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

Judgment (85 paragraphs)

[1]

Cited: Australian Soil and Land Survey Field Handbook (3rd ed, 2009) Category: Principal judgment Parties: In proceedings 2019/00265264; 2019/00265268; 2019/00265272; 2019/00265276; 2019/00265280; 2019/00265284; 2019/00265288; 2019/00265292 Secretary, Department of Planning, Industry and Environment (Prosecutor) Auen Grain Pty Ltd ACN 101 059 769 (Defendant)

[2]

In proceedings 2019/00265266; 2019/00265270; 2019/265274; 2019/00265278; 2019/00265282; 2019/265286; 2019/00265290; 2019/00265294 Secretary, Department of Planning, Industry and Environment (Prosecutor) Ronald Lewis Greentree (Defendant)

[3]

In proceedings 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293 Secretary, Department of Planning, Industry and Environment (Prosecutor) Merrywinebone Pty Ltd ACN 000 937 824 (Defendant)

[4]

In proceedings 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295 Secretary, Department of Planning, Industry and Environment (Prosecutor) Kenneth Bruce Harris (Defendant) Representation: Counsel: 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 S Callan SC with C Hamilton-Jewell (Prosecutor) S Littlemore QC with P M Lane (Defendants)

[5]

[6]

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)

[7]

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

[8]

TABLE OF CONTENTS Judgment Nature of cases and outcome Introduction The alleged offences Outline The statutory framework and elements of the offences Native Vegetation Act offences Local Land Services Act offences Evidence Overview Native Vegetation Act offences Element (1) - "clearing" Element (2) - the clearing was of "native vegetation" Element (3) - no "development consent" Element (4) - no "property vegetation plan" Element (5) - responsibility for carrying out clearing Defences Offences under the Local Land Services Act Element (1) - "clearing" Element (2) - the clearing was of "native vegetation" Element (3) - the clearing was in a "regulated rural area" Element (4) - responsibility for carrying out clearing Defences Conclusion - all proceedings Orders

[9]

Nature of cases and outcome

On 26 August 2019, the prosecutor, the Secretary, Department of Planning, Industry and Environment, commenced 32 proceedings by way of eight summonses against each of Auen Grain Pty Ltd (ACN 101 059 769) ('Auen Grain'); Ronald Lewis Greentree ('Mr Greentree'); Merrywinebone Pty Ltd (ACN 000 937 824) ('Merrywinebone'); and Kenneth Bruce Harris ('Mr Harris') (collectively, 'the defendants') in relation to eight separate land clearing events between December 2016 and January 2019 involving the removal of native vegetation on a property known as "Boolcarrol", north-west of Narrabri in the State of New South Wales.
Due to the timing of the eight alleged clearing events, six charges have been issued against each defendant pursuant to the Native Vegetation Act 2003 (NSW) ('Native Vegetation Act') which was repealed on 25 August 2017, and two charges have been issued pursuant to the Local Land Services Act 2013 (NSW) ('Local Land Services Act').
Each of the defendants has pleaded not guilty to the charges and a hearing has been held.
For the reasons that follow, I find beyond reasonable doubt that Mr Greentree and Auen Grain are each guilty of the eight offences as charged and that Mr Harris and Merrywinebone are each not guilty of the eight offences as charged.

[10]

Introduction

On 3 December 2019, Pain J made orders pursuant to s 29(2) of the Criminal Procedure Act 1986 (NSW) ('Criminal Procedure Act') that each of the matters be heard and determined together: Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris [2019] NSWLEC 187.
Boolcarrol, the property on which the alleged clearing events took place, occupies over 34,000ha and was at all relevant times owned by Mr Harris and Mr Greentree as tenants in common. Boolcarrol was farmed (which included grazing and farming/cropping) by a partnership commenced on 26 February 2008 and known as "Greentree Farming" comprising, as partners, each of the defendants as follows: Auen Grain 50%, Merrywinebone 48%, Mr Greentree 1%, and Mr Harris 1% - with Mr Greentree being a shareholder and sole director of Auen Grain, and Mr Harris being the sole director of Merrywinebone.
Given the interrelationship between the four defendants, where necessary, I will refer to Mr Greentree and Auen Grain as the 'Greentree defendants' and Mr Harris and Merrywinebone as the 'Harris defendants'. The Greentree defendants and the Harris defendants were represented separately.

[11]

The hearing

On 24 August 2020, prior to the commencement of the hearing, an application was made by the Greentree defendants pursuant to s 247G(3)(e) of the Criminal Procedure Act, that the Court by way of a preliminary hearing (the "voir dire hearing") give a ruling or make a finding under s 192A of the Evidence Act 1995 (NSW) ('Evidence Act'), that the purported expert evidence of two witnesses (Paul Spiers and Terrence Michael Mazzer) proposed to be relied upon by the prosecutor, be excluded on the grounds of inadmissibility and/or as warranting discretionary rejection. The application was supported by the Harris defendants and not opposed by the prosecutor.
The preliminary hearing proceeded on 24, 25, 26 and 27 August 2020, being the first four days of the nine days initially allocated for the hearing; and on 1 September 2020 (in Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126 ('Auen Grain (No 2)')), I determined that the evidence in question satisfied the requirements of s 79 of the Evidence Act, was admissible, and that it ought not be excluded pursuant to s 137 of the Evidence Act.
The prosecutor then opened its case on 1 September 2020, being the fifth day of the nine days allocated for the hearing, and thereafter made an application to rely upon further evidence. That application proceeded on 1 and 2 September 2020 and on 3 September 2020 (in Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 3) [2020] NSWLEC 129), I granted leave for the prosecutor to file and rely upon: Amended Notices under s 247J of the Criminal Procedure Act in each of the proceedings to add to the evidence, the affidavits of Leanne Jago, Michael William Brooks, Scott Terrence Drady, Jeremy Black, Michael Cornelius Flynn, and Dr Marco Duretto; a Certificate issued pursuant to s 13.31 of the Biodiversity Conservation Act 2016 (NSW) ('Biodiversity Conservation Act'); a Certificate issued pursuant to s 50 of the Native Vegetation Act; oral evidence from Daniel Boyce (of Narrabri Shire Council); and an Amended Certificate issued on 20 August 2020 pursuant to s 13.32 of the Biodiversity Conservation Act.
On 4 September 2020 (in Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 4) [2020] NSWLEC 130), I admitted documentary material tendered by the prosecutor, produced by the NSW Rural Fire Service ('RFS'), to which the defendants had objected.

[12]

Clearing events

In summary, the charges which relate to eight separate land clearing events are that each defendant: 1. Carried out or authorised the clearing of native vegetation on Boolcarrol contrary to s 12 of the Native Vegetation Act between: 1. 29 December 2016 and 8 May 2017 ('Northern Clearing Event 1'); 2. 8 May 2017 and 27 July 2017 ('Northern Clearing Event 2'); 3. 2 July 2017 and 16 August 2017 ('Northern Clearing Event 3'); 4. 27 July 2017 and 16 August 2017 ('Northern Clearing Event 4'); 5. 16 August 2017 and 24 August 2017 ('Northern Clearing Event 5a'); and 6. 27 July 2017 and 24 August 2017 ('Southern Clearing Event 6a'), (collectively, the 'Native Vegetation Act offences') 1. Carried out or authorised the clearing of native vegetation on Boolcarrol, which is a rural regulated area, contrary to s 60N of the Local Land Services Act between: 1. 25 August 2017 and 18 September 2017 ('Northern Clearing Event 5b'); and 2. 25 August 2017 and 18 January 2019 ('Southern Clearing Event 6b'), (collectively, the 'Local Land Services Act offences').
All of the charges are strict liability offences. The latter two charges (Northern Clearing Event 5b and Southern Clearing Event 6b) reflect that, on 25 August 2017, the Native Vegetation Act was repealed and s 60N was inserted into the Local Land Services Act.
The use of descriptors "Northern" and "Southern" (clearing events) generally reflect the fact that Spring Plains Road runs through Boolcarrol in an east/west direction creating a portion of the property to the north ('northern area') and the remainder of the property to the south ('southern area'). As will be seen, the discrete areas of land alleged to have been cleared are variously referred to in the evidence by reference to named paddocks and numbered "polygons" within the property known as Boolcarrol.

[13]

Northern Clearing Event 1

This clearing event is the subject of the charges in proceedings 2019/00265266 against Mr Greentree, proceedings 2019/00265267 against Mr Harris, proceedings 2019/00265268 against Auen Grain, and proceedings 2019/00265269 against Merrywinebone.
Each charge alleges that, between about 29 December 2016 and 8 May 2017 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 12 of the Native Vegetation Act.
The particulars of each charge (with slight variation for each defendant) are as follows: 1. Place of offence: At the property "Boolcarrol", on or near Lot 1 in DP 128418, Lot 2 in DP 753913, and Lot 100 in DP 842249; 2. Native Vegetation: Included 16 identified species of native vegetation; 3. Manner of breach: Each defendant: 1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 44 of the Native Vegetation Act; and/or 2. (except in relation to Mr Harris), cleared native vegetation by means of machinery including a bulldozer, burning, and ploughing; and/or 3. caused or authorised, by their employees (in relation to Merrywinebone and Auen Grain only), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and ploughing.

[14]

Northern Clearing Event 2

This clearing event is the subject of the charges in proceedings 2019/00265270 against Mr Greentree, proceedings 2019/00265271 against Mr Harris, proceedings 2019/00265272 against Auen Grain, and proceedings 2019/00265273 against Merrywinebone.
Each charge alleges that, between about 8 May 2017 and 27 July 2017 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 12 of the Native Vegetation Act.
The particulars of each charge (with slight variation for each defendant) are as follows: 1. Place of offence: At the property "Boolcarrol", on or near Lot 7 in DP 753913; 2. Native Vegetation: Included 17 identified species of native vegetation; 3. Manner of breach: Each defendant: 1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 44 of the Native Vegetation Act; and/or 2. (except in relation to Mr Harris), cleared native vegetation by means of machinery including a bulldozer, burning, and ploughing; and/or 3. caused or authorised, by their employees (in relation to Merrywinebone and Auen Grain only), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and ploughing.

