Secretary, Department of Planning, Industry and Environment v Auen Grain Pty... [2020] NSWLEC 129 | Case summary

Land and Environment Court (NSW)|2020-09-02|Before: Robson J

Solicitors: In proceedings 2019/00265264; 2019/00265268; 2019/00265272; 2019/00265276; 2019/00265280; 2019/00265284; 2019/00265288; 2019/00265292; 2019/00265266; 2019/00265270; 2019/00265274; 2019/00265278; 2019/00265282; 2019/00265286; 2019/00265290; 2019/00265294 Department of Planning, Industry and Environment (Prosecutor) Austin Giugni Martin Pty Ltd (Defendants)

In proceedings 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295 Department of Planning, Industry and Environment (Prosecutor) Thomson Geer (Defendants) File Number(s): 2019/00265264; 2019/00265268; 2019/00265272; 2019/00265276; 2019/00265280; 2019/00265284; 2019/00265288; 2019/00265292; 2019/00265266; 2019/00265270; 2019/00265274; 2019/00265278; 2019/00265282; 2019/00265286; 2019/00265290; 2019/00265294; 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295 Publication restriction: Nil

Judgment

In these criminal proceedings, the prosecutor, the Secretary, Department of Planning, Industry and Environment, filed a notice of motion during opening address on 1 September 2020 seeking leave to file amended notices under s 247J of the Criminal Procedure Act 1986 (NSW) ('Criminal Procedure Act') to rely upon further evidence.
Having received and considered detailed evidence and submissions on the motion on 1 and 2 September 2020, I made orders on 3 September 2020 as reflected below at [75] and, with the consent of the parties, deferred the giving of reasons. My reasons now follow.

Background

I have previously noted the history of these proceedings in a judgment delivered on 1 September 2020 (Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 2) [2020] NSWLEC 126 ('earlier judgment') at [3]-[5]) which followed a four-day preliminary hearing conducted from 24 to 27 August 2020 pursuant to s 247G of the Criminal Procedure Act. For concision, I adopt, and do not repeat the background facts and definitions used in the earlier judgment.
In summary, the prosecutor has charged two individuals and two companies, Auen Grain Pty Ltd (ACN 000 937 824) ('Auen Grain'); Ronald Lewis Greentree ('Mr Greentree') - (the 'Greentree Parties'); Merrywinebone Pty Ltd (ACN 101 059 769) ('Merrywinebone'); and Kenneth Bruce Harris ('Mr Harris') - (the 'Harris Parties') (collectively, 'the defendants'), with eight land clearing offences each (32 charges in total) allegedly committed between December 2016 and January 2019 on a property known as "Boolcarrol" located north-west of Narrabri. More specifically, each defendant is charged with six offences pursuant to s 12 of the (now repealed) Native Vegetation Act 2003 (NSW) ('NV Act') in that between 29 December 2016 and 24 August 2017, each cleared native vegetation on Boolcarrol otherwise than in accordance with a development consent or property vegetation plan granted under the NV Act. Each defendant is also charged with two offences pursuant to s 60N of the Local Land Services Act 2013 (NSW) ('LLS Act') in that between 25 August 2017 and 18 January 2019, each cleared native vegetation in a rural regulated area otherwise than in accordance with a property vegetation plan under the NV Act; a notification or certificate under the LLS Act; or a development consent granted in accordance with the NV Act or the LLS Act.
The notice of motion sought the following relief: "1 Pursuant to s 68(1) of the Land and Environment Court Act 1979 (NSW), the Prosecutor is granted leave to file amended notices under s 247J of the Criminal Procedure Act 1986 by adding to the list of evidence to be relied upon the following: a. Affidavit of Paul Spiers, affirmed 18 August 2020; b. Affidavit of Leanne Jago, sworn 24 July 2020; c. Affidavit of Michael Brooks, sworn 13 August 2020; d. Affidavit of Scott Drady, sworn 11 August 2020; e. Affidavit of Jeremy Black, sworn 19 August 2020; f. Certificate issued on 18 August 2020, pursuant to s 13.31 of the Biodiversity Conservation Act 2016; g. Certificate issued on 18 August 2020, pursuant to s 50 of the Native Vegetation Act 2003 (repealed); h. Amended Certificate issued on 20 August 2020, pursuant to s 13.32 of the Biodiversity Conservation Act 2016; i. Affidavit of Mary Leanne Mills, affirmed 26 August 2020; j. Affidavit of Michael Cornelius Flynn, affirmed 27 August 2020; k. Affidavit of Susan Patricia Rea, affirmed 27 August 2020; and l. Affidavit of Dr Marco Duretto, affirmed 29 August 2020. 2 The Prosecutor is granted leave to rely on the abovenamed additional evidence in each of the proceedings. 3 Any such further order the Court sees fit."
In addition, but not included in the notice of motion, the prosecutor sought to rely upon the oral evidence of Daniel Boyce of Narrabri Shire Council.
In essence, the prosecutor sought leave to rely upon nine affidavits, three certificates, and oral evidence of Mr Boyce (collectively 'further evidence'). The defendants opposed the motion.

