled activity approval for that activity. a) The defendant carried out a controlled activity Between about 7 November 2019 and about 16 March 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in the location labelled "Dam 5" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) On waterfront land At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland. c) The defendant did not hold a controlled activity approval for the activity Further Particulars: No person, including the defendant, has ever held a controlled activity approval for the said controlled activity. c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91E(1): i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91E(1) of the WM Act, in that it carried out a controlled activity on waterfront land by removing material at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in the location labelled "Dam 5", in circumstances where there was no controlled activity approval for the said controlled activity; and ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the controlled activity, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 363(1) of the WM Act. e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 9: Details of Offence Description of Offence: Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 7 November 2019 and about 14 February 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 7 November 2019 and about 14 February 2020, the defendant, carried out a controlled activity on waterfront land at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a controlled activity approval for that activity. a) The defendant carried out a controlled activity Between about 7 November 2019 and about 14 February 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.928005 (latitude) 152.950386 (longitude), in the location labelled "Dam 6" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) On waterfront land At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland. c) The defendant did not hold a controlled activity approval for the activity Further Particulars: No person, including the defendant, has ever held a controlled activity approval for the said controlled activity. c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91E(1): i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91E(1) of the WM Act, in that it carried out a controlled activity on waterfront land by removing material at around GPS coordinates -30.928005 (latitude) 152.950386 (longitude), in the location labelled "Dam 6", in circumstances where there was no controlled activity approval for the said controlled activity; and ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the controlled activity, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 363(1) of the WM Act. e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 10: Details of Offence Description of Offence: Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 27 January 2020 and about 15 January 2021. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 27 January 2020 and about 15 January 2021, the defendant, carried out a controlled activity on waterfront land at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a controlled activity approval for that activity. a) The defendant carried out a controlled activity Between about 27 January 2020 and about 15 January 2021, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.928123 (latitude) 152.951472 (longitude), in the location labelled "Dam 7" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) On waterfront land At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland. c) The defendant did not hold a controlled activity approval for the activity Further Particulars: No person, including the defendant, has ever held a controlled activity approval for the said controlled activity. c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91E(1): i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91E(1) of the WM Act, in that it carried out a controlled activity on waterfront land by removing material at around GPS coordinates -30.928123 (latitude) 152.951472 (longitude), in the location labelled "Dam 7", in circumstances where there was no controlled activity approval for the said controlled activity; and ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the controlled activity, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 363(1) of the WM Act. e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 11 (as amended without objection at the hearing): Details of Offence Description of Offence: Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 14 February 2020 and about 28 July 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 14 February 2020 and about 28 July 2020, the defendant, carried out a controlled activity on waterfront land at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a controlled activity approval for that activity. a) The defendant carried out a controlled activity Between about 14 February 2020 and about 28 July 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in the location labelled "Dam 8A and 9" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) On waterfront land At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland. c) The defendant did not hold a controlled activity approval for the activity Further Particulars: No person, including the defendant, has ever held a controlled activity approval for the said controlled activity. c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91E(1): i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91E(1) of the WM Act, in that it carried out a controlled activity on waterfront land by removing material at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in the location labelled "Dam 8A and 9", in circumstances where there was no controlled activity approval for the said controlled activity; and ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the controlled activity, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 363(1) of the WM Act. e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 12: Details of Offence Description of Offence: Carrying out controlled activity on waterfront land without holding a controlled activity approval for that activity, contrary to section 91E(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 14 February 2020 and about 16 March 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 14 February 2020 and about 16 March 2020, the defendant, carried out a controlled activity on waterfront land at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the defendant did not hold a controlled activity approval for that activity. a) The defendant carried out a controlled activity Between about 14 February 2020 and about 16 March 2020, the defendant carried out a controlled activity, in that, the defendant removed material from the Property at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in the location labelled "Dam 8B" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) On waterfront land At the time the defendant carried out the said controlled activity, the area where the controlled activity was carried out, was the bed of a lake, namely, a wetland. c) The defendant did not hold a controlled activity approval for the activity Further Particulars: No person, including the defendant, has ever held a controlled activity approval for the said controlled activity. c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91E(1): i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91E(1) of the WM Act, in that it carried out a controlled activity on waterfront land by removing material at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in the location labelled "Dam 8B", in circumstances where there was no controlled activity approval for the said controlled activity; and ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the controlled activity, the defendant is taken to have committed the offence against s 91E(1) of the WM Act by the application of s 363(1) of the WM Act. e) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 13: Details of Offence Description of Offence: Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 13 December 2017 and about 1 April 2018. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440. Short Particulars: Between about 13 December 2017 and about 1 April 2018, the Defendant, constructed a water supply work at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the Defendant did not hold a water supply work approval for that work. a) The defendant constructed a water supply work Between about 13 December 2017 and about 1 April 2018, the defendant constructed a water supply work within Lot 1013 DP 849050 at the Property at GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in the location labelled "Dam 4" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) The defendant did not hold a water supply work approval for that work No person, including the Defendant, has ever held a water supply work approval for Dam 4. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91B(1): i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it constructed a water supply work, namely Dam 4, to store water, located on the Property at around GPS coordinates -30.926262 (latitude) 152.946955 (longitude), in circumstances where there was no water supply work approval for Dam 4; and ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the construction of Dam 4, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 14 (as amended without objection at the hearing): Details of Offence Description of Offence: Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 7 November 2019 and about 16 March 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 7 November 2019 and about 16 March 2020, the Defendant, constructed a water supply work at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the Defendant did not hold a water supply work approval for that work. a) The defendant constructed a water supply work Between about 7 November 2019 and about 16 March 2020, the defendant constructed a water supply work within Lot 1013 DP 849050 at the Property at GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in the location labelled "Dam 5" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) The defendant did not hold a water supply work approval for that work No person, including the Defendant, has ever held a water supply work approval for Dam 5. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91B(1): i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it constructed a water supply work, namely Dam 5, to store water, located on the Property at around GPS coordinates -30.927430 (latitude) 152.950352 (longitude), in circumstances where there was no water supply work approval for Dam 5; and ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the construction of Dam 5, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 15 (as amended without objection at the hearing): Details of Offence Description of Offence: Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 14 February 2020 and about 28 July 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 14 February 2020 and about 28 July 2020, the Defendant, constructed a water supply work at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the Defendant did not hold a water supply work approval for that work. a) The defendant constructed a water supply work Between about 14 February 2020 and about 28 July 2020, the defendant constructed a water supply work within Lot 1013 DP 849050 at the Property at GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in the location labelled "Dam 8A and 9" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) The defendant did not hold a water supply work approval for that work No person, including the Defendant, has ever held a water supply work approval for Dam 8A and 9. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91B(1): i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it constructed a water supply work, namely Dam 8A and 9, to store water, located on the Property at around GPS coordinates -30.923685 (latitude) 152.951767 (longitude), in circumstances where there was no water supply work approval for Dam 8A and 9; and ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the construction of Dam 8A and 9, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. Charge 16: Details of Offence Description of Offence: Constructing a water supply work without holding a water supply work approval for that work, contrary to section 91B(1) of the Water Management Act 2000 (WM Act). Time & Date of Offence: Between about 14 February 2020 and about 16 March 2020. Place of Offence: At or near 2302 Macleay Valley Way, Clybucca NSW 2440 Short Particulars: Between about 14 February 2020 and about 16 March 2020, the Defendant, constructed a water supply work at the property located at 2302 Macleay Valley Way, Clybucca NSW 2440 (the Property), and the Defendant did not hold a water supply work approval for that work. a) The defendant constructed a water supply work Between about 14 February 2020 and about 16 March 2020, the defendant constructed a water supply work within Lot 1013 DP 849050 at the Property at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in the location labelled "Dam 8B" on the map of the Property annexed to this Court Attendance Notice and marked "Annexure A". b) The defendant did not hold a water supply work approval for that work No person, including the Defendant, has ever held a water supply work approval for Dam 8B. Further Particulars: c) Alternative legal basis to establish liability In the alternative to the defendant being in direct contravention of s 91B(1): i. During the said period, Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) contravened s 91B(1) of the WM Act, in that it constructed a water supply work, namely Dam 8B, to store water, located on the Property at around GPS coordinates -30.923804 (latitude) 152.952075 (longitude), in circumstances where there was no water supply work approval for Dam 8B; and ii. By reason of the defendant being a director of Green Leaf Green Leaf Australia Group Pty Ltd (ACN 161 543 344) who was concerned in the management of the corporation and who knowingly authorised or permitted the construction of Dam 8B, the defendant is taken to have committed the offence against s 91B(1) of the WM Act by the application of s 363(1) of the WM Act. d) Evidence of the offence first came to the attention of an authorised officer on 25 March 2020. Evidence of the offence first came to the attention of any relevant authorised officer when it came to the attention of Leann Davidson, NRAR Senior Investigator, on 25 March 2020.

1. The charges may be grouped into 4 different categories: 1. Charges 1 to 4 relate to the 'use' of a water supply work without approval and are brought under s 91B of the WM Act. 2. Charges 5 and 6 relate to the construction of an extension to a dam and are brought under s 91B of the WM Act. 3. Charges 7 through 12 relate to carrying out a controlled activity without approval and are brought under s 91E of the WM Act. 4. Charges 13 through 16 are alternative charges to charges 7, 8, 11 and 12 respectively, of carrying out construction of a water supply work without approval and are brought under s 91B of the WM Act.
2. For the purposes of these remarks, I will refer to the property at 2302 Pacific Highway, Clybucca, simply as 'the Property', which has a legal description being Lot 1013 DP849060.
3. The company was the operator of a commercial farming business which primarily cultivated tomato, cucumber, and ginger crops at the Property in several greenhouses. The company is, and at all material times has been, the registered proprietor of the Property.
4. In broad summary, the prosecutor's case was that during the period that the company has owned the Property, several water storages and a channel were constructed in connection with the farming operations, and at no time had the company or any other person held approval to construct or use the said water storages and channel. The prosecutor's case was that these physically constructed works were, variously, water supply works as defined in s 4 of the WM Act and controlled activities as also defined by s 4 of that Act.
5. For convenience, the water supply works and controlled activities are referred to as 'dams', and although the defendant disagreed with the characterisation of those works and activities as 'dams', was content with that description for ease of reference during the proceedings.
6. The prosecutor's case was that the defendants constructed and used the dams without approval, contrary to the WM Act. It is that conduct that forms the basis of the charges which I have earlier described. All of the alleged offending occurred between 6 October 2016 and 25 February 2021.
7. A plea of not guilty was entered by the defendants in relation to all of the charges. The matters were heard on 27 November 2023 (day 1), 28 November 2023 (day 2), 29 November 2023 (day 3), 1 December 2023 (day 4), 22 April 2024 (day 5), 23 April 2024 (day 6), 26 April 2024 (day 7), 29 April 2024 (day 8) and 18 June 2024 (day 9). Mr McAuliffe, barrister, appeared for the prosecutor and Mr Carney, barrister, appeared for the defendants. On 18 June 2024, I heard closing submissions from Mr McAuliffe and Mr Carney, as well as further submissions from Mx Dennis, one of the solicitors representing the defendants. Each of the parties addressed the court relying on their written submissions which, for the prosecutor, were dated 24 May 2024 and for the defendants, were dated 17 June 2024.
8. At this point, it is convenient to describe the various charges by reference to each individual dam on the Property, given that these are the central objects of the various sets of proceedings, and because I will structure my remarks and findings by reference to the evidence and submissions concerning each of the individual dams: 1. Dam 1A was the subject of charge 5. The charge does not relate to the original construction of the dam, rather only the alleged extension of the dam contrary to s 91B of the WM Act. 2. Dam 1B was the subject of charge 6. Again, the charge does not relate to the original construction of the dam, rather only the alleged extension of the dam contrary to s 91B of the WM Act. 3. At this point, I note that there were no charges in respect of the construction or use of Dams 2 and 3. 4. Dam 4 was the subject of charges 1, 7 and 13. Charge 1 alleged the use of a water supply work without approval contrary to s 91B of the WM Act. Charge 13 was brought in the alternative to charge 7. Charge 7 alleged a controlled activity was carried out without approval contrary to s 91E of the WM Act. Charge 13, the alternative charge, alleged the construction of a water supply work without approval contrary to s 91B of the WM Act. 5. Dam 5 was the subject of charges 2, 8 and 14. Charge 2 alleged the use of a water supply work without approval contrary to s 91B of the WM Act. Charge 14 was brought in the alternative to charge 8. Charge 8 alleged a controlled activity was carried out without approval contrary to s 91E of the WM Act. Charge 14, the alternative charge, alleged the construction of a water supply work without approval contrary to s 91B of the WM Act. 6. Dam 6 was the subject of charge 9. Charge 9 alleged a controlled activity was carried out without approval contrary to s 91E of the WM Act. There was no alternative charge to charge 9. 7. Dam 7 was the subject of charge 10. Charge 10 alleged a controlled activity was carried out without approval contrary to s 91E of the WM Act. There was no alternative charge to charge 10. 8. Dams 8A and 9 were the subject of charges 3, 11 and 15. Charge 3 alleged the use of a water supply work without approval contrary to s 91B of the WM Act. Charge 15 was brought in the alternative to charge 11. Charge 11 alleged a controlled activity was carried out without approval contrary to s 91E of the WM Act. Charge 15, the alternative charge, alleged the construction of a water supply work without approval contrary to s 91B of the WM Act. 9. Dam 8B was the subject of charges 4, 12 and 16. Charge 4 alleged the use of a water supply work without approval contrary to s 91B of the WM Act. Charge 16 was brought in the alternative to charge 12. Charge 12 alleged a controlled activity was carried out without approval contrary to s 91E of the WM Act. Charge 16, the alternative charge, alleged the construction of a water supply work without approval contrary to s 91B of the WM Act.
9. Shortly, I will refer to and outline the evidence of an expert spatial analyst, Mr Alexander Martin Stuart, who was called in the prosecutor's case. His expert report was tendered as Exhibit 35. At page 9 of that report is 'Figure 3'. This was a document which was referred to extensively in the evidence. It showed the location of the various dams on the Property in a blue-coloured outline, with the location of the various greenhouses seen in the centre of the Property shown in white. An area referred to as a 'dumping area' can be seen in a yellow-coloured outline. The map is shown here:

Figure 3 (Map outlining the various dams on the Property in a blue-coloured line, with the location of the various greenhouses shown in white)

1. The prosecution's case was that despite the company holding: water access licence 30AL314462 (WAL 40201), approval 30CA314463, water access licence 30AL314500 (WAL 40216), approval 30CA214501 and approval 30BL207462, none of those approvals or licences permitted the company or Mr Lin to construct or use the water supply works, or to carry out the controlled activities that are the subject of the various charges brought in these proceedings.
2. By way of broad summary, the main issues in this case, arising from the defendants' closing submissions, were as follows: 1. Whether certain charges should be dismissed on the basis that they were commenced outside the statutory limitation period prescribed by s 364 of the WM Act. 2. Whether the Natural Resources Access Regulator had the power to initiate and maintain these proceedings. 3. Whether the WM Act excluded water collected from roofs from the control of the NSW State Government. 4. Whether certain dams on the Property can properly be characterised as 'water supply works', and 5. Whether the prosecutor can prove the existence of, and boundaries for, any wetland on the Property, and if so, whether the defendants held an honest and reasonable mistake of fact about this.
3. In this judgment, I record my verdict in each matter and the reasons for reaching those verdicts.
4. In reaching my verdicts, I have set out below the directions of law which I have applied.

B. LEGISLATION

1. Section 4 and the Dictionary of the WM Act contained the following relevant definitions of the words: 'construct', 'controlled activities', 'lake', 'use', 'water management work', 'water supply work', and 'waterfront land'. construct a work includes install, maintain, repair, alter or extend the work. controlled activity means - (a) the erection of a building or the carrying out of a work (within the meaning of the Environmental Planning and Assessment Act 1979), or (b) the removal of material (whether or not extractive material) or vegetation from land, whether by way of excavation or otherwise, or (c) the deposition of material (whether or not extractive material) on land, whether by way of landfill operations or otherwise, or (d) the carrying out of any other activity that affects the quantity or flow of water in a water source. lake includes - (a) a wetland, a lagoon, a saltmarsh and any collection of still water, whether perennial or intermittent and whether natural or artificial, and (b) any water declared by the regulations to be a lake, whether or not it also forms part of a river or estuary, but does not include any water declared by the regulations not to be a lake. use a water management work means - (a) in relation to a water supply work - (i) to operate the work for any purpose referred to in paragraph (a), (b) or (c) of the definition of water supply work, or (ii) to allow the work to operate for that purpose, or (b) in relation to a drainage work - (i) to operate the work for the purpose of draining water from land, or (ii) to allow the work to operate for that purpose, or (c) in relation to a flood work - (i) to operate the work for the purpose of influencing the flow of floodwater in the vicinity of the land on which the work is situated, or (ii) to allow the work to operate for that purpose. water management work means a water supply work, a drainage work or a flood work, and includes any part of such a work. water supply work means - (a) without limiting paragraphs (b)-(g), a work (such as a water pump or water bore) for the purpose of taking water from a water source, or (b) a work (such as a tank or dam) for the purpose of capturing or storing water, or (c) a work (such as a water pipe or irrigation channel) for the purpose of conveying water to the point at which it is to be used, or (d) any work (such as a bank or levee) that has, or could have, the effect of diverting water flowing to or from a water source, or (e) any work (such as a weir) that has, or could have, the effect of impounding water in a water source, including a reticulated system of such works, and includes all associated pipes, sluices, valves, metering equipment and other equipment, but does not include - (f) any work (other than a water supply work under the control or management of the Sydney Water Corporation, the Hunter Water Corporation or a local water utility) that receives water from a water supply work under the control or management of the Sydney Water Corporation, the Hunter Water Corporation or a local water utility, or (g) any work declared by the regulations not to be a water supply work. waterfront land means - (a) the bed of any river, together with any land lying between the bed of the river and a line drawn parallel to, and the prescribed distance inland of, the highest bank of the river, or (a1) the bed of any lake, together with any land lying between the bed of the lake and a line drawn parallel to, and the prescribed distance inland of, the shore of the lake, or (a2) the bed of any estuary, together with any land lying between the bed of the estuary and a line drawn parallel to, and the prescribed distance inland of, the mean high water mark of the estuary, or (b) if the regulations so provide, the bed of the coastal waters of the State, and any land lying between the shoreline of the coastal waters and a line drawn parallel to, and the prescribed distance inland of, the mean high water mark of the coastal waters, where the prescribed distance is 40 metres or (if the regulations prescribe a lesser distance, either generally or in relation to a particular location or class of locations) that lesser distance. Land that falls into 2 or more of the categories referred to in paragraphs (a), (a1) and (a2) may be waterfront land by virtue of any of the paragraphs relevant to that land.
2. For completeness, in relation to the definition of 'lake' above, the regulations do not make any declarations concerning areas that are, or are not, taken to be a lake.
3. Section 4A of the WM Act provides: 4A Meaning of "overland flow water" (1) In this Act, overland flow water means water (including floodwater, rainfall run-off and urban stormwater) that is flowing over or lying on the ground as a result of - (a) rain or any other kinds of precipitation, or (b) rising to the surface from underground, or (c) any other process or action of a kind prescribed by the regulations. (2) Water is flowing over the ground for the purposes of subsection (1) even if it flows over the ground by means of artificial structures such as roads, canals or road gutters. (3) However, subsection (1) does not include - (a) water that is collected from a roof (including water collected from a roof using a rainwater tank), or (b) water that is flowing over or lying on the bed of a river, lake or estuary, or (c) water flowing over or lying on the ground in such circumstances as may be prescribed by the regulations.
4. Section 88A of the WM Act provides: 88A Application and objects of Part (1) This Part applies to - (a) each part of the State or each water source, and (b) each type or kind of approval that relates to that part of the State or that water source, that is declared by proclamation to be a part of the State or water source, and type or kind of approval, to which this Part applies. Editorial note - For declarations proclaimed under this subsection see Gazettes No 110 of 1.7.2004, p 5004; No 120 of 29.9.2006, p 8441; No 127 of 27.10.2006, pp 8906, 8907; No 83 of 29.6.2007, p 3967; No 10 of 25.1.2008, p 151; No 11 of 31.1.2008, p 213; No 76 of 27.6.2008, p 5871; No 93 of 26.6.2009, p 3581 and No 109 of 31.7.2009, p 4665, and proclamations published on the NSW legislation website: 2010 (342) LW 1.7.2010; 2010 (739) LW 17.12.2010; 2011 (104) LW 28.2.2011; 2011 (152) LW 3.3.2011; 2011 (153) LW 3.3.2011; 2011 (521) LW 30.9.2011; 2011 (576) LW 11.11.2011; 2011 (677) LW 16.12.2011; 2012 (28) LW 27.1.2012; 2012 (135) LW 30.3.2012; 2012 (231) LW 1.6.2012; 2012 (352) LW 3.8.2012; 2012 (464) LW 14.9.2012; 2012 (496) LW 4.10.2012; 2015 (558) LW 18.9.2015; 2016 (350) LW 24.6.2016; 2016 (600) LW 30.9.2016; 2019 (318) LW 5.7.2019 and 2020 (290) LW 19.6.2020. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality. (2) Despite subsection (1), specified provisions of this Part may be declared by proclamation to apply to the whole of the State, and apply accordingly. (2A) To avoid doubt, the repeal, replacement or amendment of a management plan so as to remove, add or change the description of a water source described in a proclamation made under this section does not affect the application of this Part to the water source as effected by a proclamation previously made under this Part. (3) Without limiting section 3, the objects of this Part include ensuring that matters relating to safety are taken into consideration in granting water management work approvals for certain dams and flood retarding basins.
5. Section 89 of the WM Act provides: 89 Water use approvals (1) A water use approval confers a right on its holder to use water for a particular purpose at a particular location. (2) A water use approval may authorise the use within New South Wales of water taken from a water source outside New South Wales.
6. Section 90 of the WM Act provides: 90 Water management work approvals (1) There are three kinds of water management work approvals, namely, water supply work approvals, drainage work approvals and flood work approvals. (2) A water supply work approval authorises its holder to construct and use a specified water supply work at a specified location. (3) A drainage work approval confers a right on its holder to construct and use a specified drainage work at a specified location. (4) A flood work approval confers a right on its holder to construct and use a specified flood work at a specified location.
7. Section 91B of the WM Act provides: 91B Constructing or using water supply work without, or otherwise than as authorised by, a water supply work approval (1) A person - (a) who constructs or uses a water supply work, and (b) who does not hold a water supply work approval for that work, is guilty of an offence. Tier 2 penalty. (2) A holder of a water supply work approval who constructs or uses a water supply work otherwise than as authorised by the approval is guilty of an offence. Tier 2 penalty. (3) Without limiting subsection (2), a person constructs or uses a water supply work otherwise than as authorised by a water supply work approval if the person constructs or uses such a work while the approval is suspended. (4) This section does not prevent a person from constructing or using a drainage work or flood work in accordance with a drainage work approval or flood work approval. (5) It is a defence to a prosecution under subsection (1) if the accused person establishes that the water supply work was constructed or used pursuant to a basic landholder right.
8. Section 91E of the WM Act provides: 91E Carrying out controlled activity without, or otherwise than as authorised by, a controlled activity approval (1) A person - (a) who carries out a controlled activity in, on or under waterfront land, and (b) who does not hold a controlled activity approval for that activity, is guilty of an offence. Tier 2 penalty. (2) The holder of a controlled activity approval who carries out a controlled activity in, on or under waterfront land otherwise than as authorised by the approval is guilty of an offence. Tier 2 penalty. (3) Without limiting subsection (2), a person carries out a controlled activity otherwise than as authorised by a controlled activity approval if the person carries out such an activity while the approval is suspended. (4) This section does not prevent a person - (a) from constructing and using a water management work in accordance with a water management work approval, or (b) from carrying out an aquifer interference activity in accordance with an aquifer interference approval.
9. Section 91L of the WM Act provides: 91L Liability of occupier of premises for certain offences (1) The occupier of premises at which - (a) a water management work has been constructed or used in contravention of a provision of this Division, or (b) a controlled activity or aquifer interference activity has been carried out in contravention of a provision of this Division, is taken to have contravened that provision. (2) However, subsection (1) does not apply if it is established that - (a) the work was constructed or used, or the activity was carried out, by a person other than the occupier, and (b) the other person was not associated with the occupier at the time the work was constructed or used or the activity was carried out, and (c) the occupier took all reasonable steps to prevent the work being constructed or used or the activity being carried out. A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier. (3) Subsection (1) does not prevent proceedings being taken under this Act against the person who actually committed the offence.
10. Section 338A of the WM Act provides: 338A Powers of authorised officers to require information and records (1) The Minister may, by notice in writing given to a person, require the person to furnish to the Minister such information or records (or both) as he or she may require for the purposes of this Act. (2) An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as he or she may require for the purposes of this Act. (3) A notice under this Division must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished. (4) A notice under this Division may only require a person to furnish existing records that are in the person's possession or that are within the person's power to obtain lawfully. (5) The person to whom any record is furnished under this Division may take copies of it. (6) If any record required to be furnished under this Division is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.
11. Section 338B of the WM Act provides: 338B Power of authorised officers to require answers (1) An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required for the purposes of this Act to answer questions in relation to those matters. (2) The Minister may, by notice in writing, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation's representative for the purpose of answering questions under this section. (3) Answers given by a person nominated under subsection (2) bind the corporation. (4) An authorised officer may, by notice in writing, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered. (5) The place and time at which a person may be required to attend under subsection (4) is to be - (a) a place or time nominated by the person, or (b) if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised officer that is reasonable in the circumstances. (6) The authorised officer may, in the notice under subsection (4) or in a subsequent notice, authorise the person to answer the questions using an audio link or audio visual link of a kind approved by the authorised officer. (7) If the questions are to be answered by the person using an audio link or audio visual link - (a) the place at which the person is required to attend is taken to be any place having adequate facilities for the answering of questions in that way at the time nominated under subsection (5), and (b) the person must ensure the audio link or audio visual link is operated appropriately so that the answers given to the questions are clear to the authorised officer. (8) In this section - audio link means technology that enables continuous and contemporaneous audio communication between persons at different places, including telephones. audio visual link means technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing. (9) (Repealed)
12. Section 340B of the WM Act (which was relevant to issues arising on the voir dire held during the proceedings) provides: 340B Provisions relating to requirements to furnish records, information or answer questions (1) A person is not guilty of an offence of failing to comply with a requirement under this Part to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence. (2) A person is not excused from a requirement under this Part to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty. (3) However, any information furnished or answer given by a natural person in compliance with a requirement under this Part is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Part) if - (a) the person objected at the time to doing so on the ground that it might incriminate the person, or (b) the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person. (4) Any record furnished by a person in compliance with a requirement under this Part is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person. (5) Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Part is not inadmissible on the ground - (a) that the record or information had to be furnished or the answer had to be given, or (b) that the record or information furnished or answer given might incriminate the person. (6) This section extends to a requirement under this Part to state a person's name and address.
13. Section 363 of the WM Act provides: 363 Offences by corporations (1) If a corporation commits an offence against this Act or the regulations - (a) each person who is a director of the corporation, and (b) each person who is concerned in the management of the corporation, is taken to have committed the same offence if the person knowingly authorised or permitted the act or omission constituting the offence. (2) A person may be proceeded against and convicted under this section whether or not the corporation has been proceeded against or convicted. (3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation.
14. Section 364 of the WM Act provides: 364 Proceedings for offences (1) Proceedings for an offence against this Act or the regulations are to be disposed of summarily - (a) by the Local Court, or (b) by the Land and Environment Court in its summary jurisdiction. (2) Proceedings for an offence against this Act or the regulations may be commenced at any time within, but not later than, 3 years after the date on which the offence is alleged to have been committed. (3) Proceedings for an offence against this Act or the regulations may also be commenced at any time within, but not later than, 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer. (4) If subsection (3) is relied on for the purpose of commencing proceedings for an offence, the process by which the proceedings are commenced must contain particulars of the date on which evidence of the offence first came to the attention of any relevant authorised officer and need not contain particulars of the date on which the offence was committed. (5) The date on which evidence first came to the attention of any relevant authorised officer is the date specified in the process by which the proceedings are commenced, unless the contrary is established. (6) The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence against this Act or the regulations is - (a) the lesser of the following - (i) 200 penalty units, (ii) the maximum monetary penalty specified in respect of the offence, and (b) in the case of a continuing offence, 10 per cent of the further monetary penalty specified in respect of the offence for each day the offence continues. (7) The maximum penalty that may be imposed by the Land and Environment Court in proceedings for an offence against this Act or the regulations is the maximum penalty specified in respect of the offence. (8) In this section, evidence of an offence means evidence of any act or omission constituting the offence.
15. The term 'authorised officer' is defined in the Dictionary to the WM Act as: "…in relation to a provision of this Act, means a person authorised by the Minister under section 390 to exercise the functions conferred on an authorised officer by that provision".
16. Section 367 of the WM Act provides: 367 Evidentiary certificates (1) A certificate that is issued by the Minister and that states - (a) that an instrument, a copy of which is set out in or annexed to the certificate, being an instrument purporting - (i) to be issued, made or given for the purposes of this Act, and (ii) to have been signed by the person authorised to issue, make or give the instrument, or by another person acting as delegate or on behalf of the person, was issued, made or given on a specified day, or (b) that a document, a copy of which is set out in or annexed to the certificate, is a copy of part of, or an extract from, a register or water allocation account kept under this Act, or (c) that an image, a copy of which is set out in or annexed to the certificate - (i) is a photograph or other remotely-sensed image of a specified kind, and (ii) portrays specified land as at a specified date, or (d) that an amount payable under this Act by a specified person has, or has not, been paid, is admissible in any legal proceedings and is evidence of the fact or facts so stated. (2) A certificate that is issued by the Minister and that states that, on a date or during a period specified in the certificate - (a) a specified person was, or was not, the holder of a specified access licence or approval, or (b) a specified access licence or approval was, at a specified time, revoked or suspended for a specified period or was revoked or suspended subject to specified conditions, or (c) a specified condition of an access licence or approval was, at a specified time, imposed or revoked, or (d) specified land was, or was not, the subject of a specified approval, or (e) specified land was, or was not, within a specified water management area, or (f) a specified part of a water source was, or was not, within a specified water management area, or (g) a specified water management work was, or was not, at a specified location within a specified parcel of land, or (h) a specified water management work was, or was not, the subject of a specified water management work approval, or (i) the conditions of a specified access licence or approval were, or were not, as so specified, or (j) the terms of a specified available water determination were, or were not, as so specified, or (k) a specified person was, or was not, an authorised officer in relation to a specified provision of this Act, or (l) a specified person was, or was not, an authorised analyst, or (m) a specified person was, or was not, a member of staff of the Department, or (n) a specified delegation under this Act was, or was not, in force, or (o) a specified access licence or approval was, or was not, in force, or (p) specified matters were, or were not, recorded in the Access Register or were, or were not, recorded in specified terms, or (q) the water allocations credited to, or debited or otherwise withdrawn from, the water allocation account for a specified access licence were, or were not, as so specified, or (r) a specified number of water allocations were, or were not, credited to, or debited or otherwise withdrawn from, the water allocation account for a specified access licence, or (s) a specified quantity of water was, or was not, ordered in relation to a specified access licence, or (s1) a specified quantity of water that was taken was, or was not, taken from a specified water source or part of a specified water source, or (s2) Part 2 or 3 of Chapter 3 of this Act does, or does not, apply to a specified water source or part of a specified water source, or (t) information required to be furnished to the Minister or an authorised officer pursuant to this Act was, or was not, received, or (u) an approved river gauge had, or had not, been maintained in accordance with the requirements (if any) prescribed by the regulations, or (v) the readings on an approved river gauge were, or were not, as so specified, is admissible in any legal proceedings and is evidence of the fact or facts so stated. (3) In any legal proceedings, evidence is not required - (a) as to the accuracy or reliability of an approved river gauge, or (b) as to the manner in which an approved river gauge was operated, unless evidence is adduced that the gauge was not accurate, was not reliable or was not properly operated. (4) For the purposes of this section, a document purporting to be a certificate under this section is, unless the contrary is proved, to be taken to be such a certificate. (5) In this section, approved river gauge means a gauge of a type or design approved by the Minister, by order published in the Gazette, for the purpose of measuring the level or flow of water in a river or lake. (6) In this section - (a) a reference to a water management work includes a reference to a corresponding kind of work to which Part 2, 5 or 8 of the Water Act 1912 extends, and (b) a reference to an approval or access licence includes a reference to an entitlement (within the meaning of clause 2 of Schedule 10) that confers a corresponding authority.
17. Section 367B of the WM Act provides: 367B Rebuttable presumptions (1) In any proceedings for an offence against this Act or the regulations being taken against a landholder - (a) the fact that a water management work is or has been located - (i) on the landholder's land, or (ii) in a river or lake within the landholder's land, gives rise to a rebuttable presumption that the work was constructed by the landholder, and (b) the fact that a water management work is being or has been used - (i) on the landholder's land, or (ii) in a river or lake within the landholder's land, gives rise to a rebuttable presumption that the work is being or has been used by the landholder, and (c) the fact that water is being or has been taken from a water source by means of a water supply work situated - (i) on the landholder's land, or (ii) in a river or lake within the landholder's land, gives rise to a rebuttable presumption that the water is being or has been taken by the landholder, and (d) the fact that water is being or has been discharged into a water source by means of a drainage work situated on the landholder's land gives rise to a rebuttable presumption that the water is being or has been discharged by the landholder, and (e) the fact that water is being or has been used on the landholder's land gives rise to a rebuttable presumption that the water is being or has been used by the landholder, and (f) the fact that a controlled activity is being or has been carried out on waterfront land within the landholder's land gives rise to a rebuttable presumption that the activity is being or has been carried out by the landholder, and (g) the fact that an aquifer interference activity is being or has been carried out on the landholder's land gives rise to a rebuttable presumption that the activity is being or has been carried out by the landholder. (2) In any proceedings for an offence against this Act or the regulations being taken against the holder of an approval for a water supply work, the fact that water is being or has been taken from a water source - (a) by means of the work, or (b) through metering equipment installed in connection with the work, gives rise to a rebuttable presumption that the holder of the approval is or has been using the work to take water from that water source. (3) In any proceedings for an offence against this Act or the regulations, the fact that a work of the kind referred to in - (a) the definition of drainage work in the Dictionary, or (b) paragraph (a), (b) or (c) of the definition of water supply work in the Dictionary, is capable of being used for the purpose referred to in that provision gives rise to a rebuttable presumption that the work has been constructed or used for that purpose. (4) This section does not limit the operation of section 60E or 91L.
18. Section 392 of the WM Act provides: 392 State's water rights (1) For the purposes of this Act, the rights to the control, use and flow of - (a) all water in rivers, lakes and aquifers, and (b) all water conserved by any works that are under the control or management of the Minister, and (c) all water occurring on or below the surface of the ground (including overland flow water flowing over or lying there for the time being) other than water referred to in subsection (1A), are the State's water rights. (1A) Subsection (1) (c) does not include any of the following - (a) water that is collected from a roof (including water collected from a roof using a rainwater tank), (b) water occurring on or below the surface of the ground in such other circumstances as may be prescribed by the regulations. (2) The State's water rights are vested in the Crown, except to the extent to which they are divested from the Crown by or under this or any other Act. (3) The State's water rights prevail over any authority conferred by or under any other Act or law, except to the extent to which this or any other Act expressly so provides. (4) The State's water rights are not to be exercised in contravention of - (a) the powers conferred by section 15 of the Fire and Rescue NSW Act 1989 and section 26 of the Rural Fires Act 1997 on an officer in charge at a fire or hazardous material incident, or (b) the rights and obligations of the Snowy Hydro Company under a Snowy water licence within the meaning of the Snowy Hydro Corporatisation Act 1997, or (c) the rights conferred by the Local Land Services Act 2013 with respect to the watering of stock at stock watering places within the meaning of that Act.
19. The Water Management (Application of Act to Certain Water Sources) Proclamation 2016 (NSW) commenced on 1 July 2016 and declared that Parts 2 and 3 of Chapter 3 of the WM Act relevantly applies to the Water Sharing Plan for the North Coast Fractured and Porous Rock Groundwater Sources 2016 in respect of groundwater, and the Water Sharing Plan for the Macleay Unregulated and Alluvial Water Sources 2016 in respect of surface water.
20. The effect of the Proclamation and the above-mentioned water sharing plans was that Part 3 of Chapter 3 of the WM Act has applied to the Property since 1 July 2016.
21. It will be apparent from the terms of the statutory provisions themselves, however, it is important to clearly state the elements of the subject offences: 1. In respect of the s 91B offences: 1. A person constructs or uses a water supply work; 2. That person does not hold a water supply work approval for that work. 1. In respect of the s 91E offences: 1. A person carries out a controlled activity; 2. The controlled activity was on, in, or under waterfront land; 3. The person did not hold a controlled activity approval for the controlled activity.
22. Section 367 of the WM Act contains several rebuttable presumptions against a landholder, in this case the company, and not Mr Lin. Section 367B(1)(a) and (b) of the WM Act provide that a water management work located on the Property gives rise to a rebuttable presumption that the work was constructed or used by the company. Section 367B(1)(f) of the WM Act provides an identical presumption in respect of controlled activities.
23. The prosecutor also relied on the rebuttable presumption in s 367B(3) of the WM Act. The effect of s 367B(3) of the WM Act is that a work (such as a tank or a dam) that is capable of being used for the purpose of capturing or storing water gives rise to a rebuttable presumption that the work has been used for that purpose.
24. In respect of each of the 16 charged offences against the company (with the exception of charges 12 and 16), s 91L of the WM Act provides an alternative basis of liability to the alleged direct contraventions of those offences by the company. Section 91L of the WM Act provides that the occupier of a premises at which a water management work (which includes a water supply work) has been constructed or used in contravention of s 91B, is taken to have contravened that provision unless the factors set out in s 91L(2) are established.
25. In relation to the charges against Mr Lin (with the exception of charges 12 and 16), s 363 of the WM Act is relevant, and I outlined that provision earlier. It is an executive liability provision which provides that a director of a corporation that commits an offence under the WM Act is taken to have committed the same offence, if they knowingly authorised or permitted the act constituting the offence.