[15]

Northern Clearing Event 3

This clearing event is the subject of the charges in proceedings 2019/00265274 against Mr Greentree, proceedings 2019/00265275 against Mr Harris, proceedings 2019/00265276 against Auen Grain, and proceedings 2019/00265277 against Merrywinebone.
Each charge alleges that, between about 2 July 2017 and 16 August 2017 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 12 of the Native Vegetation Act.
The particulars of each charge (with slight variation for each defendant) are as follows: 1. Place of offence: At the property "Boolcarrol", on or near Lots 7 and 8 in DP 753913; 2. Native Vegetation: Included 13 identified species of native vegetation; 3. Manner of breach: Each defendant: 1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 44 of the Native Vegetation Act; and/or 2. (except in relation to Mr Harris), cleared native vegetation by means of machinery including a bulldozer, burning, and (in relation the Auen Grain and Merrywinebone) /or (in relation to Mr Greentree), ploughing; and/or 3. caused or authorised, by their employees (in relation to Merrywinebone and Auen Grain only), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and (in relation to Auen Grain) and/or (in relation to Mr Greentree, Mr Harris and Merrywinebone) ploughing.

[16]

Northern Clearing Event 4

This clearing event is the subject of the charges in proceedings 2019/00265278 against Mr Greentree, proceedings 2019/00265279 against Mr Harris, proceedings 2019/00265280 against Auen Grain, and proceedings 2019/00265281 against Merrywinebone.
Each charge alleges that, between about 27 July 2017 and 16 August 2017 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 12 of the Native Vegetation Act.
The particulars of each charge (with slight variation for each defendant) are as follows: 1. Place of offence: At the property "Boolcarrol", on or near Lot 100 in DP 842249; 2. Native Vegetation: Included 12 identified species of native vegetation; 3. Manner of breach: Each defendant: 1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 44 of the Native Vegetation Act; and/or 2. (except in relation to Mr Harris), cleared native vegetation by means of machinery including a bulldozer, burning, and ploughing; and/or 3. caused or authorised, by their employees (in relation to Merrywinebone and Auen Grain only), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and ploughing.

[17]

Northern Clearing Event 5a

This clearing event is the subject of the charges in proceedings 2019/00265282 against Mr Greentree, proceedings 2019/00265283 against Mr Harris, proceedings 2019/00265284 against Auen Grain, and proceedings 2019/00265285 against Merrywinebone.
Each charge alleges that, between about 16 August 2017 and 24 August 2017 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 12 of the Native Vegetation Act.
The particulars of each charge (with slight variation for each defendant) are as follows: 1. Place of offence: At the property "Boolcarrol", on or near Lots 2, 13, 14 and 24 in DP 753913; Lots 14, 37 and 38 in DP 753916; and Lot 6 in DP 128419; 2. Native Vegetation: Included 18 identified species of native vegetation; 3. Manner of breach: Each defendant: 1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 44 of the Native Vegetation Act; and/or 2. (except in relation to Mr Harris), cleared native vegetation by means of machinery including a bulldozer, burning, and ploughing; and/or 3. caused or authorised, by their employees (in relation to Merrywinebone and Auen Grain only), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and ploughing.

[18]

Southern Clearing Event 6a

This clearing event is the subject of the charges in proceedings 2019/00265290 against Mr Greentree, proceedings 2019/00265291 against Mr Harris, proceedings 2019/00265292 against Auen Grain, and proceedings 2019/00265293 against Merrywinebone.
Each charge alleges that, between about 27 July 2017 and 24 August 2017 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 12 of the Native Vegetation Act.
The particulars of each charge (with slight variation for each defendant) are as follows: 1. Place of offence: At the property "Boolcarrol", on or near Lots 34 and 41 in DP 753954; and Lots 69 and 71 in DP 753937; 2. Native Vegetation: Included 17 identified species of native vegetation; 3. Manner of breach: Each defendant: 1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 44 of the Native Vegetation Act; and/or 2. (except in relation to Mr Harris), cleared native vegetation by means of machinery including a bulldozer, burning, and ploughing; and/or 3. caused or authorised, by their employees (in relation to Merrywinebone and Auen Grain only), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and ploughing.

[19]

Northern Clearing Event 5b

This clearing event is the subject of the charges in proceedings 2019/00265286 against Mr Greentree, proceedings 2019/00265287 against Mr Harris, proceedings 2019/00265288 against Auen Grain, and proceedings 2019/00265289 against Merrywinebone.
Each charge alleges that, between about 25 August 2017 and 18 September 2017 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 60N of the Local Land Services Act.
The particulars of each charge (with slight variation for each defendant) are as follows: 1. Place of offence: At the property "Boolcarrol", on or near Lots 2, 12, 13, 14 and 24 in DP 753913; Lots 14, 32, 33, 37, 38, 44, 45 and 68 in DP 753916; Lot 1 in DP 128418; Lot 6 in DP 128419; Lot 2 in DP 546098; and Lot 24 in DP 1221147; 2. Native Vegetation: Included 24 identified species of native vegetation; 3. Manner of breach: Each defendant: 1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 13.29 of the Biodiversity Conservation Act; and/or 2. caused or authorised, by their employees (except in relation to Mr Greentree), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and ploughing; and/or 3. cleared native vegetation by means of machinery including a bulldozer, burning, and ploughing.

[20]

Southern Clearing Event 6b

This clearing event is the subject of the charges in proceedings 2019/00265294 against Mr Greentree, proceedings 2019/00265295 against Mr Harris, proceedings 2019/00265264 against Auen Grain, and proceedings 2019/00265265 against Merrywinebone.
Each charge alleges that, between about 25 August 2017 and 18 January 2019 inclusive, near Boolcarrol in the State of New South Wales, each defendant committed an offence against s 60N of the Local Land Services Act.
The particulars of each charge (with slight variation for each defendant) are as follows: 1. Place of offence: At the property "Boolcarrol", on or near Lots 1, 3, 18, 19, 42, 52, 69, 71, 82 and 83 in DP 753937; and Lot 25 in DP 1221147; 2. Native Vegetation: Included 12 identified species of native vegetation; 3. Manner of breach: Each defendant: 1. was the landholder of land on which native vegetation was cleared and is taken to have carried out the clearing pursuant to s 13.29 of the Biodiversity Conservation Act; and/or 2. caused or authorised, by their employees (in relation to Merrywinebone and Auen Grain only), contractors or agents, the clearing of native vegetation by means of machinery including a bulldozer, burning, and ploughing; and/or 3. cleared native vegetation by means of machinery including a bulldozer, burning, and ploughing.

[21]

Outline

It is necessary for a judgment such as this to set out the applicable legal principles. In relation to each charge, first, the prosecutor bears the onus of proof to establish the guilt of each of the defendants; second, the prosecutor must establish its case beyond reasonable doubt; third, the words within that phrase "beyond reasonable doubt" have their ordinary meaning; and fourth, the prosecutor needs to establish the essential elements of each offence, however the prosecutor is not required to prove the truth and reliability of every disputed fact or to answer every question that might be posed concerning the evidence in each of the cases.
For the reasons that follow, I find that each of Mr Greentree and Auen Grain is guilty of each of the Native Vegetation Act offences and each of the Local Land Services Act offences, and that each of Mr Harris and Merrywinebone is not guilty of each alleged offence. In this judgment, in reaching those verdicts, I begin, first, by setting out the statutory framework pursuant to which each of the offences arises and the principles which I have applied; and second, listing the evidence upon which I have relied. My application of the law and findings of fact follow in two substantial parts: first, in relation to the Native Vegetation Act offences; and second, in relation to the Local Land Services Act offences. In each part, I address each element of the alleged offences (outlined at [45] and [70] below) which the prosecutor must prove beyond reasonable doubt and the defences to each act of alleged clearing which the defendants seek to establish.

[22]

The statutory framework and elements of the offences

Given that the offences are under two slightly different statutory regimes and given that each provided for certain statutory defences an understanding of the statutory framework and the applicable sections is of assistance.

[23]

Native Vegetation Act offences

Section 12 of the Native Vegetation Act provided: 12 Clearing requiring approval (1) Native vegetation must not be cleared except in accordance with: (a) a development consent granted in accordance with this Act, or (b) a property vegetation plan. (2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act. (3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4. …
In relation to the six charges under the Native Vegetation Act, the prosecutor must prove beyond reasonable doubt each of the following elements: 1. "Clearing" (as defined in s 7) occurred on the property; 2. The clearing was of "native vegetation" (as defined in s 6); 3. The clearing was not done in accordance with any development consent granted in accordance with the Native Vegetation Act; 4. The clearing was not done in accordance with a property vegetation plan approved under the Native Vegetation Act; and 5. The defendant carried out, or authorised the carrying out, of the clearing.
In relation to element (1), "clearing" was defined in s 7 of the Native Vegetation Act as one or more of the following: 7 Meaning of clearing native vegetation For the purposes of this Act, clearing native vegetation means any one or more of the following: (a) cutting down, felling, thinning, logging or removing native vegetation, (b) killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation. …
In relation to element (2), "native vegetation" was defined in s 6 of the Native Vegetation Act, which provided: 6 Meaning of native vegetation (1) For the purposes of this Act, native vegetation means any of the following types of indigenous vegetation: (a) trees (including any sapling or shrub, or any scrub), (b) understorey plants, (c) groundcover (being any type of herbaceous vegetation), (d) plants occurring in a wetland. (2) Vegetation is indigenous if it is of a species of vegetation, or if it comprises species of vegetation, that existed in the State before European settlement. …
Therefore, the prosecutor must prove, first, that the vegetation cleared was (relevantly) trees, understorey, or groundcover; and second, that the vegetation cleared was "indigenous" (that is, it existed in NSW before European settlement, before 26 January 1788.