Evidence in support of the motion

In support of the motion, the prosecutor relied upon: 1. An affidavit of Alexander Charles Rollason sworn 23 August 2020 which exhibits: 1. Notices pursuant to s 247J of the Criminal Procedure Act prepared by the prosecutor dated 21 February 2020 and served on each defendant; 2. Two notices pursuant to s 247K of the Criminal Procedure Act filed 5 May 2020 on behalf of the Greentree Parties; 3. Two notices pursuant to s 247K of the Criminal Procedure Act filed 7 May 2020 on behalf of the Harris Parties; 4. Copies of five further affidavits sought to be relied upon: 1. Affidavit of Leanne Jago sworn 24 July 2020; 2. Affidavit of Scott Terrence Drady sworn 11 August 2020; 3. Affidavit of Michael William Brooks sworn 13 August 2020; 4. Affidavit of Paul Spiers affirmed 18 August 2020; and 5. Affidavit of Jeremy Black sworn 19 August 2020; 1. Copies of three evidentiary certificates sought to be relied upon, being: 1. Certificate issued on 18 August 2020 pursuant to s 13.31 of the Biodiversity Conservation Act 2016 (NSW) ('BC Act'); 2. Certificate issued on 18 August 2020 pursuant to s 50 of the NV Act; and 3. Amended certificate issued on 20 August 2020 pursuant to s 13.32 of the BC Act; 1. An affidavit of Alexander Charles Rollason sworn 31 August 2020 which exhibits copies of four further affidavits sought to be relied upon: 1. Affidavit of Mary Leanne Mills affirmed 26 August 2020; 2. Affidavit of Michael Cornelius Flynn affirmed 26 August 2020; 3. Affidavit of Susan Patricia Rea affirmed 27 August 2020; and 4. Affidavit of Dr Marco Duretto affirmed 29 August 2020; 1. An affidavit of Terrence Michael Mazzer affirmed 21 August 2019 (and exhibits thereto); 2. The prosecutor's "List of Consolidated Objections" dated 29 July 2020 (recording details of all objections to the prosecutor's intended evidence and the prosecutor's response to the objections); 3. Statement of Ecological Evidence dated 22 May 2020 prepared by David Robertson (for the Harris Parties); 4. An affidavit of Gregory Dean Campbell affirmed 21 August 2019; and 5. A bundle of documents comprising an affidavit of Paul Spiers affirmed 20 August 2019 and an affidavit of Paul Spiers affirmed 23 August 2019 (and exhibits thereto).
In opposing the motion, the Greentree Parties rely on earlier correspondence of 13 and 14 August 2020 between their solicitors, Austin Giugni Martin Pty Ltd and the prosecutor. The Harris Parties read the affidavit of their solicitor, Peter Lee Harrison sworn 28 November 2019 and relied upon: 1. A letter of 4 October 2019 from their solicitors, Thomson Geer, to the NSW Department of Planning, Industry and Environment ('DPIE') and an email response thereto; 2. Correspondence from the DPIE dated 1 July 2020 to Thomson Geer and response thereto of 8 July 2020; 3. A letter from Thomson Geer to the DPIE dated 27 July 2020; and 4. A chronology.
Mr Rollason's affidavits contained short descriptions of the nature of the evidence given in each of the further affidavits which are sought to be relied upon. In his first affidavit of 23 August 2020, he deposed that: Ms Jago gives evidence as to records held by the Local Land Services ('LLS'), which is responsive to objections made to the evidence of Bradley Thomas Wade; Mr Brooks gives evidence as to the maintenance of records of fire events by the NSW Rural Fire Service ('NSW RFS'), which is responsive to objections taken to the evidence of Mr Wade and Scott Anthony Beaumont and also annexes additional records which the prosecutor was not previously aware of; Mr Drady gives evidence as to his attendance on Boolcarrol where he took photographs and made notes, which is responsive to objections taken to Mr Campbell's evidence; Mr Spiers' supplementary report and images are responsive to objection taken to his previous evidence; and Mr Black gives evidence as to his issuing of a certificate pursuant to s 60F of the LLS Act, and the creation and maintenance of the Native Vegetation Regulatory Map as defined in s 60D of the LLS Act.
Mr Rollason also deposed that the evidentiary certificates sought to be relied upon were obtained as a result of objections taken to evidence given by Mr Spiers and Mr Mazzer and were also sought to be relied upon to prove facts which the prosecutor, having regard to the defendants' notices issued pursuant to s 247K of the Criminal Procedure Act ('247K Notices'), considered were agreed. Mr Rollason also deposed that the prosecutor anticipates that Mr Boyce's oral evidence will relate to documentation of Narrabri Shire Council regarding any development consent or other application relating to Boolcarrol.
In his second affidavit of 31 August 2020, Mr Rollason deposed that Mary Leanne Mills gives evidence in her affidavit affirmed 26 August 2020 as to the origin and maintenance of "ADS/Leica images" by the Spatial Services division within the NSW Department of Customer Service, which are referred to and relied upon by Mr Spiers; Ms Rea gives evidence as to the origin and maintenance of aerial and satellite images within the DPIE, which are also images referred to by Mr Spiers; Mr Flynn gives evidence as to the date of European settlement of NSW; and Dr Duretto gives evidence as to the existence of specific species of vegetation in NSW before 1788.
Mr Rollason gave short oral evidence in chief and was cross-examined by both Mr S Littlemore QC, who appears with Ms P Lane of counsel, for the Greentree Parties, and Mr T Hale SC, who appears with Mr D W Robertson of counsel, for the Harris Parties.

Prior evidence and objections taken

By way of further background, in a notice dated 21 February 2020 pursuant to s 247J of the Criminal Procedure Act, the prosecutor had previously identified the affidavits which it sought to rely upon in each of the proceedings as follows: 1. Affidavit of Bradley Thomas Wade sworn 21 August 2019; 2. Affidavit of Paul Spiers affirmed 23 August 2019; 3. Affidavit of Paul Spiers affirmed 20 August 2019; 4. Affidavit of Jacqueline Alexis Riley affirmed 19 August 2019; 5. Affidavit of Terrence Michael Mazzer affirmed 21 August 2019; 6. Affidavit of Gregory Dean Campbell affirmed 21 August 2019; 7. Affidavit of Scott Anthony Beaumont affirmed 20 August 2019; 8. Affidavit of Greg Murie affirmed 17 October 2019; and 9. Affidavit of Michael William Brooks sworn 1 November 2019.
The Greentree Parties served their 247K Notices in response on 5 May 2020 and the Harris Parties served their 247K Notices in response on 7 May 2020. Although differently worded and configured, those notices generally indicated objection by the defendants to the admissibility of parts of the evidence to be relied upon by the prosecutor. Relevant to the present motion, specific objection had been taken to: 1. Exhibited documents referred to in paragraphs 12 - 20, 27, 28 and 30 of the affidavit of Bradley Thomas Wade sworn 21 August 2019, being evidence of notices pursuant to s 12.8 of the BC Act to the LLS, the NSW RFS and Narrabri Shire Council and responses to those notices; 2. Exhibited documents referred to in paragraph 12 of the affidavit of Scott Anthony Beaumont affirmed 20 August 2019, being evidence of a response by the NSW RFS to notice number C0004694, issued pursuant to s 12.8 of the BC Act; 3. Exhibited documents referred to in paragraph 15 of the affidavit of Gregory Dean Campbell affirmed 21 August 2019, being evidence of notes and photographs taken by investigator Scott Drady at the Boolcarrol property; and 4. Two expert reports prepared by Paul Spiers exhibited to his affidavit of 20 August 2019 and images annexed to his affidavit of 23 August 2019.

Submissions

The Court received detailed oral submissions from Ms S Callan of counsel, who appears with Ms C Hamilton-Jewell of counsel, on behalf of the prosecutor in support of the orders sought in the motion, and from each of Mr Hale and Mr Littlemore opposing the orders sought.
In summary, the prosecutor's position is that the further evidence falls within four general but overlapping categories - first, evidence in relation to native vegetation and species thereof; second, evidence (in accordance with s 13.31 of the BC Act and s 50 of the NV Act) in relation to whether the defendants were landholders for the purposes of s 4 of the NV Act, s 1.6 of the BC Act and s 60D of the LLS Act; third, evidence in relation to the provenance of aerial/satellite images; and fourth, evidence that is otherwise responsive to objections notified by the defendants to evidence earlier filed by the prosecutor. Included in these categories is evidence which relates to an explanation of the transitional provisions in operation under the BC Act. In summary, the defendants submit that the further evidence, even if in some circumstances is responsive to objections, is provided so late that the prejudice is unable to be addressed and, for various reasons, it is not fair and just for the prosecutor to be given leave to amend its notices and seek to rely upon the further evidence.

