Newcastle City Council v Pepperwood Ridge Pty Limited

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50054 of 2003

26 March 2004 NEWCASTLE CITY COUNCIL Prosecutor v PEPPERWOOD RIDGE PTY LIMITED Defendant Judgment

The Council has charged the Defendant that it did from 9 July 2002 to 1 August 2002 clear land known as Lot 102 in Deposited Plan 366438 without the consent of the Council, which consent was required by the Newcastle Local Environmental Plan 1987 (the Newcastle LEP), contrary to s 76A of the Environmental Planning Assessment Act 1979 (the EP&A Act) .

Lot 102 is zoned as Zone 1(a) (Rural Zone) under the Newcastle LEP. The Defendant has pleaded guilty and consequently admits all the essential legal elements of the offence. I note the maximum penalty for this offence is $1.1 million.

A Statement of Agreed Facts (Exhibit 1) largely agreed by the parties was relied on in Court. A bundle of documents was also tendered without objection by the Council which contained : (a) an affidavit of Mr Hewett, a Council officer; (b) numerous photographs taken by numerous Council officers; and (c) records of interview conducted by Council officers with Mr Proctor, a director of the Defendant, and Mr Joyce, who was a planning consultant to the Defendant at the relevant time.

The agreed facts are that at the request of Mr Proctor, director of the Defendant and another company, Hunter Valley Care Pty Limited, which company paid for the clearing the subject of this offence, employees of Daromin carried out over the period of the charge underscrubbing and the removal of dead, dying and living trees.

The advice of the Council's employees to the Defendant's planning consultant, Mr Joyce, prior to the clearing taking place was that the underscrubbing of trees less than 3m high, which included lantana, was permitted on Lot 102 without development consent of the Council. No issue about the correctness of this advice was taken in this case. It was also agreed by the parties that dead and dying trees, and camphor laurels, could be removed without development consent from the Council.

The Statement of Agreed Facts details the instructions given by Mr Proctor, the director of the Defendant or his proxy to Daromin employees, Mr Harris and Mr Parkinson, and the work carried out by these Daromin employees at par 18 to 26. Mr Harris states that the first area worked on comprised mainly dense lantana, camphor laurel, and some smaller shrubs (par 18). He used a 30 tonne excavator in this area. In the second area (par 21) he was told by Mr Proctor to underscrub, clear out, and get rid of some of the trees, particularly the dead trees. A bulldozer was used for some of this work. Mr Harris also worked on a third area which consisted mostly of lantana and many dead trees (par 23). After the initial work in this area Mr Proctor told Mr Harris to take out more trees because he wanted it to look like parkland. Mr Parkinson worked in an area which had a gully with steep slopes and a washout which was full of lantana, which he removed (par 24, 25). Mr Harris worked in another area which was quite heavily wooded (par 26), where there was a substantial number of trees removed from the area. The instructions from Mr Proctor were to thin it out right to the bottom of the creek and the edge of the dam.

The Council's evidence was that there were 22 large stockpiles of vegetation made up of cleared vegetation when the clearing was completed. A large number of photographs were tendered by the Council which showed extensive underscrubbing, and large piles of cleared mature trees.

The main issue in the matter is the removal of living trees as part of this clearing process. The Council's estimates of the number of living trees removed which were not weed species is a minimum of 110 in the evidence of Mr Payne, an ecologist, referred to at par 36 to 39 of the Statement of Agreed Facts, and a maximum number of 164, as detailed in the affidavit of Mr Hewett which was relied on by the Council.

According to the Statement of Agreed Facts, Mr Proctor or his proxy gave instructions every couple of days on the site to the contractors as the work progressed. According to Mr Proctor's record of interview, on occasion the employees of Daromin also had to use their own initiative because it was not an easy site to negotiate.