[24]

Defences under Native Vegetation Act

As will be seen, in relation to a number of the clearing events, the defendants (primarily through Mr Greentree's evidence and the Greentree defendants' submissions) raise defences pursuant to s 12(3) of the Native Vegetation Act (and, as considered later in this judgment, under s 60N(1) of the Local Land Services Act.
While Mr Greentree's evidence will be considered discretely in relation to each clearing event, to provide context for the evidence and submissions, it is appropriate to detail and make some observations in relation to the statutory basis of defences which the defendants seek to rely upon.
Section 12(3) of the Native Vegetation Act provided: 12 Clearing requiring approval … (3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4. …
The onus of proving a defence contemplated by s 12(3) of the Native Vegetation Act falls upon a defendant seeking to rely upon it on the balance of probabilities. In simple terms, s 12(3) operated as an exception to liability operating in favour of a person who carried out activities which were "permitted" (under Divs 2 or 3) by or "excluded" (by Div 4) from the operation of the Native Vegetation Act: Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15; (2010) 173 LGERA 366 at [222]-[228] (Pain J); Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73 at [225]-[226] (Pepper J).
Divisions 2 and 3 of the Native Vegetation Act set out certain activities that did not constitute the clearing of native vegetation and were therefore permitted. Division 4 sets out legislative exclusions that authorised the clearing of native vegetation. These included clearing in relation to: "routine agricultural management activities" (s 11) undertaken to "the minimum extent necessary" (s 22); "non-protected regrowth" (s 19); "certain groundcover" (s 20); the "continuation of existing farm activities" (s 23); "sustainable grazing" (s 24); and clearing excluded under other legislation listed in s 25.
In relation to routine agricultural management activities, s 22 of the Native Vegetation Act provided: 22 Routine agriculture management activities (1) Clearing for routine agricultural management activities is permitted. (2) This section does not authorise any clearing of native vegetation: (a) if it exceeds the minimum extent necessary for carrying out the activity, or (b) if it is done for a work, building or structure before the grant of any statutory approval or other authority required for the work, building or structure.

[25]

Local Land Services Act offences

Section 60N(1) of the Local Land Services Act provides: 60N Unauthorised clearing of native vegetation in regulated rural areas - offence (1) A person who clears native vegetation in a regulated rural area is guilty of an offence unless the person establishes any of the following defences: (a) that the clearing is for an allowable activity authorised under Division 4 and Schedule 5A, (b) that the clearing is authorised by a land management (native vegetation) code under Division 5, (c) that the clearing is authorised by an approval of the Panel under Division 6, (d) that the clearing is authorised under section 60O (Clearing authorised under other legislation etc). (e) that the clearing is the carrying out of a forestry operation authorised under Part 5B (Private native forestry). …
In relation to the two charges under the Local Land Services Act, the prosecutor must prove beyond reasonable doubt each of the following elements: 1. "Clearing" (as defined in s 60C) occurred on the property; 2. The clearing was of "native vegetation" (as defined in s 60B); 3. The clearing was in a "regulated rural area" (as defined in s 60D); and 4. The defendant carried out or was responsible for the clearing (noting the deeming provision in s 13.29 of the Biodiversity Conservation Act).
In relation to element (1), "clearing" is defined in s 60C of the Local Land Services Act as follows: 60C Meaning of "clearing" native vegetation For the purposes of this Part, clearing native vegetation means any one or more of the following: (a) cutting down, felling, uprooting, thinning or otherwise removing native vegetation, (b) killing, destroying, poisoning, ringbarking or burning native vegetation.
In relation to element (2), "native vegetation" is defined in s 60B of the Local Land Services Act as follows: 60B Meaning of "native vegetation" (1) For the purposes of this Part, native vegetation means any of the following types of plants native to New South Wales: (a) trees (including any sapling or shrub or any scrub), (b) understorey plants, (c) groundcover (being any type of herbaceous vegetation), (d) plants occurring in a wetland. (2) A plant is native to New South Wales if it was established in New South Wales before European settlement. The regulations may authorise conclusive presumptions to be made of the species of plants native to New South Wales by adopting any relevant classification in an official database of plants that is publicly accessible. …

[26]

Defences under Local Land Services Act

Section 60N(1)(a) to (d) of the Local Land Services Act provides for certain defences to a person who clears native vegetation in a regulated rural area. Those defences require consideration of the following: 1. Whether the clearing is for an allowable activity under Div 4, as listed in Sch 5A of the Local Land Services Act, being "clearing only to the minimum extent necessary" for the authorised purpose (cl 7, Sch 5A); 2. Whether the clearing is authorised by a land management (native vegetation) code under Div 5 of Pt 5A where "notice of clearing" must have been given to Local Land Services (s 60X) and Local Land Services may have issued a certificate confirming the proposed clearing before clearing is carried out under the code (s 60Y); 3. Whether the clearing is authorised by an approval of the Native Vegetation Panel under Div 6 of Pt 5A; and 4. Whether the clearing is authorised under s 60O, that is, clearing is authorised under other legislation as listed in s 60O including emergency firefighting or bushfire hazard reduction work under the Rural Fires Act 1997 (NSW).
Division 4, s 60Q(1) of the Local Land Services Act states that "Schedule 5A sets out the clearing of native vegetation in regulated rural areas for allowable activities that is authorised without any approval or other authority under this Part for the clearing".
Schedule 5A details several "allowable activities" and the circumstances in which they allow the clearing of native vegetation, including how maximum distances for clearing are measured (cl 5) and a provision that clearing is only authorised to the minimum extent necessary (cl 7).
Schedule 5A, cl 3(b) provides that Boolcarrol (as part of the local government area of Narrabri) is located in the "Central Zone".
Part 2 ("Clearing for allowable activities - general") and Pt 3 ("Clearing for rural infrastructure") of Sch 5A set out the following relevant allowable activities, and rural infrastructure: 13 Imminent risk Clearing of native vegetation that is reasonably necessary to remove or reduce an imminent risk of serious personal injury or damage to property. … 29 Definition of "rural infrastructure" (1) For the purposes of this Schedule: (a) infrastructure is a building, structure or work, and (b) rural infrastructure is infrastructure of a kind referred to in this clause that is used for the purposes of, or in connection with, an activity that is being carried out in a regulated rural area or other area of the State to which Part 5A of this Act applies, but only if the activity may be carried out without development consent or State significant infrastructure approval under the Environmental Planning and Assessment Act 1979. (2) In the Western and Central Zones (other than on small holdings), infrastructure includes (but is not limited to) the following - (a) fences, roads, tracks, irrigation channels or pipelines, stock or domestic water supply pipelines, soil conservation earthworks, cut lines for stock movement, bore drains, drains to water storages, telephone lines or cables, power lines or cables or areas for movement of large machinery, (b) shearing, machinery, grain, hay or similar sheds, stock handling facilities, dams, ground tanks, windmills, bores, pumps, tanks or water points. The infrastructure is limited to stationary infrastructure, and does not include any moveable component of infrastructure that extends the area of operation of the infrastructure when it is used. … 30 Clearing for construction, operation or maintenance of rural infrastructure allowable The clearing of native vegetation for the construction, operation or maintenance of rural infrastructure on land if - (a) the infrastructure is rural infrastructure in the relevant Zone or holding in which it is located, and (b) the clearing does not exceed the maximum distance of clearing authorised by this Part in relation to the rural infrastructure. 31 Maximum authorised clearing for rural infrastructure The maximum distance of clearing for rural infrastructure that is authorised by this Part is as follows - … (b) in the Central Zone (except on small holdings and for temporary fences) - 30 metres, … … 33 Stockyards Clearing for stockyards is not authorised by this Part if the stockyard can reasonably be placed on another part of the landholding that does not require the clearing of native vegetation or that is category 1-exempt land.

[27]

Evidence

I now proceed to give an overview of the evidence relied upon by the parties. I shall return to relevant aspects of the evidence in greater detail throughout the judgment.
The prosecutor tendered a bundle of documents (Exhibit A) containing: 1. "Evidentiary Certificates" being: Certificate dated 22 August 2019 (issued under s 60F(5) of the Local Land Services Act signed by Jeremy Black) certifying that Boolcarrol is category 2 regulated land for the purposes of the Local Land Services Act; Certificate dated 18 August 2020 (issued under s 50 of the Native Vegetation Act signed by Sarah Carr) certifying that each defendant is a landholder (as defined in s 4 of the Native Vegetation Act) of parcels of land comprising the property known as Boolcarrol; and a Certificate dated 18 August 2020 (issued under s 13.31 of the Biodiversity Conservation Act signed by Sarah Carr) certifying that each defendant is a landholder (as defined in s 1.6 of the Biodiversity Conservation Act) of parcels of land comprising the property known as Boolcarrol, and that the species of plants listed in an attached schedule are "native to New South Wales"; 2. "Partnership Documents" being: Partnership Agreement dated 25 February 2008 (between Auen Grain Pty Ltd, Merrywinebone Pty Ltd, Kenneth Harris and Ronald Greentree); Appointment dated October 2017 of Managing Partner to Greentree Farming; Greentree Farming Full Schedule of Assets for the period 1 July 2016 to 30 June 2017; and a document titled "GFT machinery listing"; 3. Transcript dated 7 August 2019 of "Interview with Kenneth Harris" conducted by Scott Beaumont (investigator); email dated 16 June 2019 from Ken and Mandy Harris of Avondale Agriculture to D Brown of Greentree Farming titled "Follow up"; and a map of Boolcarrol dated 22 January 2019 titled "Greentree Farming Partnership Annexure A showing Areas of Interest A, B, C and D"; 4. Photographs dated 31 August 2017 taken by Scott Drady at inspection locations described as waypoint 52 and waypoint 53; 5. Various documents of the Rural Fire Service including: "Detailed Reports", "Situation Reports", texts, notes and maps variously dated from 18 February 2017 to 18 May 2018; 6. A map of Boolcarrol and Milton Downs showing paddock names. 7. "Property information" including a map of Boolcarrol with a cadastral list of lots, NSW Land and Property Information and NSW Land Registry Services "Title Searches" variously dated from 31 March 2008 to 20 August 2019, showing Kenneth Bruce Harris and Ronald Lewis Greentree as tenants in common in equal shares of parcels of land the subject of the proceedings; 8. Various documents relating to "Company information" including Australian Business Register details and Australian Securities and Investments Commission extracts dated from 28 June 2018 to 14 February 2019; 9. Two notices issued by the Office of Environment and Heritage under s 12.8 of the Biodiversity Conservation Act to Ronald Greentree dated 15 March 2018 and 20 March 2019 to provide information and/or records; and responses thereto dated 6 April 2018 and 10 May 2019; and "Stop Work Order Notices" issued by the Office of Environment and Heritage to each of Ronald Greentree and Kenneth Harris dated from 1 September 2017 to 12 March 2018; and 10. Material under the heading "Limitation Date" including an email dated 4 September 2017 from David Minehan to INFO Environment titled "Report on clearing of Native Vegetation on property 'Boolcarrol' north of Wee Waa"; an email dated 5 April 2018 from Stephen Naven to Greg Campbell titled "Hazlet search for Boolcarrol"; and two extracts from the Environment Protection Authority database dated 5 September 2017.