Position of the prosecutor

The prosecutor made the following submissions: 1. There are a number of matters in the defendants' 247K Notices which suggested that there was no dispute in relation to certain facts and evidence to be relied upon by the prosecutor, however subsequent events indicated to the prosecutor that the defendants had changed their position such that those facts and aspects of evidence may now be subject to challenge or scrutiny. 2. The prosecutor accepts that even if certain facts are indicated as being agreed in a s 247K Notice, such a notice cannot be tendered as an admission (as provided by s 247X of the Criminal Procedure Act) where the prosecutor does not have a signed statement of agreed facts from any of the defendants. However, while accepting that the prosecutor takes a risk that it may not be able to rely upon admissions (or non-objections) made in a s 247K Notice, the case management provisions in Div 2A of the Criminal Procedure Act are designed to focus on the real issues in dispute. When an indication otherwise given in a s 247K Notice changes, the prosecution should be able to seek to call further evidence. 3. In the circumstances, the prosecutor submits there is no material prejudice to the defendants as a result of the further evidence. Evidence regarding "landholders" and "native vegetation" 1. In relation to both the identification of native vegetation species and the identification of the defendants as landholders, each of the two 247K Notices filed by the Greentree Parties annexed a "Statement of Agreed Facts" ('Greentree Parties Agreed Facts') containing a number of admissions in relation to various matters (including the location of Boolcarrol and its component lots) and specifically states (at par (3)(j)): "Mr Greentree, Auen [Grain Pty Ltd], Kenneth Harris and Merrywinebone Pty Ltd … were landowners for the purposes of s.44 Native Vegetation Act 2003 (NSW) and s.13.29 of the Biodiversity Conservation Act 2016 (NSW)." 1. Further, par (5) of the Greentree Parties Agreed Facts states: "Each species set out at paragraph 19 and Annexure D of the [Prosecutor's Statement of Agreed Facts] is "native vegetation" for the purposes of the Native Vegetation Act and for the purposes of the Local Land Services Act." 1. As the prosecutor does not have a signed statement and/or agreed facts admissible pursuant to ss 184 and 191 of the Evidence Act 1995 (NSW) as against the Greentree Parties, it now seeks to rely upon further certificate evidence to the effect that the defendants are each landholders and that species alleged to have been cleared were native vegetation. In simple terms, having proceeded on the basis of that which was indicated in the 247K Notices, and in the absence of signed agreed facts, the prosecutor seeks leave to rely upon an evidentiary certificate pursuant to s 13.31 of the BC Act which provides, in par (3), that: "Each species of plant listed in the schedule annexed hereto and marked Annexure A is classified as native to New South Wales in the database of flora known as New South Wales Flora Online (an official database as defined in cl. 106 of the Local Land Services Regulation 2014)." 1. This certificate also certifies pursuant to s 13.31 of the BC Act and cl 13.3 of the Biodiversity Conservation Regulation 2017 (NSW) that each of the defendants was a landholder (as defined in s 1.6 of the BC Act) of the lots comprising Boolcarrol. Similarly, the prosecutor also seeks to rely upon a certificate issued under s 50 of the NV Act as evidence of the status of the defendants as landholders for the purposes of the charges brought under the LLS Act. 2. In addition, the prosecutor seeks leave to rely upon the affidavit evidence of Mr Flynn affirmed 26 August 2020 and Dr Duretto affirmed 29 August 2020 to prove that certain species are native vegetation as per the definition in the NV Act. The evidence of Dr Duretto and Mr Flynn relates solely to the charges under the NV Act, while, the evidentiary certificate relates to part of the BC Act which picks up the LLS Act. Mr Flynn, a historian, deposes as to when European settlement occurred in NSW, which is a matter comprising part of the definition of "native vegetation" contained in s 6(2) of the NV Act. Dr Duretto then opines that certain species to which he has been directed were species which existed in the state of NSW before European settlement. 3. In relation to the 247K Notices served on behalf of the Harris Parties, those notices identified specific objections to the prosecutor's then proposed evidence however, and relevantly, there was no objection raised to the affidavit of Mr Mazzer affirmed 21 August 2019, in circumstances where Mr Mazzer in each of his two expert reports had specifically addressed that the species alleged to have been cleared were "native vegetation". In addition, the Statement of Ecological Evidence dated 22 May 2020 of Dr Robertson (whose report is before the Court as an exhibit in this motion) which was attached to the Harris Parties' "Supplementary (s 247K(f)) Notice of Defence Response" filed 27 May 2020, did not dispute or criticise Mr Mazzer's view that the remaining species on the property comprised native vegetation. 4. The prosecutor maintains that it was only when the written submissions (in relation to objections that had been notified) prepared on behalf of the Harris Parties were served on 17 August 2020 that the prosecution came to understand that there was a "change of position" as to the evidence of Mr Mazzer. Provenance of images 1. Although provenance of aerial and satellite images is not discretely raised by the defendants, the prosecutor seeks to rely upon, first, a further evidentiary certificate issued on 18 August 2020 pursuant to s 13.32 of the BC Act which relates to charges under the LLS Act; second, an affidavit of Ms Mills affirmed 26 August 2020 (served on the defendants on 27 August 2020) which provides evidence as to the origin and maintenance of the "ADS/Leica images" by the Spatial Services division within the NSW Department of Customer Service (which are the images referred to and relied upon by Mr Spiers); and third, an affidavit of Ms Rea affirmed 27 August 2020 (and served on the defendants on 27 August 2020). 2. The prosecutor submits that Ms Rea gives evidence as to the origin and maintenance of aerial and satellite images within the DPIE and describes how the aerial, satellite and other "remote sensing products" are maintained and provided to others within the DPIE. Ms Mills' evidence therefore relates to the provenance of the aerial and satellite photographs relied upon by Mr Spiers. 3. In seeking to rely upon evidence going to the provenance of aerial and satellite images, the prosecutor submits that the Greentree Parties indicated in their 247K Notices, and specifically the response provided in accordance with s 247K(j) which relates to whether a defendant proposes to dispute the authenticity or accuracy of any proposed documentary evidence, that this evidence was "not disputed as to accuracy…". The prosecutor refers to appendices to those notices dealing with admissibility and notes that the identified objections make no reference to provenance. 4. In relation to the Harris Parties, the prosecutor submits that the only objection taken was to par (7) of Mr Spiers affidavit affirmed 20 August 2019 and did not dispute the provenance of the photographs and images relied upon by Mr Spiers. Evidence responsive to objections 1. The prosecutor seeks to rely upon the evidence of Ms Jago sworn 24 July 2020, which relates to records maintained by the LLS, to prove that there was no property vegetation plan for Boolcarrol. This evidence is confined and only responds to the objections (by the Harris Parties) to the evidence of Mr Wade who issued notices on the LLS pursuant to s 12.8 of the BC Act (being Notices C0004481 and C0004693) and exhibited these notices and the responses received to his affidavit of 21 August 2019. This evidence also goes toward an element of the offences under the NV Act, being that the alleged clearing was not the subject of a property vegetation plan. 2. As an explanation for the lateness in seeking to rely upon this evidence in the proceedings against the Greentree Parties, the prosecutor points to the Greentree Parties Agreed Facts attached to the 247K Notices filed 5 May 2020 which provide: "7. Between 29 December 2016 date and 18 January 2019. a. There was no development consent for clearing native vegetation on the Property. b. No Property Vegetation Plan applied to the Property." 1. In relation to the proceedings against the Harris Parties, the prosecutor points to specific objections to the affidavits of the investigators, Mr Wade sworn 21 August 2019 and Mr Campbell affirmed 21 August 2019. 2. The prosecutor submits that any prejudice is significantly mitigated because the material had been previously provided to the defendants and had been specifically admitted by the Greentree Parties. 3. The prosecutor submits that the oral evidence from Mr Boyce upon which it seeks to rely is in response to the objection taken by the Harris Parties to notices issued pursuant to s 12.8 of the BC Act to Narrabri Shire Council and the responses thereto, referred to at pars 14, 17, 19 and 30 of Mr Wade's affidavit sworn 21 August 2019. The Greentree Parties had admitted (as per 18 above) that there was no relevant development consent for the clearing of native vegetation. 4. As deposed to in the affidavit of Mr Rollason of 23 August 2020, Mr Boyce had declined to provide a statement or affidavit to the prosecutor and a subpoena had instead been issued for him to attend and give oral evidence. It is anticipated he would give evidence relating to the result of searches conducted of Narrabri Shire Council's records in relation to any development consent or other application in relation to Boolcarrol and the extent of his evidence would accord with the content of a letter dated 28 March 2019 from Narrabri Shire Council signed by Mr Boyce, which was one of the exhibits to the affidavit of Mr Wade the subject of objection. 5. In response to objections to photographs and handwritten notes in the exhibits to the affidavit of Mr Campbell affirmed 21 August 2019, the prosecutor seeks to rely upon the affidavit evidence of Mr Drady sworn 11 August 2020 who, as an investigator with the DPIE, visited Boolcarrol on 31 August 2017 and took the photographs and made the notes the subject of the objection. Any prejudice to the defendants is mitigated by reason of the fact that this material had already been produced through the evidence of Mr Campbell and it could not be said that there was a significant element of surprise in the new evidence. 6. The prosecutor seeks to rely upon the further affidavit of Mr Brooks sworn 13 August 2020 in relation to records of the NSW RFS of fire events at Boolcarrol, which is responsive to objections in relation to Mr Brooks' affidavit of 1 November 2019 regarding the making and keeping of records of the NSW RFS. The further evidence seeks to establish that the records are business records and to supplement the earlier material by four or five documents previously produced by the NSW RFS and not included in Mr Brooks' earlier affidavit. A number of the NSW RFS records were exhibited to the affidavit of Mr Wade sworn 21 August 2019 and objection had been taken to these documents being produced through Mr Wade's affidavit. Other evidence 1. The prosecutor seeks to rely upon the affidavit evidence of Jeremy Black sworn 19 August 2020 which is new evidence marshalled to fill what may have been a "gap" in the prosecution's case in relation to the charges under the LLS Act, which requires that the clearing occurred on a "regulated rural area". Mr Black deposes that he issued a certificate (attached to his affidavit) pursuant to s 60F (transitional arrangement until preparation of maps) of the LLS Act on 22 August 2019 in connection with anticipated legal proceedings against the landholder of Boolcarrol and the prosecutor submits that there is no public record (such as a gazettal or the like) to establish that transitional arrangements have been put in place. The certificate was issued for the purpose of certifying that part of Boolcarrol is category 2 regulated land for the purpose of the LLS Act. Mr Black deposes that the Native Vegetation Regulatory Map (defined in s 60D of the LLS Act) was first published on the DPIE website on 25 August 2017 and is titled "Transitional Native Vegetation Regulatory map" and, as such, the prosecutor submits that Mr Black's affidavit is relied upon to put before the Court evidence which indicates that the transitional arrangements pertain. 2. The prosecutor seeks leave to rely upon further evidence of Mr Spiers in his affidavit affirmed 18 August 2020, which annexes a supplementary report addressing three tasks contained in a letter of instructions received on 29 July 2020 which were, first, to explain the process through which the annexures to his earlier affidavits were created by reference to cadastral information used; second, to prepare a map showing "category 2 regulated land"; and third, to prepare a map showing the location of Mr Drady's GPS waypoints. Although the evidence is new in that it does not discretely respond to objections and instead addresses matters that "may be disputed", it nonetheless provides further clarification in relation to Mr Drady's evidence in a pictorial sense as to where Mr Drady took his various photographs.