C. DIRECTIONS OF LAW

1. The most important and fundamental principle of law which I apply concerns the onus and standard of proof. As these were criminal prosecution proceedings, the burden of proving the guilt of the defendants was placed firmly on the prosecutor. The defendants start from the position that they are presumed innocent, and that presumption continues until the prosecutor satisfies me beyond reasonable doubt that they are guilty.
2. The defendants do not have to prove that they are innocent. Expressed another way, they do not have to prove that they are not guilty, and it is for the prosecutor to prove their guilt if it can. What the prosecutor must prove, beyond reasonable doubt, are the ingredients or essential facts contained in the charges. The words 'beyond reasonable doubt' are ordinary, everyday words and that is how I understand them.
3. The defendants elected to adduce evidence in the proceedings. This does not, however, alter the burden of proof, which always rests on the prosecutor.
4. I warn myself that suspicion, even strong suspicion, is not a substitute for proof beyond reasonable doubt.
5. I note that as the tribunal of fact, I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.
6. The court cannot convict if there is any rational hypothesis or reasonable possibility consistent with innocence. If upon review of all the evidence, the court is left with reasonable doubt whether the prosecution case has been made out, a verdict of acquittal must be entered.

D. RELEVANT LEGAL PRINCIPLES

1. The following legal principles are relevant to the determination of the charges.
2. Offences against both s 91B and s 91E of the WM Act are 'strict liability' offences. In this respect: 1. As to s 91B, see Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5 at [135]; and 2. As to s 91E, see Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42 at [38].
3. The issues in this case involve, in part, matters of statutory interpretation. This arises due to matters that the defendants raised in closing submissions. In this respect, I note the following: 1. In R v A2; R v Magennis; R v Vaziri (2019) 373 ALR 214; [2019] HCA 35, the Court said at [32]-[37]: "The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve. This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight. The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a "substantial miscarriage of justice" within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation. These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision. None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance". When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred (footnotes omitted)." 1. To these principles may be added the following: 1. "The primary object of statutory interpretation is to construe the relevant provision consistently with the language and purpose of all of the provisions of the statute." (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [69]); 2. "The meaning of a provision must be determined 'by reference to the language of the instrument viewed as a whole'" (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] quoting Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320 per Mason and Wilson JJ); 3. Statutory construction begins with a consideration of the text itself (although it does not end there) (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-47 [47]; R v A2 (2019) 269 CLR 507, 520-522 [32]-[37]); 4. The interpretation of a provision of an Act which will "best achieve the purpose of the Act" is to be preferred to any other interpretation (s 15AA Acts Interpretation Act 1901 (Cth); 33 Interpretation Act 1987 (NSW)); 5. The meaning of the text may require consideration of the context, including the general purpose and policy of a provision, and in particular the mischief it is seeking to remedy (R v A2; R v Magennis; R v Vaziri (2019) 373 ALR 214; [2019] HCA 35 [32]-[37] see also Australian Securities and Investments Commission v King (2020) 270 CLR 1; [2020] HCA 4 at [23] per Kiefel CJ, Gageler and Keane JJ, and, to similar effect, see at [71] per Nettle and Gordon JJ); 6. The statutory text must be considered in its context, which includes - where the provision is ambiguous or obscure - its legislative history and extrinsic materials (s 34 Interpretation Act 1987). But legislative history and extrinsic materials cannot displace the meaning of the statutory text (Commissioner of Taxation v Consolidated Media (2012) 250 CLR 503 at [39]); 7. If the text of a provision, read in context, "…permits of more than one meaning, then the choice between meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies" (SAS Trustee Corporation v Miles (2018) 265 CLR 137 at [20] per Kiefel CJ, Bell and Nettle JJ); 8. "Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense" (SAS Trustee Corporation v Miles (2018) 265 CLR 137, 162-163 [64] per Edelman J) - but "where…the clearer the natural meaning, the more difficult it is to justify departing from it" (SAS Trustee Corporation v Miles (2018) 265 CLR 137 at [64] per Edelman J quoting Arnold v Britton [2015] AC 1619, 1628 [18]); 9. "…unlike other extrinsic materials, Second Reading speeches are 'important and weighty sources of information that invite the available implication that these materials are more reflective of government intent'": R v RB [2024] NSWSC 471 at [37], citing Harvey v Minister for Primary Industry and Resources (2024) 98 ALJR 168 at [116]. "…the Second Reading Speech makes plain that the "mischief" to which the Bill was directed."
4. Also arising from the defendants' closing submissions are the principles concerning the common law excuse of 'honest and reasonable mistake of fact' and the drawing of inferences relying on Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
5. In respect of the common law excuse of 'honest and reasonable mistake of fact', in R v Narouz [2024] NSWCCA 14, the Court of Criminal Appeal reaffirmed at paragraphs [3] and [28] that in relation to an offence of strict liability (which, as I said earlier, ss 91B and 91E WM Act are examples of), this ground of exculpation is available, such that if raised by an accused, it must be negatived by the prosecution in order for the offence to be established. See also Proudman v Dayman (1941) 67 CLR 536 (at p 540) per Dixon J.
6. Where the excuse is available, and sufficient evidence has been led to permit the excuse to be left to the tribunal of fact, an offence can be excused if the prosecution does not negate that the accused person acted or failed to act under an honest and reasonable, but mistaken, belief in the existence of any fact which, if true, would make the act an "innocent act" (see Bell v Tasmania [2021] HCA 42 at [52] per Edelman and Gleeson JJ).
7. As stated in Ostrowski v Palmer (2004) 218 CLR 493 at [1], the relevant mistake must be one of fact and not of law, because ignorance of the law is no excuse.
8. In relation to the drawing of inferences relying on Jones v Dunkel, as was pointed out succinctly by the plurality in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [64], "The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party." The failure cannot fill gaps in the evidence, as distinct from enabling an available inference to be drawn more comfortably. See also Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165]-[167], [232].

E. EVIDENCE IN THE PROSECUTION CASE

1. I now turn to the evidence adduced in the prosecution case, which consisted of a series of documentary exhibits as well as oral evidence from various witnesses. I will set out this evidence in the order it was adduced at the hearing.

Evidence of Jennifer Davis (Days 1, 2, 3 and 6)

1. Jennifer Davis was employed as the lead investigator in relation to the matters involving the company and Mr Lin.
2. She enquired about when the subject offences came to the attention of an authorised officer.
3. She said a report was made on the Water NSW website and obtained a copy of the complaint, which related to construction works on the Property.
4. She obtained an email setting out the complaint, which was tendered as Exhibit 1.
5. She confirmed that the reference to the date of 21 February 2020 was the date the report was transferred from Water NSW to the Natural Resources Access Regulator service desk.
6. She said that the complaint was received via an anonymous report lodged on the Water NSW website.
7. Ms Davis confirmed that Kerry Budd, referred to in the email, was not an authorised officer for the purposes of the WM Act.
8. She was then shown a CIRaM item report setting out events that have occurred in respect of the complaint, that is, each step, enquiry, or analysis, which is recorded in the CIRaM database. CIRaM was a formal record keeping system for compliance and investigation matters to adequately record all relevant information.
9. She said that the first entry in relation to the case was on 24 February 2020 and was created by Susan Hillier. The CIRaM report was tendered as Exhibit 2.
10. She said that Susan Hillier was not an authorised officer for the purposes of the WM Act.
11. She said that Ms Hillier works in the customer service team, which receives incoming reports and complaints, where an initial assessment is made to prioritise the case.
12. She explained that a risk assessment document is created and uploaded to CIRaM, and in respect of the subject case, this was the document tendered as Exhibit 3.
13. She explained that the entry on 24 February 2020 at 11.11am was in respect of Richard Nevill's involvement in the case, and that he is an authorised officer under the WM Act.
14. A statement was obtained from Mr Nevill.
15. At this point, the evidence of Ms Davidson was interposed (summarised below), and Ms Davis's evidence resumed on the following day (Day 2). I will also return to the evidence of Mr Nevill.
16. Ms Davis went on to say that she has an unrestricted drone pilot licence and had completed courses on the operation of drones.
17. She became the lead investigator for this matter on 15 December 2020. She took this role from Scott Walker, who held the position temporarily, and immediately before him, Claire McGarity led the investigation.
18. She inspected the property on 23, 24, and 25 February 2021. She was aware prior to attending the Property that the company farmed the Property. She conducted an ASIC search of the company on 9 June 2022 which was tendered as Exhibit 9.
19. She also made enquiries of licences and approvals attaching to the company. Tendered as Exhibit 10 were 2 licences and 3 approvals, with a cover summary page.
20. She obtained images and videos using drones operated on the Property. To prepare for this, she used Google Earth mapping with assistance from Scott Walker. Two videos were taken using the drones, one of the videos was taken from a height of 20 metres and the other from a height of 100 metres. The drone footage, including the 2 video files, were tendered as Exhibit 11.
21. Tendered as Exhibit 12 was a 19-page document containing photographs captured by the drone mission on 23 February 2020. Ms Davis also explained the use of a sonar device which calculated the depth of the water in Dams 1A and 1B.
22. Her inspection also included a drone mission concerning Dam 2, photographs of which were tendered as Exhibit 13. Further photographs were tendered as Exhibit 14. The drone mission relating to Dam 3 and the photographs taken as a result were tendered as Exhibit 15. Photographs of Dam 3 at ground level were tendered as Exhibit 16. Ms Davis confirmed that she also operated the sonar device at Dam 3.
23. A further bundle of 27 photographs was tendered as Exhibit 17 showing, in the main, Dam 4, but with some shots which included Dams 3 and 5. Tendered as Exhibit 18 were 2 video files relating to Dam 4. The first video showed Dam 4 overtopping with water in multiple locations along the length of the dam wall. Ms Davis was standing at the location shown in Exhibit 17 at page 9. The second video showed the pump located in Dam 4. At that time, Ms Davis was standing at a T intersection of the dams as seen on page 5 of Exhibit 17.
24. Her evidence continued on day 3 of the hearing as follows.
25. Tendered through her evidence as Exhibit 19 was a 4-page bundle of photographs at ground level of Dam 4 taken on 24 February 2021. Ms Davis confirmed that a sonar device was used to measure the depth of Dam 4.
26. She then gave evidence that she attended to the site of Dam 5, which she described as large and full of water, with trees protruding from the water. The dam wall was higher than the surrounding land. She conducted a drone mission over Dam 5. Tendered as Exhibit 20 was a video showing Dam 5, as well as the Dam or Channel 9, and the spillway which runs perpendicular to the said channel.
27. She took 26 photographs of Dams 4 and 5 using the drone technology and these were tendered as Exhibit 21. Ground level photos of Dam 5 were tendered as Exhibit 22. Ms Davis confirmed that the sonar device was used in respect of the calculation of the depth of Dam 5.
28. A bundle of images taken of Dam 6 using the drone technology were tendered as Exhibit 23, and ground level photographs of that dam were tendered as Exhibit 24. Ms Davis explained the existence of dirt stockpiles proximate to dam 6 which were about 2-3 metres high relative to ground level.
29. Ms Davis said she returned to the property on 25 February 2021 at 8am with Mr Walker. She attended Dams 8A and 8B. She saw Dam 8A was full of water, was surrounded by thick vegetation and had an algal cover. A bundle of photographs of these 2 dams, with some images of Dam 9 as well, were tendered as Exhibit 25.
30. She said that Dam 8A was smaller than the other dams but was full of water and low lying compared to surrounding land. She said the sonar measuring device was used in respect of Dam 8A.
31. She then gave evidence about Dam or Channel 9 and the photographs taken from the drone mission relating to that site. These photographs were tendered as Exhibit 26. She described Dam 9 as a narrow channel, about 4 to 5 metres wide and full of water. The sonar device was not used to measure the depth; however, Ms Davis used a large tree branch, placed it into the water, observed the mark indicating the depth of the water and estimated that depth as about half a metre.
32. After this, she went to the middle of the property and observed a water tank and pump shed. These are indicated on page 2 of Exhibit 5. She took 2 photographs of the water tank, which were tendered as Exhibit 27. She also took 2 videos of the pump shed and these were tendered as Exhibit 28. She confirmed that the machinery was running.
33. She then inspected one of the greenhouses in the northeastern section of the property. A video of her inspection was included as a file in Exhibit 28. She described plants in the greenhouse that were placed in soil, and serviced by an irrigation system and piping, with drainage channels at the end of the greenhouse. She observed that these were tomato plants, with 4 rows in each greenhouse, and therefore estimated the total number of plants in each greenhouse in the order of 1,120.
34. She then went to the area described as the dumping area on Exhibit 5 and took 2 photographs, including of excavators at this location. These were tendered as Exhibit 29.
35. Tendered as Exhibit 30 were title documents in relation to the Property, confirming the company became the owner on 19 February 2013.
36. A voir dire was then held in relation to the admissibility of various notices sent to Mr Lin and the company, and the answers given. I will return to this.
37. Tendered as Exhibit 31 was a statement of Matthew Byrnes, who was employed as the branch manager at Tutt Bryant Hire Coffs Harbour. His work primarily involved managing day to day operations for Tutt Bryant Hire Coffs Harbour. On or about 21 or 22 December 2017, he recalled that he met with a male person who came to the business premises of Tutt Bryant Hire located at 28A Isles Drive, Coffs Harbour NSW 2450, the person: 1. Identified themselves as an employee of the Green Leaf company. 2. Came to inspect and hire machinery (21-24T excavators). 3. Did not speak English, spoke Chinese, and used Google or a similar mobile translation application to communicate, and 4. Hired a 22T Excavator on 19 January 2018.
38. Mr Byrnes' records showed that the company first became a customer in 2016. Between 2016 and 2020, the company hired machinery a number of times as dry hire only, meaning the equipment only without an operator. Tutt Bryant had no knowledge of what the machines would be used for. The company received excavators on each occasion they hired equipment. The size of the excavators varied from 24 tonne, 22 tonne, 14 tonne, 12 tonne, 8 tonne and 7.5 tonne. The tonnage refers to the weight of the excavator. Excavators are suitable for use in earthmoving.
39. On 4 April 2022, Mr Byrnes received a notice by email to provide information and records to Senior Investigator Jennifer Davis at the Natural Resources Access Regulator. On 5 April 2022, he accessed his hire records and took screen shots of the hiring event details for each time that the Green Leaf company hired machinery. He also looked up the payment details for each hire and noted who paid for the hire and the credit card type. He compiled those screenshots and the payment information in an email that he sent to Jennifer Davis on 19 April 2022. It included the following: 1. The screen shot, which contained rental number 8018468 from Tutt Bryant's records, indicated that a 14T excavator was hired by a customer recorded in his system as 'Green Leaf Farm'. The customer address was recorded as 2302 Pacific Highway, Clybucca. The excavator was delivered to that address on 3 December 2016 and was collected 16 December 2016. 2. The screen shot, which contained rental number 8019554 from Tutt Bryant's records, indicated that a 7.5T excavator was hired by a customer recorded in his system as 'Green Leaf Farm'. The customer address is recorded as 2302 Pacific Highway, Clybucca. The excavator was delivered to that address on 13 December 2016 and was collected 27 December 2016. 3. The screen shot, which contained rental number 8050802 Tutt Bryant's records, indicated that a 12T excavator was hired by a customer recorded in his system as 'Green Leaf Farm'. The customer address is recorded as 2302 Pacific Highway, Clybucca. The excavator was delivered to that address on 19 December 2017 and was collected 30 December 2017. 4. The screen shot, which contained rental number 8052547 from Tutt Bryant's records, indicated that a 22T excavator was hired by a customer recorded in his system as 'Green Leaf Farm'. The customer address is recorded as 2302 Pacific Highway, Clybucca. The excavator was delivered to that address on 19 January 2018 and was collected 29 January 2018. 1. However, on 9 March 2018, Mr Byrnes received an email from Roger Newport stating that he was not the contact responsible for the hire of the 22-Tonne excavator that occurred on 19 January 2018. 1. The screen shot, which contained rental number 20018822 from Tutt Bryant's records, indicated that an 8T excavator was hired by a customer recorded in his system as 'Green Leaf Farm'. The customer address is recorded as 2302 Pacific Highway, Clybucca. The excavator was delivered to that address on 9 March 2019 and was collected 13 March 2019. 2. The screen shot, which contained rental number 20042969 from Tutt Bryant's records, indicated that a 24T excavator was hired by a customer recorded in his system as 'Green Leaf Farm'. The customer address is recorded as 2302 Pacific Highway, Clybucca. The excavator was delivered to that address on 5 February 2020 and was collected 11 February 2020.
40. Mr Byrnes had also been provided with 4 Tutt Bryant invoices being invoice numbers 5062701, 5064677, 5065540 and 5065853. He recognised those as invoices issued by Tutt Bryant. Each invoice related to the hire of a 24-tonne excavator over a period from 5 February 2020 until 25 March 2020. The contract number for each of the 4 invoices is 20042969, which is also the contract and rental number for one of the screen shots he provided. The invoices related to the same hire, which had an original booking date of 5 February 2020 to 16 February 2020, but the hire had been extended up to 25 March 2020. During the hire, there had been several wet weather stand downs entered which were not charged days as the excavator was unable to be used due to weather. The excavator was supplied with two buckets: 1. Tilt Mud / batter bucket 2. 900mm general purpose tooth bucket.
41. On 9 November 2023, Mr Byrnes retrieved two emails from the Tutt Bryant records. One email related to rental number 8052547. The other email related to rental number 20042969.
42. His company hire records 'Site Details' are entered from booking details; the site address contact and any special delivery instructions are entered for each hire. Customer Details are details from their customer master and are unable to be updated unless they email their accounts department to make changes.
43. Mr Byrnes was not required for cross examination and therefore his evidence is accepted. No part of the defendant's closing submissions sought to challenge any of his evidence.
44. Ms Davis gave further evidence of a property inspection on 19 July 2022. She said she arranged interviews with company employees and sent notices to Huseng (Peter) Luo, who was no longer a director of the company, Meiqin Chen, who was also no longer a director of the company and Wenjun Yin, who worked part-time with the company. Mr Yin was responsible for irrigation on the Property. Ms Davis said she also contacted Roger Newport by phone on 7 April 2022 and asked him about his involvement with the company. He said that he was a former director of the company. He said he was there to help set up the farm and to get it established. He said that he was not aware of the existence of Dams 4 or 5 at the time he was working at the Property. He said Dam 1 was constructed when he left the company but that he had nothing to do with Dams 4 and 5. He said that he was aware of bores on the Property and arranged to have one sunk. He also arranged to have Dam 3 built.
45. Ms Davis also gave evidence of attempts to arrange for Peter Luo to give evidence in the proceedings, including the issue of a subpoena, but he told her he could not attend as he was in China.
46. Tendered through Ms Davis's evidence was the statement of Richard Nevill. This was marked as Exhibit 32. Mr Nevill was the manager of systems and assurance at the Natural Resources Access Regulator and had been employed in that role since 22 August 2022.
47. During the period of October 2018 to 8 August 2022, Mr Nevill's role at the NRAR was as the Principal Water Regulation Officer. His duties in that role included providing strategic direction and managing water regulatory projects to ensure the delivery of agreed outputs and outcomes. The role also provided water regulatory expertise into water-related planning processes and projects. It was not a component of the role to manage current investigations.
48. He was appointed as an authorised officer under s 390(1) of the WM Act on 3 May 2018.
49. As the manager of systems and assurance, he had access to the documents and business records held in relation to investigations under the WM Act.
50. For the purposes of preparing his statement, he accessed the electronic files held by NRAR in the compliance database CIRaM (the Compliance, Investigation Reporting and Management system) for the specific case reference 00472-2020 and obtained a copy of the case Item Detail Report, including details of the consolidated log (as accessed from CIRaM on 7 December 2022).
51. He said that he would have had access to the same CIRaM database and associated files at the time the CIRaM case identified as reference 00472-2020 was allocated to him. He said that CIRaM is used by the Natural Resources Access Regulator as a formal record keeping system for compliance and investigation matters, to adequately record all relevant information in a matter in accordance with the State Records Act 1998 (NSW).
52. The consolidated log in the Item Detail Report indicated that the matter was allocated to him in the CIRaM system on 24 February 2020 following a triage assessment on the same date. He did not recall being assigned that file, opening the file, or taking any other action in relation to it. He also did not recall being aware of the file being allocated to him. If he had been aware of the allocation of the matter to him, he would have taken immediate action to reallocate the matter to the appropriate work unit, at that time being the North East investigations team. That would have resulted in a system entry into the CIRaM case log indicating reassignment of the matter, like that which occurred on 25 March 2020 with Leann Davidson (Team Leader, Investigations North, Water Regulation East Branch) reallocating the case to herself.
53. Based on his review of the Item Detail Report, he can see that there were no entries in CIRaM between 24 February 2020 and 25 March 2020, and no action appears to have been undertaken in the case during that period. If he had taken any steps relating to the file, he would have recorded the steps that he took in CIRAM, as was his usual practice. He also said that the case was reallocated to the correct work unit by Lea Davidson on 25 March 2020.
54. He said that based on this information, he was very certain that he had no direct involvement in the matter.
55. Mr Nevill also gave further short oral evidence in chief on day 5 of the hearing. He confirmed that he was employed in a public service role at Dam Safety NSW.
56. Mr Nevill was then cross examined (again on day 5 of the hearing). He confirmed that he was first asked to recall the events that gave rise to his written statement on or about 30 November 2022. He was challenged about when notice of the subject matter of the initial complaint to Water NSW about the Property first came to his attention. He said that although he was an authorised officer, he did not carry a compliance case load at that time and the CIRaM entry was a system generated message which he was not given, such as by email.
57. In re-examination, he confirmed that he never checked CIRaM and never received notification that something had been allocated to him relating to the Property.
58. The defendants made closing submissions about Mr Nevill's evidence, and whether it could be relied upon to determine the issues in this case, including a statutory time limitation issue. I will outline my findings in relation to his evidence and the statutory time limitation later in these reasons.
59. Tendered as Exhibit 33 was the complete CIRaM database report relating to the subject case.
60. Ms Davis' evidence continued on day 6 of the hearing as follows.
61. She confirmed that the satellite image of the Property in Exhibit 41 was the document shown to Mr Lin during his recorded interview.
62. She confirmed that she had made attempts to contact Peter Luo but that he remained in China.
63. Ms Davis was cross examined (again on day 6 of the hearing).
64. She was questioned about the existence of channels to Dams 1, 4 and 5 from the greenhouses. She agreed that the dams potentially blocked recycled water from going into the swamp on the Property.
65. She was asked about the decision to commence the subject prosecutions having regard to the prosecutor's guidelines. She confirmed that she investigated the matters and put forward evidence of the alleged offences to her line manager, which was then reported to the prosecutor's enforcement committee. She said it was personally her decision to prosecute the subject offences. She prepared an internal document to the enforcement committee and made some comments about the discretionary factors relevant to the commencement of prosecution proceedings against the company and Mr Lin.
66. She was also asked about whether she was conscious of the limitation period for commencing proceedings and answered in the affirmative. She said she discussed the matters with the prosecutor's legal department in or around the middle of 2022. Finally, she was asked about the preparation of other witness statements in respect of the various matters, and she said that she had not seen any of those statements.
67. Ms Davis was not re-examined.
68. In closing submissions, Ms Davis's honesty, credibility and reliability as a witness was not challenged or impugned. At this juncture, it therefore suffices to say that I accept Ms Davis's evidence as honest, credible, and reliable. No part of her cross examination undermined her evidence in chief, and her evidence did not conflict with any objective or incontrovertible evidence otherwise adduced in the proceedings.