I should note that early in the proceedings the Defendant's counsel raised as an issue that, because the tree preservation order had not been advertised in the area as was required by s 8(4) of the Environmental Planning and Assessment Model Provisions 1980 (the Model Provisions), it was not in force. This was not pressed in final submissions by the Defendant's counsel and I agree with the Council that I do not understand why this issue was raised by the Defendant. Even if not in force, the Defendant would still have been guilty of breaching 76A of the EP&A Act. I have proceeded in this judgment on the basis that the tree preservation order as referred to in the Newcastle LEP is in force. I observe that it is not clear to me that not complying with s 8(4) of the Model Provisions is fatal to the tree preservation order's validity in any event.

Motive 11. The Council argued that this offence concerned extensive illegal clearing done to gain financial advantage because the clearing would facilitate the development of aged care facilities on Lot 102 or neighbouring lots over which the Defendant held an option to purchase. This was because there are setback requirements from bushfire hazard areas such as the vegetation on Lot 102 which was prohibitive of such development.

12. A letter from the Defendant's planning consultant, Mr Joyce, tendered by the Council, gave advice about the limited scope to clear the adjoining land on lots 118 to 122 without seeking consent from the Council. It makes reference to the need to take care in relation to clearing on slopes and these comments clearly apply to Lot 102 as it refers to the property behind lots 118 to 122 which is where Lot 102 is located. Also in the record of interview of Mr Joyce tendered by the Council, he states that his advice to Mr Proctor in relation to Lot 102 was that there was little option for clearing the land without Council consent, apart from underscrubbing.

13. Mr Proctor was told by Mr Joyce that he needed the Council's consent to clear 30 trees or less under the tree preservation order and needed development consent to clear more than 30 trees under the LEP. Mr Joyce also told Mr Proctor that he could not advise him to clear the land because he did not think approval would be forthcoming because of the steep slopes near the creek. Mr Proctor was also advised he must be careful of excavation or bulldozer work within 40m of the watercourse because any such excavation required a permit under Pt 3 of the Rivers and Foreshores Improvement Act 1948.

14. Paragraph 15 of the Statement of Agreed Facts refers to the advice of Mr Wirth, an environmental consultant. His advice to Mr Proctor was that the riparian vegetation that existed on Lot 102 would have imposed considerable constraints for a SEPP 5 development, and such a development was probably not attainable.

15. The Defendant's counsel argued that it is clear from the record of interview with Mr Proctor that his primary motivation in organising the clearing on behalf of the Defendant was to carry out underscrubbing to reduce bushfire hazard. The Defendant submitted that the clearing was done because of the need to reduce fire hazards as required by s 63 of the Rural Fires Act 1997.

Environmental harm 16. The Council argued that there was considerable environmental harm caused as a result of the clearing. It is clear from the photographs relied on by the Council that the amount of vegetation removed was substantial and that the underscrubbing done was so exhaustive that there is virtually no vegetation left as ground cover, just bare earth where clearing took place. It is agreed there were a large number of mature trees which were not weed species cleared, somewhere between 110 and 164. The Statement of Agreed Facts states that Mr Payne, an ecologist, said that all the ground cover had been totally removed even over steep rocky slopes. Mr Payne considered this was not normal practice and that as a result it would be difficult and time consuming to re-establish.

17. Mr Hewett, a Council officer, stated in his affidavit dated 7 July 2003 at par 22, that: I counted a total of 191 trees that were standing in the parts of the Site that had been extensively cleared of ground cover. I made the following observations in respect to those trees:

(a) In the southern end of the Site, to the western side of the creek, I observed 104 trees that were still standing but had sustained recent injury. Those injuries were consistent with physical impact by heavy earthmoving equipment.