[28]

Overview

I now move to consider the discrete elements of the offences as noted at [45] and [70]. I will deal, first, with the Native Vegetation Act offences (including the elements and defences) and then with the Local Land Services Act offences. Given that the offences relate to eight separate alleged clearing events within a period from December 2016 to January 2019 under two separate (but not dissimilar) legislative schemes, there is considerable overlap in the evidence (particularly the expert evidence - and various of the defences raised). As such, and conscious that each offence requires discrete consideration, I will attempt to contain unnecessary repetition.

[29]

Expert evidence

The first element of each of the charges which must be proved beyond reasonable doubt is that "clearing" (as defined in s 7 of the Native Vegetation Act (at [46] above) and s 60C of the Local Land Services Act (at [71] above) occurred at the locations particularised in each of the charges.
To prove that the clearing occurred in relation to each offence, the prosecutor relies primarily on the evidence of Mr Spiers, a remote sensing scientist, who in his two reports (one dealing with the northern area and the other with the southern area) details his opinion in relation to clearing in respect of each of the charges based on examination and interpretation of successive aerial photographs and satellite images relating to changes in vegetation on Boolcarrol including the removal of trees, shrubs and groundcover.
Given that the defendants submit that the Court would not accept Mr Spiers' evidence, and although I summarised Mr Spiers' evidence and dealt with the initial global objections in Auen Grain (No 2) at [12]-[22] and [50]-[75] respectively, given the further evidence and submissions made at the substantive hearing, an understanding of Mr Spiers' evidence is required. I will, first, provide an overview of Mr Spiers' evidence and consider the defendants' respective submissions in relation thereto; and then consider the evidence of 'clearing' in relation to each event which will necessarily involve consideration of the evidence of Mr Greentree and other witnesses. To the extent that various defences are raised, I will consider those after my consideration of the discrete elements.
In preparing his reports, Mr Spiers imported geographic and cadastral information (which he confirmed against hard-copy maps) into a mapping program known as "ArcGIS" and then drew property boundaries and recorded various features (including fencelines and roads) over the relevant area. With this geographic information, and using imagery search and retrieval tools to identify "SPOT5 Sentinel" and "Planet satellite" images (obtained orthorectified from the NSW Office of Environment and Heritage ('OEH') server and Planet image server), Mr Spiers identified 30 aerial photographs and satellite images over areas of the northern clearing events and 34 aerial photographs and satellite images over the southern clearing events, which Mr Spiers used for his analysis. The date of each of the images was verified by reference to their metadata and by looking at Google Earth to validate each of the images. Further processing enabled him to view each of the images "as a three-dimensional stereoscopic image" using a stereoscopic monitor.

[30]

Consideration

Having considered the defendants' more recent submissions in relation to the further oral evidence of Mr Spiers (and, as considered later in this judgment, Mr Mazzer), and having reconsidered my earlier findings at [56]-[63] of Auen Grain (No 2), I find that Mr Spiers has specialised knowledge and that his opinion in relation to changes in vegetation (and clearing) on Boolcarrol was based upon his analysis and interpretation of the aerial photographs and satellite images which involved specialised expertise clearly beyond mere comparison of images and which goes beyond that which could be separately undertaken by the Court.
I find that given his 30 years of experience in aerial photography and satellite imagery interpretation, and the manner in which Mr Spiers undertook that work using specialised equipment and procedures and programs, he has specialised knowledge in relation to both the interpretation of aerial photographs and satellite imagery specifically in relation to vegetation cover, and that he has specialised knowledge based upon his training, study and experience in relation to the use of techniques available to identify areas of clearing which allowed him to create the polygons, and to measure the areas about which he gave evidence. Contrary to the submission of the Harris defendants, I am satisfied that Mr Spiers' assumptions that the spatial data (located on the OEH corporate server) was correct, was appropriate. Apart from there being no evidence to the contrary, I am satisfied beyond reasonable doubt that, given the manner Mr Spiers used the data (as noted briefly above), he appropriately identified the areas (and parcels of land and lot boundaries) associated with the areas about which he gave evidence. In particular, I find that Exhibit K (which was annexed as Annexures B and C to Mr Spiers' 23 August 2019 affidavit) identifies the boundaries of all relevant lots (including "DP" number and "Lot" number) within Boolcarrol on an aerial photograph and overlays the polygons drawn by Mr Spiers. The Court has received detailed evidence of the location of each clearing event from the oral evidence of Mr Greentree and Mr Murie who identified the areas the subject of the alleged offences by reference to detailed aerial and satellite imagery as well as by reference to a map of the whole of Boolcarrol identifying the specific paddocks which were the subject of evidence as to the nature and condition of vegetation and activities undertaken in those areas.

[31]

Northern Clearing Event 1 (polygons 1 - 25)

This clearing event relates to clearing between 29 December 2016 and 8 May 2017 on Lot 1 in DP 128418; Lot 2 in DP 753913; and Lot 100 in DP 842249 in the areas identified by Mr Spiers as polygons 1 - 25. Polygons 1 - 8 are in the paddock "Big Horse" and polygons 9 - 25 are in the paddock "Five Mile".
Mr Spiers, using the methodology referred to earlier in this judgment, analysed images dated 22 June 1989, 10 July 2010 and 24 May 2016. He observed (based upon his training and experience in identifying changes in vegetation cover interpreting aerial photography) that the tree density within polygons 1 - 25 as appears in those images (and, more relevantly, 29 December 2016) was unchanged from the 1989 imagery to the December 2016 imagery. By comparing subsequent images dated 29 December 2016 and 8 May 2017, he observed, first, the trees visible in the December 2016 image were absent; second, there were white spots which are consistent with the presence of ash heaps from the burning of felled trees; third, lines between the cleared areas (which he interpreted as created by the passage of tree clearing equipment during tree-clearing operations); and fourth, coarse parallel line work consistent with cultivation patterns.
Mr Spiers calculated that 53ha of vegetation was cleared in polygons 1 - 25 between 29 December 2016 and 8 May 2017.
In relation to this clearing event, I have also considered the evidence of observations made and photographs taken by Mr Mazzer during field visits on 6 to 8 September 2017 and 8 to 10 April 2019 and upon admissions regarding clearing made by Mr Greentree. Although I will consider Mr Mazzer's evidence in detail later in this judgment, for present purposes, it is sufficient to note that Mr Mazzer, an ecologist and zoologist, travelled through Boolcarrol on two occasions (September 2017 and April 2019) to inspect "areas of interest" to which he had been directed (including a number of the polygons identified by Mr Spiers) and gave evidence regarding the species of vegetation that had been removed.
Mr Mazzer's evidence (by reference to Exhibit R and Exhibit S) contained photographs that were taken within or adjacent to alleged cleared areas and depict what he observed to be within or adjacent to the polygons Mr Spiers defined (namely, in relation to Northern Clearing Event 1, polygons 7 and 25; Northern Clearing Event 2, polygon 26; Northern Clearing Event 3, polygons 27 and 29; Northern Clearing Event 4, polygon 32; Northern Clearing Event 5A, polygons 43 and 44; and Southern Clearing Event 6a, polygons 2 and 3). In relation to Northern Clearing Event 1, photographs taken in April 2019 depict Poplar Box open woodland at a location labelled as "Q09" on Exhibit R adjacent to polygon 7 and at a location labelled as "Q05" within polygon 25.

[32]

Northern Clearing Event 2 (polygon 26)

This clearing event relates to clearing between 8 May 2017 and 27 July 2017 on Lot 7 in DP 753913 in the area identified by Mr Spiers as polygon 26 in the paddock "North Ram".
Mr Spiers compared images dated 8 May 2017 and 27 July 2017 and described what he considered to be the removal of vegetation including trees between those two dates. Having considered earlier images dated 6 July 1989, 10 July 2010 and 24 May 2016, Mr Spiers stated that there was no discernible change in the patterns or tree density observed up until 8 May 2017. Mr Spiers observed from the 27 July 2017 image that there were white spots in the areas where the trees had been removed between 8 May and 27 July 2017 which are consistent with the presence of ash heaps from the burning of felled trees. In the subsequent image dated 18 September 2017, he observed narrow parallel lines which he stated is consistent with cultivation, and grey spots consistent with ash heaps from the burning of felled trees, and that there are no standing trees in the cleared area.
Mr Spiers calculated that approximately 33ha of sparse trees were cleared in polygon 26 between 8 May 2017 to 27 July 2017.
I have considered the photographs taken in April 2019 within Mr Mazzer's evidence which depict, first, Poplar Box open woodland to the west; and second, open woodland 500m to the north, each at a location labelled as "Q02" within polygon 26.
Mr Greentree accepted that there was clearing undertaken in polygon 26 (in the paddock "North Ram") "after the bushfire" in March 2017 which he stated was attended to by the RFS. He stated, "we then went and removed any other trees cause we want to put an airstrip in there": Tcpt, 9 June 2021, p 859(31-32). Mr Greentree denied clearing live trees although admitted to clearing "an odd tree that was sort of pretty sick - from the fire" (Tcpt, 10 June 2021, p 954(17)), which included native trees - Box and Coolabah. In addition, he stated that some clearing was undertaken along the boundary of polygon 26 before the fire for a fenceline.
Although Mr Greentree denied that he had "invented this notion of putting in airstrips to try to avoid criminal liability for clearing" (Tcpt, 11 June 2021, p 986(30-31)), and the suggestion by the prosecutor that it was never his intention to build an airstrip (Tcpt, 11 June 2021, p 987(16-21)), and noting that I consider this evidence in relation to possible defences in more detail later in this judgment, for context it is appropriate to note that I do not accept Mr Greentree's evidence that the purpose of the clearing was for the building of an airstrip for the following reasons.