Position of the Harris Parties

Mr Hale made the following submissions opposing the orders sought in the motion: 1. The late service of the additional material sought by the prosecutor may require an adjournment if the material is received by the Court. But for this further evidence, the hearing, at least in relation to the evidence, may have finished within the time allocated. 2. The affidavit of Mr Harrison (the solicitor for the Harris Parties) dated 28 November 2019, which was also read at the hearing of an earlier motion before Pain J, indicates an enduring concern of the Harris' Parties should there be a resulting delay in the completion of the proceedings. 3. Consideration of the history of the conduct of the matters indicates that the prosecutor has been "fundamentally underprepared" in circumstances where the prosecutor has provided no explanation for the delay in seeking to rely upon the further evidence, particularly in circumstances where the prosecutor should conduct itself as a model litigant in attending to its obligations under the case management provisions in Div 2A of the Criminal Procedure Act. 4. The prosecutor's conduct should be seen in the light of the fact that the proceedings were commenced on 26 August 2019, the day before time to commence proceedings would have expired, and noting that the Harris Parties' plea of not guilty was entered on 15 November 2019 and followed correspondence from the Harris Parties' solicitors asking for production of all documents to be relied upon by the prosecutor. 5. The Harris Parties made forensic decisions in relation to the conduct of the matters, including their 247K Notices which put in issue most of the facts advanced by the prosecution. Despite this, the prosecution has not marshalled evidence in an admissible form and even at the directions hearing on 22 July 2020, one month before the hearing was to commence, there was no notice that there was to be further evidence. Instead, notice was first given when a document prepared by the prosecutor consolidating all objections and submissions in response thereto dated 29 July 2020 was made available. 6. More particularly, it was not until 29 July 2020 that the prosecutor indicated that it would call evidence from each of Mr Drady, Ms Jago and a witness from Narrabri Shire Council, with the affidavit of Ms Jago provided 29 July 2020; the affidavit of Mr Drady provided 12 August 2020; the affidavit of Mr Brooks provided 17 August 2020; and the certificates of evidence pursuant to ss 13.31 and 13.32 of the BC Act and s 50 of the NV Act, along with the further affidavit of Mr Spiers affirmed 18 August 2020, being provided 18 August 2020. Thereafter the prosecutor provided the affidavit of Jeremy Black on 19 August 2020; the amended certificate of evidence pursuant to s 13.32 of the BC Act on 20 August 2020; the affidavits of Mr Flynn, Ms Mills, and Ms Rea all on 27 August 2020; and the report of Dr Duretto on 28 August 2020. 7. The earlier affidavits of Mr Spiers (of 20 and 23 August 2019) and his expert reports exhibited thereto rely upon and make certain assumptions about the correctness of information and images provided by the "OEH server" and particular boundaries in relation to Boolcarrol that Mr Spiers had been given. Although he explained how he located the property by selecting material from the corporate cadastral database and thereby created the property boundary by drawing lines and creating a file based on cadastral boundaries and patterns, he provided no evidence to support the accuracy of the underlying information. However, the prosecutor now seeks to rely upon an amended certificate under s 13.32 of the BC Act which reverses the onus of proof of those facts in circumstances where the defendants are unable to respond in the time available and after cross-examination has already taken place in the preliminary hearing pursuant to s 247G of the Criminal Procedure Act. 8. The Harris Parties' general concern, in relation to lateness and an inability to respond, also applies to the certificate issued pursuant to s 50 of the NV Act and the certificate issued pursuant to s 13.31 of the BC Act stating that the defendants were landholders. In particular, in circumstances where there had been no evidence that Merrywinebone was relevantly a landholder as defined in the legislation, apart from some evidence in a record of interview as to the status of landholders, there was no evidence that the Harris Parties (in particular, Merrywinebone) were landholders within the meaning of the section. 9. Leaving aside the evidence of Mr Black and the various certificates, the lateness of the affidavit of Dr Duretto (provided 29 August 2020) is sufficient that leave should not be granted to rely upon this material primarily because the defendants (in particular the Harris Parties) are denied the opportunity to make appropriate forensic decisions and is thus unfair to the defendants. The prosecutor, as a model litigant, should withdraw the tender of the late evidence. 10. The Court would accept that the relevant principles dealing with questions of prejudice and late service to be applied have been summarised in Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97 ('Benedict Industries (No 3)') at [62]-[68] (see also Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333; [1912] HCA 69 at 342 per Griffith CJ, SCI Operations Pty Ltd & ACI Operations Pty Ltd v Commonwealth of Australia (1996) 69 FCR 346 at 368, Apostilides v R (1983) 11 A Crim R 381 at 393-395, BUD17 v Minister for Home Affairs (2018) 264 FCR 134; [2018] FCAFC 140 at [78], and Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209 at [102]-[103]). 11. Adopting the principles in the above authorities, there is a duty incumbent upon the prosecutor to act fairly which has not been complied with despite the repeated concerns of the Harris Parties in relation to the delay of the preparation and conduct of these matters. 12. In response to the prosecutor's submission that much of the evidence is responsive to the defendants' various objections, it is clear that a number of the annexures to the affidavits (and exhibits), in particular the affidavits of the investigators, were in an obviously inadmissible form. For example, the exhibit to the affidavit of Mr Wade sworn 21 August 2019 which comprises responses received from NSW RFS in relation to notices issued by the NSW Office of Environment and Heritage under s 12.8(2) of the BC Act.