(b) 27 trees were standing on the steep banks of the small steep gully to the north east of the dams. The soil about those trees was significantly disturbed, with building refuse on the southern bank of the gully, and soil a significant depth above normal soil level. That increased soil leaves those trees prone to insect predation and drought stress. Most of those trees had recently mechanically inflicted trunk wounds that will reduce the capacity of those trees to adapt to the significant change in site conditions brought about by the recent clearing and filling activities. In my opinion those trees are in declining health. I consider that the introduction of pasture grasses and associated fertiliser will further weaken those trees and will most probably lead to their premature death. …

(c) 60 other trees in the banks of the permanent creek line had bark stripped from trunks and branches removed, consistent with injury from machinery. Those trees had been subjected to damaging effects of heavy machinery tracking over the soil and scraping away ground vegetation. In my opinion those trees have been irreparably damaged and whilst they may survive for a few years in a weakened state, they are prone to opportunistic insect attack that may ultimately lead to the premature death of those trees. … 18. The Defendant argued that Lot 102 was degraded, having been used for mining operations for over 80 years. There were substantial amounts of mining and building debris on the property, and indeed that was clear in a number of the photographs tendered by the Council. Further, there was some land subsidence because of mining activities with consequent cracking of the soil surface in some areas. I refer particularly to a report of Mr Naughton, a surveyor, which was relied on by the Defendant. The land had extensive lantana infestation, a large number of camphor laurels, a weed species, and was far from being pristine bushland. While there were "casualties", in the words of Mr Proctor in his record of interview, in that living trees were also cleared, the primary aim of the clearing remained that of underscrubbing the lantana and other weed species. Erosion and sediment traps were used throughout the operation. The trees left after the clearing operation was substantial in number and still provided wide coverage. The Defendant's counsel further submitted there is no evidence that there is lasting environmental damage.

Finding on environmental harm 19. I consider there is evidence of considerable environmental harm occasioned by this offence. While I accept that the underscrubbing is not the subject of this charge because it does not require consent under the Council's tree preservation order, it is clear the manner in which the clearing was done caused the removal of a very large number of mature living trees which did require consent and these were not weed species. It also caused considerable damage to those trees left standing based on the evidence of Mr Hewett.

20. I accept that the nature of the clearing means re-vegetation will be difficult. While there is evidence that erosion and sediment traps were used in the operation, some of these clearly failed based on the photographs tendered by the Council and there clearly was sediment in the water resulting from the clearing. Steep slopes around the creek bank bed have been denuded of vegetation including living trees. The likelihood of erosion resulting on these banks is very high.

Objective seriousness of the offence Culpability 21. I consider the Defendant's culpability is substantial. Mr Proctor, the Defendant's director, had received clear advice from the town planning consultant, Mr Joyce, before the clearing commenced of his legal obligations in relation to the clearing of trees. The inference is clearly open that he ignored that advice. Such a high number of living trees cleared which were not weed species is suggestive of gross negligence.

22. The Director of the Defendant, Mr Proctor, or his proxy, was on site every second day to give instructions to the clearing contractors. Despite this, there were a large number of trees knocked down. Directions to the clearing contractors were patently inadequate to ensure that responsible practice in relation to the preservation of living trees was followed. There was no evidence of instructions being provided to the contractors about the need to leave living trees. The fact that an area is somewhat degraded does not alleviate the Defendant's culpability in my view. The Defendant is a company engaged in property development, hence its interest in Lot 102 and neighbouring blocks. It must operate within the law in conducting its activities.

23. On the question of motive, which the Council did rely heavily on, Mr Proctor stated in his record of interview the primary intention of the Defendant was underscrubbing to remove bushfire hazard. I accept that this was so. While the clearing clearly did have other potential benefits for future development of Lot 102, as is clear from the evidence of Mr Joyce and Mr Wirth, I do not think the Council has proved beyond reasonable doubt that financial gain in relation to the development plans for the future of Lot 102 was the primary motive in carrying out the clearing. As I have already stated I consider nevertheless the Defendant has a high level of culpability.

Proportionality 24. The sentence must be proportional to the gravity of the crime. In that regard, the Court is to have regard to the maximum penalty applicable as this is an expression of the seriousness with which Parliament attributes to the offence: see Camilleri Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. The Court must take into account the principle of general deterrence in this matter.