[33]

Northern Clearing Event 3 (polygons 27 - 31)

This clearing event relates to clearing between 2 July 2017 and 16 August 2017 on Lots 7 and 8 in DP 753913 in the areas identified by Mr Spiers as polygons 27 - 31 in the paddock "North Ram".
Mr Spiers considered images dated 2 July 2017, 27 July 2017 and 16 August 2017, and earlier images dated 6 July 1989, 10 July 2010, 24 May 2016 and 2 July 2017 and observed that the subject areas comprised uncleared grass, trees and shrub cover which, by 27 July 2017 had changed to a coarse irregular, brown and green pattern which he interpreted as being caused by the action of heavy equipment used for the removal of trees, shrubs and groundcover. He described the area as being interspersed with white spots which he says are consistent with ash heaps from the burning of cleared vegetation. He observed from the image dated 16 August 2017 that the area was (then) "smooth, even-toned, brown", which he interpreted as having trees, shrubs and groundcover removed and tree density having been being reduced from the July 2017 image.
From the subsequent image of 18 September 2017, he observed narrow parallel lines in a north-south direction consistent with cultivation. Mr Spiers determined that an area of approximately 168ha of sparse trees was cleared in polygons 27 - 31 in the period from 2 July 2017 to 16 August 2017.
I have also considered the evidence of Mr Mazzer (considered later in this judgment) including his observations and photographs that were taken during his field visits of the area, which depicted Coolabah open woodland at a location labelled as "Q03" adjacent to polygon 27 in April 2019 and Coolabah at polygon 29 in September 2017.
In relation to polygons 27 - 31, Mr Greentree gave evidence that these areas were affected by bushfire in March 2017 and that he undertook "cleaning-up" (Tcpt, 9 June 2021, p 863(15-16)), of debris after (and before) the fire and that there was nothing "alive" after the fire. He accepted the possibility that this clean-up work, which he personally conducted, included the removal of live vegetation. He also gave evidence that tilling for noxious weeds was undertaken and gave details of that tilling (the nature of which is noted at [134] above); that he also used a bulldozer to clear vegetation for a fence; and that he cleared polygons 30 - 31 to build a second airstrip 1.5km to 1.8km in length (Tcpt, 9 June 2021, p 859(50); 10 June 2021, p 935(26-27), p 937(25)) and 72m wide (Tcpt, 10 June 2021, p 937(40)) to enable crop spraying.

[34]

Northern Clearing Event 4 (polygons 32 and 33)

This clearing event relates to clearing between 27 July 2017 and 16 August 2017 on Lot 100 in DP 842249 in the areas identified by Mr Spiers as polygons 32 and 33 in the paddock "Five Mile".
Mr Spiers analysed the images of 10 July 2010, 24 May 2016 and 27 July 2017, and did not observe any changes in tree density when compared with the earlier 22 June 1989 images and assessed that the tree density within the area was "sparse".
Mr Spiers compared the image of 27 July 2017 and the image of 16 August 2017, and interpreted the patterns and colouring as showing that an area, which previously comprised uncleared grass, trees and shrub cover (with a tree pattern similar to earlier images from June 1989 and July 2010) on 27 July 2017, had by 16 August 2017 changed to a coarse even-toned dark brown pattern, indicating the clearing of some trees and mostly groundcover. He observed light grey coloured spots which he interpreted as ash heaps from the burning of cleared vegetation.
In the subsequent image of 18 September 2017, Mr Spiers observed the area as having a smooth dark brown surface cover with narrow spaced striping (indicating that the area had been cleared of groundcover and cultivation activities had occurred), and that the tree density (which remained sparse) had been marginally reduced from the earlier imagery.
Mr Spiers calculated that approximately 105ha of groundcover and isolated trees were cleared in polygons 32 and 33 between the period 27 July 2017 to 16 August 2017 and stated that the clearing undertaken was overwhelmingly groundcover.
Mr Greentree denied clearing in polygons 32 and 33. He gave evidence that the area comprising polygon 32 was sparsely timbered up until 2017, that it was "cultivated for control of noxious weeds" (including purple pigeon grass) and to dump cotton "trash", and, although it had not been impacted by bushfire in March 2017, it had been grazed.
In relation to polygon 33, Mr Greentree stated that the area was affected by the March 2017 bushfire. While he stated that tilling for noxious weeds was done in polygon 32 before and after the March 2017 bushfire by a staff member of Greentree Farming, he considered that there was no native vegetation cleared in either polygon 32 or 33.
I accept Mr Spiers' evidence that groundcover had been cleared and to the extent that Mr Greentree gave evidence that the groundcover included exotic grasses including Bambasti, purple pigeon grass and other introduced species (which I consider at [339] below), and accepting the prosecutor's submission that Mr Greentree's usual method of weed control (being, a form of cultivation known as "tilling", noted at [134] above) was "indiscriminate in nature, I am satisfied beyond reasonable doubt that vegetation was physically cleared in the process described by Mr Greentree.

[35]

Northern Clearing Event 5a (polygons 43, 44 and 45)

This clearing event relates to clearing of vegetation between 16 August 2017 and 24 August 2017 on Lots 2, 13, 14 and 24 in DP 753913, Lots 14, 37 and 38 in DP 753916, and Lot 6 in DP 128419 in the areas identified by Mr Spiers as polygons 43, 44 and 45 in the paddock "South Carrol".
Mr Spiers made comparative observations of images of 6 July 1989, 10 July 2010, 24 May 2016, 16 August 2017 and 24 August 2017. He interpreted the 16 August 2017 image as uncleared ground with standing trees, with the tree pattern and density similar to the earlier image of 24 May 2016 (which itself was similar to the July 1989 and July 2010 images). He observed that the image of 24 August 2017 shows, first, that the tree pattern and density were greatly reduced from the 16 August 2017 image indicating that clearing of trees and shrubs has occurred; second, parallel lines indicating the passage of machinery during tree clearing and/or cultivation predominantly in polygons 43, 44 and 45.
Mr Spiers concluded that polygons 43, 44 and 45 each had trees removed between 16 August 2017 to 24 August 2017; noted areas of white spots which he interpreted as "ash piles from the burning of the downed vegetation"; and determined that approximately 342ha of shrubs and sparse trees were cleared. In analysing the images from 1989, 2010 and May 2016, he observed that the tree density and patterns in the 2010 and May 2016 images are similar to the July 1989 images. This observation is considered later in this judgment.
I have also considered Mr Mazzer's observations, and the photographs taken during his field visits on 6 to 8 September 2017 and 8 to 10 April 2019 of the area comprising polygons 43 and 44 which show trees on the ground, ash heaps and cultivation lines. The September 2017 photographs depict: at a location noted as "Tr02" on Exhibit R in the southern part of polygon 43, groundcover dominated by black roly-poly with turnip weed with trees in the background; at a location noted as "Tr04" in the northern part of polygon 43, groundcover dominated by black roly-poly and turnip weed with trees in the far background; at a location in the northern part of polygon 43, land that is obviously cultivated; at a location noted as "Quad 3" in the south-eastern part of polygon 44, an ash pile; and, at allocation noted as "Quad 4" in the central part of polygon 44, a small area of Coolabah open woodland. The April 2019 photographs depict: bare ground with trees in the background facing south at location noted as "Tr02" within the southern part of polygon 43; and bare ground facing south at approximately the same location as "Quad1" within the north-eastern part of polygon 44.

[36]

Southern Clearing Event 6a (polygons (south) 1, 2 and 3)

This clearing event relates to clearing between 27 July 2017 and 24 August 2017 on Lots 34 and 41 in DP 753954 and Lots 69 and 71 in DP 753937 in parts of the southern area identified by Mr Spiers as polygons (south) 1, 2 and 3.
Having considered the images of 22 June 1989, 10 July 2010, 24 May 2016 and 27 July 2017, each of which shows uncleared grass cover with consistent tree cover density, Mr Spiers considered subsequent images of 16 August 2017 and 24 August 2017, and observed, by 16 August 2017, first, that the area of polygon (south) 1 had a smooth dark brown appearance indicating an area cleared of trees, shrubs and groundcover along with visible coarse parallel linework indicating cultivation; second, that the southern areas of polygons (south) 2 and 3 had a smooth light grey appearance which he interpreted as cleared groundcover and reduced tree density; and third, white spots in polygon 1, the southern part of polygon 2, and the eastern part of polygon 3 which are consistent with the presence of ash heaps from the burning of cleared vegetation. (Mr Spiers also gave evidence, considered later in this judgment, of the further removal of some trees, shrubs and groundcover after 24 August 2017 in polygons (south) 2 and 3, the conduct of which forms part of an alleged offence under the Local Land Services Act).
Mr Spiers calculated that approximately 145ha of trees, shrubs and vegetation were cleared in polygons (south) 1, 2 and 3 in the period from 27 July 2017 to 24 August 2017.
I have considered Mr Mazzer's observations and photographs from April 2019 which depict portions of Coolabah open woodland with black roly-poly groundcover at a location noted as "Q07", facing north-west and north-east in the direction of polygon (south) 2, and at a location noted as "Q08", taken adjacent to polygon (south) 3; and recent germination of yellow vine, facing north, with some small clumps of Coolabah, facing south-east, at a location noted as "Note12" within polygon (south) 2.
Mr Greentree gave evidence that in polygon (south) 1 (in the paddock "Wilsons") an area of 58ha was cleared (including native vegetation) by him "mainly for farm infrastructure" which was to comprise an airstrip, silos, cattle yards, and bunkers as part of a "separate complex", including a proposed residence for either the Harris or Greentree families, in addition to controlling saplings and noxious weeds (Tcpt, 9 June 2021, p 879(38-42)). He stated that he never sought any form of development consent for the construction of any of the infrastructure because he "hadn't started doing any" (Tcpt, 10 June 2021, p 969(42)), and that the reason that this work (comprising the "separate complex") was not built was because the Greentree Farming partnership was dissolving, and as Boolcarrol was to be "split up", a decision was made not to spend further capital.