Position of the Greentree Parties

The Greentree Parties adopted the submissions of the Harris Parties and emphasised the late notice given by the prosecutor in relation to the further evidence. They submitted that time has not been available to consider rebuttal evidence, obtain expert opinion, or provide advice to the Greentree Parties in relation to the new material and its implications for the balance of the trial. In this regard, Mr Littlemore submitted that the new material cannot be examined solely on the basis of its utility to the prosecutor but must also be considered in light of its effect upon the defendants' case in circumstances where the material was received only one day prior to the hearing. Given the volume of evidence received, Mr Littlemore likened the circumstances to that of "over-discovery" which he submits is an American practice intended to overwhelm a defence.
With reference to the various options that may be available to the Court as considered in Benedict Industries (No 3), only the "first" option - to refuse the prosecutor leave to rely upon the further evidence and continue the trial - is properly available in the present circumstances without a manifest risk of injustice.
The obligations under Div 2A of the Criminal Procedure Act are not mere guidelines but are instead a duty requiring fundamental and mandatory compliance by the prosecutor. In the circumstances where a defendant is effectively deprived of its common law right to silence by legislation (such as Div 2A of the Civil Procedure Act), the enforcement of that legislation must be narrowly confined. The prosecutor's duty has not been discharged and it has been unable to provide any evidence to warrant the admission of the further evidence.
Mr Littlemore further submitted that a prudent prosecutor would have anticipated the issues now sought to be rectified and that the prosecutor cannot treat the defendants' 247K Notices as an advice on evidence. To allow the prosecutor, who is in breach of its statutory duty, to rely on the new material would only advantage the prosecutor and can only impair the defence.
Mr Littlemore referred to correspondence from the Greentree Parties' solicitors dated 13 and 14 August 2020 and a notice to produce dated 19 August 2020, which sought material from the prosecutor which had been referred to in the affidavit of Mr Mazzer affirmed 21 August 2019 and the affidavit of Mr Spiers affirmed 20 August 2019 including preliminary reports, draft expert reports and correspondence.
While the Greentree Parties take objection to all the further evidence, in relation to the material regarding native vegetation and the prosecutor's reliance upon the Greentree Parties Agreed Facts (annexed to their 247K Notices filed 5 May 2020), although in par (5) it is agreed that the species set out (in the prosecutor's statement of facts) is "native vegetation", the objections communicated in Annexure B to the Greentree Parties' 247K Notices nonetheless put in dispute the identification of plant community types and species.
In relation to the further evidence of Mr Drady in his affidavit sworn 11 August 2020, this material relates to information possessed by the prosecutor since 1 September 2017 which should have been disclosed pursuant to the obligations in Div 2A of the Criminal Procedure Act. Again, there was no evidence to justify why that material was being sought to be relied upon at this stage of the trial.
In relation to the evidence of Mr Boyce, there is no such thing as "anticipated" evidence as suggested by the prosecutor and leave should not be given for Mr Boyce to give oral evidence.
In relation to the evidence of Ms Mills, there is no evidence to explain why material referred to by her was not provided earlier.
In relation to the evidence of Mr Black, there is no reason as to why the evidentiary certificates sought to be relied upon would not have spoken for themselves earlier, and a further problem arises in relation to the time available to the defendants to consider rebuttal evidence. The same submission is made in relation to the evidence of Ms Rea - again, there is no explanation of the failure to deal with this evidence in accordance with the statutory obligation that resides with the prosecutor.
Finally, in relation to the evidence of Mr Brooks, the sheer volume of his further material would be objected to in any event if leave was granted to rely upon it.

