Prosecutor v BARRY LAWRENCE RAMKE

DATES OF HEARING: 02/08/1999; 02/09/1999; 02/10/1999

DATE OF JUDGMENT DELIVERY: 02/16/1999

Mrs J C Kelly (Barrister) Solicitors I V Knight, Crown Solicitor LEGAL REPRESENTATIVES: Mr J E Robson (Barrister) Solicitors Hallett & Associates

IN THE LAND AND MATTER No. 50071 of 1998 ENVIRONMENT COURT CORAM: Talbot J OF NEW SOUTH WALES DECISION DATE: 16 February 1999 DIRECTOR-GENERAL DEPARTMENT OF LAND AND WATER CONSERVATION Prosecutor v

BARRY LAWRENCE RAMKE Defendant REASONS FOR JUDGMENT

The defendant has pleaded guilty to the charge that on or about 20 October to 4 November 1997 he cleared native vegetation on land being Lot 207 in DP 752437 Parish of Yarrabandini County of Dudley Shire of Kempsey New South Wales without the development consent of the Director-General of the Department of Land and Water Conservation contrary to cl 6(1) State Environmental Planning Policy No. 46 - Protection and Management of Native Vegetation (SEPP 46) being an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act).

The matter had been set down for hearing over a period of four days commencing 8 February 1999. However, the defendant entered a plea of guilty at the commencement of the proceedings. The prosecutor was informed of the intention to enter a plea of guilty only a short time prior to the commencement of the hearing.

According to an agreed statement of facts, the defendant owns the land which is situated near Upper Collombatti via Kempsey and comprises approximately 145 ha of which sixty six per cent was covered with woody vegetation as at 5 April 1997, confirmed by aerial photographs of that date.

Further, according to the agreed statement of facts, on or about 20 October to 4 November 1997 the defendant cleared approximately 23.5 ha of native vegetation from the land without the development consent of the Director-General of the Department contrary to cl 6(1) of SEPP 46.

The clearing consisted of pushing over trees using a track vehicle known as a Caterpillar D8 driven by Kenneth O'Neill-Fuller pursuant to an agreement with the defendant. A majority of trees were left in situ while others were pushed together in wind rows for burning. The pushing over of trees ceased after an officer of the prosecutor visited the land and advised Mr O'Neill-Fuller "not to do any more clearing".

The vegetation species identified as being uprooted on the land are Spotted Gum ( Corymbia maculata ), Grey Gum ( Eucalyptus propinqua ), Bloodwood ( Corymbia sp. ), Forest Oak ( Allocasuarina tolurosa ), Stringbark ( Eucalyptus sp. ), Tallow-wood ( Eucalyptus microcorys ), Ironbark ( Eucalyptus siderophloia ), Wattle ( Acacia sp. ). It is not disputed that these species are indigenous to the State of New South Wales.

Vegetation on land to the east of the subject land in Lot 235 DP 752437 was surveyed by two Environmental Scientists, namely Penelope Ann Kendall and Keith Robert Kendall, as part of an attempt to ascertain the ecological values of the vegetation removed from Lot 207.

It is agreed that the vegetation on the surveyed area in Lot 235 (based on the key to the structural forms of Australian vegetation developed by R L Secht in 1970) is dry sclerophyll woodland dominated by White mahogany ( Eucalyptus acmenoides ) - twenty five per cent of over storey trees sampled. That vegetation shows an uneven forest age structure with a range of heights, diameters and species. Other trees in the upper and mid strata include Grey Gum ( Eucalyptus propinqua ), Forest Oak ( Allocasuarina Torulosa ), Red Bloodwood ( Coymbia Gummiferra ), Ironbark ( Eucalyptus siderophloia ), Tallow-wood ( Eucalyptus microcorys ), Spotted Gum ( Eucalyptus Maculata ), and Brush Box ( Lophostemon confertus ).

It was concluded by the prosecutor's witnesses that the survey area has a vegetative structure and floristics basically similar to that which occurred on the subject land.

In the opinion of Mrs Kendall, the clearing on Lot 207 resulted in the destruction of a valuable stand of native vegetation. She said this vegetation was of a diversity of types - creekline and upper slope vegetation - and of mixed age classes, including old growth forest. The majority of the cleared vegetation was of a type which is inadequately conserved, with less than five per cent conserved regionally.