[37]

Element (2) - the clearing was of "native vegetation"

The second element of an offence against s 12 of the Native Vegetation Act is that the vegetation cleared was "native vegetation" as outlined and defined above at [47], being vegetation, which existed in NSW prior to the commencement of European settlement on 26 January 1788. In relation to whether clearing that I have found to have taken place in each of the events considered above resulted in the clearing of native vegetation, I have considered the evidence of Mr Mazzer; Dr Duretto, Manager of Plant Diversity at the National Herbarium of NSW, Royal Botanic Gardens and Domain Trust; Michael Flynn, an historian employed by the Crown Solicitor's Office of NSW; and Mr Murie, former station manager at Boolcarrol, in addition to certain admissions made by Mr Greentree.
Mr Mazzer, an ecologist and zoologist, employed by NSW Department of Planning, Industry and Environment, as a Senior Project Officer (Threatened Species) in the Biodiversity and Conservation Branch, prepared two expert reports, one relating to the northern area ('Northern Report') and one relating to the southern area ('Southern Report') of Boolcarrol. He gave evidence in relation to the vegetation in various 'areas of interest' where it was alleged clearing of native vegetation took place. In the Northern Report, Mr Mazzer addressed "Area of Interest B" (comprising polygons 34 - 59 in the northern area of Boolcarrol) and "Area of Interest C" (comprising polygons 9 - 33 in the northern area of Boolcarrol), while in the Southern Report he addressed "Area of Interest D" (comprising polygons (south) 2 - 16 in the southern area of Boolcarrol). As noted earlier, the areas that Mr Mazzer inspected generally relate to Mr Spiers' polygons (noting, as explained later in this judgment, that there was some inconsistency between the numbering of some of the polygons in Area of Interest D) and Mr Mazzer gave evidence as to whether the vegetation cleared was native vegetation within the meaning provided for in s 6 of the Native Vegetation Act (and s 60B of the Local Land Services Act).
Given that the defendants adopt and expand their submissions made at the voir dire hearing that little, if any, weight would be attributed to the evidence of Mr Mazzer, and although I summarised Mr Mazzer's evidence and dealt with the defendants' global objections in Auen Grain (No 2), an understanding of his evidence is required. I will provide an overview of his evidence, then consider the defendants' submissions, and thereafter consider Mr Mazzer's evidence in relation to the discrete charges.

[38]

Element (3) - no "development consent"

As noted above, s 12 of the Native Vegetation Act provided that native vegetation must not be cleared except in accordance with a development consent granted in accordance with the Native Vegetation Act, or a property vegetation plan.
Daniel Boyce, a former employee of Narrabri Shire Council (who was Acting Director of Development and Economic Growth with Narrabri Shire Council in March 2019) gave evidence that Narrabri Shire Council, the relevant local government authority, receives and decides applications in relation to development consents granted pursuant to the Native Vegetation Act and also receives applications and causes orders to be issued under the Noxious Weeds Act 1993 (NSW) ('Noxious Weeds Act'). Mr Boyce gave evidence (based upon his inquiries) that Narrabri Shire Council holds no record of any development consent or any other approval or application in relation to Boolcarrol and that Narrabri Shire Council held no records of orders issued under the Noxious Weeds Act for Boolcarrol.
Against Mr Greentree, the prosecutor also relied upon admissions in his evidence and responses made on his behalf (dated 6 April 2018) to the statutory notice dated 15 March 2018, as outlined at [153] above, that no other consent, licensed activity or approval was relied upon in relation to clearing on Boolcarrol.
In relation to each of the Native Vegetation Act offences, I am satisfied beyond reasonable doubt that the clearing that I have found was undertaken in circumstances where there was no relevant development application or development consent granted for clearing on Boolcarrol in accordance with the Native Vegetation Act.

[39]

Element (4) - no "property vegetation plan"

The evidence is that no property vegetation plan (being a plan approved by the Minister under Pt 4 of the Native Vegetation Act) has been approved authorising the clearing of native vegetation on Boolcarrol that I have found to have been undertaken.
Leanne Jago, Senior Administration Officer with Local Land Services, a NSW Government agency with responsibilities including administering and maintaining records in relation to applications made under the Native Vegetation Act, the Local Land Services Act and the Biodiversity Conservation Act, gave evidence that Local Land Services had no dealings in relation to Boolcarrol.
Against Mr Greentree, the prosecutor relies upon admissions made in responses (dated 6 April 2018 and 10 May 2019) to statutory notices (dated 15 and 20 March 2018 respectively), that no property vegetation plan applied to Boolcarrol.
In relation to each Native Vegetation Act offence, I find beyond reasonable doubt that there was no property vegetation plan (or any other relevant consent or authorisation) for clearing of native vegetation on Boolcarrol.

[40]

Element (5) - responsibility for carrying out clearing

In relation to each Native Vegetation Act offence, the prosecutor must prove beyond reasonable doubt that each defendant carried out, or authorised the carrying out of, each clearing event.
As noted at [6] above, at the time of each of the alleged Native Vegetation Act offences (and the two Local Land Services Act offences), Mr Greentree and Mr Harris were owners, as tenants in common, of Boolcarrol which was purchased in February 2008 and was farmed by the partnership "Greentree Farming" which comprised the four defendants as follows: Auen Grain at 50% interest; Merrywinebone at 48% interest; Mr Greentree at 1% interest; and Mr Harris at 1% interest. Mr Greentree was the sole director, and a shareholder of Auen Grain, and Mr Harris was the sole director of Merrywinebone.
Mr Greentree gave evidence that the Greentree Farming partnership managed, operated and controlled Boolcarrol. The operation of Greentree Farming was governed by the terms of a partnership agreement dated 25 February 2008 which (pursuant to cl 21) provided that the managing partner's decisions "shall be final and conclusive on all matters relating to the conduct of such business". The partnership agreement named Mr Greentree as the managing partner, recorded the business name as Greentree Farming and recorded the "Nature of Business" as "Cereal Grain Growing".
The evidence is that up until October 2017, Mr Greentree was the managing partner of Greentree Farming and that in October 2017 Mr Greentree and Mr Harris were appointed as joint managing partners of Greentree Farming although Mr Greentree gave evidence that even after that date and up until the partnership was dissolved in 2019, he still carried out "most of the day-to-day operations": Tcpt, 10 June 2021, p 908(40-49).
An offence against s 12(2) of the Native Vegetation Act is a strict liability offence whereby any person who carries out or authorises the carrying out of clearing other than in accordance with a development consent or a property vegetation plan is guilty of an offence. As canvassed in my findings above in relation to element (1) and element (2) in relation to the Native Vegetation Act offences, Mr Greentree (although he was reluctant to use the word "clearing") admitted that he, or persons acting under his instruction, removed vegetation on the land the subject of a number of the clearing events. In circumstances where I have found that this removal was clearing of native vegetation, I find beyond reasonable doubt that Mr Greentree carried out, or authorised the carrying out of, the clearing of native vegetation in contravention of s 12 and is therefore liable for each clearing event (subject to my consideration of a number of defences raised by the defendants).

[41]

Whether each defendant was a "landholder"

Apart from the s 50 Certificate, I find beyond reasonable doubt that Mr Greentree and (as the Harris defendants accepted) Mr Harris was each a "landholder" in accordance with the definition within s 4(1) of the Native Vegetation Act, in that each is "a person who owns land" on the evidence (being the land title records for each of the lots comprising Boolcarrol) that each was a registered proprietor of the lots on Boolcarrol on which I have found the clearing events took place.
In relation to Auen Grain, I find beyond reasonable doubt that Auen Grain was a landholder of the parcels of land which comprise Boolcarrol on which I have found the clearing events took place. I make this finding based upon the s 50 Certificate, as well as the definition of "landholder" in s 4(1) of the Native Vegetation Act, which, as noted above, includes a person who "…is in lawful occupation or possession, or has lawful management or control, of land" in the circumstances where it is clear that Auen Grain had a 50% interest (and considered with Mr Greentree's 1% interest, a majority interest) in Greentree Farming which farmed Boolcarrol, a 34,000ha farming operation, since 2008 and that Auen Grain had participated in that partnership.
In relation to Merrywinebone, the Harris defendants submit that Merrywinebone is not a "landholder" because: first, the s 50 Certificate applying to Merrywinebone is of no presumptive effect on the basis that it was not issued by a duly authorised delegate pursuant to s 48(1) of the Native Vegetation Act; and second, Merrywinebone does not fall within the definition of "landholder" in s 4 of the Native Vegetation Act.
In relation to the s 50 Certificate, the Harris defendants contend that it was not issued properly in circumstances where there is no evidence that the person who signed the certificate, Sarah Carr was a "Senior Executive", "Manager" or in a "Category A" position as defined by the instrument of delegation (issued pursuant to s 48(1) of the Native Vegetation Act) dated 12 July 2017.
I do not accept the submission that the prosecutor has not adduced "sufficient" evidence that the s 50 Certificate was issued by a duly authorised delegate of the Director-General under s 48(1) of the Native Vegetation Act. Section 48(1) specifically provides that the Director-General may delegate to an "authorised person" any of the Director-General's functions under the Native Vegetation Act where "authorised person" is defined in s 48(3) to include "any statutory officer or member of staff of a government agency". The prosecutor tendered a copy of an instrument of delegation dated 12 July 2017 (as amended by an instrument of delegation dated 25 June 2019) which delegates the power under s 50 of the Native Vegetation Act to any person appointed to a position of "Senior Executive" or "Manager" or "Category A".