Consideration

Noting that the defendants have each taken a holistic approach in their opposition to all of the further evidence, subject to a number of preliminary comments and consideration of the relevant principles, I will deal with each category of further evidence in turn.
Although the submissions made by Mr Littlemore on behalf of the Greentree Parties adopted and expanded upon the objections made by Mr Hale on behalf of the Harris Parties, except for a few discrete matters, I shall treat the submissions collectively.
The principles to be applied in the exercise of the Court's discretion to allow further evidence to be adduced, particularly where the supplementary evidence has been served late and is of substantial volume, were considered in not dissimilar factual circumstances by Biscoe J in Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 ('Benedict Industries') with his Honour stating: "[27] In my opinion, leave of the Court is required to file the prosecutor's supplementary evidence. The Court has power to control and supervise the conduct of criminal proceedings, including so as to prevent unfairness. In an appropriate case, this extends to refusing to permit a prosecutor to lead evidence that is otherwise relevant and admissible, for example if the evidence would cause the defendant to suffer irremediable prejudice, or prejudice which could only be cured by an order that the Court is not willing to make, such as for an adjournment of the hearing: State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 (CCA) at 493B per Gleeson CJ (Sheller JA and Badgery-Parker J agreeing). In that case, which was decided before the introduction of statutory case management provisions in criminal proceedings, Gleeson CJ said at 492 - 493 (omitting citations): Failure to comply with directions of the kind with which we are concerned gives the trial judge a discretionary power to exclude the evidence in question. It makes no difference to the existence of the power, as distinct from the discretionary considerations relevant to its exercise, that proceedings are criminal in nature. It was said in argument that prosecuting authorities have asserted in the Land and Environment Court a "right" to lead evidence notwithstanding a failure to comply with directions. Such an assertion, if it had been made, is baseless. The power to give directions necessarily carries with it a power to refuse to countenance non-compliance. A power to direct that certain steps be taken in relation to adducing evidence necessarily carries with it a power to refuse to permit a party to adduce evidence otherwise than in accordance with those steps. Furthermore, the court has an inherent power to control and supervise the conduct of proceedings so as to prevent unfairness. This power is not restricted to defined and closed categories and, in an appropriate case, extends to refusing to permit a prosecutor in criminal proceedings to lead evidence that is otherwise relevant and admissible. It is to be noted that Cripps J found, in the present case, that, if the evidence in question were permitted, the respondent would suffer prejudice which could only be cured by an adjournment; an adjournment his Honour was not willing to grant. [28] In the same case, Gleeson CJ suggested that a prosecutor may be obliged to lead new evidence-in-chief in answer to a defendant's foreshadowed evidence because of the general obligation of the prosecution in criminal proceedings to present its case completely before the accused is called upon for his defence, and that this would not constitute a breach of a court direction that the prosecutor file and serve its evidence-in-chief at an earlier time: at 490C. By analogy, it may be said that, subject to the Court's control and supervision including so as to prevent unfairness, it is generally permissible for the prosecution to call supplementary evidence-in-chief in response to a defendant's objections to the admissibility of prosecution evidence, particularly under the Division 2A regime where such objections are made at an early stage of the proceedings."
I respectfully adopt his Honour's analysis which has been considered and adopted on a number of occasions by this Court: Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 3) [2018] NSWLEC 197 at [18], Environment Protection Authority v Bartter Enterprises Pty Ltd [2020] NSWLEC 78 at [7].
It is clear from the above authorities that the present matters require consideration of, first, whether the evidence is relevant and admissible; second, whether the evidence would cause irredeemable prejudice to the defendants (that is, prejudice unable to be satisfactorily cured); and third, whether it is fair and just between the parties for leave to be granted.
The role of the disclosure and case management requirements in Div 2A of the Criminal Procedure Act (case management provisions and other provisions to reduce delays in proceedings) and the parties' compliance with those provisions, are important considerations in these matters. In particular, ss 247A-247Y of the Criminal Procedure Act have the effect of abrogating a defendant's long enshrined right to silence to a substantial degree and in this regard I again respectfully adopt, but do not repeat, Biscoe J's consideration of these provisions in Benedict Industries at [6]-[17].
The further evidence is not insubstantial, and I accept that it has been provided particularly late. Although not determinative in my view, I accept the submission of the defendants that there has been little explanation for the lateness in the provision of this material. Although Mr Rollason explained his role in the marshalling of the further evidence and the time when the prosecutor became aware of the defendants' objections, it remains unclear why the further evidence has been provided as late as it was.
The aim of Div 2A is to narrow the issues to those that are genuinely in dispute and the purpose and aims of ss 247G-247V of the Criminal Procedure Act are consistent with the overriding purpose of civil procedure to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" as per s 56 of the Civil Procedure Act 2005 (NSW). In considering the present conduct, I am conscious that a prosecutor should put its case both fully and fairly before a defendant is called upon to announce the course to be followed at trial: R v Soma (2003) 212 CLR 299; [2003] HCA 13 at [27], Benedict Industries at [6].
As considered in Benedict Industries, s 247J of the Criminal Procedure Act necessarily requires a prosecutor to update matters otherwise required to be included in a prosecutor's s 247E notice. The obligation to comply with the requirements for preliminary disclosure imposed under Div 2A continues until the completion of the proceedings (as per s 247O of the Criminal Procedure Act). More particularly, s 247O(2) provides, inter alia, that material obtained after preliminary disclosure is made must be disclosed to the other party as soon as practicable, if that material would otherwise have been included in that preliminary disclosure had it been received earlier.
Given the above, I do not consider the Harris Parties' submissions raising the prosecutor's obligation as a model litigant to be determinative in circumstances where it is accepted that a prosecutor is in any event beholden to its duty to act fairly and in accordance with the case management requirements in Div 2A of the Criminal Procedure Act.
These matters are pertinent to the prosecutor's suggestion that a significant proportion of the further evidence responds to objections notified and/or positions communicated by the defendants in their 247K Notices. As stated by Biscoe J in Benedict Industries at [15], one of the aims and consequences for requiring a defendant to disclose (under s 247K(d)) its objections to the admissibility of prosecution evidence is to empower the Court to dispense with requirements for formal proof of prosecution evidence to which no objection is taken (see in particular s 247N of the Criminal Procedure Act).
The sanctions for non-compliance with preliminary disclosure requirements, as detailed in s 247N, are now well understood. The Court has a discretion as to whether to reject or admit evidence sought to be adduced by a party who fails to disclose that material to the other party in accordance with the requirements for preliminary disclosure under Div 2A of the Criminal Procedure Act.
Accepting that the Court has power to control and supervise the conduct of criminal proceedings, which includes the power to prevent unfairness, and despite the detailed submissions made by the defendants, taking all matters into account (although subject to further matters to follow in relation to some of the further evidence) I do not consider that the prejudice to the defendants is irredeemable in the circumstances.
While trite, the exercise of the Court's supervisory jurisdiction to grant leave to file supplementary evidence must be considered in light of the particular circumstances and it is, of course, a matter of fact and degree. In these matters the further evidence sought to be relied upon is extensive and although the defendants submit that the prosecutor is, in relation to some matters, seeking to take advantage of the defendants' disclosures (in relation to communication of objections) in that it is attempting to "patch up" the prosecution case, I accept that some of the further evidence is either responsive to the objections and/or explainable because of facts that may have been considered by the prosecutor to have been admitted. Suffice it to say, I do not consider the application for leave to rely upon the further evidence engages any of the three categories of abuse of procedure identified by McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 286.
Consideration of the further evidence against the earlier evidence provided, and the history of the conduct of these proceedings, is also relevant to the exercise of the Court's discretion. On 20 December 2019, the matters were set down for a nine-day hearing commencing on 24 August 2020. On the first day of the hearing, prior to the prosecution's opening, an application was made on behalf of the defendants for a preliminary hearing in accordance with s 247G of the Criminal Procedure Act. As earlier noted, that hearing occupied four days. A further day otherwise allocated for the hearing was spent considering the evidence and the submissions, and judgment was given on 1 September 2020. The prosecutor then commenced its opening during which the present motion was filed and then argued over the course of two days on 1 and 2 September 2020, with judgment (with reasons deferred) being given on 3 September 2020. The effect of this is that on the completion of argument on the motion, there remained only two days of the earlier allocated nine days of hearing.
Although it was suggested by Mr Hale that the hearing of the evidence (but not the finalisation of all the proceedings) would have been completed within the remaining time, I do not consider that this was a likelihood, or that the completion of evidence in that time would be determinative in consideration of the application. I am of the opinion that, irrespective of the receipt or otherwise of the whole, or even some of, the further evidence, the matters would most certainly not have been completed in the remaining time allocated in any event - especially given that the proceedings comprise of 32 separate summons, feature separate representation for the two sets of defendants, and as five of the allocated days of the hearing had already effectively been occupied with a preliminary hearing pursuant to s 247G of the Criminal Procedure Act. I do not express that fact in any way critically to, or adversely to, the interests of the defendants in pursuing the preliminary determination. In my view, it is simply a fact to be taken into account that the proceedings would not have finalised within the allocated time.
As such, although it was unclear whether the defendants (or any of them) would require an adjournment if the material was received by the Court, given my view that the hearing would not have finished within the allocated time, this is not a matter which I regard as determinative.
While I accept that the defendants may have made forensic decisions in relation to the conduct of the matters, I do not consider the fact that the prosecution may have marshalled some evidence in an inadmissible manner is itself determinative.
In forming my opinion in relation to the discrete aspects of the further evidence below, I have considered a variety of factors primarily related to the prejudice that will be suffered by the defendants if the further evidence is permitted balanced against the prejudice to the prosecutor if the evidence is excluded. I have also taken into account the conduct of the parties to date and, as considered above, whether the further evidence will result in significant delay in the hearing. Further, while there is a public interest in those accused of a criminal offence being brought to justice, as the courts have frequently stated, this interest must be balanced against the delay and possible mismanagement by the prosecutor in the preparation of the proceedings which may cause prejudice to the defendants and may have an effect upon the Court's resources.
Suffice it to say, subject to discrete rulings in relation to portions of the further evidence, I do not consider that allowing the prosecutor to rely upon the further evidence would lead to severe or irremediable prejudice. While I accept that the defendants have been at present denied, to an extent, the ability to meet the new evidence and that certain forensic decisions may have been made without the knowledge of this material, I consider that these concerns will be able to be accommodated when the defendants have had the opportunity and time to digest the material, which they will inevitably receive given my strong view that the hearing would not have been completed within the allocated time.
Taking the above matters into account and conscious that the prosecutor cannot impermissibly split its case by calling certain evidence after the defence has stated its case, I have considered the nature (and importance) of each aspect of the further evidence; the extent of the delay; and the prejudice to all parties, in light of the accepted circumstances in which the absence of an appropriate explanation and non-adherence to the case management principles may justify the Court refusing leave to rely on the further evidence.
With the above considerations and findings in mind I now deal with each of the discrete categories of the further evidence.