Evidence of Leann Davidson (Day 1)

1. At the time she gave evidence, she was employed as a Senior Ethics and Integrity Officer, and in March 2020 was employed at the Natural Resources Access Regulator as a Team Leader of Investigations.
2. She was an authorised officer under the WM Act.
3. Her main role was carrying out compliance investigations, which were geographically allocated and triaged in relation to their priority status.
4. She said that the priority of a matter affected whether it was reported to the team she managed. She said that the team had been busy because of the drought and high priority matters were allocated to her team. Medium level priority matters were put elsewhere so as not to distract her team. She said a high priority case would have involved an active taking of water or an oversized or substantial volume dam.
5. She said that she was familiar with the CIRaM database, which was a case management system. She said the database stores documents relevant to each case investigation. It maintains a running log and notes of the case including the documents created in relation to the particular case.
6. She confirmed that Exhibit 2 was a printout of the CIRaM case log for the present matter.
7. She was then asked about various entries in the CIRaM database in relation to the matter. In relation to the entry at 9.56am on 24 February 2020, she confirmed that Ms Hillier received the complaint and sent it through to the relevant team to take the appropriate action. She did not manage Ms Hillier. She said that the priority of the matter changed to 'medium' and at 11.11am the case was placed in the medium priority holding bucket.
8. The references in the entries relating to 25 March 2020 to a Chris Jones was a person employed as an Assistant Project Officer. He was a graduate trainee undertaking desktop assessments and he was not an authorised officer under the WM Act as at March 2020.
9. She said that her understanding of the matter as at 25 March 2020, was that the case was to do with groundwater issues and testing. She believed the case involved a potential minor or technical breach because some sort of licence was attached to the property. Her view, at the time of the potential criminality, was a groundwater bore licence breach.
10. She said that the matter was allocated to Chris Jones and was returned to her on 26 March 2020, when she then allocated the matter to Claire McGarity.
11. She said her understanding of the matter, at that time, was that it related to something to do with bore licences and involved a technical breach. She thought she would be able to close the matter down once it was looked at. She confirmed that the matter sat with Ms McGarity for about 2 months with no action in relation to the matter. Her view was that the matter could be resolved through phone calls and correspondence.
12. Ms Davidson was then cross examined. She was asked about why there were entries in the CIRaM database which were out of order, and she confirmed that she was asked to sign her statement in this matter in February 2023. She assumed she was asked to give a statement because she played a small role in the matter and that no one ever mentioned any limitation issue.
13. Ms Davidson was not re-examined.
14. In closing submissions, Ms Davidson's honesty, credibility and reliability as a witness was not challenged or impugned. At this juncture, it therefore suffices to say that I accept Ms Davidson's evidence as honest, credible, and reliable. No part of her cross examination undermined her evidence in chief and her evidence did not conflict with any objective or incontrovertible evidence otherwise adduced in the proceedings.

Evidence of Claire McGarity (Day 2)

1. Ms McGarity said she has a Bachelor of Civil Engineering with Honours, a Certificate IV in Government Investigations and was studying a Masters in Environmental Management.
2. Her current role was as a Senior Program Officer at the Department of Planning and Environment, and she had previously worked for the Natural Resources Access Regulator between 9 March 2020 and 1 April 2021.
3. Her role at the Natural Resources Access Regulator was to investigate potential breaches of water legislation and to administer water legislation in NSW. She was an authorised officer from 20 March 2020, being shortly after she started working at the regulator.
4. She said that she was aware of the complaint relating to the Property and had reviewed the CIRaM database for the matter. She said that CIRaM was used to make case notes and to record information about matters. She used it to record things she did and the information she gathered. She said she tried to enter all relevant information in relation to a matter on the same day, or possibly a week or 2 later, but generally she entered information into the database as soon as she could reasonably do it.
5. She said that Leann Davidson was her manager. The matter was allocated to her on 24 February 2020 and during the period up to 26 May 2020, she looked at information on the case at that time, but no investigations were carried out based on the case priority.
6. She confirmed that Exhibit 1 contained the subject complaint and did not view any satellite imagery. On 26 May 2020, the matter was re-allocated away from her, but was again allocated to her on 16 June 2020. On 30 June 2020, she uploaded google imagery relating to the Property to the CIRaM database. The imagery bore a date of 24 June 2020, and therefore it was at this time that she became aware about the existence of dams on the Property. In this respect, she calculated the maximum harvestable rights dam capacity for the Property using an online calculator and conducted a desktop investigation by accessing the satellite imagery for the Property.
7. She confirmed that prior to 16 June 2020, she had no information indicating the existence of dams on the Property.
8. Tendered through her evidence was Exhibit 4, being a map showing the boundaries of the Property, which had been annexed to the CIRaM database. She said that she determined there was a need to inspect the Property and requested that the case be changed to high priority. She found a phone number for the company and called the number on 27 July 2020, at which time she spoke with Jenna Wang, Operations Manager. She informed Ms Wang that there would be an inspection of the Property. The inspection took place on 28 July 2020. Tendered through her evidence was Exhibit 5 which shows the boundaries of the Property and the location of various dams and other features on said Property. She said that at 1.50pm on 28 July 2020, together with Mr Patrick Yeates, another investigator with the Natural Resources Access Regulator, they met Ms Wang at the Property. Also present were Mr Chris Yin and Mr Lin. She said that they attended the location of Dam 3 first. During their attendance at the Property, they took a total of 43 photographs, which were contained in a 26-page document and tendered as Exhibit 6.
9. She explained the content of the various photographs as follows: 1. She observed water in Dam 3 with a bank on its southern and eastern sides. There were 2 overflow points and 2 pumps which can be seen in photograph 1, and incidentally photograph 2 shows by-wash from that same dam. 2. She then drove to Dam 1, which is depicted in photographs 3 through 12. In her oral evidence, and under each photograph by way of a short caption, she has summarised what the photograph shows and other observations of the particular parts of the Property. 3. Tendered as Exhibit 7 was a USB stick containing 3 video files. The first file shows Dams 1A and 1B. The second file shows Dams 4 and 5. The third file shows Dam 5, with dam 6 in the background, and where Dam 9 meets Dam 5. 4. She went with Mr Yeates to Dam 4, and then onto Dam 5. Dam 4, Dam 5, and the dam wall between Dams 4 and 5 are variously depicted in photographs 13 through 31, with occasional reference to the dam 9 channel. 5. Photograph 26 shows the view of Dam 6. 6. Photographs 32 and 33 show Dam 9, and photograph 34 looks toward Dam 5. The video of Dam 5 was played and shows Dam 6 in the background and the location where Dam 9 meets Dam 5. 7. Photograph 36 shows Dam 9, with Dam 8B also seen in the right-hand side of the photo. 8. Photographs 37 and 38 shows Dam 8B, and photograph 39 shows Dam 8A.
10. Ms McGarity was cross examined. She agreed that where a dam overflows it may be called a spillway, and she confirmed she did not observe any spillway on Dam 1B or Dam 5. She observed a spillway between Dams 4 and 5 and said that the water level of Dam 4 was higher than Dam 5 by approximately 0.5 metres. She agreed that she did not review any rainfall data for the Kempsey area. She was asked to assume that the definition of a test dig was a test of the water table and soil profile of a site, and said based on that definition, she did not observed Dams 6 or 7 as test dig sites. She agreed that she did not see Dam 2. She agreed that she did not know Richard Nevill's level or position within the Natural Resources Access Regulator. By reference to Exhibit 4, she agreed that the purple-coloured lines indicated a level 1 stream under the Strahler system. Tendered through her cross examination was Exhibit 8 being a topographical or contour map which included the Property.
11. Ms McGarity was not re-examined.
12. In closing submissions, Ms McGarity's honesty, credibility and reliability as a witness was not challenged or impugned. At this juncture, it therefore suffices to say that I accept Ms McGarity's evidence as honest, credible, and reliable. No part of her cross examination undermined her evidence in chief and her evidence did not conflict with any objective or incontrovertible evidence otherwise adduced in the proceedings.

Exhibit 34

1. Tendered as Exhibit 34 on day 4 of the hearing was a certificate of evidence of Lisa Stockley dated 18 May 2023. Pursuant to s 367 of the WM Act and s 11(1)(e) of the Natural Resources Access Regulator Act 2017 (NSW) ('NRAR Act'), as a delegate of the Natural Resources Access Regulator, she certified the following matters: 1. Pursuant to s 367(1)(a) of the WM Act: 1. The Natural Resources Access Regulator Instrument of Delegation 2022 was made on 24 November 2022. 2. The Proclamation under the Water Management Act 2000 No 35 was made on 24 June 2016. 3. The Water Sharing Plan for the North Coast Fractured and Porous Rock Groundwater Sources 2016 No 375 of 2016 was made on 1 July 2016. 4. The Water Sharing Plan for the Macleay Unregulated and Alluvial Water Sources 2016 No 385 of 2016 was made on 1 July 2016. 1. Pursuant to s 367(1)(c) of the WM Act, the aerial satellite image prepared on 19 January 2023, annexed to the certificate, portrays the whole of the Property located at 2302 Macleay Valley Way, Clybucca NSW 2440 being Lot 1013 of Deposited Plan 849060, in the State of New South Wales as at 15 January 2021. 2. Pursuant to s 367(2)(a) of the WM Act, at all relevant times, being all dates falling within any charge period for any alleged offence, the company held: 1. Water Access Licence 40201 and Approval 30CA314463 (reference 30AL314462) (WAL 40201); 2. Water Access Licence 40216 and Approval 30CA314501 (reference 30AL314500) (WAL 40216); and 3. Water Management Works Approval 30BL207462. 1. Pursuant to s 367(2)(d) of the WM Act, no person, including the company and Mr Xiuming Lin, had ever held any water supply work approval under the WM Act or the Water Act 1912 (NSW) authorising the use of any water supply work, the construction of any water supply work, or the carrying out of any controlled activity on the Property. 2. Pursuant to s 367(2)(e) of the WM Act, at all relevant times, being all dates falling within any charge period for any alleged offence, the Property was located in the Mid North Coast Water Management Area. 3. Pursuant to s 367(2)(k) of the WM Act: 1. During the period 3 May 2018 to 2 May 2023, Richard Ashley Neville was an authorised officer under s 390(1) of the WM Act for the purposes of the Act generally; 2. During the period 16 August 2018 to 27 February 2023, Jennifer Davis was an authorised officer under s 390(1) of the WM Act for the purposes of the Act; 3. During the period from 16 August 2018 to 2 May 2023, Simon Robert Taylor was an authorised officer under s 390(1) of the WM Act for the purposes of the Act generally; 4. During the period 16 January 2019 to 23 February 2023, Scott Walker was an authorised officer under s 390(1) of the WM Act for the purposes of the Act generally; and 5. During the period 20 March 2020 to 1 April 2021, Claire McGarity was an authorised officer under s 390(1) of the WM Act for the purposes of the WM Act generally. 1. Pursuant to s 367(2)(s2) of the WM Act, at all times from 1 July 2016 until the date of this certificate, Part 2 and 3 of Chapter 3 of the WM Act applied to the following water sources which applied to the Property: 1. The North Coast Fracture and Porous Rock Groundwater Sources, which includes the New England Fold Belt Coast Groundwater Source; and 2. The Macleay Unregulated and Alluvial Water Sources 2016 which include the Coastal Macleay Water Source.

Evidence of Alexander Martin Stuart (Spatial Analyst) (Days 4 and 5)

1. Mr Stuart's expert report was tendered as Exhibit 35. For the reasons set out in his report, he expressed the following opinions.
2. There are several dams constructed on the Property with the combined capacity of approximately 181 megalitres (ML), broken down as follows: 1. Dam 1A: 1.6ML 2. Dam 1B: 29.7ML 3. Dam 2: 1.3ML 4. Dam 3: 14.1ML 5. Dam 4: 82.4ML 6. Dam 5: 52ML 7. Dam 8A: 0.2ML 8. Dam 8B: 0.2ML
3. Material had been excavated from within the dams to construct the dam walls. The resulting borrow pit created by the excavation was below the natural ground level. The maximum depth of each dam and the maximum depth below the natural ground level was as follows: 1. Dam 1A: max depth 2.5m, max depth below natural ground level 1.7m 2. Dam 1B: max depth 4.6m, max depth below natural ground level 2.7m 3. Dam 2: max depth 4.7m, max depth below natural ground level 4.6m 4. Dam 3: max depth 4.4m, max depth below natural ground level 2.9m 5. Dam 4: max depth 5.6m, max depth below natural ground level 2.3m 6. Dam 5: max depth 6.1m, max depth below natural ground level 2.5m 7. Dam 8A: max depth 1.1m, max depth below natural ground level 0.6m
4. As to the time of construction: 1. Dam 1A: see par [104] - [106], and as summarised in figure 22 on p 52 of the report (noting that in respect of this dam and all other dams discussed in this section, the internal references to figures within Mr Stuart's report have been deleted): "104. Dam 1A was not visible in an image captured on 23 November 2002, the site was covered with grass or pasture. I observed a small dam with a dam wall approximately 45m in length in an image captured on 11 November 2010. The dam wall appeared light in colour and was aligned in an East West direction parallel with the contour. I observed water in the dam directly adjacent to and upstream from the dam wall that appeared as a dark uniform area in the image. 105. I observed Dam 1A to be as described in paragraph 0 above in an image captured on 29 December 2019. The dam wall was largely obscured by vegetation and while water was not clearly visible, a dark area directly adjacent to and upstream from the dam wall indicated the presence of water or vegetation. I observed a new or modified dam wall at the same location as the existing dam wall, identified as a long (143 m) thin, light-coloured feature, in an image captured on 2 January 2020. I then observed water adjacent to and upstream from the modified dam wall in images dated 21 January 2020 and 27 January 2020. 106. From these observations, it is my opinion that initial construction of Dam 1A took place between 23 November 2002 and 11 November 2010. The dam wall was then extended between 29 December 2019 and 2 January 2020." Figure 22 (Dam 1A) 1. Dam 1B: see par [107] - [109], and as summarised in figure 23 on p 54: "107. Dam 1B was not visible in an image captured on 28 June 2014, the site was covered with grass or pasture. I observed a dam wall approximately 235 m in length in an image captured on 14 September 2014. The dam wall appeared light in colour and was aligned in an East West direction parallel with the contour. I observed water in the dam directly adjacent to and upstream from the dam wall that appeared as a uniform light brown area in the image. I also observed water covering a larger area adjacent to the dam wall in an image captured on 18 December 2014. 108. I observed Dam 1B to be as described in paragraph 0 above in an image captured on 6 October 2016. The dam wall was clearly visible, and I observed water adjacent to and upstream from the dam wall. I observed an extension to the dam wall to the East of the existing wall, identified with a combined total length of 340 m as a thin, light-coloured feature, in an image captured on 17 November 2016. I then observed water adjacent to and upstream from the extended dam wall in an image captured 17 May 2017. 109. From these observations, it is my opinion that initial construction of Dam 1B took place between 28 June 2014 and 14 September 2014. The dam wall was then extended between 6 October 2016 and 17 November 2016." Figure 23 (Dam 1B) 1. Dam 2: see par [110] - [111], and as summarised in figure 24 on p 55: "110. Dam 2 was not visible in an image captured on 13 April 2013, the site was covered with grass or pasture. I observed light coloured soil surrounding water in an image captured on 18 April 2014. I observed that the vegetation visible in the previous image had been removed and bare earth and water was visible at the same location. 111. From these observations, it is my opinion that construction of Dam 2 took place between 13 April 2013 and 18 April 2014." Figure 24 (Dam 2) 1. Dam 3: see par [112] - [113], and as summarised in figure 25 on p 57: "112. Dam 3 was not visible in an image captured on 11 November 2010, the site was covered with grass or pasture and a drainage line that flowed South-east. I observed earthworks at the location of Dam 3 and the adjoining buildings in an image captured on 13 April 2013. I observed that the vegetation visible in the previous image had been removed and bare earth was visible across the current location of Dam 3. I observed water directly adjacent to and upstream from the Dam 3 wall in an image captured 18 April 2014 and water covering a larger area of Dam 2 in an image captured on 17 May 2017. 113. From these observations, it is my opinion that construction of Dam 3 was underway on 13 April 2013 and that construction was completed by 18 April 2014." Figure 25 (Dam 3) 1. Dam 4: see par [114] - [115], and as summarised in figure 26 on p 59: "114. Dam 4 was not visible in an image captured on 17 May 2017, the site was covered with grass or pasture, trees and shrubs. I observed earthworks approximately 470 m in length at the location of Dam 4 in an image captured on 13 December 2017. I observed that the vegetation visible in the previous image had been removed and bare earth was visible along the alignment of what is currently Dams 4 and 5. I observed water directly adjacent to and upstream from the dam wall in an image captured 1 April 2018 and, in a higher resolution image captured on 8 August 2018. I measure the completed dam wall to be 505 m in length. 115. From these observations, it is my opinion that construction of Dam 4 was underway on 13 December 2017 and was completed by 1 April 2018." Figure 26 (Dam 4) 1. Dam 5: see par [116] - [117], and as summarised in figure 27 on pp 61 and 62: "116. Dam 5 was not visible in an image captured on 7 November 2019, the site was covered with grass or pasture, shrubs and trees. I observed earthworks in an image captured on 3 December 2019. I observed that the vegetation visible in the previous image had been removed and bare earth was visible across the current location of the Dam 5 wall. I observed earthworks consistent with construction of a dam wall on consecutive image dates; 27 January 2020, 14 February 2020 and 29 February 2020. I observed water adjacent to and upstream from the Dam 5 wall in an image captured 16 March 2020, water covering a larger area of Dam 5 in an image captured on 30 April 2020 and two high resolution images captured 15 January 2021 and 23-25 February 2021. 117. From these observations, it is my opinion that the earthworks for Dam 5 started between 7 November 2019 and 3 December 2019. I observed that construction of the dam wall mainly occurred between 27 January 2020 and 16 March 2020." Figure 27 (Dam 5) 1. Dam 6: see par [118] - [120], as summarised in figure 29 on p 64: "118. I reviewed Dam 6 on the RPAS imagery captured 23-25 February 2021 within ArcGIS and observed light coloured soil surrounding an excavation and a embankment extending on both sides of the excivation. I observed that the central part of the excavaion was filled with water and measured approximately 33 m long and 15 m wide. The combined embankments and excivated material on the Southern side of the feature measured 125 m in length. I also observed that the water adjacent to the two embankments was relatively shallow as vegetation was seen protuding out of the water. The excavaion was surrounded by a mosaic of plants with a small canopy size (<1 m) and water. 119. Dam 6 was not visible in an image captured on 7 November 2019, the site was covered with vegetation. I observed earthworks at the location of Dam 6 in an image captured on 3 December 2019. I observed that the vegetation visible in the previous image had been removed and bare earth was visible across the current location of Dam 6. I observed water within Dam 6 in an image captured 14 February 2020, water covering a larger area of Dam 6 in an image captured on 15 Janurary 2021 and a high resolution image captured 23-25 February 2021. 120. From these observations, it is my opinion that the construction of Dam 6 took place between 7 November 2019 and 14 February 2020." Figure 29 (Dam 6) (Excavation) 1. Dam 7: see par [121] - [123], as summarised in figure 31 on p 66: "121. I reviewed Dam 7 on the RPAS imagery captured 23-25 February 2021 within ArcGIS and observed areas inundated with water adjacent to and downstream from the Southern end of the Dam 5 wall. I observed that the shape of the excavaion was irrigular and was approximately 24 m long and 18 wide. I observed light coloured excivated material on the Eastern edge of the excivation noting that it was partially obscured by vegetation. I also observed that the excavaion was surrounded by a mosaic of vegetation and water. 122. Dam 7 was not visible in an image captured on 27 January 2020, the site was likely covered with vegetation. I observed earthworks inundated with water at the current location of Dam 7 in an image captured on 14 February 2020. I observed earthworks at the current location of Dam 7, adjacent to the current Dam 5 wall, in an image captured 29 February 2020. I observed water within Dam 7 in an image captured 15 January 2021 and a high-resolution image captured 23-25 February 2021. 123. From these observations, it is my opinion that construction of Dam 7 took place between 27 January 2020 and 15 January 2021." Figure 31 (Dam 7) (Excavation) 1. Dams 8A and 8B: see par [124] - [125], as summarised in figure 32 on p 68: "124. Dams 8A and 8B were not visible in an image captured on 14 February 2020, the site was covered with vegetation. I observed earthworks at the location of Dams 8A and 8B in an image captured on 29 February 2020. I observed that the vegetation visible in the previous image had been removed and bare earth was visible at the current location of Dams 8A and 8B. I observed the likely occurrence of water within Dams 8A and 8B in an image captured 16 March 2020 and water cover in high-resolution images captured on 15 January 2021 and 23-25 February 2021. 125. From these observations, it is my opinion that construction of Dams 8A and 8B took place between 14 February 2020 and 16 March 2020." Figure 32 (Dam 8) 1. Dam 9 (channel): see par [126] - [128], as summarised in figure 34 on p 71: "126. I reviewed Dam 9 on the RPAS imagery captured 23-25 February 2021 within ArcGIS and observed it to be a channel with a width typically less than 3 m. 127. Dam 9 was not visible in an image captured on 14 February 2020, the site was covered with vegetation. I observed earthworks at the location of Dam 9 in an image captured on 29 February 2020. I observed that the vegetation visible in the previous image had been removed and bare earth was visible across the current location of Dam 9. I observed water cover in high-resolution images captured on 15 January 2021 and 23-25 February 2021. 128. From these observations, it is my opinion that construction of Dam 9 took place between 14 February 2020 and 15 January 2021." Figure 34 (Dam 9)
5. His supplementary report was tendered as Exhibit 36. For the reasons set out in his report, he expressed the following opinions.
6. Based on the pre-construction wetland mapping, Dams 4 and 5 were largely constructed on waterfront land and approximately 50% of Dam 9 was constructed on waterfront land. Further, the excavation areas (Dams 6 and 7) and Dams 8A and 8B were constructed entirely on waterfront land (see figure on p 17).
7. Based on the current wetland mapping, Dams 4, 5 and 9 were partly on waterfront land and the excavation areas (Dams 6 and 7) and Dams 8A and 8B were wholly located on waterfront land (see figure on p 18).
8. Further, the impact of the construction of each dam on overland flow is as follows: 1. Dam 4: see par [61]: "61. Dam 4 captures overland flow from the centre of the Premises that flows in a Southerly direction along with water spilling out of Dam 3 and some overland flow from the access road to the Premises flowing East. When Dam 4 spills, the water exits the dam at the spill point at the Eastern end of the WSW and flows into Dam 5. Prior to the construction of Dam 4, water would have flowed to the central area along the Southern boundary of the Premises before flowing into the adjoining private property. It is my opinion that Dam 4 has impacted overland flow at the eastern and western ends of the dam wall, that is the areas not mapped as pre-construction wetlands." 1. Dam 5: see par [62]: "62. Dam 5 captures overland flow from the South-eastern corner of the Premises that flows in a South-westerly direction along with water spilling out of Dam 4. When Dam 5 spills, the water exits the dam at the spill point at the Eastern end of the WSW where it flows into a short channel and into the surrounding vegetation. Prior to the construction of Dam 5, water would have flowed to the central area along the Southern boundary of the Premises before flowing into the adjoining private property. It is my opinion that Dam 5 has impacted overland flow at the eastern end of the dam wall, that is the area not mapped as pre-construction wetland." 1. Dam 6 (excavation): see par [63]: "63. Dam 6 is located at a low elevation in the landscape in a relatively flat area with some water movement in a South-westerly direction likely prior to the construction of the WSW. Dam 6 collects water and potentially channels it for approximately 100 m however it is my opinion that water would have flowed in a similar direction prior to the construction of the WSW and that Dam 6 has not significantly changed the direction of flow. Given that Dam 6 is wholly within the pre-construction wetland mapping, it is my opinion that overland flow is not relevant to dam 6." 1. Dam 7 (excavation): see par [64]: "64. Dam 7 is located at a low elevation in the landscape in a relatively flat area with some water movement in a South-westerly direction likely prior to the construction of the WSW. Dam 7 potentially collects a relatively small amount of water and it is my opinion that water would have flowed in a similar direction prior to the construction of the WSW and that Dam 7 has not significantly changed the direction of flow. Given that Dam 7 is wholly within the pre-construction wetland mapping, it is my opinion that overland flow is not relevant to dam 7." 1. Dam 8A: see par [65]: "65. Dam 8A captures overland flow from the Western central section of the Premises that flows in an Easterly direction. Dam 8A is directly connected to Dam 9, a channel, so water collected in Dam 8A spills into the channel and flows South to Dam 5 where, if Dam 5 if full, it flows into a short channel and into the surrounding vegetation. Prior to the construction of Dam 8A, this water would have flowed approximately 30 m further East and into a natural drainage line before flowing South to the current location of Dam 5 and then to the central area along the Southern boundary of the Premises before flowing into the adjoining private property. Given that Dam 8A is wholly within the pre-construction wetland mapping, it is my opinion that overland flow is not relevant to dam 8A." 1. Dam 8B: see par [66]: "66. The catchment for Dam 8B appears highly constrained and its purpose is not clear. It may have been the original alignment for the channel (Dam 9) or perhaps it captures overflow from Dams 8A and 9. Dam 8B spills into Dam 9 and flows South to the spillway of Dam 5 where, if Dam 5 is full, it flows into a short channel and into the surrounding vegetation. Prior to the construction of Dam 8B, water would have flowed approximately 15 m further East and into a natural drainage line before flowing south to the current location of Dam 5 and then to the central area along the Southern boundary of the Premises before flowing into the adjoining private property. Given that Dam 8B is constructed directly upstream from the pre-construction wetland mapping, it is my opinion that changes to overland flow are not relevant to dam 8B." 1. Dam 9 (channel): see par [67]: "67. Dam 9 captures overland flow from the Western central section of the Premises that flows in a generally Eastern direction and water that spills from 8A. Water flows in a Southerly direction along the channel to the spillway of Dam 5 where, if Dam 5 is full, it flows into a short channel and into the surrounding vegetation. Prior to the construction of Dam 9, water would have flowed further East and into a natural drainage line that runs generally parallel to Dam 9 before flowing south to the current location of Dam 5 and then to the central area along the Southern boundary of the Premises before flowing into the adjoining private property. It is my opinion that Dam 9 has intercepted and redirected overland flow into Dam 5."
9. He gave further oral evidence in chief, which started and concluded on day 4, in which he explained the meaning of spatial analysis and his role as a spatial analyst at the Natural Resources Access Regulator. He also provided clarification evidence about the content of both Exhibits 35 and 36.
10. Mr Stuart was cross examined (day 5): 1. He was asked about his knowledge of the map accompanying the State Environmental Planning Police (Coastal Management) 2018 at p 116 of Exhibit 35. 2. He was also asked about the topographical characteristics and contours of the Property, and whether he had visited certain parts of the Property in particular the southwestern corner of Dam 4. 3. He was also questioned about the existence of drainage lines and channels on the Property.
11. In closing submissions, Mr Stuart's honesty, credibility and reliability as an expert witness was not challenged or impugned. At this juncture, it therefore suffices to say that I accept Mr Stuart's evidence as honest, credible, and reliable. No part of his cross examination undermined his evidence in chief and his evidence did not conflict with any objective or incontrovertible evidence otherwise adduced in the proceedings.