[42]

Whether the defendants did not cause or permit the clearing

The principles applicable to s 44 of the Native Vegetation Act where liability is being attributed to a corporate defendant were summarised by Pepper J, albeit in relation to different factual circumstances, in Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73. I adopt Pepper J's summation at [274] where, having considered a number of earlier authorities, including Director-General, Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; (2009) 172 LGERA 225 ('Issa') and Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15; (2010) 173 LGERA 366, her Honour stated: "… (a) first, s 44(b) provides a statutory basis of landholder liability arising out of the acts of a third party separate from the common law principles of vicarious liability (Olmwood at [354]). However, an offence against s 12 is one of strict liability thereby attracting the principles of vicarious liability (Issa at [80]); (b) second, the defence provided for in s 44 must be established on the balance of probabilities by the defendant (Olmwood at [333]; (c) third, a company can be criminally liable through the actions of its officers or employees, as the embodiment of the company (Issa at [79]); (d) fourth, in determining who is the 'directing mind and will' of the company the real question is, on the proper construction of the statute, whose act is intended to count as the act of the company (Issa at [82]). The acts of both a high-level employee or director and the acts of low-level employees may count if that is required by the terms or the offence and the objects of the statute (Issa at [83]); (e) fifth, in cases concerning a protective regulatory regime such as that contained in s 12 of the Act, the conduct of officers or employees involved in the actus reus of the offence may be attributed to the company at least where such conduct is in furtherance of the company's interests or not against them (Issa at [97]); (f) sixth, to "cause" clearing does not require the exercise of particular control over the third party whose actions resulted in the clearing event to the extent that would otherwise be necessary to establish vicarious liability. Where the clearing by a third party arises as a natural consequence of the landholder's conduct that landholder can be said to have caused the clearing (Olmwood at [355]); and (g) seventh, to "permit" means to intentionally allow. That is to say, with knowledge or awareness rather than any intentional failure to act. Further, knowledge that something that is a contravention is likely to be done in the future is to "permit" it to be done. However, mere carelessness or negligence in failing to prevent an act giving rise to a contravention is not to "permit" it to occur (Olmwood at [358]-[359])."

[43]

Defences

In relation to each Native Vegetation Act offence, in their submissions the Greentree defendants raise a number of explanations for the loss of vegetation, some apparently in reliance upon statutory defences noted at [53]-[68] above.

[44]

Northern Clearing Event 1 (polygons 1 - 25)

In relation to Northern Clearing Event 1, as noted at [144] above, Mr Greentree gave five reasons for the clearing (using a bulldozer) in polygons 1 - 8 (in the paddock "Big Horse"): first, a 35m to 40m wide clearing for the purpose of two parallel farm roads and a fence in the area of polygons 1 - 3 and 8 (which ran along the southern part of polygon 44 towards polygon 45) (Tcpt, 10 June 2021, pp 943(36)-945(24)); second, "clean-up work" following bushfires, stubble fires, wind damage, and the effects of drought (Tcpt, 9 June 2021, p 850(38-48)); third, noxious weeds (Tcpt, 10 June 2021, pp 945(34)-946(2)) and sapling removal (Tcpt, 10 June 2021, p 948(8-10)); fourth, "pasture improvement" (Tcpt, 9 June 2021, p 854(2-8); 10 June 2021, p 946(2-13)); and fifth, "fire breaks" (Tcpt, 10 June 2021, pp 890(50)-891(8)). In relation to the clearing in polygons 4 - 6 and the majority of polygon 7, Mr Greentree gave evidence that clearing was not part of works for a road but was caused by out-of-control stubble fires, wind damage, and the effects of drought. He also gave evidence that the whole of polygons 1 - 8 had suffered fire damage.
In relation to polygons 9 - 25 (in the paddock "Five Mile"), Mr Greentree gave evidence (at [145] above) that any absence of trees was due to "cleaning-up" activity he undertook using a bulldozer (which included the raking, stacking and burning of debris), first, following a bushfire in March 2017 that left no groundcover or regrowth remaining; second, following the cultivation of crops in that area prior to 2017; and third, for a fenceline on the edge of polygon 25 for a paddock subdivision.
As I have recorded above, I have concerns in relation to the reliability of Mr Greentree's evidence, and I do not accept that the clearing I have found (at [146] above) was undertaken in polygons 1 - 3 and 8 was for the construction of two "parallel" farm roads and a fence primarily because, apart from offering a number of explanations for other episodes of clearing, Mr Greentree on a number of occasions stated that the purpose for clearing in various polygons (in relation to this and a number of the other clearing events) was for separate structures or works which were not, on the evidence before the Court, completed (or even commenced).
Structures and works which were never completed (or commenced) include, an airstrip in relation to Northern Clearing Event 2; a road and fencelines for a paddock subdivision and an airstrip in relation to Northern Clearing Event 3; and a "farm complex", which included a residence as well as a third airstrip, in relation to Southern Clearing Event 6a.

[45]

Northern Clearing Event 2 (polygon 26)

In relation to Northern Clearing Event 2, at [151]-[155] above I summarised Mr Greentree's evidence and provided my reasons for not accepting that the vegetation removed in polygon 26 (in the paddock "North Ram") was the result of "finishing off" dead or "sick" trees, and saplings, damaged by bushfire in March 2017 for the construction of an airstrip.
Apart from not accepting Mr Greentree's evidence that the clearing was for the purpose of an airstrip, I also find that a RAMA defence has not been made out on the balance of probabilities for two reasons. First, Boolcarrol is zoned RU1 Primary Production under the Narrabri Local Environmental Plan 2012 ('Narrabri LEP') within which construction of an airstrip requires development consent, and as there is no evidence of any statutory approval or other consent, s 22(2) of the Native Vegetation Act does not allow a RAMA defence. Second, although there is no evidence of the minimum distance or area sufficient to meet civil aviation standards for the construction of an airstrip, Mr Greentree concedes that the clearing undertaken, being up to approximately 1.8km long and 72m wide, is in excess of those requirements and standards: Tcpt, 10 June 2021, pp 937(28-41), 986(11-19).
I have also taken into account Mr Greentree's responses to the statutory notice of 15 March 2018 (outlined at [153] above) which maintained that the only RAMA for which clearing was undertaken were "farm roads" and that no consent for vegetation clearing was sought or obtained, and Mr Greentree's further evidence that he never discussed the provision of any airstrip with Mr Harris in circumstances where he stated in other evidence that he would discuss matters concerning capital expenditure with Mr Harris. Apart from these findings, I note that s 11(1)(a)(i) of the Native Vegetation Act only permits the construction, operation and maintenance of airstrips (as RAMA) in the "Western Division" in which Boolcarrol is not located - rather, Boolcarrol is located in the "Central Division" (NV Regulations, cl 27(7)).
In relation to the Greentree defendants' submission and Mr Greentree's evidence that some clearing was undertaken along the western boundary of polygon 26 for the purpose of a fenceline several years before the bushfire in March 2017, in light of Mr Spiers' evidence that he excluded RAMA from his findings of clearing, and analysing the location of polygon 26 in the images before the Court within the Northern Report, I find that it is apparent that the fenceline described by Mr Greentree was not included in (Mr Spiers') polygon 26 and this specific clearing is therefore not the subject of this charge.

[46]

Northern Clearing Event 3 (polygons 27 - 31)

In relation to Northern Clearing Event 3, Mr Greentree gave evidence that these areas in the paddock "North Ram" were affected by bushfire in March 2017 to which the RFS responded, and that as a result, he undertook "clean-up" work with a stick rake attached to a bulldozer before and after that fire; burned fire-damaged timber; cleared along a "fenceline"; undertook tilling for noxious weeds; and that he undertook this work in polygons 30 - 31 because he planned to build a further airstrip to enable crop spraying.
The Greentree defendants submit that bushfire damage, the existence of exotic groundcover, the desire for roads and fencelines, paddock subdivision, and the intended construction of an airstrip, collectively explain the purposes for which clearing was undertaken.
Although I do not accept Mr Greentree's evidence that the clearing was for the purpose of an airstrip for reasons noted at [162] above, I also find that a RAMA defence has not been made out on the balance of probabilities based upon his evidence for two reasons. First, Boolcarrol is zoned RU1 Primary Production under the Narrabri LEP within which construction of an airstrip requires development consent, and there is no evidence of any statutory approval or other consent (in accordance with s 22(2)(b) of the NV Regulations) being attained before the clearing was undertaken. Second, there is no evidence of clearing to the minimum distance and area sufficient to meet civil aviation standards (pursuant to s 27(2)(e) of the NV Regulations) for the construction of an airstrip in circumstances where Mr Greentree concedes that the clearing undertaken was up to approximately 1.8km long and 72m wide and was in excess of what was required: Tcpt, 10 June 2021, pp 935(27), 937(35-41), 986(16-19). Apart from these findings, I note that s 11(1)(a)(i) of the Native Vegetation Act only permits the construction, operation and maintenance of airstrips (as RAMA) in the "Western Division" in which Boolcarrol is not located - rather, Boolcarrol is located in the "Central Division" (NV Regulations, cl 27(7)).
I have also taken into account Mr Greentree's responses to the statutory notice dated 15 March 2018 (outlined at [153] above) that the only RAMA for which clearing was undertaken were "farm roads" and that no consent for vegetation clearing was sought or obtained, and Mr Greentree's evidence (outlined at [153] above) that he never discussed the provision of any airstrip with Mr Harris.