Evidence regarding native vegetation and landholders

I consider the prosecution should be given leave to rely upon the further evidence in this category including the certificate issued 18 August 2020 pursuant to s 13.31 of the BC Act and the affidavits of Michael Cornelius Flynn affirmed 26 August 2020 and Dr Marco Duretto affirmed 29 August 2020 substantially for the reasons advanced by the prosecutor. My further reasons may be shortly stated.
First, the 247K Notices filed by the Greentree Parties contained admissions, in particular in the Greentree Parties Agreed Facts at pars (3) and (5) as noted at 18-(5) above, which the further evidence now seeks to prove in light of more recent indications made by the defendants that the question of "native vegetation" and "landholders" may in fact be in issue.
Second, in relation to the Harris Parties, I accept that there was no specific objection taken to the evidence of Mr Mazzer affirmed 21 August 2019 in relation to "native vegetation" in the 247K Notices and that the Statement of Ecological Evidence of Dr Robertson did not dispute or criticise Mr Mazzer's view that the remaining species on Boolcarrol comprised native vegetation, however this now appears to be an issue between the parties.
Although the Harris Parties do not accept that the prosecutor only became aware of their objections, or that they changed their position, in relation to the evidence of Mr Mazzer on 17 August 2020, I do not consider this matter is determinative. I again note my view that the late provision of this evidence will not, itself, cause a delay in the finalisation of the proceedings and the fact that the matters would not be completed in the time presently allocated goes some way to addressing any surprise that may be experienced by the defendants.
Third, in relation to the submission of the Greentree Parties that the lateness of this material deprives them of the opportunity to make appropriate forensic decisions and thus causes prejudice, again because of my view that as the proceedings were not likely to be finalised, combined with the matters recorded above (at [45]), satisfy me that, on balance, reliance on the further evidence should be allowed.
In relation to the evidence regarding identification of landholders, having realised that the facts earlier considered not to have been in dispute by the Greentree Parties were not likely to be agreed in a formal sense, the prosecutor's conduct in seeking to rely upon further evidence is understandable and I accept the submission that although some prejudice does arise, it could not be a matter of surprise.
Further, from the submissions made by Mr Hale, it appeared that the position of the Harris Parties (and in particular Merrywinebone) is that a primary defence being pursued is that those defendants were absent from (or not involved with) the property and did not cause or direct or permit the alleged clearing to occur. Although relevant to my present consideration, I note the submission of the prosecutor that, in these circumstances, the further evidence (including the certificates) in relation to the status of the Harris Parties as landholders would not affect this position.

Evidence concerning provenance of aerial and satellite images

I consider the evidence sought to be relied upon relating to the provenance of aerial and satellite images (summarised at 18,(12) above) as being in a different category to the other further evidence in that the provenance of the aerial and satellite images was not a matter discretely raised or objected to by the defendants. Although Mr Spiers has given evidence as to his reliance upon some of the images, and despite the prosecutor's submission that such matters were raised in the Greentree Parties' 247K Notices, there does not appear to be any specific objection to, and indeed no reference to, provenance. In the circumstances, I am not satisfied that leave should be granted for this evidence, being served as late as it was. I also take into account that Mr Spiers and Mr Mazzer were recently (during the days prior to the formal commencement of the hearing) cross-examined in relation to their reports in the 247G preliminary hearing. In any event, Mr Spiers in his evidence, explains how he located the property and his selection of material from the material that was available to him.
Although I reserved my determination in relation to the amended evidentiary certificate issued 20 August 2020 pursuant to s 13.32 of the BC Act, I consider that the matters I have taken into account above (in relation to the further evidence regarding the provenance of aerial and satellite imagery) apply equally to this certificate. I therefore make the same finding that leave should not be granted for the prosecutor to rely upon this evidence.