Evidence of Dr Lachlan Copeland (Botanist) (Day 5)

1. Dr Copeland's expert report was tendered as Exhibit 37. Dr Copeland is a professional botanist, who was principally engaged to express opinions about which dams, if any, had been built in areas which were a natural wetland immediately prior to the earthworks on the Property. For the reasons set out in his report, he expressed the following opinions.
2. A wetland is an area periodically subject to flooding or inundation, or prone to having waterlogged soil at least some of the time, and that predominantly supports hydrophytes, being 'water loving' plants dependent on high moisture levels.
3. Figure 13 (page 14), figure 14 (page 15) and figure 15 (page 17) show where natural wetlands existed prior to the construction of each dam, as follows: Figure 13 (Estimated extent of natural wetlands prior to construction of Dam 1B): Figure 14 (Estimated extent of natural wetlands prior to construction of Dams 4, 5, 6 and 7): Figure 15 (Estimated extent of natural wetlands prior to construction of Dams 8A, 8B and 9):
4. Most of Dam 4 (approximately 80%) was a wetland immediately prior to its construction.
5. At least some of Dam 5 (approximately 50%) was a wetland shortly prior to its construction.
6. All of Dam 6 was a wetland shortly prior to its construction.
7. All of Dam 7 was a wetland shortly prior to its construction.
8. All of Dam 8A was a wetland shortly prior to its construction, but all of Dam 9 (channel) was a naturally occurring drier area supporting non-wetland vegetation.
9. Dr Copeland was also cross examined (day 5): 1. He was asked about whether the Property was affected by drought in the period 2017 to 2019, to which he gave an affirmative answer. 2. He was asked about whether he observed any original fence line relating to Dam 5, to which he gave a negative answer. 3. He accepted that a dam may be called an unofficial wetland but that they introduce nasty weeds and modify the existing environment. 4. He was asked about the map accompanying the State Environmental Planning Police (Coastal Management) 2018 and said that he disagreed with it.
10. In closing submissions, Dr Copeland's honesty, credibility and reliability as an expert witness was not challenged or impugned. At this juncture, it therefore suffices to say that I accept Dr Copeland's evidence as honest, credible, and reliable. No part of his cross examination undermined his evidence in chief and his evidence did not conflict with any objective or incontrovertible evidence otherwise adduced in the proceedings.

Evidence of Mark Bonner (Day 6)

1. I then heard from Mark Bonner (day 6).
2. He was a Water Regulation Specialist with Water NSW. Prior to that role, he was a Water Regulation Officer, working in the licensing and compliance division within the Department of Primary Industries (Office of Water).
3. He said that his duties included the inspection of licence applications and general compliance and regulatory activities. He confirmed that he was an authorised officer under the WM Act from 2015.
4. He confirmed that in early 2015, he assessed a licence application made by the company. The application was for a bore for irrigation purposes on the Property. He conducted a site inspection of the Property on 27 February 2015. When he arrived, he met with a person named Roger Newport, who described himself as the onsite manager. Mr Newport accompanied him around the Property. He took several photographs, which were tendered as Exhibit 42. Tendered as Exhibit 43 was an aerial image with observed dams circled by Mr Bonner.
5. He went on to say that the purpose of the inspection was to view the proposed bore site location to the north of the Property. He said he only saw 2 dams on the Property at the time of the inspection, being the one to the north of the Property and the one circled on the document marked Exhibit 43.
6. After the inspection, the bore licence was issued for the Property with a 17 megalitre entitlement.
7. Mr Bonner was cross examined (day 6): 1. He was questioned about the photographs tendered as Exhibit 42 and his inspection of the Property. 2. He confirmed he had not had any discussions with Mr Newport after 2015 and was not aware of any further bore licence application in 2019. 3. He confirmed that drilling work on the Property was completed on 22 October 2019, and he would be able to ascertain who had visited the Property on that date. 4. He could not recall learning if the water from the bore on the Property was too salty for irrigation purposes.
8. Mr Bonner was briefly re-examined about whether an officer would attend the Property if the subject matter of an application was a test bore, and he answered in the negative.
9. In closing submissions, Mr Bonner's honesty, credibility and reliability as an expert witness was not challenged or impugned. At this juncture, it therefore suffices to say that I accept Mr Bonner's evidence as honest, credible, and reliable. No part of his cross examination undermined his evidence in chief and his evidence did not conflict with any objective or incontrovertible evidence otherwise adduced in the proceedings.

Evidence of Roger Newport (Day 7)

1. I next heard from Mr Roger Newport (on day 7).
2. He was a founding director of the company. He said he also held 10% of the shares in the company.
3. He said a person named Mr Xi, a Chinese national, was also a director, but recalls he ceased as a director in 2016. Mr Newport also said that he ceased to be a director 12 months after Mr Xi.
4. At the establishment of the company, he was the manager and organised to install the greenhouses, packing shed, internal roads and water. He said that the business was involved in cultivating tomatoes, capsicums, and cucumbers. He ended up having limited input into the establishment of the business.
5. He said that when the company started the business on the Property, there were 2 or 3 small dams. Tendered as Exhibit 44 was an aerial image indicating the location of one such dam being Dam 3, which was present when the company purchased the Property. He said that the dam was small and was full of water lilies.
6. The aerial image also showed Dam 4, which was another dam with water lilies and was overgrown with vegetation. He said that in the far northeastern corner of the Property there was another dam, but it was not useable. He also said that there was no irrigation infrastructure on the Property when the company purchased it.
7. He confirmed that Mr Lin became a director of the company. He was not aware when this happened but said that he was an investor and shareholder from 'day one'. He first met Mr Lin in 2013. Mr Lin was in control of growing and supplying the greenhouses (also known as 'hothouses'). In 2014, Mr Lin's role changed, and he became in control of spending, and while Mr Newport expected there to be 200-300 greenhouses, Mr Lin wanted 500.
8. Mr Newport said he made some expenditure decisions including repairs and transportation. He also bought new tractors and excavators.
9. He said that he initially lived on the Property for the first 12 months, and Mr Lin subsequently lived on the Property.
10. He said that Mr Lin's English was not good, and all communications were done through interpreters or other electronic means.
11. He said that he ceased to be a director on 7 November 2016, but continued to be involved as the manager of the Property. He reported to Mr Lin and Mr Xi. He said that Mr Xi left in 2015, and Mr Lin therefore became his boss. Mr Lin was responsible for major decision making after Mr Xi's departure.
12. Mr Newport also said that he had many dealings with Peter Luo, who started with the company in 2016. His role related to payroll, banking and organising workers in the packing shed. Mr Lin was also his boss.
13. He said that he was also aware of Ms Chen who organised all the labour for the company. Mr Lin was also her boss.
14. He confirmed that he was involved in construction works associated with Dam 3. He contacted the relevant water authority in Grafton and asked how he could get a dam constructed to capture water. Mr Newport said that he was told he did not need a development application because he had harvestable rights to build Dam 3. He said that he hired a contractor and was present when the dam was constructed. He said the water was used to irrigate the crops. It was constructed in 2013, and the greenhouses had also started being assembled.
15. He said that the southeast area of the Property was to be excluded from dam construction because it was an area of wetlands and was told the area where Dam 3 was built was the best location for it. It took 6 weeks to build the dam.
16. He said Dam 2 was not in fact a dam at all. He said the area was a good source of fill material to be used as the base of the packing shed. The area was used as a sediment pond, and there was no intention to use that water for commercial purposes.
17. He was involved in making a bore licence application. The company applied to NSW Water at Grafton and was granted a 17 megalitre water licence. He said that the bore was rarely used due to pump-related issues, but when used it was for irrigation purposes.
18. He said that Dam 1 was constructed in 2015/2016, and Mr Lin built the dam wall. He said he told Mr Lin that the company needed to apply for approval to build more dams. He said he assisted in the initial construction of Dam 1 by hiring an excavator from Tutt Bryant. He said that he was concerned the construction works might cause flooding to the neighbouring properties because it was leaking.
19. He was also aware of the construction of Dam 4. He said he saw Mr Lin and someone else build that dam using excavators.
20. He said that Mr Lin was the only person who had authority in relation to the construction of Dam 4.
21. Mr Newport said that he was familiar with the email tendered as Exhibit 31, which was sent because he was being hassled about payment of the Tutt Bryant invoice.
22. He said he had never seen Dams 5, 6, 7, 8 or 9.
23. He also said that he had a conversation with Mr Lin about approval requirements for the construction of Dams 1 and 3 and recalled telling Mr Lin that the company had already taken its harvestable rights from the Property.
24. Mr Newport was also cross examined (on day 7): 1. He confirmed that he ceased being employed by the company in 2018. 2. He said that he was aware of a test bore in 2019 because he had visited the Property after he left. He said the company was having issues with the pump. The bore had been approved in 2017. 3. He said that the bore was supplemented by Dam 3, and that the Property had a harvestable right of 44 megalitres, in the form of both groundwater and rainwater. 4. He said that the drought ended on Australia Day in 2020. 5. He said he recalled a fence on the Property, and there were 5 cows, but the Property was poor country for the purpose of maintaining stock. 6. He also said that when the Property was purchased in 2013, it was wet but got drier.
25. Mr Newport was not re-examined.
26. The defendants made closing submissions about his evidence, and whether it could be relied upon to determine the issues in this case. In particular, it was submitted that Mr Newports' demeanour in the witness box included a markedly 'self-protective posture', and he was careful in answering questions to give the impression that he was not involved in decisions of the farm even though he was the farm manager, and his role included applying for relevant approvals for the farm. I do not share that characterisation of his evidence or his demeanour. I perceived him to answer all questions asked of him in a direct and forthright manner, without any degree of prevarication.
27. In the same way as I have assessed other prosecution witnesses, his evidence did not contradict any objective or incontrovertible evidence adduced in the proceedings. I will make some further brief comments about his evidence shortly.

Evidence of Meiqin Chen (Day 7)

1. Finally, in the prosecutor's case I heard from Meiqin Chen (day 7), who gave evidence via a Chinese Mandarin interpreter.
2. She gave evidence that she worked for the company and resided at the Property. She started living at the Property in either 2014 or 2015. She has been a director of the company since 7 November 2016.
3. Her main role, or day-to-day responsibilities, include to assign work to the workers. The company grows tomatoes, cucumbers, and ginger, and she arranges for the workers to pick up the crops and fruit. The workers plant the crops and care for the crops.
4. She said that she had no role in relation to the management of company finances or approving payments by the company. Responsibility for these matters rested with Mr Lin. She said that she was a director together with Mr Lin and Peter Luo. She said that Mr Luo oversaw determining which markets the company's products went to. She said Mr Luo was not currently working on the farm, and she could not recall when he started working on the form. She said Mr Luo always had the same role. She said that Mr Lin was in charge.
5. She gave evidence that she recalled a period of drought which affected the crops on the Property. The crops died due to the drought, and although she could not recall when this happened, it was more than 5 years ago. This caused a financial impact to the company, and she was not sure about the exact amount of the losses suffered.
6. She also gave evidence that she was aware of the construction of dams on the Property. She said she did not know who decided to build the dams and did not know whether Mr Lin's approval would be required for a dam to be built. She said that she had no role in approving the construction of dams on the Property, she did not know who had that role, and she had no involvement in hiring construction equipment relating to the building of the dams.
7. Ms Chen was cross examined (day 7). She was asked about the level of education she received in China, and she said that she did not have much involvement in the school system, but she can write a little bit of Chinese. She has no English skills. She was not re-examined.
8. Ms Chen was the final prosecution witness.
9. In closing submissions, Ms Chen's honesty, credibility and reliability as an expert witness was not challenged or impugned. At this juncture, it therefore suffices to say that I accept Ms Chen's evidence as honest, credible, and reliable. No part of her cross examination undermined her evidence in chief and her evidence did not conflict with any objective or incontrovertible evidence otherwise adduced in the proceedings.
10. For completeness, also adduced in the prosecution case (on day 6) were several notices sent to the defendants, the responses to those notices, and a recorded interview between officers of the Natural Resources Access Regulator and Mr Lin. This material was the subject of a voir dire, because Mr Lin objected to the admission of this material into evidence in each of the proceedings brought against him in his personal capacity.
11. After hearing submissions on the voir dire, I determined that each document was admissible. My reasons for this finding are set out later. For present purposes, I will identify the evidence in general terms, but I will explain later on, in more detail, how I have used the evidence in making my findings: 1. Exhibit 38: 1. Notice to provide information and records under s 338A(2) of the WM Act, issued to the company dated 1 April 2021, which asked 44 questions and sought production of documents in 18 different categories; and 2. Answers and documents provided in response to the notice. 1. Exhibit 39: 1. Notice to nominate a corporation representative dated 20 July 2021; and 2. Response to notice dated 21 July 2021. 1. Exhibit 40: 1. Notice to answer questions at a specified place and time dated 13 August 2021. 1. Exhibit 41: 1. Recorded interview with Mr Lin on 31 August 2021, including transcript of interview. 2. Documents referenced during the interview.
12. This concluded the evidence adduced in the prosecution case.

F. EVIDENCE IN THE DEFENCE CASE

1. The company and Mr Lin conceded a prima facie case in each proceeding and elected to adduce evidence.
2. Tendered as Exhibit 45 was an expert report of Geoff Cresswell, who had tertiary qualifications in science, with majors in botany, plant physiology and ecology. He investigated the company's growing methods so as to give an opinion on the efficiency of water and fertilizer use on the Property. The report was tendered only on the issue of liability for the alleged offences and was not tendered on issues relating to the extent of environmental harm.
3. Mr Cresswell expressed the following opinions. The company's farm (referred to as the 'Green Leaf Farm') was highly productive in circumstances where the native soil is infertile and there is no reliable source of good quality water for irrigation. This was possible because a form of soilless culture (hydroponics) was used to grow crops which was both water and fertilizer efficient.
4. Vegetable farming using conventional soil methods would probably not be commercially viable on the Property because these practices need more water and fertilizer.
5. On Green Leaf Farm, crops were grown in bags filled with a premium grade coconut husk-based media (coir). This type of media is widely used in Australia for the intensive production of tomatoes, cucumbers, and berries. Coir is popular because it makes it easier to manage the supply of water and nutrients. Its use would be considered best practice in these intensive horticultural industries.
6. The grow bags are drip irrigated daily to replace water losses. Water applications are pulsed and regularly adjusted to match plant demand and minimize drainage losses. The irrigation schedule is controlled with a computer. This approach to watering is considered to be best practice for irrigation in vegetable production because it provides savings in water and fertilizer.
7. Fertilizer was dissolved in the irrigation water (fertigation) and was supplied in small amounts often to meet the crops requirement as it develops. The nutrient program was under computer control using the electrical conductivity (EC) of the solution as a proxy for fertilizer strength. The rates of fertilizer are varied with crop type and developmental stage.
8. Irrigation volume was kept to a minimum to reduce losses of water and fertilizer in the drainage water. Mr. Lin aimed for a leaching factor of <10% which is less than half of what is generally recommended for these growing systems.
9. The availability of water and fertilizer to the crop was monitored to detect and correct issues before production was seriously compromised. The irrigation manager mainly relies on visual symptoms to detect plant stress but also sends samples of leaves and water for independent testing. A simple moisture and EC probe was used to test the growing media in areas where crop performance is deteriorating. The use of plant media and water testing is industry best practice.
10. The farm had two sources of water: a bore which supplied water that is too saline for irrigation, and rainfall. There were no rivers or permanent water courses on the Property. The only possible way to farm the Property was to collect and store some of the water that falls on the land. Local rainfall records suggest that the volume of water falling on the farm was approximately 1,486ML in a wet year and 681ML in a dry year. In reality, less than half of this was available because much of the rainwater soaks into the soil. Only surface flows of water can be collected which are confined to times of heavy and continuous rain.
11. The water that falls on the plastic covered igloos was potentially a more dependable source of rainwater. Rainfall records for Kempsey suggest that the volume could be as much as 231ML in a wet year and 106ML in a dry year. The annual water requirement for the farm when all igloos are in full production was estimated to be approximately 154ML. This means that there is not enough water in a dry year.
12. The monthly requirement for irrigation water also varies considerably with season, ranging from around 19ML in summer to around 7ML in winter. A large water storage is, therefore, needed to buffer the supply of rainwater so that there is enough from month to month.
13. Green Leaf Farm cannot be drought proofed without a system to capture and store rainwater.
14. The current water storage capacity was estimated to be approximately 181ML, of which 164ML is held in Dams 4, 5 and 1B. This was more than the annual water requirement for the farm and so is clearly sufficient for all but the driest years.
15. In dry years, the farm will either have to buy water or cut back on the production area to reduce the water requirement. Trucking water into the farm was attempted in a previous drought.
16. The future of Green Leaf Farm depends on having a dependable source of fresh water for irrigation.
17. Mr Cresswell was not required for cross examination and therefore his evidence is accepted. No part of the prosecutor's closing submissions sought to challenge any of his evidence.
18. Tendered as Exhibit 46 was a tender bundle of miscellaneous material including parliamentary Bills, Hansard, and regulations, which was relevant to the defendants' closing submissions, which I will address shortly.
19. There was no reply case for the prosecutor.

G. FINDINGS

1. I now turn to the broad and specific issues arising in each set of proceedings. As briefly described earlier, the broad issues concerned whether certain sets of proceedings had been commenced outside the prescribed statutory limitation period under s 364 of the WM Act, whether NRAR had the power to commence the proceedings, and whether s 392 of the WM Act operated in such a way as to defeat the charges on the basis the WM Act excluded water collected from roofs. The specific issues concerned the circumstances of each of the individual dams on the Property, which I will shortly describe with greater specificity.

Time Limitation

1. The defendants submitted that the prosecutor commenced the proceedings relating to charges 5 to 16 outside the statutory limitation period prescribed by s 364 of the WM Act.
2. There are 2 ways to determine the applicable limitation period: either by s 364(2) of the WM Act, which says that proceedings must be commenced no later than 3 years after the date on which the offence is alleged to have been committed, or s 364(3) which says that proceedings for an offence may be commenced at any time, but no later than 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer.
3. Charges 1 to 4 in respect of both defendants, however, are alleged to have been committed on 24 February 2021, being within the 3-year limitation period provided by s 364(2) of the WM Act. Therefore, I am satisfied that no question arises as to whether those charges were commenced within the period required by s 364 of the WM Act.
4. The date specified in the court attendance notices for charges 5 to 16 as to when evidence of the alleged offences first came to the attention of an authorised officer within the Natural Resources Access Regulator was '25 March 2020'. Under s 364 of the WM Act, that date is assumed to be correct, unless the contrary is established.
5. That is, the defendants bear the onus of proving the date specified in the court attendance notices (being 25 March 2020) was not correct and that evidence of the alleged offences came to the attention of an authorised officer on an earlier date.
6. In Somerville v Chief Executive of the Office of Environment and Heritage [2020] NSWCCA 93, the Court of Criminal Appeal considered s 190(1)(b) of the National Parks and Wildlife Act 1974 (NSW) which is relevantly analogous to s 364 of the WM Act, and said at [63] - [68]: "63. The proper construction of an extended time limit in analogous provisions has been considered in various contexts. For example, in Younan, Robson J held, for the purposes of s 127(5A) of the EPA Act, that it was not necessary that the identity of the offender be known for evidence of the alleged offence to have come to the attention of the prosecutor: see also Witheyman v Van Riet [2008] 2 Qd R 587; [2008] QCA 168 at [15] (Fraser JA, Holmes JA and Daubney J agreeing). In Younan, his Honour held, at [78], that "'evidence of the alleged offence' on its face means evidence capable of indicating that an offence has been committed." 64. In Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428, this Court considered s 42 of the Native Vegetation Act 2003 (NSW) (now repealed), which relevantly provided: "(3) Proceedings for an offence under this Act or the regulations may be commenced within, but not later than, 2 years after the date on which the offence is alleged to have been committed. (4) However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer. (5) If subsection (4) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of an authorised officer is the date specified in the information or application, unless the contrary is established." 65. However, this Court's consideration was limited to the facts of the case. Ultimately, this Court held that Mr Rummery had not established on the balance of probabilities that the date specified in the summons (as to when evidence of the illegal clearing first came to the attention of the authorised officer) was incorrect. 66. The question of when time starts to run is ultimately a question of fact to be adjudged by applying the wording of s 190 to the facts of the given case. 67. The appellant contended that the searching, foraging, hunting and seizing of eggs in the manner carried out by him constituted evidence of the possession of the eggs. He submitted that such evidence had come to Mr Wade's attention prior to 6 November 2016 (being two years before the commencement of the proceedings). The difficulty with this submission is that, although the facts of which Mr Wade was aware, amounted to grounds for believing that the offences had been committed, he did not have evidence of an act or omission that constituted the offence within the meaning of s 190(4). He believed, by reason of the area in which the appellant conducted his activities and the timing of the foraging, that he was after the eggs of threatened species but without evidence of at least one egg being harmed or being in his possession, time under s 190(1)(b) did not start to run. 68. Section 190(1)(b) must be judged by reference to the contemporaneous knowledge of the prosecutor and not by hindsight. Evidence obtained by the prosecutor before evidence of the commission of the offence first came to his attention might be admissible as circumstantial evidence in an eventual hearing. However, it does not follow that such evidence constituted evidence of the commission of the offence for the purposes of s 190(1)(b) at the time it first came to the prosecutor's attention. The present case affords a useful example. In any defended hearing, the prosecutor might want to adduce evidence obtained during the surveillance period against the appellant. The purpose of the tender of such evidence might be to show that the egg collection found in his caravan was his egg collection and had not been left there by a third party. However, in circumstances where the prosecutor had no evidence that the appellant had harmed or possessed a single egg, I am not satisfied that time had started to run until the search warrant was executed on 10 November 2016. In Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull (No 3) [2019] NSWLEC 165, Pain J at par [55] held that diary notes relied upon by the defendant that related to different proceedings and native vegetation clearing not the subject of the charge before her did not establish that the prosecutor became aware of the alleged unlawful clearing for the purpose of the relevantly similar s 42(3) and (4) of the Native Vegetation Act 2003 (NSW) (now repealed). Likewise, at par [56], the court held that the fact that the prosecutor had access to electronic data held by a remote sensing specialist did not prove actual knowledge of the clearing by the authorised officer at an earlier point in time."
7. In Natural Resources Access Regulator v Littore [2024] NSWLEC 53, the court said at [61]: "61. Ordinarily the NRAR would bear the onus of demonstrating beyond reasonable doubt that the proceedings were brought within time. However, because of the wording of s 364(5) of the WMA, this burden is transferred to Littore to establish, albeit on the balance of probabilities, that the proceedings were commenced out of time (Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428 at [84], Younan at [57] and Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155 at [44])."
8. Further, in Littore, the court said at [78]: "78. A survey of the above cases reveals the following propositions that assist in the proper interpretation of the phrase "evidence of the alleged offence" in s 364(3) of the WMA: (a) first, "evidence of the alleged offence" means, as prescribed by s 364(8) of the WMA, "evidence of any act or omission constituting the offence". No gloss on these words is warranted. In other words, "evidence of the alleged offence" means any act or omission capable of indicating that the offence as charged has been committed (Younan and Somerville CCA); (b) second, what is required by way of knowledge will depend on the elements of the offence charged. An offence involving possession requires proof of a certain state of affairs, namely, the exercise of control over a particular thing and the identity of the offender (Somerville CCA), whereas an offence of carrying out development without consent where consent was required demands proof of knowledge of the development and the absence of any approval to carry it out (Younan); (c) third, having said this, evidence of all of the elements of the alleged offence is not required (Somerville CCA). Accordingly, in the example of an offence of carrying out development without consent, it is not necessary to know the identity of the person carrying out the unauthorised development (Younan); (d) fourth, mere speculation or belief, even if reasonable, will be insufficient to constitute the requisite degree of knowledge of the commission of the alleged offence (Rummery, Turnbull (No 3) and Somerville CCA); (e) fifth, the acts or omissions must be judged by reference to the contemporaneous knowledge of the prosecutor and not by recourse to hindsight (Somerville CCA); (f) sixth, the fact that the prosecutor merely has access to information that would constitute evidence of the alleged offence is not sufficient to establish the requisite knowledge (Rummery and Turnbull (No 3)); and (g) seventh, the question is one of fact (Somerville CCA), albeit informed by the statutory language of, and the statutory context within which, the time limitation exists."
9. The evidence adduced in the prosecution case revealed the following sequence of events.
10. At 5:06pm on 19 February 2020, an anonymous complaint concerning the company's bore water extraction was made on the WaterNSW website. It is recorded in Exhibit 1 and stated: "Green Leaf Farm @2302 Macleay Valley Way, Clybucca NSW 2440 is illegally tampering with ground/bore water reading and extracting bore water from unregistered wells for commercial purpose."
11. On 21 February 2020, the complaint was forwarded by Kerry Budd, who was employed by Water NSW and was not an authorised officer, to the NRAR email: nrar.servicedesk@industry.nsw.gov.au.
12. As set out previously, NRAR used a case management system called 'CIRaM'. CIRaM was used by NRAR as a formal record keeping system for compliance and investigation matters to adequately record all relevant information in a matter in accordance with the State Records Act 1998. Every time an NRAR employee interacted with a case they were required to keep notes of what they were doing in the running log recorded on CIRaM.
13. At 9:56am on 24 February 2020, Susan Hillier created a new case in the CIRaM database. Susan Hillier was not an authorised officer. Ms Hillier worked in the NRAR customer service team which received incoming reports about suspicious activities or alleged breaches, and logs those matters into the CIRaM system.
14. By 10:39am, Ms Hillier conducted a triage of the anonymous report which included completing the document, which is Exhibit 3, and attached it to the CIRaM system.
15. The triage document recorded that the "alleged activity involves groundwater take other than basic landholder rights" (emphasis added). A section of the triage document concerning excavation of controlled activities was not completed, consistent with the anonymous complaint being only concerned with groundwater.
16. At 11.08am on 24 February 2020, Ms Hillier changed the priority of the case from 'zero' to 'medium'.
17. Ms Leanne Davidson was employed by NRAR in March 2020 as the team leader for Investigations North East. At that time, Ms Davidson was an authorised officer. Ms Davidson gave evidence that the matters NRAR received were allocated to teams on a geographical basis and subject to a priority grading. High priority matters were allocated straight to Ms Davidson's team while 'medium bucket' cases were not.
18. At 11:11am on 24 February 2020, the CIRAM case log recorded that "Susan Hillier changed work unit of case to NRAR Investigations East, North, holding, and allocated to Richard Nevill". The 'East North Holding' business unit was responsible for the 'medium bucket'. Mr Nevill was an authorised officer.
19. Mr Nevill was "very certain that [he] had no direct involvement in this matter". He did not recall being assigned, opening, or taking any action in relation to the case. Mr Nevill stated that if he had been aware of the allocation of the matter to him, he would have reallocated it to the North East investigations team which would have been recorded on CIRaM. It was Mr Nevill's practice to record any steps taken in respect of a case on CIRaM.
20. There were no recorded entries on the CIRaM log until 25 March 2020, when Ms Davidson allocated the case to herself and changed the case's work unit to her team, that being Investigations North East. Consistent with Mr Nevill's evidence, there were no actions recorded on CIRaM by Mr Nevill.
21. Mr Nevill was cross examined. He stridently adhered to his evidence in chief. His evidence was not impugned, it was inherently plausible and did not contradict any objective or incontrovertible evidence otherwise adduced in the proceedings. Ultimately, therefore, there was no basis to doubt Mr Nevill's evidence that he was "very certain" that he had not direct involvement with the complaint in the period it was allocated to him.
22. On 25 March 2020, when Ms Davidson allocated the case to herself, she understood that it had "something to do with groundwater licenses and a test bore, and somebody had reported seeing a bore being drilled, I believe. So at that point it looked to me like it was probably, if it was a breach, a fairly minor breach, perhaps a technical breach, given that there seemed to be some sort of licence attached to the property. So it didn't seem to me that it was a particularly serious matter at that point".
23. In respect of the nature of the breach disclosed by the case at that stage, Ms Davidson only considered that it related to groundwater bore licences. This event, however, explains the prosecutor's choice of 25 March 2020, as the date when evidence of the alleged offences first came to the attention of an authorised officer within the Natural Resources Access Regulator.
24. One minute after allocating the case to herself, Ms Davidson allocated the matter to Chris Jones. Mr Jones was an assistant project officer and graduate trainee who was tasked with performing a desktop assessment of the case. Mr Jones was not an authorised officer.
25. Page 6 of Exhibit 2 recorded the actions taken by Mr Jones during his desktop assessment. These included locating the licences and work approvals relevant to the Property and identifying the company associated with the Property.
26. On 27 March 2020, Ms Davidson allocated the matter to an authorised officer, Claire McGarity. At that time, Ms Davidson had considered the information obtained by Mr Jones and remained of the belief that "it was something to do with bore licences, perhaps a technical breach".
27. No action was taken in respect of the case until 26 May 2020 when Ms Davidson removed the case from Ms McGarity's caseload "while she worked on other matters and be ready to allocate it when someone's got time to look at it, because it wasn't a priority". Ms Davidson also returned the case to the 'medium bucket' because she "did not think it was a high priority matter". She stated that: "From when I first saw it, when it came from triage until Chris finished his assessment, it appeared to be something to do with groundwater licences and probably a fairly minor matter, a technical breach or something like that, that could be resolved through perhaps phone calls and correspondence."
28. Ms Garity stated that she did not carry out any investigation tasks in the period from 27 March 2020 until 26 May 2020, but may have looked at some of the information attached to the system, including the information put on the system by Mr Jones relevant to licences and approvals. This included a map which was tendered as Exhibit 4. Exhibit 4 was not a satellite image and does not depict any of the alleged water supply works or controlled activities on the Property.
29. Following the removal of the case from Ms McGarity on 26 May 2020, Ms Davidson reallocated it to Ms McGarity 'for action' on 16 June 2020. On 30 June 2020, Ms McGarity attached several documents to the CIRaM system including satellite imagery that Ms McGarity obtained from Google Earth. The map was obtained sometime between 16 June 2020 and 24 June 2020. Ms McGarity was aware of this because she conducted harvestable right calculations on 24 June 2020.
30. Ms McGarity's evidence was that sometime between 16 June 2020 and 24 June 2020 she became aware of dams or bodies of water on the Property. Prior to 16 June 2020 she had not seen any information that indicated dams or water storages were on the Property.
31. The water supply works and controlled activities which were the subject of charges 5 to 16 were not constructed, extended, or carried out (i.e., excavated) on 27 February 2015 when Mark Bonner inspected the Property. There is also no evidence that an authorised officer inspected the Property during the approval of the test bore application. Mr Bonner's evidence was that inspections were not usually carried out for test bores.
32. I find that the first occasion an authorised officer considered the matter was, therefore, on 25 March 2020 when Ms Davidson allocated to the matter to a junior member of her team (who was not an authorised officer).
33. I find that the first occasion that evidence of the s 91B(1) offences came to the attention of any relevant authorised officer, however, was when Ms McGarity, with the knowledge that there were no water supply work approvals for the Property, became aware of dams on the Property by viewing satellite imagery sometime between 16 June 2020 and 24 June 2020. In respect of the s 91E offences, I find there was no evidence of an authorised officer becoming aware of any waterfront land boundaries prior to 30 June 2020 when Ms McGarrity made a recording on CIRaM that "two dams constructed are within the mapped Proximity Area for Coastal Wetlands".
34. I find, therefore, that the choice of 25 March 2020 as the date when the offences came to the attention of a relevant authorised officer was conservative in the defendant's favour because the evidence shows that, at that time, evidence of an act or omission of any of the alleged offences was unknown and the matter was only understood to relate to groundwater take.
35. Finally, I make the following further findings: 1. I do not consider that any aspect of Mr Newport's evidence casts any doubt on the evidence of any other prosecution witness insofar as it relates to the question of when evidence of the subject offences first came to the attention of an authorised officer. 2. Consistent with the authorities I cited earlier, no adverse inference can be drawn in relation to the fact neither Mr Hackett, Ms Hellier nor Mr Luo were called to give evidence in the prosecutor's case. Rather, an inference can be drawn that it would not have assisted the prosecution case. Also: 1. On all of the evidence adduced in the proceedings, I fail to see how anything Mr Hackett might have knowledge of would in any way bear upon proof, or otherwise, of the offences in these proceedings. His only apparent past connection with the Property involved the construction of Dam 3, which was not the subject of any criminal charge in these matters. 2. Ms Hillier was not an authorised officer, her involvement in the matter occurred at a time when evidence of the offences was not known to Water NSW or the Natural Resources Access Regulator, and in circumstances where I have accepted Mr Nevill as a truthful, credible, and reliable witness. The asserted failure to call Ms Hillier to corroborate Mr Nevill's evidence is not consequential. 3. Again, on all the evidence adduced in the proceedings, I fail to see how Mr Luo's involvement in the Property would, in any way, bear upon the resolution of the statutory limitation issue, particularly in circumstances where, as I have said, this issue turns upon the knowledge or awareness of an authorised officer. Noting also that I have accepted the honesty, credibility, and reliability of the prosecution witnesses whose evidence on this topic is centrally relevant.
36. It follows that the defendants have not established that evidence of the alleged offences came to the attention of an authorised officer prior to the date particularised in each court attendance notice of 25 March 2020. Consequently, I find the commencement of charges 5 to 16 on 1 March 2023 was within the 3-year period provided by s 364(3) of the WM Act.