Section 21A(g) Crimes Sentencing Act, aggravating factors 25. I have already made a finding in relation to environmental damage and I therefore consider that I must also apply s 21A(g) of the Crimes (Sentencing Procedure) Act 1999 which refers to aggravated factors. I consider that there are aggravating factors because of the damage done to the environment.

Evenhandedness 26. The Council detailed numerous cases decided by this Court by way of reference in any consideration of evenhandedness. The Council also properly referred to the Court of Appeal decision in Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 where the Court of Appeal cautioned that it is difficult to compare one particular case with another. For the record, I will note that the cases referred to were Mosman Municipal Council v Waratah Village Partners [2003] NSWLEC 101 , Mosman Municipal Council v Mitchelson [2002] NSWLEC 111 , Mosman Municipal Council v Menai Excavations [2002] NSWLEC 132 , Hornsby Shire Council v Mouawad [2002] NSWLEC 191 , Hornsby Shire Council v Khoury [2003] NSWLEC 83 , Power v Penthill House Pty Limited [1993] NSWLEC 150 , and Kuring-gai Council v Nettlecorp Pty Ltd [2003] NSWLEC 203 . I agree with the Council that none of these cases have facts similar to those before me.

Mitigation Plea of guilty 27. Section 22 of the Crimes (Sentencing Procedure) Act 1999 requires that a plea of guilty be considered in mitigation. The Defendant pleaded guilty on the first day of the two week hearing. It submitted that it should be entitled to the full discount for the utilitarian value of the plea due to the conduct of the Council which served further particulars and additional witnesses on which it intended to rely on or shortly before 15 March 2004, the first day of hearing. This was clearly not in accordance with orders made by the Court which required that all evidence be filed and served by August 2003.

28. I note that the full discount for the utilitarian value of a guilty plea is 25 per cent. I consider a discount of 15 per cent for the utilitarian value of the plea should be allowed, applying the approach in the guideline judgment, R v Thompson , (2000) 49 NSWLR 383 which approach applies in New South Wales as confirmed by the Court of Appeal in the R v Sharma (2002) 54 NSWLR 200. The Council added to the evidence in its case close to the hearing and this was not done in accordance with the Court's orders. As a result it appears the Defendant and the two co-accused, Hunter Valley Care Pty Limited and Mr Proctor, decided to enter into a plea bargain with the Council. This did save the Court being involved in a substantial hearing of two weeks.

Other factors Contrition 29. The Defendant's barrister stated from the bar table that his client had expressed contrition. It is desirable in my view that a Director swear an affidavit for a corporate Defendant if an expression of contrition is to be given serious weight by this Court. Accordingly I do not give the submission from the bar table by the Defendant's counsel much weight.

Prior convictions 30. I note that the Defendant does not have any prior convictions.

Costs 31. The Defendant understands that it is responsible for the Council's costs. There has been no agreement on costs, but a "ball park" figure provided by the Council is in the amount of $100,000 to $150,000. While this relates to the costs of this and the two related prosecutions, the great majority of these costs I expect will be payable in relation to this prosecution. I do take into account that the costs payable will be substantial in setting the level of penalty.

Penalty 32. This offence was clearly foreseeable and negligent and I consider the degree of culpability is high, see Majury v Sunbeam Corporation Limited (1974) NSWLR 659 at 664. I also consider that there are aggravating factors. A penalty of $80,000 is appropriate.

33. I will reduce this, as I have already said, by 15 per cent to take account of the guilty plea, so the amount of penalty is $68,000.

Orders 34. The Court orders that: 1. The Defendant is convicted of the offence with which it is charged. 2. The Defendant is fined the sum of $68,000 to be paid to the Registrar of the Court within one month of today's date. 3. The Defendant must pay the Prosecutor's costs of the proceedings against it, as agreed or assessed. 4. The exhibits except Exhibit 1 may be returned.

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