Mr Kendall concluded that the removal of habitat attributes including tree hollows, plant food species and prey species of predators would impact on potentially occurring threatened species which he identified by reference to the NSW NPWS Wildlife Atlas records within twenty kilometres of the property.

Mr O'Neill-Fuller also gave evidence on behalf of the prosecutor. He described the area cleared as basically regrowth forest. He was aware that it had been partly cleared by hand after ringbarking approximately twenty five to thirty years ago. He described the adjoining land used by Mr and Mrs Kendall for assessment purposes as old mature forest which had never been cleared.

On the other hand, Environmental Consultant Francis Dominic Fanning told the Court that given the nature and condition of vegetation which was cleared from the subject site and the retention of native vegetation on the property and in the immediate vicinity, it cannot reasonably or objectively be considered likely that the area cleared constituted significant or critical habitat for threatened fauna or flora species. He states there is no likelihood that the area cleared supported features or resources of restricted distribution in the locality or features or resources unique to or endemic solely to the subject site. Mr Fanning found no evidence that any threatened flora species occurred on the site or in the immediate vicinity. With respect to the threatened fauna species known from the locality (including the Koala, Squirrel Glider, Brush-tailed Phascogale, Masked and Powerful Owls, and several microchiropteran bats) Mr Fanning says it is not likely that "a viable local population " of any such species would have been dependent solely or predominantly upon the vegetation cleared. Whilst a few individuals of a few of those threatened fauna species could potentially or theoretically have utilised vegetation on the area which has been cleared, there is little likelihood that individuals would have depended solely upon it, and there is no likelihood that " a viable local population " of any such species (even if present in the vicinity) would have been dependent solely upon that area of vegetation.

Finally, Mr Fanning said that in his opinion, the clearing of vegetation which has occurred on Lot 207 was neither "inappropriate" nor of significance in terms of ecological or conservation harm:-

· the area cleared was relatively small, and constitutes only a very small proportion of native vegetation in the vicinity or locality;

· the vegetation removed constituted regrowth vegetation, and was not likely to have supported features or resources of particular ecological value or restricted distribution;

· the vegetation removed is not regarded as having been of particular conservation or ecological value;

· the site was not likely to have supported " a viable local population " of any threatened species, and the clearing was not " likely " to have imposed " a significant effect " on any threatened biota; and

· clearing and management of the subject property has been conducted in an environmentally sound and responsible manner.

The defendant, Mr Ramke, told the Court how he attended a seminar held in relation to the application of SEPP 46 at the Kempsey RSL Club in mid-February 1996. He reached an understanding, after listening to an explanation by an officer of the Department, that a land holder was entitled to clear vegetation for the purpose of a house site, a shed site, yards, catchment areas, dams, roads and firebreaks. He concluded that the clearing he proposed fitted those guidelines and, erroneously as he now admits, thought he had nothing to worry about.

He discussed the proposed development with Mr O'Neill-Fuller in general terms and relied, to a significant extent, on the latter's background and experience as a former field officer with the Soil Conservation Service.

The Court accepts that Mr Ramke acted under a misapprehension. However he admits that he did not bother to obtain a copy of SEPP 46. Nor did he consult with or seek advice from the Department.

When interviewed on the site, Mr Ramke explained to the investigating officers that he had done some clearing for a house pad as well as for some sheds, dams and powerlines. He told the officers that the purpose of the clearing was to improve the property and to open it up more for grazing cattle, to build dams, fences, tracks, a house, sheds and yards. He also explained his understanding from the meeting in Kempsey that he could clear for tracks and dams and farm structures and some other things. Also trees under ten years of age.

During the course of the hearing, the parties settled a form of consent orders to be made in relation to the maintenance of the remaining native vegetation on Lot 207. The consent orders also require the defendant to implement soil conservation works directed at improving the ground cover on the cleared area of Lot 207. These orders will be made as requested by the parties.

The stated object of SEPP 46 is to ensure that native vegetation is protected and managed in the environmental, social and economic interests of the State.

In this case the Court finds that the environmental harm and consequences have been elevated by the prosecutor and at least two of its witnesses to a level which tends to suggest a seriousness beyond that justified by an objective assessment.