Jurisdiction of the Natural Resources Access Regulator to Initiate and Maintain the Prosecution Proceedings

1. The defendants submitted that, by operation of s 11 of the NRAR Act, the prosecutor in these proceedings has not been statutorily conferred the function of initiating and maintaining criminal prosecution proceedings in respect of the offences, relevantly, under the WM Act. In particular, it was submitted that s 11(1)(e) of the NRAR Act and Schedule 2 do not give the prosecutor the power to bring these proceedings.
2. I find the defendants' submissions about the power of the prosecutor to initiate and maintain these proceedings to be misplaced, and I therefore do not accept them. I find the answer is revealed by the following sequence of statutory provisions.
3. For completeness, I set out s 11 and Schedule 2 of the NRAR Act: 11 Functions of Regulator (1) The Regulator has the following functions - (a) to prepare strategies, policies and procedures relating to enforcement powers under the natural resources management legislation, (b) to advise and report to the Minister or any relevant Minister on any matter relating to the administration of the natural resources management legislation, (c) to provide the Minister or any relevant Minister with such other advice or reports as the Minister or relevant Minister may, by instrument in writing, request, (d) to publish details of convictions in prosecutions for offences under the natural resources management legislation, (e) such functions under the natural resources management legislation as are specified in Schedule 2, (f) any other functions conferred or imposed on the Regulator (including by way of delegation) by or under the natural resources management legislation or any other Act. (2) A function specified in Schedule 2 (a specified function) that is conferred on the Regulator by subsection (1) (e) may, despite that conferral, also be exercised by the person (the relevant person) on whom the function is conferred under the natural resources management legislation referred to in that Schedule. (3) The regulations may amend Schedule 2 by - (a) adding a function under the natural resources management legislation, or (b) amending or removing a specified function, but only with the concurrence of the relevant Minister administering the natural resources management legislation (other than this Act) under which the function is conferred. (4) The regulations may make provision for dealing with matters that are incidental to or consequential on the conferral of a specified function on the Regulator. (5) In particular, the regulations may - (a) require a reference in the natural resources management legislation to the relevant person or any other person to be construed as (or as including) a reference to the Regulator, and (b) deal with matters arising in connection with the exercise of a specified function by both the Regulator and the relevant person. (6) If a person has a right to appeal against, or to apply for a review of, a decision of the relevant person in exercising a specified function, the right extends to any decision of the Regulator in exercising that function. Schedule 2 Additional functions of Regulator (Section 11 (1) (e)) 1 Ministerial functions under Water Management Act 2000 The functions of the Minister administering the Water Management Act 2000 or the Water Administration Ministerial Corporation under any of the following provisions of that Act - (a) section 60G (Minister may charge for water illegally taken), (b) section 78 (Suspension and cancellation of access licences), (c) section 78A (Notification of intention to suspend, cancel or require payment of penalty), (d) section 91I (Taking water when metering equipment not working), (e) section 109 (Suspension and cancellation of approvals), (f) section 325 (Directions concerning waste of water), (g) section 326 (Directions to install and maintain metering equipment), (g1) section 326A (Compliance audits), (g2) section 326B (Use of information), (h) section 327 (Stop work order regarding unlawful construction or use of water management work), (i) section 328 (Stop work order regarding unlawful controlled activity or aquifer interference activity), (j) section 329 (Removal of unlawful water management works), (j1) section 330 (Temporary stop work to protect public interest), (k) section 331 (Directions to holders of basic landholder rights), (l) section 332 (Directions concerning damage caused by straying stock), (m) section 333 (Directions to protect water sources), (n) section 334 (Directions to prepare reports), (o) section 335 (Land and Environment Court may grant injunctions), (o1) section 336 (Restraint of breaches of this Act), (p) section 336A (Remedial measures may be taken by Minister), (p1) section 336D (Prior notice of direction not required), (p1a) section 336E (Enforcement of undertakings), (p1b) section 336F (Notice of decision and reasons for decision), (q) section 338A (Powers of authorised officers to require information and records), (r) section 338B (Power of authorised officers to require answers), (s) section 339E (Assistance to be given to authorised officers), (s1) section 339G (Compensation), (t) section 340C (Revocation or variation), (t1a) section 362C (Unpaid fees, charges and civil penalties), (t1) section 365 (Penalty notices), (u) section 367 (Evidentiary certificates), (v) section 390 (Authorised officers and analysts).
4. First, s 12 of the NRAR Act provides: 12 Regulator to determine whether proceedings for offences should be instituted (1) The Regulator is to determine whether proceedings for offences under the natural resources management legislation should be instituted by the Crown. (2) The Regulator may not determine that any such proceedings should be instituted unless the determination is supported by legal advice. (3) In this section, the Crown means the Crown within the meaning of the Crown Proceedings Act 1988, and includes any officer, employee or agent of the Crown. (4) Criminal proceedings may not be challenged on the ground that they were instituted in contravention of this section.
5. Secondly, s 3 of the Crown Proceedings Act 1988 (NSW) relevantly provides: 3 Definitions In this Act: … Crown means the Crown in right of New South Wales, and includes: (a) the Government of New South Wales, and (b) a Minister of the Crown in right of New South Wales, and (c) a statutory corporation, or other body, representing the Crown in right of New South Wales. …
6. Thirdly, s 4 of the NRAR Act provides: 4 Constitution of Regulator (1) There is constituted by this Act a body corporate with the corporate name of the Natural Resources Access Regulator. (2) The Regulator is a NSW Government agency. …
7. Fourthly, s 13A(1) of the Interpretation Act 1987 provides: 13A NSW Government agencies and statutory bodies representing the Crown (1) If an Act provides that a body is - (a) a NSW Government agency, or (b) a statutory body representing the Crown, the body has the status, privileges and immunities of the Crown.
8. Finally, s 14 of the Criminal Procedure Act 1986 (NSW) provides: 14 Common informer (cf Fines and Penalties Act 1901 sec 4) A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.
9. I note that the right to institute a prosecution or proceeding is not expressly conferred by the WM Act on a specified person or class of persons.
10. Accordingly, putting to one side s 12 of the NRAR Act, s 14 of the Criminal Procedure Act 1986 authorised the Natural Resources Access Regulator to initiate and maintain these proceedings. It does not matter, as the defendants submitted, that s 11 and Schedule 2 of the NRAR Act does not expressly confer the function of commencing prosecution proceedings on that entity, because, I find, there was another source of statutory power.
11. Further, nothing in the parliamentary Hansard concerning the debate on the Bill which ultimately led to the passing of the Natural Resource Access Regulator Act 2017, which the defendants identified in their closing submissions by reference to Exhibit 46, causes me to form a different view. I likewise find that the parliamentary debates and speeches which the defendants identified in their closing submissions do not in any way cast any doubt over the Natural Resources Access Regulator's power to have initiated and maintained these proceedings relying on s 14 of the Criminal Procedure Act 1986. Expressed in terms of the case authorities I cited earlier, this finding does not contradict the purpose or intent of the legislation as reflected in, for example, the second reading speeches or other parts of the Hansard upon which the defendants relied.

Application of s 392 of the WM Act

1. In relation to the charges laid under s 91B of the WM Act, the defendants submitted that the water collected in the structures described as Dams 1A and 1B, Dam 4, Dam 5, Dam 8 and Dam 9 was collected from a roof, which falls outside the jurisdiction of the WM Act by reference to ss 4A (meaning of 'overland flow water') and 392(1A), namely, because that category of water does not fall under the control of the NSW State Government.
2. On a proper construction of s 91B of the WM Act, nothing about the operation or effect of ss 4A or 392 touch or concern any of the elements of an offence against that provision. The subject charges are not concerned with the source of the water. Section 392 of the WM Act is solely concerned with vesting in the Crown the State's water rights, which are defined in subsection (1), with subsection (2) providing a carve out of those rights. That is, the State's water rights do not include water collected from a roof, or water occurring on or below the surface of the ground in such other circumstances as may be prescribed by the regulations.
3. In summary, no part of s 392 of the WM Act prevents a prosecutor from being able to prove an offence against s 91B of the Act, including on the basis that the subject water was collected from a roof. Put simply, on a proper construction and understanding of s 392 of the WM Act, the provision has no implications on proof or otherwise of an offence against s 91B of the WM Act.
4. The defendants relied on the evidence of Mr Creswell, including his calculations and measurements of the volume of rainwater falling on the roofs of the 498 greenhouses on the Property. Those measurements showed that the volume of roof water was greater than the volume of water collected in the roof water storage collected in Dams 1A, 1B, 4, 5, 8 and 9. The defendants made submissions in this context about their harvestable rights allocation. I have already identified the evidence about this. It was further submitted that the company did not exceed its harvestable rights allocation as roof water storage should not be included in the calculations of water stored on the Property.
5. To the extent that the defendants seek to rely on some exemption from the requirement for an approval to defeat the s 91B charges, relying on their asserted harvestable rights allocation (such as under s 91M of the WM Act), no attempt was made in the proceedings to calculate those rights. There was no evidence adduced in these proceedings on this matter upon which the court could rely.
6. I, therefore, find the defendants' reliance on ss 4A and 392 of the WM Act to be misplaced.

Specific Issues

1. I now turn to my findings on the specific issues arising in relation to each of the separate dams on the Property. Before doing so, I make the following relevant factual findings which I did not understand to be in dispute.
2. First, the company is an Australian proprietary company limited by shares. The company was registered on 6 December 2012. On 25 February 2013, the company purchased the Property. It remained the owner as of 26 March 2021. At the time the Property was purchased there was no irrigation infrastructure on the Property.
3. The company operated a farm at the Property. The farm's primary crop was tomato which was grown in 498 greenhouses. Upon its establishment, the company intended to sell tomato, capsicum, and cucumber. At the material times, the Property produced tomatoes, cucumber, and ginger.
4. Crops were grown in bags of soilless media which included coconut husk chip, fibre, and dust. Plants were watered by drip irrigation. The volume of irrigation water applied to each crop depended on the crop type, stage of growth and weather conditions.
5. Mr Lin was one of 3 directors of the company and had held that office since 9 April 2013. During his recorded interview he described himself as the chief executive officer of the company. When the company was established, Mr Lin's role was to control the growing, and to supply the hothouses which were used to cultivate much of the crop.
6. From about 2014, Mr Lin controlled the spending of the company. Practically, this involved Mr Lin overseeing capital, purchases, and decisions when the company spent money. Mr Lin had been responsible for the day-to-day running of the farm since 2016. In response to a notice to nominate a corporate representative under s 338B(2) of the WM Act, Mr Lin nominated himself.
7. In addition to Mr Lin, Huizeng Luo (Peter) and Meiqin Chen were directors of the company. Mr Luo and Ms Chen were appointed directors on 7 November 2016. Mr Luo was responsible for the packing operations when he was not in China. He was also responsible for payroll and banking. Ms Chen was responsible for managing the crop, and for allocating tasks to farm workers. Both Mr Luo and Ms Chen reported to Mr Lin.
8. Roger Newport was a former director of the company and was involved in the establishment of the company and its operations. Mr Newport held the office of director of the company from 6 December 2012 until 7 November 2016. Mr Newport continued working for Green Leaf as a manager after he ceased to be a director in late 2017.
9. Mr Newport arranged for the construction of Dam 3 after consulting with Peter Hackett from the "water authority in Grafton". Mr Newport spoke to Mr Hackett to calculate the harvestable rights for the Property which he was told was around 10 mega litres. This is consistent with the size of Dam 3 being approximately 14.1 mega litres. Later in his evidence, Mr Newport also mentioned the figure of 44 mega litres as his belief of the harvestable rights amount. Mr Newport stated that following his conversation with Mr Hackett, Dam 3 was then constructed to capture the harvestable rights for the Property.
10. In this respect, s 53 of the WM Act confers what are described as 'harvestable rights' upon an owner or occupier of a landholding within a harvestable rights area. Harvestable rights entitle the owner or occupier to construct and use one or more water supply works for the purpose of capturing, storing, and using water of a kind specified by the harvestable rights order made pursuant to s 54 of the WM Act.
11. The water access licences (WAL) and approvals held by the company are those comprised in Exhibit 10. During the relevant period, the company held the following WALs and approvals: 1. Groundwater (Aquifer) access licence WAL 40201 reference number 30AL314462 (WAL 40201) for 20 units of water from the New England Fold Belt Coast Groundwater Source. This licence related to the combined water supply works and use approval 30CA314463 for the construction and use of a bore at Lot 1013/849050 (the whole lot) for the purpose of irrigation and farming. This combined approval commenced on 1 July 2016. 2. Groundwater (Aquifer) access licence WAL 40216 reference number 30CA314500 (WAL 40216) for 17 units of water from the New England Fold Belt Coast Groundwater Source. This WAL related to the combined water supply works and use approval 30CA314501 for the construction and use of a bore at Lot 1013/849050 (the whole lot) for the purpose of irrigation. This combined approval commenced on 1 July 2016. 3. Water supply works approval 30BL207462 for a test bore at Lot 1013/849050 (the whole lot) latitude -30.923678 longitude 152.948931. This approval commenced on 2 October 2019.
12. I find that, upon a review of each of these WALs and approvals, none of them concern the construction or use of water supply works or carrying out controlled activities. I deal with the relevance of this separately in relation to each of the charges.
13. I now turn to my findings in respect each of the specific charges.

Dam 1A (Charge 5)

1. Charge 5 was an offence against s 91B(1) of the WM Act for the extension of Dam 1A without approval between about 29 December 2019 and about 2 January 2020.
2. The prosecutor must prove that the defendants constructed a water supply work, the definition of which is set out above.
3. During his recorded interview, Mr Lin stated the following about Dam 1A: Q98 With dam 1 there is another dam wall, a small one constructed in 2020, is that right? A (INT) Yes Q99 Why was that built? A (INT) Because it is before we came to the farm, there was this small - already a little small dam there so we were thinking to dig a little bit more so that we can store a bit more water. Q100 Okay. Thank you. So dam 1 is used for irrigation? A (INT) Yes. Q101 Did you speak with Water New South Wales about getting approval for that dam? A (INT) No. Q102 Is there any reason why you didn't speak with Water New South Wales? A (INT) No, because the limited English and we do not know the place well and we don't understand English well and we thought that it was within the farm and we're just trying to store the rainwater.174
4. The opinion of Mr Stuart was that the surface area of Dam 1A was 0.21 hectares. The maximum depth was 2.5 metres, and the capacity was 1.6 mega litres. Mr Stuart created a bathymetric model and a cross-sectional model of Dam 1A. The modelling depicted the water level tapering from the dam wall on the northern side of the structure to a depth of 0 metres following the natural ground level.
5. Dam 1A's northern wall separates it from the larger Dam 1B. Ms McGarity, who inspected the Premises on 28 July 2020, described the wall as an "earthen wall" at which a point along the wall had a break or a channel that connected the water in Dam 1A to Dam 1B. A drainage channel, that appeared to have been dug with a mechanical excavator, led from the greenhouses to the south and into Dam 1A. This was depicted in photographs 3 and 4 of Exhibit 6. A video taken by Ms McGarity of the wall between Dam 1A and 1B was Exhibit 7.
6. On 24 February 2021, Ms Davis inspected Dam 1A. Ms Davis observed Dam 1A to be "a smaller impounding of water… covered in algae, and it had a distinct dam wall". Water was in the dam. Drone photographs, which were Exhibit 12, depicted a body of water with an unnatural wall that was raised above the adjacent ground level. The photographs show Dam 1A full of water with a bright green algal cover on the surface. During her evidence, Ms Davis marked photograph 2 of Exhibit 12 with 'B1' to identify the location of the by-wash on the wall between Dams 1A and 1B. She also marked the spillway in the same photograph with 'S1'.
7. I find that the nature of the structure (including the connected channel from the adjacent greenhouses), which was clearly designed to store water, in addition to Mr Lin's admissions that Dam 1A was used for irrigation, is such that I am satisfied beyond reasonable doubt that Dam 1A was a water supply work.
8. The prosecutor must also establish that the water supply work was constructed. The WM Act defines 'construct', in relation to a work, to include its installation, alteration or extension. In the present case, the prosecutor relied upon the extension of Dam 1A as its construction.
9. The expert opinion evidence of Mr Stuart was that: 1. Dam 1A's initial construction took place between 23 November 2002 and 11 November 2010. 2. Dam 1A was initially constructed with a dam wall of approximately 45 meters in length. Dam 1A was observed with this same dam wall on 29 December 2019. 3. A new or modified dam wall of approximately 143 meters in length, at the same location as the existing 45 metre wall, was observed in an image captured on 2 January 2020.
10. Accordingly, the unchallenged evidence of Mr Stuart was that Dam 1A's wall was extended from 45 metres to 143 metres between 29 December 2019 and 2 January 2020.
11. In addition to Mr Stuart's opinion, the prosecutor relied on Mr Lin's admissions that a small construction took place in 2020: "Because it is before we came to the farm, there was this small - already a little small dam there so we were thinking to dig a little bit more so that we can store a bit more water."
12. I find that the evidence establishes, beyond reasonable doubt, that Dam 1A was extended between 29 December 2019 and 2 January 2020.
13. The prosecutor must establish that the defendants did not hold an approval for the extension of Dam 1A. Exhibit 34 stated that no person, including the company and Mr Lin, had ever held any water supply work approval under the WM Act or the Water Act, authorising the construction of any water supply work on the Property.
14. In the s 338A(2) response, Mr Lin stated that: "Green Leaf Farm had no idea about water supply works approvals must be done first before it starts any project within the farm." Mr Lin stated the following during his recorded interview: Q101 Did you speak with Water New South Wales about getting approval for that dam? A (INT) No. Q102 Is there any reason why you didn't speak with Water New South Wales? A (INT) No, because the limited English and we do not know the place well and we don't understand English well and we thought that it was within the farm and we're just trying to store the rainwater.193
15. I find beyond reasonable doubt that both defendants did not hold approvals to extend Dam 1A. Mr Lin "planned the layout of the dams and irrigation system at the farm". This included the extension of Dam 1A. Mr Lin stated that he was responsible for managing the on-site operations at the Property during the period from 25 February 2013 to 1 April 2021, which included the period during which the extension occurred. During that period, he managed, programmed, and controlled irrigation at the Property.
16. I find that Mr Lin was directly responsible for the extension to Dam 1A.
17. In the alternative, the prosecutor relied on s 363(1) of the WM Act by knowingly authorising the extension of Dam 1A, planning its construction and being the only person within the company capable of approving construction of that kind.
18. I find that the acts of Mr Lin are attributable to the company as he was the directing mind and will of the company.
19. The prosecutor also relied on the rebuttable presumption in s 367B(1)(a) of the WM Act that a work, which is located on a landholder's land, gives rise to the presumption that the work was constructed by the landholder. Relevantly, Dam 1A is located on the company's land. No evidence has been adduced to rebut the presumption that the company extended Dam 1A.
20. In the alternative, the prosecutor relied on s 91L(1) of the WM Act which provides that the occupier of a premises at which a water supply work has been constructed in contravention of s 91B(1) is taken to have contravened that provision, unless the factors set out at s 91L(2) are established. The persuasive onus to establish the s 91L(2) factors rests with the company, and no evidence was before the Court which was capable of establishing the 3 factors.
21. I am satisfied beyond reasonable doubt of the elements of charge 5 against the company and Mr Lin and return a verdict of 'guilty' in both relevant sets of proceedings.

Dam 1B (Charge 6)

1. Charge 6 was an offence against s 91B(1) of the WM Act for the extension of Dam 1A without approval between about 6 October 2016 and 17 November 2016.
2. To establish the first element, the defendants must have constructed a water supply work.
3. The opinion of Mr Stuart is that following the extension of Dam 1B, the surface area of the dam was 2.14 hectares. The maximum depth was 4.6 metres, and the capacity was 29.7 mega litres. Mr Stuart created a bathymetric model and a cross-sectional model of Dam 1B. The modelling depicted the water level tapering from the dam wall on the northern side of the structure to a depth of 0 metres following the natural ground level. A borrow pit is present in the dam immediately below the dam wall.
4. On 28 July 2020, Ms McGarity took a number of photographs from the southern bank of Dam 1B, which depicted a large body of water with a number of partially submerged trees. There was a bore on the southern bank. It was labelled Bore 30CA314501 on the aerial image which was on page 2 of Exhibit 5. The bore related to the approval of the same number in Exhibit 10. Ms McGarity observed a pump towards the middle of Dam 1B which was depicted in photograph 12 of Exhibit 6. During Mr Lin's recorded interview, he stated that the pump at Dam 1B was used to pump water to a tank in the centre of the property which was used for irrigation.
5. On 24 February 2021, Ms Davis inspected Dam 1B. She stood on the northern dam wall, as depicted in photograph 17 of Exhibit 12. Ms Davis stated that the dam wall was about 5 metres from the natural ground level. The area below the dam wall to the north was waterlogged. Towards the centre of the dam was a green corrugated roof with two pipes extending from underneath the roof, which appeared to house a pump and engine machinery. During a later inspection, Ms Davis heard a pump running from the direction of the green roof. The aerial images taken during Ms Davis's inspection revealed a large body of water impounded by a long dam wall to the north and a shorter wall in the southwestern corner, which separates Dam 1A and Dam 1B.
6. I find that the nature of the structure, which was clearly designed to store water, in addition to the associated irrigation infrastructure, and Mr Lin's admissions that Dam 1B was used for irrigation, is such that I am satisfied beyond reasonable doubt that Dam 1B was a water supply work.
7. The prosecutor must also establish that the water supply work was constructed, which includes extending a work. In the present case, the prosecutor relied upon the extension of Dam 1B as its construction.
8. The expert opinion evidence of Martin Stuart was that: 1. Dam 1B was not observed on 28 June 2014, and the area that now contains Dam 1B was covered with "grass or pasture". 2. A dam wall measuring approximately 235 meters in length and aligned in an East West direction was observable in the location of Dam 1B in an image captured on 14 September 2014. 3. Accordingly, Dam 1B was constructed between 28 June 2014 and 14 September 2014. 4. Dam 1B's dam wall measured approximately 235 meters in length and was observable in an image captured on 6 October 2016. 5. An extension to the dam wall to the East of the existing dam wall, which extended the dam wall from 235 meters in length to a total of 340 meters in length, was observable in an image captured on 17 November 2016, and 6. Water adjacent to and upstream from the extended dam wall was observable in an image captured on 17 May 2017.
9. The unchallenged expert opinion evidence of Mr Stuart was that Dam 1B was extended between 6 October 2016 and 17 November 2016. Consistent with that opinion, I find that the evidence establishes beyond reasonable doubt that Dam 1B was extended between those dates.
10. The prosecutor must establish that the defendants did not hold an approval for the extension of Dam 1B. Exhibit 34 stated that no person, including the company and Mr Lin, has ever held any water supply work approval under the WM Act or the Water Act, authorising the construction of any water supply work on the Property.
11. In the s 338A(2) response, Mr Lin stated that: "Green Leaf Farm had no idea about water supply works approvals must be done first before it starts any project within the farm."
12. I am satisfied beyond reasonable doubt that both defendants did not hold approvals to extend Dam 1B.
13. Mr Lin "planned the layout of the dams and irrigation system at the farm".219 I find that this included the extension of Dam 1B. Mr Lin stated that he was responsible for managing the on-site operations at the Property during the period from 25 February 2013 to 1 April 2021, which included the period during which the extension occurred. During his recorded interview, Mr Lin was not asked about the extension of Dam 1B. However, in respect of the construction of Dam 1B in 2014, Mr Lin said: "Yeah, I don't know how… probably it's I was in charge because the general manager was doing other things and I did this and naturally that I'll be responsible." Mr Lin's response was consistent with his admission that throughout the charge period he managed, programmed, and controlled irrigation at the Property.
14. I find that Mr Lin was directly responsible for the extension to Dam 1B.
15. In the alternative, the prosecutor relied on s 363(1) of the WM Act. I find that Mr Lin knowingly authorised the extension of Dam 1B, planned its construction and was the only person within the company capable of approving construction of that kind.
16. I find that the acts of Mr Lin were attributable to the company as he is the directing mind and will of the company.
17. The prosecutor also relied on the rebuttable presumption in s 367B(1)(a) of the WM Act that the location of Dam 1B on the Property gives rise to the presumption that the work was constructed by the landholder. No evidence has been adduced to rebut the s 367B(1)(a) presumption that the company extended Dam 1B.
18. In the alternative, the prosecutor relied on s 91L(1) of the WM Act which provides that the occupier of a premises at which a water supply work has been constructed in contravention of s 91B(1) is taken to have contravened that provision, unless the factors set out at s 91L(2) are established. The persuasive onus to establish the s 91L(2) factors rests with the company, and no evidence is before the Court which is capable of establishing the 3 factors.
19. I am satisfied beyond reasonable doubt of the elements of charge 6 against the company and Mr Lin and return a verdict of 'guilty' in both relevant sets of proceedings.