Evidence responsive to objections made by the defendants

In relation to the evidence of Ms Jago in her affidavit sworn 24 July 2020, as to the records held by the LLS, I consider that this evidence primarily responds to the material objected to in Mr Wade's affidavit sworn 21 August 2019 (particularly in pars (13) and (18) and the documents exhibited thereto) and, therefore, in the circumstances considered earlier and for the reasons that follow, I give leave to rely on the affidavit of Ms Jago sworn 24 July 2020.
In forming my view, I have read, for the purpose of the motion, the earlier affidavits of Mr Campbell and Mr Wade (and the material exhibited thereto) and the detailed objections taken to that material by the defendants. I consider that the evidence of Ms Jago is responsive to the positions adopted by the defendants and that any prejudice to the defendants is mitigated because the primary material, including the notices issued pursuant to s 12.8 of the BC Act and responses thereto, had been previously provided to the defendants (as specifically admitted by the Greentree Parties). As such, the interests of justice and fairness are served by leave being granted to file amended notices under s 247J of the Criminal Procedure Act.
In relation to the oral evidence of Mr Boyce (of Narrabri Shire Council), I consider that this is properly responsive to the objection taken by the Harris Parties to the notices issued pursuant to s 12.8 of the BC Act to Narrabri Shire Council (and the responses thereto) which were the subject of the defendants' objections to the respective paragraphs of Mr Wade's affidavit sworn 21 August 2019. I also take into account that Mr Boyce declined to provide a statement or affidavit to the prosecutor and, further, that the Greentree Parties had admitted in their 247K Notices that there was no relevant development consent for the clearing of native vegetation. I also take into account the fact that it was anticipated that Mr Boyce's evidence is likely to accord with the content of a letter dated 28 March 2019 from Narrabri Shire Council, signed by Mr Boyce, which is an exhibit to the affidavit of Mr Wade.
In relation to the evidence of Mr Drady in his affidavit sworn 11 August 2020, I grant leave for this evidence to be relied upon as I accept the submissions of the prosecutor that Mr Drady's evidence is responsive to objections to photographs and handwritten notes that were otherwise exhibited to the affidavit of Mr Campbell affirmed 21 August 2019. Again, any prejudice to the defendants is mitigated by the fact that the material had already been produced through the evidence of Mr Campbell.
In relation to the further affidavit of Mr Brooks sworn 13 August 2020, I grant leave to rely upon this material as it is responsive to objections of Mr Brooks' earlier affidavit of 1 November 2019 in that it relates to records of the NSW RFS in relation to fire events at Boolcarrol. Mr Brooks gives further evidence regarding the maintenance of the NSW RFS records which were previously provided to the defendants as exhibits to the affidavit of Mr Wade sworn 21 August 2019 and objection had been taken to those documents by the defendants. In the circumstances I consider that there is no material prejudice to the defendants in this material being allowed.

Other evidence sought to be relied upon

In relation to the affidavit of Mr Black sworn 19 August 2020 which, as noted above, seeks to establish the transitional provisions in the operation under the BC Act in relation to category-2 regulated land, I grant leave to rely upon this evidence as I consider that although this is new evidence, it relates to a certificate issued to Mr Black pursuant to s 60F of the LLS Act on 22 August 2019 which itself was issued in anticipation of the current proceedings.
The affidavit relates to a procedural situation in relation to the Native Vegetation Regulatory Map and its publication on the DPIE website on 25 August 2017. I accept the prosecutor's position that an element of the offences under s 60N(1) of the LLS Act is that the clearing was in a "regulated rural area", which is an area to which Pt 5A of the LLS Act applies, being "category-2 regulated land", which means land designated as "category-2" on a Native Vegetation Regulatory Map. However, as transitional arrangements apply until maps are prepared and published, Mr Black's evidence and the certificate issued explain and certify that Boolcarrol was category-2 regulated land under those transitional arrangements.
The unchallenged evidence of Mr Rollason (in his affidavit sworn 23 August 2020 at (20)) was that having regard to the transitional arrangements in s 60G(5) of the LLS Act, the facts now stated in the affidavit of Mr Black are not able to be established as a matter of public record. In these circumstances, I consider that it is appropriate to grant leave to rely upon the evidence of Mr Black. Without repeating my concern in relation to the lateness of the material, I do not consider that any prejudice to the defendants is such that the interests of justice and fairness would not be served by leave being granted to amend the notices pursuant to s 247J of the Criminal Procedure Act.
In relation to the affidavit of Mr Spiers affirmed 18 August 2020, the prosecutor concedes that this does not seek to address matters that are the subject of objections. It concedes that if the matters to which the affidavit pertains are not disputed, then this further evidence will in effect be unnecessary. Although the prosecutor indicated that this further evidence may be considered in a similar fashion to the further evidence of Mr Drady and may possibly concern the provenance of aerial and satellite photographs otherwise relied upon by Mr Spiers in his earlier evidence, Mr Hale opposes the grant of leave in relation to the further evidence of Mr Spiers based upon both the lateness of the provision of this material and the fact that Mr Spiers has already given evidence and been cross-examined in the 247G preliminary hearing.
I am of the view that the lateness of Mr Spiers' evidence - although a similar lateness that relates to the other further evidence - is of greater concern as it has been properly conceded by the prosecutor that it is unclear whether the aspect of his earlier evidence was in fact disputed, but otherwise does not relate to discrete objections that were communicated by the defendants.
Given that Mr Spiers has already given his evidence and that his further evidence sought to be relied upon does not respond to discrete objections, I consider that the absence of a satisfactory explanation for the lateness of this material is a matter that is determinative such that leave should not be granted to rely upon the further evidence of Mr Spiers.

Conclusion

Subject to discrete aspects of the further evidence which I have considered above, I do not consider that the interests of justice and fairness between the parties warrant a blanket refusal of leave to the prosecutor to rely upon the further evidence.

Costs

Although an application was made for the prosecutor to pay the defendants' costs thrown away or occasioned by the receipt of the further evidence, I consider it appropriate that any discrete question of costs is reserved.

Orders

The orders of the Court made on 3 September 2020 were: 1. Pursuant to s 68(1) of the Land and Environment Court Act 1979 (NSW), the prosecutor is granted leave to file Amended Notices under s 247J of the Criminal Procedure Act 1986 (NSW) by adding to the list of evidence to be relied upon the following: 1. Affidavit of Leanne Jago sworn 24 July 2020; 2. Affidavit of Michael William Brooks sworn 13 August 2020 (confined to paragraphs 21, 22, 23 and 24 and: Annexure G - Rural Fire Service records, documents at pages: - 88-90 - 91-92 - 105-106 - 107-108 - 109-110 Annexure H - Rural Fire Service records, documents at pages: - 270-271 - 272 - 274 - 276) 1. Affidavit of Scott Terrence Drady sworn 11 August 2020 (confined to: paragraphs 2, 8, 12 and Annexure B); 2. Affidavit of Jeremy Black sworn 19 August 2020; 3. Certificate issued on 18 August 2020 pursuant to s 13.31 of the Biodiversity Conservation Act 2016 (NSW); 4. Certificate issued on 18 August 2020 pursuant to s 50 of the Native Vegetation Act 2003 (NSW) (repealed); 5. Affidavit of Michael Cornelius Flynn affirmed 26 August 2020; 6. Affidavit of Dr Marco Duretto affirmed 29 August 2020; and 7. Oral evidence from Daniel Boyce (of Narrabri Shire Council). 1. The prosecutor is granted leave to rely on the abovenamed additional evidence in each of the proceedings. 2. I reserve my decision in relation to an Amended Certificate issued on 20 August 2020 pursuant to s 13.32 of the Biodiversity Conservation Act 2016 (NSW).
For the reasons stated, the Court: 1. Confirms Orders (1) and (2) made on 3 September 2020. 2. Deletes Order (3) made on 3 September 2020. 3. Orders that costs be reserved.

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: 28 September 2020

Native Vegetation Act 2003(NSW)

repealed) Native Vegetation Act 2003(NSW)

Biodiversity Conservation Act 2016(NSW)ss 1.6, 12.8, 13.31, 13.32

Evidence Act 1995(NSW)ss 184,191

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris

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