In the Court's opinion vegetation on Lot 207 prior to the clearing was not directly comparable to the vegetation in Lot 235.

The prospect of extensive use of the vegetation removed from Lot 207 by threatened or endangered species should not be ignored, but nevertheless that prospect has been overstated by Mr Kendall. The assessment by Mr Fanning in that respect is preferred.

There has been no contention on behalf of the defendant that consent would have been obtained if a development application had been lodged prior to clearing. However, as I have said, the Court accepts that the defendant believed, after attending the seminar in Kempsey that he did not require consent. In the circumstances that conclusion required some rationalisation on his part which, on one view amounts to either wishful thinking or even reckless behaviour. Nevertheless, he is contrite and, judging from the manner of his giving evidence and his demeanour in the witness box, he is suffering genuine shame as a consequence of his action.

Mr Robson made a submission on behalf of the defendant that cl 7(2) of SEPP 46 allows the consent authority to take into consideration the likely social and economic consequences for an applicant when considering whether to grant or refuse an application for development consent. He also reminded the Court that cl 11 of SEPP 46 contemplates that at least some categories of clearing are acceptable by allowing the exemptions for the clearing of native vegetation described in Sch 3. This submission does not have significant substance where, as in this case, the defendant had never bothered to consult the legislation. Factually, in the circumstances of this case, it does not bear close scrutiny having regard to the extent of clearing undertaken by the defendant.

The Court takes into account that the defendant has no prior record in relation to this type of offence.

The prosecutor agrees that he cooperated with the investigating officers in all respects.

A plea of guilty was entered prior to the commencement of the hearing. The entry of the plea of guilty and the time when it was entered is taken into account pursuant to s 439 of the Crimes Act. In this respect the Court notes that the relevant evidence upon which the prosecutor proposed to rely was made available to the defendant in October 1998. Although the plea was entered only recently, it nevertheless serves to demonstrate a level of contrition on the part of the defendant.

The Court also recognises that he took advice from Mr O'Neill-Fuller in order to compensate for his own lack of knowledge in regard to responsible land management. This shows an ability and desire to take advice in regard to land conservation and responsible clearing practice in general terms, although not specifically in regard to SEPP 46. Therefore, this is not a case of action taken irresponsibly in general terms. Nevertheless the defendant's failure to carry out further inquiries in relation to the effect of SEPP 46 is not in his favour.

The evidence of the defendant that he has no cash resources and that there is no real prospect of him entering into any permanent gainful employment has not been disputed by the prosecutor. The means of the defendant and his ability to pay what otherwise might be an appropriate fine is a relevant factor to be taken into account in determining the level of penalty.

The maximum penalty that the Court can impose is $110,000. This is an indication of the level of seriousness with which the legislature regards an offence against the provisions of the EPA Act in general, not confined to SEPP 46.

The defendant has suffered personal embarrassment and disaffinity with members of his family and his neighbours.

A number of strong testimonials in support of his good character have been read to the Court. Their veracity has not been challenged.

The prospect of the defendant re-offending is remote, particularly in the light of the effect of the proposed consent orders.

A fine in the moderate range would be justified but in the light of the mitigating circumstances, and in particular the limited means of the defendant, it is appropriate in this case that a fine in the lower range be considered.

This is particularly so having regard to the indication by the prosecutor that the claim for costs is in the order of $35,000. On the basis of the evidence before the Court, the ability of the defendant to pay this sum must be in serious doubt. He told the Court that it has already been necessary for him to borrow funds in order to pay the costs of his legal representation.

Mr Robson urged the Court to consider exercising its discretion in relation to the payment of costs by specifying an amount which the defendant may be able to afford or to specify that the prosecutor only recover a fixed proportion of the costs when assessed. Mr Robson was not able to refer to any authority which would justify the Court exercising its discretion in that way other than the undoubted existence of the discretion which the Court has to make a costs order.

It was suggested by Mr Robson that the liability for costs might fall within "any other matter which the Court thinks it proper to consider" for the purpose of applying the provisions of s 556A of the Crimes Act. He also suggested that the Court might consider deferring sentence pursuant to s 558 upon the defendant entering into a recognizance to be of good behaviour for such period as the Court thinks proper.