Dam 4 (Charge 1)

1. Charge 1 was an offence against s 91B(1) of the WM Act for the use of Dam 4 on 24 February 2021. The prosecutor must establish that the defendants used a water supply work, namely, Dam 4. As set out above, a 'water supply work' is defined in the Dictionary of the WM Act as including: "a work (such as a tank or dam) for the purpose of capturing or storing water, or…a work (such as a water pipe or irrigation channel) for the purpose of conveying water to the point at which it is to be used".
2. During his recorded interview, Mr Lin stated that Dam 4 was built "because of the shortage of water we had to build another dam". In response to a s 338A(2) notice issued to the company, Mr Lin stated that the purpose of Dam 4 was "for future use in case the drought happens again".
3. The expert report of Martin Stuart, spatial analyst, dated 19 January 2023 is Exhibit 35. Mr Stuart determined the maximum depth of Dam 4 was 5.6 metres. He reached this conclusion by analysing the echosounder data collected by investigators during the July 2020 inspection. Mr Stuart also determined that the surface area of Dam 4 was 5.49 hectares with a capacity of approximately 82.4 mega litres.
4. Mr Stuart created a bathymetric model and a cross-sectional model of Dam 4. The modelling depicts the water level tapering from the dam wall on the southern side of the structure to a depth of 0 metres following the natural ground level. A borrow pit is present in the dam immediately below the dam wall. A borrow pit is a standard feature of water storage construction and is the area from which material to create the dam wall is usually taken.
5. During Ms McGarity's inspection on 28 July 2020, she observed a dam wall which separated Dams 4 and 5. Ms McGarity stated that the southern bank was built up with soil above the natural ground level, whereas the northern bank appeared to be at the natural ground level. The wall was steep, semi-consolidated and approximately 3 metres to the lower ground. There was water in Dam 4 which covered vegetation along the northern side. At the northeastern end was a by-wash or overflow point, which looked like it had been mechanically scraped out, and water was flowing from the by-wash into Dam 5. There was also a pump house or a pump structure on the northern bank of Dam 4. The photographs taken by Ms McGarity are Exhibit 6.
6. During her inspection on 24 February 2021, Ms Davis observed that Dam 4 was "quite a large dam, very full of water. A very long dam wall". She observed a square structure with a corrugated iron roof which appeared to house a pump engine that was running. The detailed drone images captured by Ms Davis and Mr Walker on 24 February 2020 are Exhibit 17 and depict a large body of water with an unnatural wall that is raised above the adjacent land. A large number of trees are partially submerged in the dam. Videos taken by Ms Davis are Exhibit 18 and depict water overtopping the dam wall and running into the adjacent bushland. Further images taken by Ms Davis at ground level are Exhibit 19.
7. In his recorded interview, Mr Lin was asked about Dam 4. The following is recorded: Q136 Okay. Who authorised the construction of dam 4? A (INT) It was also me instructing workers to dig it. Because at that time we used soil to grow our produce in that greenhouse but it wasn't successful so we then used another method and then we have to use more water and because of the shortage of water we had to build another dam. … Q142 …And is there a pump installed at dam 4? A (INT) Yes. Q143 Was that put in at the time it was constructed? A (INT) Just that there was only water for about six months after the completion of the dam so the pump was used about six months later. Q144 How did you fill the dam with water? A (INT) It was from water collected from the greenhouse and then put it into that dam. Q145 Was there any rainfall that filled the dam as well? A (INT) Yes, yes, yes. Q146 Do you have any specifications for the type of pump and its capacity? A (INT) No. No, I need to check it out. Q147 Okay. So where does the water get pumped from dam 4 on the property? A (INT) To the tank. Q148 Okay. And you said the dam also collects tail water or irrigation water after it has been applied to the plants? A (INT) Yes.
8. I find beyond reasonable doubt that Dam 4 is a water supply work, the purpose of which included the storage of water.
9. The 'use' of a water management work, which includes a water supply work, is defined as set out above. The purpose of Dam 4, as stated by Mr Lin in response to a s 338A(2) notice issued to the company, was "for future use in case the drought happens again". On 24 February 2021, Ms Davis observed Dam 4 to be full to the point of overtopping. I find by a combination of Mr Lin's admission, Ms Davis's observations, Mr Stuart's opinion concerning the nature of the structure and that it contained approximately 84.4 mega litres of water on 24 February 2021 (Exhibit 35), the detailed aerial imagery (Exhibit 17), the ground level photographs (Exhibit 19) and the videos of Dam 4 overtopping (Exhibit 18), establish beyond reasonable doubt that Dam 4 was being used to store water on 24 February 2021.
10. To the extent that it is necessary, in the case against both defendants, the rebuttable presumption in s 367B(3) of the WM Act also applies. The effect of s 367B(3) is that a work (such as a tank or dam) that is capable of being used for the purpose of capturing or storing water gives rise to a rebuttable presumption that the work has been used for that purpose. There was no evidence adduced to rebut the presumption that the water in Dam 4 on 24 February 2021 was not being used for the purpose of storage.
11. The prosecutor must also establish that the defendants did not hold a water supply work approval for the use of Dam 4. Exhibit 34, which is the certificate of evidence, stated that no person, including the company or Mr Lin, had ever held a water supply work approval under the WM Act or the Water Act 1912 (NSW) (Water Act) authorising the use of a water supply work on the Property.
12. During his recorded interview Mr Lin was asked the following which relates to construction and not use: Q149 Did you seek any approvals or information from government departments or local council before you started building dam 4? A (INT) No, no. We didn't know.
13. I am satisfied beyond reasonable doubt that both defendants did not hold approvals to use Dam 4.
14. Mr Lin "planned the layout of the dams and irrigation system at the farm". He was responsible for managing the on-site operations at the Property during the period from 25 February 2013 to 1 April 2021. During that period, he managed, programmed, and controlled irrigation at the Property.
15. Through Mr Lin's actions in constructing, designing, and managing Dam 4, and the stated purpose of Dam 4 being for "future use in case the drought happens again", Mr Lin "allow[ed] the work to operate for that purpose" and he was directly responsible for the use of Dam 4 on 24 February 2021.
16. In the alternative, s 363(1) of the WM Act applies. Section 363 attributes liability to the directors of companies who commit offences against the WM Act. To convict a director relying on s 363, the prosecutor must prove the following in addition to the elements of the offence: 1. The person was a director of the company at the time the offence was committed; 2. The person was concerned in the management of the corporation; 3. The person knowingly authorised or permitted the act or omission constituting the offence.
17. I find that each of the additional elements of s 363 of the WM Act are made out beyond reasonable doubt. Mr Lin knowingly authorised the storage of water in Dam 4 by constructing the dam, by "instructing workers to dig it" for the purpose of protecting against future drought, and by his admission to being responsible for the management, programming, and control of irrigation at the Property on 24 February 2021.
18. Mr Lin was and is the directing mind and will of the company at all relevant times (Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; 73 NSWLR 241 at [3]). The word 'person' as it appears in ss 91B and 91E of the WM Act includes a corporation: Interpretation Act 1987, s 3(3), read together with Schedule 4 (definition of 'person'). The liability of a company for any particular breach of the criminal law, by attribution to those acting within their responsibilities to a company will depend, in a significant part, upon the nature, elements and terms of the offence (Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; 73 NSWLR 241 at [4]).
19. A distinction is often drawn between a person who is the "directing mind and will" and an agent or employee of a company. In respect of a person who is an embodiment of the company, it is well established that the actions and state of mind of such a person are attributable as the company's own (Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170). The following evidence established that Mr Lin was and is the directing mind and will of the company: 1. In response to the s 338A(2) notice, Mr Lin stated that he was responsible for the on-site operations during the period from 25 February 2013 to 1 April 2021. 2. Mr Newport's evidence that Mr Lin was a shareholder and investor from the commencement of the company. 3. Mr Newport's evidence that Mr Lin was the major investor. 4. Mr Newport's evidence that from about 2015 onwards, Mr Lin was responsible for major financial decisions and was in control of spending. 5. Mr Newport's evidence that Mr Lin was "the boss" of the only other directors Ms Chen and Mr Luo. Mr Chen also gave evidence that Mr Lin was her boss. 6. Mr Lin was the nominated corporate representative. 7. Mr Lin planned the layout of the dams and irrigation system on the Property. 8. Mr Lin stated that he constructed or excavated Dams 1, 2, 3, 4, 5, 6, 7, 8A and 8B. 9. Mr Lin stated that he was in charge of the day-to-day running of the farm from 2016. 10. Mr Lin described himself as the general manager, and the chief executive officer.
20. I find that Mr Lin was, at the time of each offence, the embodiment of the company such that his acts, being acts which sought to advance the company's commercial interests, were attributable to the company.
21. The rebuttable presumption in s 367B(1)(b) of the WM Act also applies, which provides that a work which is used on a landholder's land gives rise to the presumption that the work is being used by the landholder (see above at [61]). Relevantly, Dam 4 is on the company's land. No evidence has been adduced in these proceedings to rebut the s 367B(1)(b) presumption.
22. In the alternative, the extended liability provisions provided by s 91L of the WM Act apply. Section 91L(1) of the WM Act provides that the occupier of a premises at which a water management work (which includes a water supply work) has been used in contravention of s 91B is taken to have contravened that provision, unless the factors set out at s 91L(2) are established. Those factors are relevantly: 1. The work was used by a person other than the occupier, and 2. The other person was not associated with the occupier at the time the work was used, and 3. The occupier took all reasonable steps to prevent the work being used.
23. The persuasive onus to establish the s 91L(2) factors rests with the company, and no evidence was adduced in the proceedings which was capable of establishing the 3 factors.
24. I am satisfied beyond reasonable doubt of the elements of charge 1 against the company and Mr Lin and return a verdict of 'guilty' in both relevant sets of proceedings.

Dam 4 (Charges 7 and 13)

1. Charge 7 was an offence against s 91E(1) of the WM Act for the carrying out of a controlled activity without approval on waterfront land. The prosecutor alleged that the defendants removed material including vegetation during the construction of Dam 4 between about 13 December 2017 and 1 April 2018.
2. The prosecutor must establish that a person carried out a controlled activity. A controlled activity, as per the WM Act, includes the "removal of material (whether or not extractive material) or vegetation from land, whether by way of excavation or otherwise".
3. The prosecutor relied on the unchallenged opinion of Mr Stuart that on 17 May 2017 the site which is now Dam 4 was covered with grass or pasture, trees, and shrubs. Mr Stuart observed earthworks approximately 470 metres in length in an image captured on 13 December 2017. Vegetation that was visible in the previous image had been removed and bare earth was visible. The completed earthworks extended 2.3 metres deeper than the natural ground level and comprised a dam wall which was 505 metres in length.
4. Mr Stuart opined that the construction of Dam 4 was underway by 13 December 2017 and was completed by 1 April 2018. Consistent with that opinion, Mr Lin stated during his recorded interview that Dam 4 was constructed "roughly" between 2017 and 2018 and that it took over 20 days to build the dam.
5. Mr Newport gave evidence that during a routine inspection of the Property, he observed Mr Lin and another person, possibly called 'Zacai', operating excavators by digging and putting up a wall on the southern side of the property. Mr Lin agreed that he hired machinery from a company in Coffs Harbour for the construction of Dam 4. This is corroborated by the evidence of Matthew Byrnes, who was the Branch Manager of Tutt Bryant. Mr Byrnes recalled that on 21 or 22 December 2017, he met a male person at Tutt Bryant's premises who introduced themselves as an employee of the company. The person spoke Chinese and did not speak English. The person came to inspect and hire 21 to 24 tonne excavators. Tutt Bryant business records indicated that a 12-tonne excavator was hired by the company on 19 December 2017 until 30 December 2017 and on 19 January 2018, the company hired a 22-tonne excavator until 29 January 2018.
6. I find that the evidence establishes beyond reasonable doubt that the construction of Dam 4 took place between 13 December 2017 and 1 April 2018, during which time material and vegetation was removed from the Property.
7. The prosecutor must establish that the controlled activity was carried out on waterfront land. The WM Act defines 'waterfront land' to include the bed of any lake together with land that is up to 40 metres from the bed of the lake. A 'lake' is defined to include a wetland. It is the presence of a wetland that the prosecutor relied upon to establish that a controlled activity was carried out on waterfront land in respect of charges 7 to 12.
8. A 'wetland' is not defined by the WM Act. It is, however, a word used in the legislation and therefore must have a meaning. The expert opinion evidence of Dr Lachlan Copeland, Botanist, was: "there are numerous definitions of what a wetland is, none of them are universal and many relate to a specific country or area".
9. In proof that Dam 4 was located on a wetland, the prosecutor relied on the expert opinion of Dr Copeland who attended the Property and identified the areas he considered to be wetlands both pre- and post-construction of the dams. In formulating his opinion, Dr Copeland considered that: "the most appropriate way to define a wetland on the NSW North Coast would be an area periodically subject to flooding or inundation, or prone to having waterlogged soil at least some of the time, and that predominantly supports hydrophytes ("water-loving" plants dependant on high moisture levels)". I earlier explained why I accepted Dr Copeland's expert evidence. For the avoidance of doubt, and on this issue, his opinion was not challenged in any meaningful way.
10. I am satisfied that Dr Copeland's definition of 'wetland' sits comfortably within the broader context of the WM Act, is consistent with its ordinary meaning, and is consistent with the apparent intended ambit of that word having regard to the context in which it is used within the definition of 'lake' and 'waterfront land'. I find it should, therefore, be adopted as the legal meaning of that term for the purposes of determining the subject charges in which it is relevant.
11. Dr Copeland mapped the areas on the Property which met his definition of a wetland on the NSW North Coast. He provided those maps to Mr Stuart who added 40m (less appropriate margins of error) to the wetland perimeters to account for the extended definition of waterfront land. Mr Stuart also calculated the area of each dam that fell within waterfront land.
12. In respect of Dam 4, Dr Copeland reviewed aerial imagery prior to the construction of the dam. He observed a clear abundance of Broad-leaved Paperbark (Melaleuca quinquenervia) where Dam 4 existed. Many of the taller trees from the earlier imagery could still be seen emerging from the water during the site visit on 30 January 2023 and would have been present prior to inundation. Dr Copeland considered that the abundance of Broad-leaved Paperbark prior to the construction of Dam 4 was strong evidence that the area would have been subject to periodic inundation and/or waterlogged soils.
13. Dr Copeland's mapping of the natural wetland prior to construction of Dam 4 was at Figure 14 of Exhibit 37 and clearly depicted most of the area of Dam 4 as wetland prior to construction. Mr Stuart's opinion was that Dam 4 was constructed on waterfront land. Mr Stuart considered that an area between 4.91 hectares and 5.2 hectares of Dam 4 was waterfront land prior to construction. Mr Stuart's results were expressed as a range as he applied a margin of error of up to 10 metres.
14. The evidence concerning the presence and location of waterfront land on the Property was unchallenged. It was not suggested that the boundaries may be indefinite. I am satisfied beyond reasonable doubt that the controlled activity, being the removal of material or vegetation from the land by way of excavation in the construction of Dam 4, was carried out on waterfront land.
15. For completeness, I also note the defendants argued that, if the court was satisfied about the location of the wetland, they made an honest and reasonable mistake of fact as to the location of the wetland at the time of construction of the dam as the area was experiencing severe drought and was completely dry. It was not put to Dr Copeland that the existence of drought conditions somehow affected the presence, or otherwise, of a wetland on the Property or its boundaries, and the defendants did not adduce any evidence to suggest otherwise, such as to cast doubt on Dr Copeland's evidence. Further, the determination of the wetland and its boundaries was not in any way informed by mapping under any state environmental planning policy.
16. Although I consider any such asserted mistake would properly be characterised, contrary to the prosecutor's closing submissions, as one of fact and not of law, for the above reasons, I am not satisfied that sufficient evidence has been led, such that the excuse should be considered by the court. I therefore find that the prosecutor was not required to negative the excuse of honest and reasonable mistake of fact beyond reasonable doubt.
17. The prosecutor must establish that the defendants did not hold an approval for the controlled activity.
18. The certificate of evidence, which is Exhibit 34, stated that no person, including the company or Mr Lin, had ever held approval under the WM Act or the Water Act authorising the carrying out of any controlled activity on the Property.
19. During his recorded interview Mr Lin was asked: Q149 Did you seek any approvals or information from government departments or local council before you started building dam 4? A (INT) No, no. We didn't know.
20. I am satisfied beyond reasonable doubt that both defendants did not hold approvals carry out a controlled activity for the construction Dam 4.
21. Mr Newport's unchallenged evidence was that he observed Mr Lin in an excavator digging where Dam 4 was located. In response to the s 338A(2) notice, Mr Lin stated that he constructed Dam 4. He also stated that he "planned the layout of the dams and irrigation system at the farm" and was responsible for managing the on-site operations at the Property during the period from 25 February 2013 to 1 April 2021. During that period, he managed, programmed, and controlled irrigation at the Property.
22. When Mr Lin was asked who authorised the construction of Dam 4, he said: "It was also me instructing workers to dig it. Because at that time we used soil to grow our produce in that greenhouse but it wasn't successful so we then used another method and then we have to use more water and because of the shortage of water we had to build another dam."
23. This was consistent with Mr Newport's evidence that Mr Lin was the only person who had authority to make the decision to construct Dam 4.
24. Mr Lin also agreed that he hired machinery from a company in Coffs Harbour for the construction of Dam 4.
25. Through Mr Lin's actions in designing, constructing, and authorising the construction of Dam 4, Mr Lin was directly responsible for the controlled activity that was carried out by the construction of Dam 4.
26. In the alternative, the prosecutor relied on s 363(1) of the WM Act. I find that Mr Lin knowingly authorised the construction of Dam 4 being the act which constituted the offence.
27. The prosecutor submitted that the acts of Mr Lin were attributable to the company as he was the directing mind and will of the company.
28. The prosecutor also relied on the rebuttable presumption in s 367B(1)(f) of the WM Act which provides that a controlled activity that has been carried out on waterfront land within a landholder's land, gives rise to the presumption that the activity has been carried out by the landholder. Relevantly, the waterfront land encompassing Dam 4 was located on the company's land. No evidence was adduced to rebut the presumption that the company carried out a controlled activity by the construction of Dam 4.
29. In the alternative, the prosecutor relied on s 91L(1) of the WM Act which provides that the occupier of a premises at which a controlled activity has been carried out in contravention of s 91E(1) is taken to have contravened that provision, unless the factors set out at s 91L(2) are established. The persuasive onus to establish the s 91L(2) factors rests with the company, and no evidence was adduced which was capable of establishing the 3 factors.
30. I am satisfied beyond reasonable doubt of the elements of charge 1 against the company and Mr Lin and return a verdict of 'guilty' in both relevant sets of proceedings.
31. In the alternative to charge 7, the prosecutor submitted that by the construction of Dam 4 the defendants constructed a water supply work without approval contrary to s 91B(1) of the WM Act, being charge 13.
32. The prosecutor relied on the aforementioned evidence, which I have accepted, in proof of this offence, namely: 1. That Dam 4 is a water supply work; 2. That Dam 4 was constructed; 3. That the defendants did not hold an approval to construct Dam 4; and 4. The attribution of the construction of Dam 4 to the defendants (in addition to reliance on s 363(1) of the WM Act in the case against Mr Lin and the rebuttable presumption against the company provided by s 367B(1)(a) of the WM Act).
33. If it were necessary to do so, I therefore would also have found charge 13 proved beyond reasonable doubt. In light of my findings relating to charge 7, I note the prosecutor clarified in closing submissions that it would withdraw charge 13 and, on that basis, I propose to dismiss that charge.
34. I am satisfied beyond reasonable doubt of the elements of charge 7 against both the company and Mr Lin and return a verdict of 'guilty' in each relevant set of proceedings.

Dam 5 (Charge 2)

1. Charge 2 was an offence against s 91B(1) of the WM Act for the use of Dam 5 on 24 February 2021.
2. The prosecutor must establish that the defendants used a water supply work, namely, Dam 5.
3. In response to a s 338A(2) notice issued to the company, Mr Lin stated that the purpose of Dam 5 was "for future use in case the drought happens again". During his recorded interview, Mr Lin stated the following in respect of the purpose of Dam 5: "The situation was that it was - in 2019 it was a really dry year and all the tomatoes put there, there was insufficient water and they died and I asked for extra support of water and it came very late and that's the reason I built another dam."
4. Later in the interview he was asked and stated: Q174 …In relation to dam 5, what - what is the water used for? A (INT) Reserved for agriculture irrigation.
5. Mr Stuart's opinion was that the surface area of Dam 5 was 3.63 hectares. The maximum depth was 6.1 metres, and the capacity was 52 mega litres. Mr Stuart created a bathymetric model and a cross-sectional model of Dam 5. The modelling depicted the water level tapering from the dam walls on the southeast and southwestern sides of the structure to a depth of 0 metres following the natural ground level on the northern bank. A borrow pit is present in the dam immediately below the dam wall.
6. On 28 July 2020, Ms McGarity observed a dam wall which separated Dams 4 and 5. The walls created a T shape where the southwestern wall of Dam 5 met the wall of Dam 4. A video of the intersection of the walls was Exhibit 7. Photographs 13 to 32 of Exhibit 6 depicted Dam 5 on the day of Ms McGarity's inspection.
7. Ms Davis observed Dam 5 on 24 February 2021 to be: "…quite a large dam, full of water. There's a number of trees protruding from the water, and, yes, you could see that it was quite - the dam wall was quite a lot higher than the surrounding land". She stated that the south-eastern wall was: "very high up from the surrounding land… at least five metres possibly more". The width of the wall was wide enough to drive a car along.
8. Detailed drone images captured by Ms Davis on the date of the charge are Exhibit 21. They depicted a large body of water enclosed on the southern banks by a thick white dam wall. In the eastern corner, a channel, which was Dam 9, met Dam 5. A video of the spillway at the juncture of Dam 5 and Dam 9 was Exhibit 20. Further photographs taken from ground level by Ms Davis were Exhibit 22.
9. I am satisfied beyond reasonable doubt that Dam 5 was a water supply work, the purpose of which included the storage of water.
10. In respect of the 'use' of Dam 5, the prosecutor relied on the purpose at paragraph (b) of the definition of water supply work, that being the storage of water.
11. The purpose of Dam 5, as stated by Mr Lin in both his s 338A(2) response and during his recorded interview, was the storage of additional water. On 24 February 2021, Ms Davis observed Dam 5 to be full of water. By a combination of Mr Lin's admission, Ms Davis's observations, Mr Stuart's opinion concerning the nature of the structure of Dam 5 and that it contained approximately 52 mega litres of water on 24 February 2021 (Exhibit 35), the detailed aerial imagery (Exhibit 21), the ground level photographs (Exhibit 22), and the video of Dam 5 (Exhibit 20), I am satisfied beyond reasonable doubt that Dam 5 was being used to store water on 24 February 2021.
12. In the case against both defendants, the prosecutor relied on the rebuttable presumption in s 367B(3) of the WM Act that the capability of Dam 5 to store water gives rise to a rebuttable presumption that the work has been used for that purpose. No evidence was adduced to rebut the presumption that the water in Dam 5 on 24 February 2021 was not being used for the purpose of storage.
13. The prosecutor must establish that the defendants did not hold a water supply work approval for the construction of Dam 5. The certificate of evidence stated that no person, including the company or Mr Lin, had ever held a water supply work approval under the WM Act or the Water Act authorising the use of a water supply work on the Property.
14. In the s 338A(2) response, Mr Lin stated that the company did not hold a water supply use approval authorising the use of groundwater and surface water for irrigation at the Property.
15. I am satisfied beyond reasonable doubt that both defendants did not hold approvals to use Dam 5.
16. The prosecution relied on Mr Lin's admissions that he constructed Dam 5: "planned the layout of the dams and irrigation system at the farm", was responsible for managing the on-site operations at the Property, and managed, programmed, and controlled irrigation at the Property on 24 February 2021.
17. Through Mr Lin's actions in constructing, designing, and managing Dam 5, and the stated purpose of Dam 5 being for "future use in case the drought happens again", Mr Lin "allow[ed] the work to operate for that purpose" and was directly responsible for storage of water in Dam 5 on 24 February 2021.
18. In the alternative, the prosecutor relied on s 363(1) of the WM Act. I find that Mr Lin knowingly authorised the storage of water in Dam 5 by constructing the dam and thereafter being responsible for the management, programming, and control of irrigation at the Property on 24 February 2021.
19. The acts of Mr Lin are attributable to the company as he was the directing mind and will of the company.
20. The prosecutor also relied on the rebuttable presumption in s 367B(1)(b) of the WM Act. The location of Dam 5 on the company's land gives rise to the presumption that the work was being used by the landholder. No evidence has been adduced to rebut this presumption.
21. In the alternative, the prosecutor relied on s 91L(1) which provides that the occupier of a premises at which a water supply work has been used in contravention of s 91B(1) is taken to have contravened that provision, unless the factors set out at s 91L(2) are established. The persuasive onus to establish the s 91L(2) factors rests with the company, and no evidence was adduced in the proceedings which was capable of establishing the 3 factors.
22. I am satisfied beyond reasonable doubt of the elements of charge 2 against the company and Mr Lin and return a verdict of 'guilty' in both relevant sets of proceedings.