It is also open for the Court to discharge the defendant conditionally on his entering into a recognizance to be of good behaviour and to appear for conviction and sentence when called on at any time pursuant to s 556A(1)(b).

The provisions of s 52 of the Land and Environment Court Act confirm that the Court has a discretion to order the defendant to pay the prosecutor's costs where the defendant is convicted or an order is made under s 556A(1) of the Crimes Act.

Long before the decision of the High Court in Latoudis v Casey (1990) 170 CLR 534, it was accepted that the discretion to make an order for costs is absolute and unfettered although it is to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation. A court should not exercise its discretion against a successful party "except for some reason connected with the case": Donald Campbell & Co v Pollak [1927] AC 732 at 811-812 per Viscount Cave L.C. as follows:-

This discretion, like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case. Thus, if - to put a hypothesis which in our Courts would never in fact be realized - a judge were to refuse to give a party his costs on the ground of some misconduct wholly unconnected with the cause of action or of some prejudice due to his race or religion or (to quote a familiar illustration) to the colour of his hair, then a Court of Appeal might well feel itself compelled to intervene. But when a judge, deliberately intending to exercise his discretionary powers, has acted on facts connected with or leading up to the litigation which have been proved before him or which he has himself observed during the progress of the case, then it seems to me that a Court of Appeal, although it may deem his reasons insufficient and may disagree with his conclusion, is prohibited by the statute from entertaining an appeal from it.

The Court cannot act arbitrarily or upon the ground of some misconduct wholly unconnected with the prosecution, or of some prejudice (see the judgment of Wells J in Schaftenaar v Samuels 11 SASR (1975) 266 which was referred to with approval by Dawson, Toohey and McHugh JJ in Latoudis v Casey at 557, 564, 568-9).

There is no suggestion in the present case that the depleted means of the defendant are in any way attributable to the litigation. The purpose of an order for payment of costs is to indemnify the successful party in respect of liability for professional fees and out of pocket expenses reasonably incurred in connection with the litigation ( Kelly v Noumenon Pty Ltd (1988) 47 SASR 182 at 184 cited with approval by McHugh J in Latoudis v Casey at 567). The function of the costs order therefore is compensatory and not to penalise.

The prospect of financial stress to a party to litigation as the result of making a costs order is not, generally, a matter which would be relevant to the conduct of the litigation and therefore properly to be taken into account in the exercise of the Court's discretion. It has nothing to do with the relationship between the parties and cannot be said to be connected with the conduct of the proceedings. In my opinion, the consideration of the defendant's ability to meet the liability for costs would be a consideration extraneous or irrelevant to the proper exercise of the discretion under s 52 and accordingly the exercise of the Court's discretion should not be influenced by that fact.

The Court proposes therefore to make an order for costs. If the amount of costs cannot be agreed between the parties, then they are to be determined in accordance with the regulation pursuant to s 52(2)(b).

In the light of the impact of a costs order on his limited financial resources, it is self evident to the Court that the capacity of the defendant to pay a fine will be almost non-existent.

The Court has no evidence of the value of the subject land, which the defendant owns, or whether it is encumbered. The undisputed evidence however is that he has already been forced to borrow money in order to pay for his own legal representation in these proceedings.

The Court appreciates that the claim for the payment of costs in the order of $35,000 does not necessarily mean that the prosecutor will recover that amount following assessment in accordance with the regulation. Even so, it is accepted that the costs are substantial having regard to the extent of preparation necessary before there was any indication of a plea of guilty. Notwithstanding the plea of guilty, the hearing extended over three days. The prosecutor was represented by counsel instructed by legal officers from the Department. In addition to the costs of preparing affidavit evidence, three witnesses gave oral evidence in support of the prosecutor's case.

If the question of costs had not arisen as a mitigating factor, the Court would have considered that an appropriate penalty in all of the circumstances, would be not more than $3,000. The Court is satisfied that the liability for costs will be substantially in excess of $3,000. It is unlikely to be less than $20,000, although not exceeding $35,000.

The prosecutor does not seek to contend that the defendant should be regarded other than as impecunious, except to the extent of any equity in the subject property. It is regarded as having a limited productive capacity. The defendant has almost no means of support except to the extent of his wife's income. His potential for gainful employment is low.

Notwithstanding the conclusion I have reached that a penalty in the lowest range would be reasonable, I am nevertheless of the opinion that it would not be reasonable to impose a penalty after having regard to two matters in particular.

First, the defendant has agreed to enter into consent orders which will constrain the range of activities on parts of the land, which he might otherwise have been free to pursue.

Second, although there has been no agreement as to the quantum of costs, it is nevertheless clear that the defendant will suffer a very serious financial burden as a consequence of the usual costs order.

It does not seem appropriate in the circumstances of this defendant to require him to enter into a recognizance to be of good behaviour. Any default on his part in regard to meeting his obligation to pay the costs as ultimately assessed can, if necessary, be dealt with appropriately in other ways according to the circumstances as they exist at that time.

Mr Robson did not press that the provisions of s 556A should be applied except in regard to the defendant's limited financial resources. The Court has come to the view that the imposition of a costs order against the defendant is sufficient punishment.

Rather than moving to impose a token or nominal penalty, the charge will be dismissed pursuant to s 556A of the Crimes Act. The dismissal is not to be seen as a lack of recognition of the seriousness of the offence. The defendant will nonetheless suffer a severe punishment by the effect of the consent orders and the payment of costs.

The Court will make the orders agreed to between the parties. The defendant will be required to pay the prosecutor's costs as agreed or assessed in accordance with s 52 and the regulations.

1. The charge is dismissed pursuant to s 556A of the Crimes Act 1900.

(i) The defendant, or by his servants and agents, shall maintain the native vegetation as defined in the Native Vegetation Conservation Act 1997 on part Lot 207 DP 752437 Parish of Yarrabandinni County of Dudley Kempsey Shire edged green on the diagram annexed to these orders and marked "A" and "B" (the subject lands).

(ii) The defendant, by his servants or agents, be restrained from using or permitting to be used the subject lands for the purposes of agriculture or horticulture, without the written approval of the Director-General Department of Land and Water Conservation.

(iii) The defendant, by his servants or agents, be restrained from permitting stock on to the subject lands for any purpose without the written approval of the Director-General of the DLWC.

(iv) The boundaries of the subject lands are to be determined and marked in the field using GPS by officers of the Department of Land and Water Conservation, in conjunction with the defendant, within one month of the date these orders.

(v) The defendant shall construct and maintain electric stock-proof fences in accordance with the attached plan within six months of the date when boundaries are marked by officers of the Department of Land and Water Conservation. Boundaries will be inclusive of native woody vegetation. All costs associated with any such fencing and maintenance shall be at the expense of the defendant.

(vi) Native vegetation regrowth growing within five metres of fences enclosing the subject lands may be cleared after construction of the fence.

(vii) Apart from clearing of fencelines as described in Order (v), there shall be no clearing of native vegetation on the subject lands in any manner without the written consent of the Director-General of the Department of Land and Water Conservation.

(viii) Fire is not to be used within the subject lands without the written consent of the Director-General of the Department of Land and Water Conservation. In the event of fire elsewhere on the property or adjoining lands, reasonable endeavours will be taken to prevent the escape of fire into the subject lands.

(ix) No structures are to be constructed within the subject lands without the written approval of the Director-General of the Department of Land and Water Conservation.

(x) The defendant shall implement soil conservation works directed at improving the ground cover on the cleared area of Lot 207 (shaded brown on the attached map). Such works as sowing mix, rates and timing, to be worked out in consultation with the Department of Land and Water Conservation. All stock to be excluded for three months after sowing.

(xi) Department of Land and Water Conservation officers shall be permitted to enter on Lot 207 and inspect and monitor the subject lands and the cleared area at any reasonable time. Such persons may be accompanied by persons with relevant specialist expertise. The Department of Land and Water Conservation will make all reasonable efforts to notify the owner prior to any such inspection.

3. The defendant is ordered to pay the prosecutor's costs as agreed or, if no agreement can be reached, as determined in accordance with the regulations pursuant to s 52(2)(b) of the Land and Environment Court Act 1979.

I hereby certify that this and the preceding 16 pages are a true and accurate record of the reasons for judgment herein of the Honourable Justice R N Talbot.

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.