Dam 5 (Charges 8 and 14)

1. Charge 8 was an offence against s 91E(1) of the WM Act for the carrying out of a controlled activity without approval on waterfront land. The prosecutor alleged that the defendants removed material, including vegetation, during the construction of Dam 5 between about 7 November 2019 and about 16 March 2020.
2. The prosecutor must establish that a person carried out a controlled activity which included the "removal of material (whether or not extractive material) or vegetation from land, whether by way of excavation or otherwise".
3. The unchallenged opinion of Mr Stuart was that on 7 November 2019 the site of Dam 5 was covered with grass or pasture, shrubs, and trees. Mr Stuart observed earthworks in an image captured on 3 December 2019. The previously observed vegetation had been removed and bare earth was visible across the current location of the Dam 5 wall. Further earthworks consistent with the construction of a dam wall were visible in images captured on 27 January 2020, 14 February 2020, and 29 February 2020. The completed earthworks extended 2.5 metres deeper than the natural ground level.
4. It was Mr Stuart's opinion that the earthworks for Dam 5 started between 7 November 2019 and 3 December 2019, and that the construction of the wall occurred mainly between 27 January 2020 and 16 March 2020. Consistent with that opinion, Mr Lin stated in both the s 338A(2) response and in his recorded interview, that Dam 5 was built in March 2020. The prosecutor also relied on records obtained from the hire company, Tutt Bryant, which indicated that the company hired a 24-tonne excavator from 5 February 2020 until 25 March 2020.
5. The evidence establishes beyond reasonable doubt that the construction of Dam 5 took place between 7 November 2019 and 16 March 2020, during which time material and vegetation was removed from the Property.
6. The prosecutor must establish that the controlled activity was carried out on waterfront land, namely, a wetland.
7. Dr Copeland reviewed aerial imagery of the Dam 5 location prior to its construction. He observed an abundance of Broad-leaved Paperbark in the southwestern area of the dam. Some of these trees remained at the location and emerged from the water of the dam during Mr Copeland's inspection on 30 January 2023. Dr Copeland's mapping of the natural wetland prior to construction of Dam 5 was at Figure 14 of Exhibit 37.
8. Mr Stuart's opinion was that Dam 5 was constructed on waterfront land. Mr Stuart considered that an area between 2.69 hectares and 3.17 hectares of Dam 5 was waterfront land prior to construction, which includes a margin of error of up to 10 metres.
9. The evidence concerning the presence and location of waterfront land on the Property was unchallenged. It was not suggested that the boundaries may be indefinite. I find beyond reasonable doubt that the controlled activity, being the removal of material, including vegetation, from the Property by way of excavation during the construction of Dam 5, was carried out on waterfront land.
10. For completeness, I also note the defendants argued that, if the court was satisfied about the location of the wetland, they made an honest and reasonable mistake of fact as to the location of the wetland at the time of construction of the dam as the area was experiencing severe drought and was completely dry. It was not put to Dr Copeland that the existence of drought conditions somehow affected the presence or otherwise of a wetland on the Property or its boundaries, and the defendants did not adduce any evidence to suggest otherwise, such as to cast doubt on Dr Copeland's evidence. Further, the determination of the wetland and its boundaries was not in any way informed by mapping under any state environmental planning policy.
11. Although I consider any such asserted mistake would properly be characterised, contrary to the prosecutor's closing submissions, as one of fact and not of law, for the above reasons, I am not satisfied that sufficient evidence has been led such that the excuse should be considered by the court. I therefore find that the prosecutor was not required to negative the excuse of honest and reasonable mistake of fact beyond reasonable doubt.
12. The prosecutor must establish that the defendants did not hold an approval for the controlled activity.
13. The certificate of evidence, which was Exhibit 34, stated that no person, including the company or Mr Lin, had ever held an approval under the WM Act or the Water Act authorising the carrying out of any controlled activity on the Property.
14. During his recorded interview Mr Lin was asked: Q197 Just that question - Tina, if you could ask Mr Lin, did he gain approval from any New South Wales government department to construct any of the dams depicted in the photograph that has been shared with him, and what he can see on the screen now? A (INT) No. I think dam 3 has the approval, and this was done by Roger. I honestly didn't know that.
15. I am satisfied beyond reasonable doubt that both defendants did not hold approvals to carry out a controlled activity for the construction of Dam 5.
16. In response to the s 338A(2) notice, Mr Lin stated that he constructed Dam 5. He also stated that he: "planned the layout of the dams and irrigation system at the farm" and was responsible for managing the on-site operations at the Property during the period from 25 February 2013 to 1 April 2021. During that period, he managed, programmed, and controlled irrigation at the Property.
17. Through Mr Lin's actions in designing and constructing Dam 5, Mr Lin was directly responsible for the controlled activity that was carried out by the construction of Dam 5.
18. In the alternative, the prosecutor relied on s 363(1) of the WM Act. I find that Mr Lin knowingly authorised the construction of Dam 5 being the act which constitutes the offence.
19. I find that the acts of Mr Lin were attributable to the company as he is the directing mind and will of the company.
20. The prosecutor also relied on the rebuttable presumption in s 367B(1)(f) of the WM Act that the construction of Dam 5 on the Property gives rise to the presumption that the activity has been carried out by the landholder. No evidence has been adduced to rebut the presumption that the company carried out the controlled activity that was the construction of Dam 5.
21. In the alternative, the prosecutor relied on s 91L(1) of the WM Act which provides that the occupier of a premises at which a controlled activity has been carried out in contravention of s 91E(1) is taken to have contravened that provision, unless the factors set out at s 91L(2) are established. The persuasive onus to establish the s 91L(2) factors rests with the company, and no evidence was adduced which was capable of establishing the 3 factors.
22. I am satisfied beyond reasonable doubt of the elements of charge 8 against the company and Mr Lin and return a verdict of 'guilty' in both relevant sets of proceedings.
23. In the alternative to charge 8, the prosecutor submitted that the defendants constructed a water supply work without approval by the construction of Dam 5 contrary to s 91B(1) of the WM Act, being charge 14.
24. The prosecutor relied on the aforementioned evidence, which I have accepted, in proof of this offence, namely: 1. That Dam 5 was a water supply work; 2. That Dam 5 was constructed; 3. That the defendants did not hold an approval to construct Dam 5; and 4. The attribution of the construction of Dam 5 to the defendants (in addition to reliance on s 363(1) of the WM Act in the case against Mr Lin and the rebuttable presumption against Green Leaf provided by s 367B(1)(a) of the WM Act).
25. If it were necessary to do so, I therefore would also have found charge 14 proved beyond reasonable doubt. In light of my findings relating to charge 8, I note the prosecutor clarified in closing submissions that it would withdraw charge 14 and, on that basis, I therefore propose to dismiss that charge.

Dam 6 (Charge 9)

1. Charge 9 was an offence against s 91E(1) of the WM Act for the carrying out of a controlled activity without approval on waterfront land. The prosecutor alleged that the defendants removed material, including vegetation, during the excavation of Dam 6 between about 7 November 2019 and 14 February 2020.
2. The prosecutor must establish that a person carried out a controlled activity which includes the "removal of material (whether or not extractive material) or vegetation from land, whether by way of excavation or otherwise".
3. Based on the unchallenged opinion evidence of Mr Stuart, on 7 November 2019, the site which is now Dam 6 was covered with vegetation. Mr Stuart observed earthworks in an image captured on 3 December 2019. The previously observed vegetation had been removed and bare earth was visible across the current location of Dam 6.
4. In the s 338A(2) response, Mr Lin stated that he excavated the area which was Dam 6. During Mr Lin's recorded interview, he was asked whether Dams 6 and 7 were dams. He said: "No, because there were a lot of overgrown grass on that - over that area so we dug up the grass and see, we were thinking of trying to grow water lotus."
5. Later in his interview, Mr Lin stated that Dams 6 and 7 were dug to a depth of about 1.2 metres to test the area's suitability for water lotus. The following was recorded: Q204 …I'm just going to ask you now about what we are calling dam 7, which is an excavation, and dam 6, another excavation, at the south of the property. A (INT) Uh-huh. Q205 What can you tell me about those two areas? A (INT) That is - they are not dams. We dug it just check the soil, the quality of the soil, and we were thinking of growing water lotus, and see whether it can - we grow water lotus there. Q206 And did you grow water lotus there? A (INT) We are testing - doing the testing at the moment to see whether there is leaking of the water, because if - without water, we can't grow water lotus there. Q207 How deep are the excavations? A (INT) About 1.2 metres. Q208 Did you excavate both areas at the same time? A (INT) Yes. Q209 And when - when was that? A (INT) It's also in 2020, when we dug dam 5, and then we took the opportunity to dig dam 7 and dam 6. Q210 O.K. Did you take machinery down into that area? A (INT) Yes, the neighbour wanted me - yes. Yes. The digger.
6. Consistent with Mr Lin's account that Dam 6 was dug at the same time as Dam 5, it was Mr Stuart's opinion that the earthworks for Dam 6 took place between 7 November 2019 and 14 February 2020. The records obtained from the hire company, Tutt Bryant, indicated that the company hired a 24-tonne excavator from 5 February 2020 until 25 March 2020.
7. The evidence establishes beyond reasonable doubt that the construction of Dam 5 took place between 7 November 2019 and 16 March 2020 during which time material and vegetation was removed from the Property.
8. The prosecutor must establish that the controlled activity was carried out on waterfront land, namely, a wetland.
9. Dr Copeland reviewed aerial imagery of the Dam 6 location prior to its excavation. Dr Copeland observed a low, dense area of vegetation consistent with his field observations that the area was a diverse, well developed sedgeland with tall, mature sedges up to 1.5 m tall. Tall perennial sedges are indicative of a sedgeland that have been present for at least several years and not just because of a single, recent inundation event. Dr Copeland's mapping of the natural wetland prior to construction of Dam 6 was at Figure 14 of Exhibit 37, which showed the entirety of the Dam 6 area to have been a wetland.
10. Mr Stuart's opinion was that the entirety of Dam 6's 0.13 hectares was excavated on waterfront land.
11. The evidence concerning the presence and location of waterfront land on the Property was unchallenged. It was not suggested that the boundaries may be indefinite. I am satisfied beyond reasonable doubt that the controlled activity, being the excavation of Dam 6, was carried out on waterfront land.
12. For completeness, I also note the defendants argued that, if the court was satisfied about the location of the wetland, they made an honest and reasonable mistake of fact as to the location of the wetland at the time of construction of the dam as the area was experiencing severe drought and was completely dry. It was not put to Dr Copeland that the existence of drought conditions somehow affected the presence or otherwise of a wetland on the Property or its boundaries, and the defendants did not adduce any evidence to suggest otherwise, such as to cast doubt on Dr Copeland's evidence. Further, the determination of the wetland and its boundaries was not in any way informed by mapping under any state environmental planning policy.
13. Although I consider any such asserted mistake would properly be characterised, contrary to the prosecutor's closing submissions, as one of fact and not of law, for the above reasons, I am not satisfied that sufficient evidence has been led such that the excuse should be considered by the court. I therefore find that the prosecutor was not required to negative the excuse of honest and reasonable mistake of fact beyond reasonable doubt.
14. The prosecutor must establish that the defendants did not hold an approval for the controlled activity.
15. The certificate of evidence, which was Exhibit 34, stated that no person, including the company or Mr Lin, had ever held an approval under the WM Act or the Water Act authorising the carrying out of any controlled activity on the Property.
16. During his recorded interview, Mr Lin was asked: Q197 Just that question - Tina, if you could ask Mr Lin, did he gain approval from any New South Wales government department to construct any of the dams depicted in the photograph that has been shared with him, and what he can see on the screen now? A (INT) No. I think dam 3 has the approval, and this was done by Roger. I honestly didn't know that.
17. Mr Lin was further asked: Q213 O.K. And in relation - just referring back to dam 6 and 7 that's marked on the map that's being shown at the moment, or shared with him at the moment, can you please ask Mr Lin if he had authority from any New South Wales Government department in regards to digging at those locations. A (INT) No. No. No.
18. I am satisfied beyond reasonable doubt that both defendants did not hold approvals to carry out a controlled activity for the excavation of Dam 6.
19. I address the attribution of criminal responsibility upon Mr Lin and the company jointly for charges 9 and 10 below.

Dam 7 (Charge 10)

1. Charge 10 was an offence against s 91E(1) of the WM Act for the carrying out of a controlled activity without approval on waterfront land. The prosecutor alleged that the defendants removed material, including vegetation, during the excavation of Dam 7 between about 27 January 2020 and 15 January 2021.
2. The prosecutor must establish that a person carried out a controlled activity which includes the "removal of material (whether or not extractive material) or vegetation from land, whether by way of excavation or otherwise".
3. Based on the unchallenged opinion of Mr Stuart, on 27 January 2020, the site which is now Dam 7 was likely covered with vegetation. Mr Stuart observed earthworks in an image captured on 29 February 2020.
4. In the s 338A(2) response, Mr Lin stated that he excavated the area which is Dam 7. During his recorded interview, Mr Lin stated that Dam 7 was dug to a depth of about 1.2 metres to test the soil for its suitability for water lotus. Mr Lin stated that a "digger" was used for the excavation. Records obtained from hire company, Tutt Bryant, indicate the company hired a 24-tonne excavator from 5 February 2020 until 25 March 2020.
5. The evidence establishes beyond reasonable doubt that the excavation of Dam 7 took place between 27 January 2020 and 15 January 2021, during which time material and vegetation was removed from the Property.
6. The prosecutor must establish that the controlled activity was carried out on waterfront land, namely, a wetland.
7. Dr Copeland reviewed aerial imagery of the Dam 7 location prior to its excavation and observed a low, dense area of vegetation consistent with his field observations that the area was a diverse, well developed sedgeland with tall, mature sedges up to 1.5 m tall. Tall perennial sedges are indicative of a sedgeland that have been present for at least several years and not just because of a single, recent inundation event.
8. Dr Copeland's mapping of the natural wetland prior to construction of Dam 7 was at Figure 14 of Exhibit 37 which recorded that the entirety of the Dam 7 area was a wetland upon its excavation. This was consistent with Mr Stuart's opinion that the entirety of the 0.07 hectare area on which Dam 7 was constructed was waterfront land.
9. The evidence concerning the presence and location of waterfront land on the Property was unchallenged. It was not suggested that the boundaries may be indefinite. I am satisfied beyond reasonable doubt that the controlled activity, being the excavation of Dam 7, was carried out on waterfront land.
10. For completeness, I also note the defendants argued that, if the court was satisfied about the location of the wetland, they made an honest and reasonable mistake of fact as to the location of the wetland at the time of construction of the dam due to the area experiencing severe drought and being completely dry. It was not put to Dr Copeland that the existence of drought conditions somehow affected the presence or otherwise of a wetland on the Property or its boundaries, and the defendants did not adduce any evidence to suggest otherwise, such as to cast doubt on Dr Copeland's evidence. Further, the determination of the wetland and its boundaries was not in any way informed by mapping under any state environmental planning policy.
11. Although I consider any such asserted mistake would properly be characterised, contrary to the prosecutor's closing submissions, as one of fact and not of law, for the above reasons, I am not satisfied that sufficient evidence has been led such that the excuse should be considered by the court. I therefore find that the prosecutor was not required to negative the excuse of honest and reasonable mistake of fact beyond reasonable doubt.
12. The prosecutor must establish that the defendants did not hold an approval for the controlled activity.
13. The certificate of evidence, which was Exhibit 34, stated that no person, including the company or Mr Lin, had ever held an approval under the WM Act or the Water Act authorising the carrying out of any controlled activity on the Property.
14. During his recorded interview Mr Lin was asked: Q197 Just that question - Tina, if you could ask Mr Lin, did he gain approval from any New South Wales government department to construct any of the dams depicted in the photograph that has been shared with him, and what he can see on the screen now? A (INT) No. I think dam 3 has the approval, and this was done by Roger. I honestly didn't know that.292
15. Mr Lin was further asked: Q213 O.K. And in relation - just referring back to dam 6 and 7 that's marked on the map that's being shown at the moment, or shared with him at the moment, can you please ask Mr Lin if he had authority from any New South Wales Government department in regards to digging at those locations. A (INT) No. No. No.293
16. I am satisfied beyond reasonable doubt that both defendants did not hold approvals to carry out a controlled activity for the excavation Dam 7.
17. In response to the s 338A(2) notice, Mr Lin stated that he excavated Dams 6 and 7. He maintained that he had excavated both areas in his recorded interview where he also agreed that he took machinery down to the area of the dams. Mr Lin "planned the layout of the dams and irrigation system at the farm"296 and was responsible for managing the on-site operations at the Property during the period from 25 February 2013 to 1 April 2021.
18. Through Mr Lin's actions in excavating Dams 6 and 7, he was directly responsible for the controlled activity that was carried out by the excavation of Dams 6 and 7.
19. In the alternative, the prosecutor relied on s 363(1) of the WM Act. I find that Mr Lin knowingly authorised the excavation of Dam 5 being the act which constitutes the offence.
20. I find that the acts of Mr Lin were attributable to the company as he was the directing mind and will of the company.
21. The prosecutor also relied on the rebuttable presumption in s 367B(1)(f) of the WM Act which provides that a controlled activity that has been carried out on waterfront land within a landholder's land, gives rise to the presumption that the activity has been carried out by the landholder. Relevantly, the waterfront land which encompassed Dams 6 and 7 was located on the Property. No evidence has been adduced to rebut the presumption that the company carried out the controlled activity that was the excavation of Dams 6 and 7.
22. In the alternative, the prosecutor relied on s 91L(1) of the WM Act which provides that the occupier of a premises at which a controlled activity has been carried out in contravention of s 91E(1) is taken to have contravened that provision, unless the factors set out at s 91L(2) are established. The persuasive onus to establish the s 91L(2) factors rests with the company, and no evidence was adduced which was capable of establishing the 3 factors.
23. I am satisfied beyond reasonable doubt of the elements of charges 9 and 10 against the company and Mr Lin and return a verdict of 'guilty' in all relevant sets of proceedings.

Dams 8A and 9 (Charge 3)

1. Charge 3 was an offence against s 91B(1) of the WM Act for the use of Dam 8A and 9 on 25 February 2021.
2. The prosecutor must establish that the defendants used a water supply work, namely, Dam 8A and 9.
3. The definition of water supply work includes a work such as a dam for the purpose of capturing or storing water.
4. When asked about the purpose of Dam 9 during his record of interview, Mr Lin said: "It was - it was from - so the purpose was for the - to direct the water, channel the water from B - collect it from B4, B5, C2 - C2, C3 to dam 5".141
5. The identifiers B4, B5, C2 and C3 were specific rows of greenhouses that were located uphill to Dam 8A and 9. An aerial image labelling the greenhouse rows was provided to Ms Davis following Mr Lin's interview and formed part of Exhibit 41.
6. Mr Stuart's opinion was that the surface area of Dam 8A on 25 February 2021 was 0.05 hectares. The maximum depth was 1.1 metres, and the capacity was 0.2 mega litres. Mr Stuart created a bathymetric model and a cross-sectional model of Dam 8A. The modelling depicted a 'V shaped' dam with the deepest point in the centre of the dam. In respect of the connected Dam 9, Mr Stuart "observed it to be a channel with a width typically less than 3 m".
7. In his report dated 21 April 2023, which was Exhibit 36, Mr Stuart stated: "Dam 8A captures overland flow from the Western central section of the Premises that flows in an Easterly direction. Dam 8A is directly connected to Dam 9, a channel, so water collected in Dam 8A spills into the channel and flows South to Dam 5 where, if Dam 5 if full [sic], it flows into a short channel and into the surrounding vegetation."
8. The short channel referred to by Mr Stuart was depicted in Exhibit 20, which was the video recorded by Ms Davis during her inspection on 25 February 2021. During the inspection Ms Davis walked the length of Dam 8A and 9. She observed the Dam 8A area to be full of water and surrounded by fairly thick vegetation with an algal cover over most of the dam. Dam 9 was a narrow "V-shaped notch" channel that was 4 or 5 metres wide and narrower at the bottom. The channel contained water which was about half a metre deep. Detailed aerial imagery of Dam 8A and 9 on 25 February 2021 was comprised in Exhibit 26.
9. The evidence establishes beyond reasonable doubt that Dams 8A and 9 were a water supply work, which purpose includes the storage of water.
10. In respect of the 'use' of Dam 8A and 9, the prosecutor relied on the purpose at paragraph (b) of the definition of water supply work, being the storage of water.
11. As stated by Mr Stuart, Dam 8A captured overland flow from the western central section of the Property. It was full, or near to full, on 25 February 2021, as can be seen in the aerial images and the flow of water into the spillway at the juncture of Dam 5 and Dam 9.
12. On 25 February 2021, Ms Davis observed Dam 8A to be full of water and the depth of Dam 9A to be half a metre. These observations, combined with Mr Stuart's opinion concerning the nature of the structure, the fact that Dam 8A contained approximately 0.2 mega litres of water on 25 February 2021 (Exhibit 35), the detailed aerial imagery (Exhibit 26), and the video of Dam 9 (Exhibit 20), are such that I am satisfied beyond reasonable doubt that Dam 8A and 9 were being used to store water on 24 February 2021.
13. In the case against both defendants, the prosecutor relied on the rebuttable presumption in s 367B(3) of the WM Act that the capability of Dam 8A and 9 to store water gave rise to a rebuttable presumption that the work has been used for that purpose. No evidence was adduced to rebut the presumption that the water in Dam 8A and 9 on 25 February 2021 was not being used for the purpose of storage.
14. The prosecutor must establish that the defendants did not hold a water supply work approval for the construction of Dam 8A and 9. Exhibit 34, which was the certificate of evidence, stated that no person, including the company or Mr Lin, had ever held a water supply work approval under the WM Act or the Water Act authorising the use of a water supply work on the Property.
15. In the s 338A(2) response, Mr Lin stated that the company did not hold a water supply use approval authorising the use of groundwater and surface water for irrigation at the Property.
16. I am satisfied beyond reasonable doubt that both defendants did not hold approvals to use Dam 8A and 9.
17. The prosecution relied upon Mr Lin's admissions that he excavated the areas which are Dam 8A and 8B, that he "planned the layout of the dams and irrigation system at the farm", that he was responsible for managing the on-site operations at the Property, and managed, programmed, and controlled irrigation at the Property on 25 February 2021.
18. Through Mr Lin's actions in constructing, designing, and managing Dam 8A and 9, and the purpose of Dam 8A being for "future use in case the drought happens again", Mr Lin "allow[ed] the work to operate for that purpose"158 and was directly responsible for storage of water in Dam 8A and 9 on 25 February 2021.
19. In the alternative, the prosecutor relied on s 363(1) of the WM Act. I find that Mr Lin knowingly authorised the storage of water in Dam 8A and 9 by constructing the dam and thereafter being responsible for the management, programming, and control of irrigation at the Property on 25 February 2021.
20. I find that the acts of Mr Lin were attributable to the company as he was the directing mind and will of the company.
21. The prosecutor also relied on the rebuttable presumption in s 367B(1)(b) of the WM Act that a work which is used on a landholder's land, gives rise to the presumption that the work is being used by the landholder. Relevantly, Dam 8A and 9 was located partly on the company's land. No evidence was adduced to rebut this presumption.
22. In the alternative, the prosecutor relied on s 91L(1) which provides that the occupier of a premises at which a water supply work has been used in contravention of s 91B is taken to have contravened that provision, unless the factors set out at s 91L(2) are established. The persuasive onus to establish the s 91L(2) factors rests with the company and no evidence was adduced which was capable of establishing the 3 factors.
23. I am satisfied beyond reasonable doubt of the elements of charge 3 against both the company and Mr Lin and return a verdict of 'guilty' in each relevant set of proceedings.

Dam 8A and 9 (Charges 11 and 15)

1. Charge 11 was an offence against s 91E(1) of the WM Act for the carrying out of a controlled activity without approval on waterfront land. The prosecutor alleged that the defendants removed material, including vegetation, during the construction of Dam 8A and 9 between about 14 February 2020 and 28 July 2020. The prosecutor identified the removal of material at the location of Dam 8A and 9 as a single controlled activity.
2. The prosecutor must establish that a person carried out a controlled activity which includes the "removal of material (whether or not extractive material) or vegetation from land, whether by way of excavation or otherwise".
3. In Mr Stuart's opinion, on 14 February 2020, the site which was Dam 8A and 9 was covered with vegetation. Mr Stuart observed earthworks in an image captured on 29 February 2020. The vegetation that was previously at the site had been removed and bare earth was visible. Dam 8A extended 0.6 metres deeper than the natural ground level.
4. Mr Stuart's opinion was that the earthworks for Dam 8A and 9 took place between 14 February 2020 and 15 January 2021. It was known that Dam 8A and 9 were constructed by 28 July 2020 as Ms McGarity observed and photographed the area during her inspection of that date. Consistent with Mr Stuart's opinion and Ms McGarity's observations, Mr Lin stated in the s 338A(2) response that Dam 8A was built in March 2020. In his recorded interview, Mr Lin stated that Dam 9 was built at a similar time: Q186 What about the channel part that goes from dam 8 and connects to dam 5 - when was that part dug? A (INT) Around - in March also. Maybe a little bit after March. Q187 2020? A (INT) Yes. It's after - after that was done, the dam, and then we'd - to dig the channel after the dam.306
5. Records obtained from the hire company, Tutt Bryant, indicated that the company hired a 24-tonne excavator from 5 February 2020 until 25 March 2020.
6. The evidence establishes beyond reasonable doubt that the construction of Dam 8A and 9 took place between 14 February 2020 and 15 January 2021 during which time material and vegetation was removed from the Property.
7. The prosecutor must establish that the controlled activity was carried out on waterfront land, namely, a wetland.
8. It was Dr Copeland's opinion that the location of Dam 8A was covered in a low, forested wetland prior to construction of the dam. He identified the same Broad-leaved Paperbark trees during fieldwork on 20 January 2023 to those he observed in pre-construction aerial imagery. The wetland continued to the opening into channel 9 at the southern end of Dam 8A, where scattered plants of Broad-leaved Paperbark were observed. Dr Copeland considered that there was an abundance of sedges and other herbaceous hydrophytes along the pre-existing drainage line. However, except for the northern end of Dam 9, the channel was not a naturally occurring wetland prior to its construction.
9. Dr Copeland's mapping of the natural wetland prior to the construction of Dam 8A and 9 was at Figure 15 of Exhibit 37, which showed all of Dam 8A and the northeastern boundary of Dam 9 to have been a wetland. It was Mr Stuart's opinion that 0.08 to 0.09 hectares of Dam 8A and 9 was located on waterfront land. This area represented the entire 0.05 hectare area of Dam 8A and 0.03 to 0.04 hectares of Dam 9. As can been seen in Figure 6 of Exhibit 36, most of the area of the channel that was waterfront land was due to the extended definition of waterfront land which included a parallel area of 40m from the edge of the wetland.
10. I am satisfied beyond reasonable doubt that the controlled activity, being the removal of material, including vegetation, by way of excavation in the construction of Dam 8A and 9, was carried out on waterfront land. The evidence concerning the presence and location of waterfront land on the Property was unchallenged. It was not suggested that the boundaries may be indefinite.
11. For completeness, I also note the defendants argued that, if the court was satisfied about the location of the wetland, they made an honest and reasonable mistake of fact as to the location of the wetland at the time of construction of the dam as the area was experiencing severe drought and was completely dry. It was not put to Dr Copeland that the existence of drought conditions somehow affected the presence or otherwise of a wetland on the Property or its boundaries, and the defendants did not adduce any evidence to suggest otherwise, such as to cast doubt on Dr Copeland's evidence. Further, the determination of the wetland and its boundaries was not in any way informed by mapping under any state environmental planning policy.
12. Although I consider any such asserted mistake would properly be characterised, contrary to the prosecutor's closing submissions, as one of fact and not of law, for the above reasons, I am not satisfied that sufficient evidence has been led such that the excuse should be considered by the court. I therefore find that the prosecutor was not required to negative the excuse of honest and reasonable mistake of fact beyond reasonable doubt.
13. The prosecutor must establish that the defendants did not hold an approval for the controlled activity.
14. The certificate of evidence, which was Exhibit 34, stated that no person, including the company or Mr Lin, had ever held an approval under the WM Act or the Water Act authorising the carrying out of any controlled activity on the Property.
15. During his recorded interview, Mr Lin stated that, with the exception of Dam 3, he was aware that approvals were required to construct the dams on the Property.
16. I am satisfied beyond reasonable doubt that both defendants did not hold approvals to carry out a controlled activity for the construction Dam 8A and 9.
17. In response to the s 338A(2) notice, Mr Lin stated that he excavated Dam 8, being the area that captured both Dam 8A and 8B: "originally the intention was to build a dam, but then decided to make it a better way, as to - to dig the - to get the water into dam 5 through a channel". Mr Lin "planned the layout of the dams and irrigation system at the farm" and was responsible for managing the on-site operations at the Property during the period from 25 February 2013 to 1 April 2021.
18. Through Mr Lin's actions in excavating Dam 8A and 9, he was directly responsible for the controlled activity that was carried out by the excavation Dam 8A and 9.
19. In the alternative, the prosecutor relied on s 363(1) of the WM Act. I find that Mr Lin knowingly authorised the excavation of Dam 8A and 9, being the acts which constitute charge 11.
20. In respect of charge 11 (but incidentally not charge 12), the prosecutor also relied on the rebuttable presumption in s 367B(1)(f) of the WM Act which provided that a controlled activity that has been carried out on waterfront land within a landholder's land, gives rise to the presumption that the activity has been carried out by the landholder. Relevantly, the controlled activity took place partly on waterfront land is located on the Property. No evidence has been adduced to rebut the presumption that the company carried out the controlled activity that was the excavation of Dam 8A and 9.
21. In the alternative, the prosecutor relied on s 91L(1) of the WM Act which provides that the occupier of a premises at which a controlled activity has been carried out in contravention of s 91E(1) is taken to have contravened that provision, unless the factors set out at s 91L(2) are established. The persuasive onus to establish the s 91L(2) factors rests with the company, and no evidence was adduced which was capable of establishing the 3 factors.
22. In the alternative to charge 11, the prosecutor submitted that the defendants constructed a water supply work without approval by the construction of Dam 8A and 9, contrary to s 91B(1) of the WM Act.
23. The prosecutor relied on the aforementioned evidence, which I have accepted, in proof of this offence, namely: 1. That Dam 8A and 9 was a water supply work; 2. That Dam 8A and 9 was constructed; 3. That the defendants did not hold an approval to construct Dam 8A and 9; and 4. The attribution of the construction of Dam 8A and 9 to the defendants (in addition to reliance on s 363(1) of the WM Act in the case against Mr Lin and the rebuttable presumption against the company provided by s 367B(1)(a) of the WM Act).
24. If it were necessary to do so, I therefore would also have found charge 15 proved beyond reasonable doubt. In light of my findings relating to charge 11, I note the prosecutor clarified in closing submissions that it would withdraw charge 15 and, on that basis, I therefore propose to dismiss that charge.
25. I am satisfied beyond reasonable doubt of the elements of charge 11 against both the company and Mr Lin and return a verdict of 'guilty' in each relevant set of proceedings.

Dam 8B (Charge 4)

1. Charge 4 was an offence against s 91B(1) of the WM Act for the use of Dam 8B on 25 February 2021.
2. The prosecutor must establish that the defendants used a water supply work, namely, Dam 8B.
3. The definition of a 'water supply work' is set out above.
4. The detailed drone imagery of Dam 8B which was Exhibit 25 depicted an irregular 'S' shaped trench. The northern wall of Dam 8B was formed by mounded soil above the water line. The wall was partly covered with vegetation.
5. Dam 8B was full of water which was being stored at the time of the photo. This was consistent with the purpose of Dam 8A and 8B, as stated by Mr Lin in the s 338A(2) response, namely that it was "for future use in case the drought happens again". Mr Lin also stated that he excavated Dams 8A and 8B. In his recorded interview, Mr Lin explained his intention for Dam 8B: No, I don't know how to call it. In - originally the intention was to build a damn [sic], but then decided to make it a better way, as to - to dig the - to get the water into dam 5 through a channel.161
6. Mr Lin then explained that the topography of Dam 8B, being lower than Dam 5, did not permit water to drain to Dam 5. This was consistent with the impounding of water depicted in Exhibit 25 and with Mr Lin's assertion that the water in Dam 8B could not drain to Dam 5. It was also consistent with it being an unconnected structure the purpose of which was the storage of water. When asked about the purpose of Dam 8B, Mr Lin said: "Not for anything, just left there." An image taken on 30 January 2023 of Dam 8B was at Figure 34 of Exhibit 36.
7. Consistent with Mr Lin's initial intended use of Dam 8B as a dam, and with the photographs of the work on 25 February 2021 depicting the work full of brown water, I find that the purpose of Dam 8B was to store water. The fact that Mr Lin did not intend for Dam 8B to store water as of the date of his interview on 30 August 2021 does not alter that Dam 8B is "a work (such as a tank or dam) for the purpose of capturing or storing water".
8. The definition of 'use' in relation to a water supply work includes allowing the work to operate for the purpose of storing water. Mr Lin's admission to constructing Dam 8B for the purpose of using it as a dam, and the images of the work taken on 25 February 2021, depicting it full of water, establish beyond reasonable doubt that Dam 8B was allowed to operate for the purpose of storing water on 25 February 2021.
9. In the case against both defendants, the prosecutor relied on the rebuttable presumption in s 367B(3) of the WM Act (see above at [62] and [103]). The capability of Dam 8B to store water gives rise to a rebuttable presumption that the work has been used for that purpose. No evidence was adduced to rebut the presumption that the water in Dam 8B on 25 February 2021 was not being used for the purpose of storage.
10. The prosecutor must establish that the defendants did not hold a water supply work approval for the construction of Dam 8B. The certificate of evidence, which was Exhibit 34, stated that no person, including the company or Mr Lin, had ever held a water supply work approval under the WM Act or the Water Act authorising the use of a water supply work on the Property.
11. In the s 338A(2) response, Mr Lin stated that the company did not hold a water supply use approval authorising the use of groundwater and surface water for irrigation at the Property.
12. I am satisfied beyond reasonable doubt that both defendants did not hold approvals to use Dam 8B.
13. The prosecution relied upon Mr Lin's admissions that he constructed Dam 8B, "planned the layout of the dams and irrigation system at the farm", was responsible for managing the on-site operations at the Property, and managed, programmed, and controlled irrigation at the Property on 25 February 2021.
14. Through Mr Lin's actions in constructing, designing, and abandoning Dam 8B which was intended for use as a dam and therefore for the purpose of water storage, Mr Lin "allow[ed] the work to operate for that purpose" and was directly responsible for the storage of water in Dam 8B on 25 February 2021.
15. In the alternative, the prosecutor relied on s 363(1) of the WM Act. I find that Mr Lin knowingly authorised the storage of water in Dam 8B by constructing the dam and thereafter being responsible for its management and the decision to abandon the work.
16. I find that the acts of Mr Lin were attributable to the company as he was the directing mind and will of the company.
17. I note for completeness that the prosecutor does not rely on the rebuttable presumption in s 367B(1)(b) of the WM Act as Dam 8B was not located on the landholder's land. Further, and for the same reason, the prosecutor does not rely on s 91L(1) of the WM Act.
18. I am satisfied beyond reasonable doubt of the elements of charge 4 against both the company and Mr Lin and return a verdict of 'guilty' in each relevant set of proceedings.

Dam 8B (Charges 12 and 16)

1. Charge 12 was an offence against s 91E(1) of the WM Act for the carrying out of a controlled activity without approval on waterfront land. The prosecutor alleged that the defendants removed material, including vegetation, during the construction of Dam 8B between about 14 February 2020 and 16 March 2020.
2. The prosecutor must establish that a person carried out a controlled activity which includes the "removal of material (whether or not extractive material) or vegetation from land, whether by way of excavation or otherwise".
3. In Mr Stuart's opinion, on 14 February 2020, the site which was now Dam 8B was covered with vegetation. Mr Stuart observed earthworks in an image captured on 29 February 2020. The vegetation that was previously at the site had been removed and bare earth was visible.
4. Mr Stuart's opinion was that the earthworks for Dam 8B took place between 14 February 2020 and 16 March 2020.
5. The prosecutor also relied on records obtained from the hire company, Tutt Bryant, which indicated the company hired a 24-tonne excavator from 5 February 2020 until 25 March 2020.
6. The evidence establishes beyond reasonable doubt that the construction of Dam 8B took place between 14 February 2020 and 16 March 2020 during which time material and vegetation was removed from the Property.
7. The prosecutor must establish that the controlled activity was carried out on waterfront land, namely, a wetland.
8. It was Dr Copeland's opinion that the Dam 8B area was covered in a low, forested wetland prior to construction of the dam. He identified the same Broad-leaved Paperbark trees during fieldwork on 20 January 2023 as those he observed in the aerial imagery. Dr Copeland's mapping of the natural wetland prior to the construction of Dam 8B was at Figure 15 of Exhibit 37, which showed all the Dam 8B area to have been a wetland.
9. I am satisfied beyond reasonable doubt that the controlled activity, being the removal of material, including vegetation, by way of excavation during the construction of Dam 8B, was carried out on waterfront land. The evidence concerning the presence and location of waterfront land on the Property was unchallenged. It was not suggested that the boundaries may be indefinite.
10. For completeness, I also note the defendants argued that, if the court was satisfied about the location of the wetland, they made an honest and reasonable mistake of fact as to the location of the wetland at the time of construction of the dam as the area was experiencing severe drought and was completely dry. It was not put to Dr Copeland that the existence of drought conditions somehow affected the presence or otherwise of a wetland on the Property or its boundaries, and the defendants did not adduce any evidence to suggest otherwise, such as to cast doubt on Dr Copeland's evidence. Further, the determination of the wetland and its boundaries was not in any way informed by mapping under any state environmental planning policy.
11. Although I consider any such asserted mistake would properly be characterised, contrary to the prosecutor's closing submissions, as one of fact and not of law, for the above reasons, I am not satisfied that sufficient evidence has been led such that the excuse should be considered by the court. I therefore find that the prosecutor was not required to negative the excuse of honest and reasonable mistake of fact beyond reasonable doubt.
12. The prosecutor must establish that the defendants did not hold an approval for the controlled activity.
13. The certificate of evidence, which was Exhibit 34, stated that no person, including the company or Mr Lin, had ever held an approval under the WM Act or the Water Act authorising the carrying out of any controlled activity on the Property.
14. During his recorded interview, Mr Lin stated that except for Dam 3, he was unaware that approvals were required to construct the dams on the Property.
15. I am satisfied beyond reasonable doubt that both defendants did not hold approvals to carry out a controlled activity during the construction Dam 8B.
16. In response to the s 338A(2) notice, Mr Lin stated that he excavated Dam 8, being the area that captures both Dam 8A and 8B. In respect of Dam 9, Mr Lin said: "originally the intention was to build a dam, but then decided to make it a better way, as to - to dig the - to get the water into dam 5 through a channel". Mr Lin "planned the layout of the dams and irrigation system at the farm" and was responsible for managing the on-site operations at the Property during the period from 25 February 2013 to 1 April 2021.
17. Through Mr Lin's actions in excavating Dam 8B, he was directly responsible for the controlled activity that was carried out by the excavation of Dam 8B.
18. In the alternative, the prosecutor relied on s 363(1) of the WM Act. I find that Mr Lin knowingly authorised the excavation of Dam 8B, being the acts which constitute charge 12.
19. I find that the acts of Mr Lin are attributable to the company as he was the directing mind and will of the company.
20. In the alternative to charge 12, the prosecutor submitted that the defendants constructed a water supply work without approval by the construction of Dam 8B, contrary to s 91B(1) of the WM Act.
21. The prosecutor relied on the aforementioned evidence, which I have accepted, in proof of this offence, namely: 1. That Dam 8B was a water supply work; 2. That Dam 8B was constructed; 3. That the defendants did not hold an approval to construct Dam 8B; and 4. The attribution of the construction of Dam 8B to the defendants (in addition to reliance on s 363(1) of the WM Act in the case against Mr Lin and the rebuttable presumption against the company provided by s 367B(1)(a) of the WM Act).
22. If it were necessary to do so, I therefore would also have found charge 16 proved beyond reasonable doubt. In light of my findings relating to charge 12, I note the prosecutor clarified in closing submissions that it would withdraw charge 16 and, on that basis, I therefore propose to dismiss that charge.
23. I am satisfied beyond reasonable doubt of the elements of charge 12 against both the company and Mr Lin and return a verdict of 'guilty' in each relevant set of proceedings.

Some Concluding Remarks

1. As stated earlier, offences against ss 91B and 91E of the WM Act are 'strict liability' offences, and hence the state of mind and intent of the defendant is not relevant to proof of the offences. Despite this, observations about the motive of the defendants can be made based on the evidence.
2. In De Gruchy v The Queen (2002) 211 CLR 85 at [57(4)], Kirby J said: "Where the prosecution has established strong evidence of a motive, it will often be necessary to warn the jury that they must look at all the circumstances of the case and not be unduly affected by the evidence that the accused had a motive to commit the crime. This is because of the fact that many who have powerful motives to offend never do so. Motivation is simply one item of the evidence in the case that may tend to show that a particular person committed an alleged act. The jury may therefore need to be reminded that allowance should be made for the fact that having a motive, and even expressing it, does not, as such, constitute proof of involvement in a crime."
3. In response to a s 338A(2) notice issued to the company, Mr Lin stated that the 2 bores approved for use on the Property were not being used for production as the extracted water's salt content was too high. The same problem infected water extracted by the test bore. The groundwater licences were the only approvals held by the company for the use of water on the Property.
4. Ms Chen gave evidence that more than 5 years ago, the Property experienced a period of drought which impacted the crops. Ms Chen stated that the drought was "really bad" and there "was not even a drop of water in our reservoir". She stated that plants died which inflicted a financial loss on the company. This was consistent with Mr Lin's recorded interview in which he said: "…in 2019 it was a really dry year and all the tomatoes put there, there was insufficient water and they died…".
5. The expert report of Dr Geoff Cresswell is Exhibit 45. It was Mr Cresswell's opinion that the Property had 2 sources of water: a bore which supplies water that is too saline for irrigation, and rainfall. Dr Cresswell stated: "There are no rivers or permanent water courses on the property. The only possible way to farm this property is to collect and store some of the water that falls on the land. Local rainfall records suggest that the volume of water falling on the farm is approximately 1,486ML in a wet year and 681ML in a dry year. In reality, less than half of this is available because much of the rainwater soaks into the soil. Only surface flows of water can be collected which are confined to times of heavy and continuous rain."
6. Dr Cresswell calculated that the annual water requirement for the operations at the Property is a maximum of 154 mega litres. Significantly, Dr Cresswell stated that "[i]t is very clear from this analysis that the viability of the farm depends on having the capacity to capture and store large volumes of rainwater" (emphasis added).
7. Due to the unsuitability of groundwater at the Property, the 2019 drought, and the dependence of the viability of the company's operations on the ability to capture and store rainwater, I find that the offences can be explained by the defendants' motivation to construct and extend the various water supply works and controlled activities, in particular those concerning Dams 1A, 1B, 4, 5, 8A and 9.
8. Complementing the evidence of motive is the presence of excavators "suitable for use in earthmoving" on the Property during the charge periods. Mr Newport gave evidence that the company purchased two 8 tonne excavators when the farm was being established in 2013. On 27 February 2015, Mark Bonner photographed an excavator next to Dam 1. Ms Davis also observed and photographed 2 excavators at the Property on 25 February 2021, and on multiple occasions between 2016 and 2020 the company hired excavators suitable for use with earth moving from Tutt Bryant Hire Coffs Harbour. Mr Newport's evidence was that Mr Lin was the only person with authority to give a direction to hire an excavator.
9. These observations fortify, but do not necessarily justify, my view about the commission of the offences.

Reasons for Findings on the Admissibility of Exhibits 38 to 41

1. During the hearing, various objections were taken to the admission of certain documents into evidence. These are my reasons for how I have determined each of the objections.
2. On day 3, day 5 and day 6 of the hearing, a voir dire was held on the admissibility of the documents which were ultimately tendered as Exhibits 38 to 41, being the notices served on Mr Lin, as well as his responses to the notices, and the recorded interview between officers of the Natural Resources Access Regulator and Mr Lin.
3. As I said earlier, all evidence tendered or given at the hearing, by agreement of the parties, was adduced in each of the 32 separate proceedings. An issue arose, however, regarding the admissibility of the documents comprising Exhibits 38 to 41 (inclusive) insofar as concerned each of the proceedings against Mr Lin in his personal capacity as a director of the company. Objection was not taken to the admission of those documents in each of the various proceedings brought against the company.
4. In particular, it was first submitted that the documents were not admissible in the various proceedings against Mr Lin personally because of the content of the warning given in these terms as set out in the subject notices: "However, if you are a natural person (that is, an individual rather than a company or other incorporated body) you may object to providing information which is required by this Notice, on the ground that the information might incriminate you. You must still provide the information, but it is not admissible in evidence against you in criminal proceedings if you make this objection, except for an offence under section 340A of the WM Act, including the offence of knowingly answering a question falsely or in a way that is misleading in a material respect".
5. Importantly, the notice also says that the warning is given for the purposes of section 340B of the WM Act.
6. In relation to, secondly, the record of interview, it was submitted that the translation of the caution or warning required under s 340B(3) of the WM Act was incorrect, misleading and therefore unfair to Mr Lin, with the effect that his answers in the interview should not be permitted to be used against him.
7. In this respect, Mr Lin tendered and relied on an expert report of Hongbo Shao which was marked as Exhibit 5 (on the voir dire only). For completeness, I have reproduced the entire content of that report, and I have italicised the answer to each question that was asked in the letter of instruction.
8. In Q12 (at about 08.20 to 09.00 minutes) there are two references made to the English word 'dam'. 1. What is the Chinese term/translation for the word 'dam' provided by the official interpreter in the video? The official interpreter used the term equivalent to the English word 'pond' in Chinese. 1. Please provide both Chinese Characters and Pinyin (Chinese spelling with English characters). I understand the word in Chinese used by the official interpreter is "塘" in Chinese character with the spelling "TANG" with the second/rising tone in Chinese pronunciation. For reference, there are usually four tones in Chinese pronunciation of the Chinese character, first/level tone (一声、阴平), second/rising tone (二声、阳平), third/falling-rising tone (三声、上声) and fourth/falling tone (四声、去声). 1. In your opinion, is this translation accurate? If not, why not? In my opinion, the translation used by the official interpreter is not accurate because the meaning of the word "dam" is significantly different from the word "pond" in Chinese. 1. In Q57 and Q58 (starting at about 37:00 minutes), there are 7 references to the English word 'dam'. 1. What is the Chinese term/translation for the word 'dam' provided by the female interpreter in the video? The official interpreter used the term equivalent to the English word "pond" in Chinese. 1. Please provide both Chinese Characters and Pinyin (Chinese spelling with English character). I understand the word in Chinese used by the official interpreter is "塘" in Chinese character with the spelling "TANG" with the second/rising tone in Chinese pronunciation. For reference, there are usually four tones in Chinese pronunciation of the Chinese character, first/level tone (一声、阴平), second/rising tone (二声、阳平), third/falling-rising tone (三声、上声) and fourth/falling tone (四声、去声). 1. In your opinion, is this translation accurate? If not, why not? The official interpreter used the term equivalent to the English word "pond" in Chinese. The word "dam" is defined as "a wall or bank artificially built across the river or creek to keep the water back or to hold the water to form a reservoir" while the word "pond" refers to "a relatively small area that holds water which is manually made or a body of water that naturally forms". 1. What word in Chinese would be more accurate as a translation for dam, in the context of agriculture? I would use the word "坝" in Chinese with the pronunciation of "BA" with the fourth/falling tone. 1. Does the Chinese word that was used by the official interpreter have substantially the same meaning as the Chinese word that you may consider is the more appropriate interpretation? No, the word I would use which in my opinion is the more appropriate interpretation is substantially different from the word used by the official interpreter. 1. Does the more accurate interpretation have the potential to substantially change the question put to Mr Lin? Given the two words discussed above, namely "Dam" and "Pond" in English, have significantly different meanings, it may extensively affect how Mr. LIN understands the questions from the investigator therefore on how he decides to answer the questions. However, it is Mr LIN's decision to produce his answers given the context of the questions involving the word in dispute. 1. In Question 13 (at around 10.50 minutes), there are references made to the sections of Water Management Act Mr Lin. Have those section numbers been correctly translated into Chinese? If not, why not? The investigator said: "It is section 91B, section 60A, section 91E, section 91G and section 345." There was only one error made by the interpreter where her interpretation was "68A" as opposed to "60A". I presume it's because it is easy to be mistaken about the pronunciation of "A" in English with the pronunciation of the number "8/eight" in English. I presume in the interpretation, the interpreter "accidentally" added the word "A" after "68". 1. In Q19 (starting at about 13:52 minutes), there are references made to the sections of Water Management Act. Have those section numbers been correctly translated into Chinese? If not, why not? The investigator said "…under section 340A(1) of the Water Management Act 2000….under section 340A(2)…". There were two error made by the interpreter where her interpretation were respectively "348(1)" as opposed to "340A(1)" and "348(2)" as opposed to "340A(2)". I presume it's because it is easy to be mistaken about the pronunciation of "A" in English with the pronunciation of the number "8/eight" in English. 1. Question 19 (at around 13:52 minutes), please translate the Chinese interpretation back into English. Interpreter: 如果,警告你,如果你没有合法的理由,忽略了,或者是没有回答我的问题的话, Back translation: If, I warn you, if you do not have any lawful reason, neglect, or do not answer my questions, Interpreter: 那就按照二千年水管理法案的348(1)条,你就是有罪,违,就是说违,犯罪。 Back translation: Then according to section 348(1) of the 2000 Water Management Act, you are guilty, or breach, that's to say, breach, commit an offence. Interpreter: 同时,按照法律的348(2)小,第2小条,如果你回答任何问题呢,是以误导的,或者就是内容上是,就是误导的话,也是,就是说有罪。 Back translation: A the same time, according to section 348 (2), subsection 2, of the law, if you answer any question, in a misleading manner, or in content, is misleading, it's also, that's to say guilty. 1. Question 20 (at around 15:30 minutes), please translate the Chinese interpretation back into English. Interpreter: 你也许可以拒绝回答某个问题,如果回答某个问题可能让你暴露出你触犯了法律。 Back translation: You may be able to refuse to answer a certain question, if answering a certain question may expose you, that you have breached the law. Interpreter:如果是说你拒绝回答的,你还是要回答,但是你回答的问题呢,就不算是承认了某项事情呢,就是说,不能,就是说对你某,就是说承认你本人做错了什么。 Back translation: If that's to say, you refuse to answer, you still need to answer, but the questions you answer, do not mean admitting to something, that's to say, it can't, that's to say, to you or some, that's to say to admit you yourself have done something wrong. 1. Jenna Wang says something in Chinese at around 16.16 minutes, please translate into English what she said? Please refer to the transcription and translation of the recording from 13'52'' to 16'47" below: Q19: I warn you that if you neglect or fail to answer without lawful excuse you are guilty of an offence under section 340A(1) of the Water Management Act 2000. It is also an offence under section 340A(2) to knowingly answer any question that is falsely - any question falsely or in a way that is misleading in a material respect. Xiuming Lin: Yes. Translation: 好的。 Q20: Okay. You may, however, object to answering a question on the ground that it might incriminate you. If you do object you must still answer the question but the answer is not admissible in evidence against you personally. Jenna WANG: 如果不懂的话,你要跟她讲。 Translation: If you do not understand, you need to let her know. Xiuming Lin: 如果我不懂的,再问你。 Translation:If I do not understand, I will then ask you. Jenna WANG: 我的意思是说,如果你不能懂翻译的话,你要让她再解释一下。 Translation: What I mean is if you do not understand the interpreter, you need to ask her to explain it again. Xuming Lin: 你说什么? Translation: I beg your pardon? Jenna WANG: 如果你不能懂翻译的话,你要问她。 Translation: If you do not understand the interpreter, you need to ask her. Xuming Lin: 懂翻译是吧?懂她的意思? Translation: Understand the interpreter, right? Understand what she means? Jenna WANG:你要问她。 Translation: You need to ask her. Xuming Lin: 就是。。。有的时候,比如说,我意思不清楚,我再多问一遍,好不好? Translation: It's, sometime, for example, I do not understand the meaning, I'll ask again, all right? Jenna WANG: 可以,可以。 Translation: Sure, sure. Jenna WANG: 我是说。。。(听不清) Translation: I mean… (inaudible) Xuming Lin: 嗯,嗯。 Xuming Lin: En, en. 1. Did Mr Lin say anything in response? If so, please translate what he said. Please refer to the transcription and translation provided in the answer to Question 10 above. 1. Does the interpreter translate what Jenna or Mr Lin was saying to the English-speaking investigator conducting the interview? In relation to Question 20 recorded in the transcript, the interpreter translated what Mr. LIN said to the investigator and the translation is correctly and completely recorded in the transcript as follows: A (INT): If I do not quite understand, can I ask it to be repeated again? To be repeated again? However, the interpreter did not translate what Jenna Wang said to Mr. LIN or what Mr. LIN said to Jenna Wang to the investigator.
9. I earlier recited the content of s 340B of the WM Act, and in particular subclause (3). Mr Lin objected to the admissibility of the subject notices on the basis provided for in s 137 of the Evidence Act 1995 (NSW), which says: "In any criminal proceeding, the court must refuse to admit evidence adduced by a prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
10. Mr Lin also objected to the admissibility of this evidence on the basis provided for in s 138 of the Evidence Act 1995, namely that the warning reproduced above did not accord with s 340B(3) of the WM Act.
11. At the hearing, I said that I found Exhibits 38 to 41 were admissible in the proceedings against Mr Lin in his personal capacity as a director of the company because the probative value of the evidence was not outweighed by any unfair prejudice. I also found that there was no relevant impropriety or contravention of law in respect of the warning or caution set out in the subject notices or as communicated in the record of interview, such as to engage s 138 of the Evidence Act 1995. I said at the hearing that I would give my reasons for these findings when delivering my final decision.
12. I carefully considered the respective submissions of the parties. My reasons for these findings are as follows: 1. First, I find that the subject notices fully complied with the requirements of s 340B(3)(b) of the WM Act as to the content of the required warning. 2. Secondly, to the extent s 340B(3)(a) of the WM Act was relied upon to impugn the warning, I find that this is misplaced. Section 340B(3)(a) of the WM Act does not prescribe the content or form of the required warning, but rather regulates the distinct circumstances where the person themselves objects to furnishing information or answering questions on the grounds of self-incrimination. 3. Thirdly, properly construed, s 340B(3)(a) of the WM Act also does not require that the warning inform the person that they must object to each separate question that may be asked of them by the investigating authority. 4. Fourthly, I am satisfied that the text of the warning was not confusing. It was submitted that the warning was not clear about the time at which a person may object to providing information or answering questions. I find that when the whole of the text is read and understood, the person is told that they must object to providing the information at the time of answering the notice. The warning goes on to say that the person must still provide the information, but it is not admissible if criminal proceedings are brought against the person. In other words, the warning clearly distinguishes between the time when the notice must be answered or responded to (and hence when objection must be made), and the time of any later criminal proceedings. In other words, the warning clearly tells the person that they have a right to object to providing the information when answering or responding to the notice itself, and that if the objection is made and the information is provided, then the evidence is not admissible in court. 5. Fifthly, I find that there was no confusion or unfairness arising from the distinction drawn in the warning between corporate and personal liability, which is expressly recognised in s 340B(3) of the WM Act. 6. Sixthly, as to the absence of a Chinese Mandarin translation of the warning in the second notice (Exhibit 39), the notice was issued to the company, and required the company to nominate its corporate representative. Section 340B(3) of the WM Act does not apply to corporate entities, and in any event, I accept that it was appropriate to issue the notice in English only. Further, the notice (and the warning contained within it) was in the same terms as that set out in the notice comprised in Exhibit 38, which was translated to Chinese Mandarin. 7. Seventhly, for the same reasons I have set out above, I find that the notice comprised in Exhibit 40, being the notice requiring Mr Lin to answer questions at a specified time and place, contained a warning which complied with s 340B(3)(b) of the WM Act and was not misleading or unfair. To the extent there was no Chinese Mandarin translation, I note that at the interview Mr Lin was assisted by an interpreter and was fully and appropriately cautioned and warned on that occasion. 8. Eighthly, as to the adequacy and content of the English to Chinese Mandarin translation of parts of the recorded interview with Mr Lin, I further find that no part of the translation led to any danger of unfair prejudice to Mr Lin. It was said that the warning or caution at the start of the interview was not properly translated from English to Mandarin Chinese so that Mr Lin was therefore misled about his legal rights, however, in my view, this submission had no merit. The translation adequately and properly communicated to Mr Lin his legal rights and obligations under s 340B of the WM Act. Further, the warning or caution was not communicated in an intimidatory way, nor was the fact of a potential offence against s 340A of the WM Act if Mr Lin did not, without lawful excuse, neglect or fail to answer questions or provide relevant information. The plain terms of s 340A of the WM Act were read to Mr Lin in a matter-of-fact way, in respect of which there could be no reasonable cause for complaint. 9. Ninthly, as to the use of the word 'pond' in the translation communicated to Mr Lin, in circumstances where the discussion concerned 'dams' built on the Property, the substance of the subject matter of the discussion was always clear, including having regard to the fact that during the interview, express references were made to the aerial photograph showing the geographic features of interest to the investigator. There was I find, therefore, no danger of unfairness in the translator using the word 'pond' to describe the dams that were the subject of the discussions.
13. For these reasons, I find that the notices (and the warning or caution set out therein), and the circumstances of the recorded interview with Mr Lin, fully complied with s 340B(3) of the WM Act. No other contraventions of law were established. Further, there was no danger of unfair prejudice in the use of that evidence in the proceedings against Mr Lin in his personal capacity, such as to justify the exclusion of the evidence under s 137 of the Evidence Act 1995.
14. Considering these findings, it was unnecessary to address s 138 of the Evidence Act 1995 because none of the evidence, in my view, was obtained improperly, or in contravention of an Australian law (or in consequence of any impropriety or contravention).

H. VERDICTS AND ORDERS

1. For the foregoing reasons, I enter the following verdicts in the proceedings concerning the company: 1. In proceedings 2023/00068231 (charge 1), a verdict of 'guilty'. 2. In proceedings 2023/00068235 (charge 2), a verdict of 'guilty'. 3. In proceedings 2023/00068247 (charge 3), a verdict of 'guilty'. 4. In proceedings 2023/00068255 (charge 4), a verdict of 'guilty'. 5. In proceedings 2023/00068258 (charge 5), a verdict of 'guilty'. 6. In proceedings 2023/00068266 (charge 6), a verdict of 'guilty'. 7. In proceedings 2023/00068268 (charge 7), a verdict of 'guilty'. 8. In proceedings 2023/00068277 (charge 8), a verdict of 'guilty'. 9. In proceedings 2023/00068281 (charge 9), a verdict of 'guilty'. 10. In proceedings 2023/00068288 (charge 10), a verdict of 'guilty'. 11. In proceedings 2023/00068291 (charge 11), a verdict of 'guilty'. 12. In proceedings 2023/00068294 (charge 12), a verdict of 'guilty'.
2. For the foregoing reasons, I enter the following verdicts in the proceedings concerning Mr Lin: 1. In proceedings 2023/00068272, a verdict of 'guilty' (charge 1). 2. In proceedings 2023/00068289, a verdict of 'guilty' (charge 2). 3. In proceedings 2023/00068303, a verdict of 'guilty' (charge 3). 4. In proceedings 2023/00068323, a verdict of 'guilty' (charge 4). 5. In proceedings 2023/00068332, a verdict of 'guilty' (charge 5). 6. In proceedings 2023/00068343, a verdict of 'guilty' (charge 6). 7. In proceedings 2023/00068362, a verdict of 'guilty' (charge 7). 8. In proceedings 2023/00068369, a verdict of 'guilty' (charge 8). 9. In proceedings 2023/00068387, a verdict of 'guilty' (charge 9). 10. In proceedings 2023/00068400, a verdict of 'guilty' (charge 10). 11. In proceedings 2023/00068410, a verdict of 'guilty' (charge 11). 12. In proceedings 2023/00068416, a verdict of 'guilty' (charge 12).
3. The following sets of proceedings laid the alternative charges, and therefore, in circumstances where I have found the principal offence proved, each of the charges in the following sets of proceedings against the company is withdrawn and dismissed: 1. Proceedings No. 2023/00068299 (charge 13). 2. Proceedings No. 2023/00068305 (charge 14). 3. Proceedings No. 2023/00068307 (charge 15). 4. Proceedings No. 2023/00068310 (charge 16).
4. The following sets of proceedings laid the alternative charges, and therefore, in circumstances where I have found the principal offence proved, each of the charges in the following sets of proceedings against Mr Lin is withdrawn and dismissed: 1. Proceedings No. 2023/00068425 (charge 13). 2. Proceedings No. 2023/00068445 (charge 14). 3. Proceedings No. 2023/00068450 (charge 15). 4. Proceedings No. 2023/00068519 (charge 16).
5. Directions for a sentencing hearing will now need to be made in consultation with the parties.

Amendments 12 July 2024 - Added in the word 'evidence' after 'incontrovertible' in paragraph [211]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2024