[47]

Northern Clearing Event 4 (polygons 32 and 33)

In relation to Northern Clearing Event 4, which relates to polygons 32 and 33 (in the paddock "Five Mile"), the Greentree defendants submit that regrowth groundcover was cleared from land in polygons 32 and 33 that had been grazed and cultivated to control weeds prior to 2017; that polygon 33 had been affected by bushfire; and that polygon 32 had been used for the dumping of cotton trash.
At [170] and [171] above, I noted Mr Greentree's evidence that polygon 33 was in the "path of a bushfire" and significantly damaged; and polygon 32, while not affected by bushfire, was sparsely timbered and had been grazed and "cultivated for the control of noxious weeds", including purple pigeon grass (which were also within polygon 33), before and after the March 2017 bushfire, as well as to dump cotton trash.
In relation to weeds, the legislative regime which applied during the relevant offence period of 2 July 2017 to 16 August 2017 (as noted at [56], [59]-[62] above), pursuant to s 11(1)(b) of the Native Vegetation Act, permitted clearing to prevent, eliminate, minimise or manage a "weed" suspected of having an adverse effect on the environment, economy or community pursuant to ss 7, 11 and 15 of the Biosecurity Act, so long as clearing was to the minimum extent necessary (Native Vegetation Act, s 22).
Although Mr Greentree referred to cultivating (tilling) in polygon 32 to control weeds (Tcpt, 10 June 2021, pp 957(15), 923(20)), despite Mr Greentree's statement that purple pigeon grass and other noxious weeds and introduced species populated polygon 32, I am not satisfied that it has been established on the balance of probabilities that the clearing involved a particular invasive weed species (pest), nor that there was a risk posed pursuant to the Biosecurity Act. There is no evidence that the clearing was conducted pursuant to a mandatory measure, emergency order, control order, biosecurity zone regulation or biosecurity direction under the Biosecurity Act as required by s 11(1)(b) of the Native Vegetation Act. Furthermore, considering Mr Greentree's evidence of the mechanism used for tilling (as described at [134] above), in the absence of any evidence to the contrary, I am not satisfied on the balance of probabilities that the clearing in polygon 32 would be to the minimum extent necessary because of the indiscriminate method of clearing adopted.

[48]

Northern Clearing Event 5a (polygons 43, 44 and 45)

In relation to Northern Clearing Event 5a, as noted at [179] above, Mr Greentree denies that any "clean-up" he undertook in polygons 43, 44 and 45 amounted to the clearing of native vegetation. Mr Greentree gave evidence (and the Greentree defendants submit) that: polygon 43, was ploughed to control noxious weeds (including, roly-poly, Lippia, galvanised burr, Noogoora burr, and Bathurst burr) and saplings, and that debris from bushfires which occurred in this area before 2017 had been raked and burned; work had been done to locate and work a gravel pit in polygon 44 which involved clearing some native vegetation (including three or four river red gums), and that the southern edge of polygon 44 had been cleared for the construction of two roads and a fenceline stretching from polygons 2 and 3 to polygon 45; and that polygon 45 had always been "open country" and had been ploughed to control weeds. The Greentree defendants further refer to the clearing-up of weeds and boxthorn in polygons 43 - 45; the clearing of regrowth groundcover on land in polygon 43 where weeds had been controlled by cultivation prior to 2017; and bushfire damage in polygon 44 prior to 2017.
To the extent that the defendants (through Mr Greentree's evidence and the Greentree defendants' submissions) submit that the clearing in polygons 43 and 45 was for the purpose of controlling noxious weeds, I do not accept this submission. As noted above (at [323]-[324] above), clearing of native vegetation to control weeds, as a category of RAMA, must be undertaken in accordance with the Biosecurity Act and must only be cleared to the minimum extent necessary (that is, subject to the limitation in s 22 of the Native Vegetation Act). There is no evidence that weeds were declared as "noxious" by, or removed in accordance with, any weed control order. Nonetheless, accepting the prosecutor's submission that Mr Greentree's usual method of weed control (being, a form of cultivation known as "tilling", as noted at [134] above) was indiscriminate in nature, I also find that the clearing could not be seen to be to the minimum extent necessary to remove any noxious weeds (in circumstances where Mr Spiers gave evidence that 342ha of shrubs and sparse trees were cleared in the period from 16 August 2017 to 24 August 2017).
In relation to Mr Greentree's evidence that he cleared native vegetation in polygon 44 for the purpose of prospecting for a gravel pit, I find that this is either a defence that is not available to the defendants or, even if it were available, has not been established on the balance of probabilities. First, although the prosecutor submits that a gravel pit does not fall within the meaning of "rural infrastructure" within cl 25 of the NV Regulations nor is it a class of infrastructure detailed in s 11(1)(a)(i) of the Native Vegetation Act (as at [57] above), I note that pursuant to cl 34(1)(a) of the NV Regulations, the construction, operation or maintenance of gravel pits is a category of RAMA for the purpose of s 11 of the Native Vegetation Act when conducted "by a council". Plainly, the defence is not available to any of the defendants, none of whom (pursuant to cl 3(1) of the NV Regulations) is a "council" within the meaning of the Local Government Act 1993 (NSW), and there is no evidence that the clearing was undertaken for, or on behalf of, a "council".

[49]

Southern Clearing Event 6a (polygons (south) 1, 2, 3)

In addition to Southern Clearing Event 6a, the Greentree defendants refer to various RAMA (concerning the construction of fencelines and a road, an infrastructure "complex", and an airstrip) in polygon (south) 1; bushfire and drought damage in polygon (south) 2; and pasture improvement by prior owners of Boolcarrol in polygon (south) 3.
Mr Greentree gave evidence that, he cleared vegetation (including native vegetation) from the whole area in polygon (south) 1 (being 58ha), first, for the purpose of farm infrastructure (including construction of an airstrip and farm complex including silos, machinery shed, and a residence) for which he did not seek development consent (because he "hadn't started doing any" of the infrastructure work) and which was never commenced; and second, to control weeds and saplings (Tcpt, 10 June 2021, pp 969(4)-970(2)). He denied clearing vegetation in polygons (south) 2 and 3, although stated that he knocked over and burned dead and dangerous trees damaged by bushfire and drought in polygon (south) 2, such as those depicted in Exhibit 3, a photograph which Mr Greentree described as showing a "failing" tree or limbs of a tree "hung up" in another tree, limbs blown over and more limbs on the ground: Tcpt, 9 June 2021, pp 882(17)-883(48).
Despite the Greentree defendants' submission, and Mr Greentree's evidence (as noted at [186] above), that the loss of vegetation in polygon (south) 1 can be explained by clearing that was conducted for the purpose of "farm infrastructure", including for construction of an airstrip, and other works relating to a "separate complex", which did not proceed, I do not find that any RAMA defence within s 11 of the Native Vegetation Act is established on the balance of probabilities for the following reasons.
First, in the response dated 10 May 2019 to the OEH's 20 March 2019 statutory notice, Mr Greentree's solicitors stated that clearing in the relevant area was only for the purpose of routine agricultural activities which included erecting dams; building permanent fences and farm roads; collecting firewood; removing/reducing imminent risks of serious personal injury to persons or property; controlling pests; and for "buffer infrastructure distance", and stated that Mr Greentree relied upon legislative exemptions for clearing (rather than any form of approval). There was no reference to the construction of an airstrip or that the "separate complex" involved a residence.

[50]

Conclusion on the Native Vegetation Act offences

For the above reasons, I find beyond reasonable doubt that: 1. Ronald Lewis Greentree is guilty of the offence against s 12 of the Native Vegetation Act as charged in each of the Native Vegetation Act offences. 2. Auen Grain Pty Ltd is guilty of the offence against s 12 of the Native Vegetation Act as charged in each of the Native Vegetation Act offences.
For the above reasons, I find that: 1. Kenneth Bruce Harris is not guilty of the offence against s 12 of the Native Vegetation Act as charged in each of the Native Vegetation Act offences. 2. Merrywinebone Pty Ltd is not guilty of the offence against s 12 of the Native Vegetation Act as charged in each of the Native Vegetation Act offences.

[51]

Offences under the Local Land Services Act

The essential elements the prosecutor must prove beyond reasonable doubt in relation to the two charges under the Local Land Services Act, being Northern Clearing Event 5b and Southern Clearing Event 6b, are noted at [70] above. As there is overlap in the evidence relating to the Native Vegetation Act offences and the Local Land Services Act offences, except where necessary, I will not repeat my earlier consideration and findings particularly in relation to the evidence of Mr Spiers and Mr Mazzer.

[52]

Element (1) - "clearing"

The prosecutor relies primarily on the expert evidence of Mr Spiers as well as observations made by Mr Drady, Mr Mazzer, and admissions made by Mr Greentree.
I adopt and do not repeat my analysis of the evidence and my findings at [125]-[131] above in relation to the evidence of Mr Spiers, [210]-[216] above in relation to the evidence of Mr Mazzer, and [132]-[137] in relation to the evidence of Mr Greentree.

[53]

Northern Clearing Event 5b (polygons 34 - 42 and 46 - 59)

This clearing event relates to clearing of vegetation between 25 August 2017 and 18 September 2017 on Lots 2, 12, 13, 14 and 24 in DP 753913; Lots 14, 32, 33, 37, 38, 44, 45 and 68 in DP 753916; Lot 1 in DP 128418; Lot 6 in DP 128419; Lot 2 in DP 546098; and Lot 24 in DP 1221147 and in the areas identified by Mr Spiers as polygons 34 - 42 and 46 - 59.
Having determined that clearing occurred in polygons 43 - 45 prior to 24 August 2017 (being, Northern Clearing Event 5a), Mr Spiers then made comparative observations of images dated 24 August 2017 and 18 September 2017 which he interpreted as showing that, at 18 September 2017, there were felled trees lying on the ground (identified with grey colour and the absence of visible shadows); grey spots (which he interpreted as "ash piles from the burning of downed vegetation", and as having a lack of height when viewed in three dimensions); straight lines (consistent with the passage of tree clearing equipment during tree-clearing operations); and narrow parallel lines in areas of clearing (consistent with cultivation patterns), in the area of Northern Clearing Event 5b.
He made similar observations regarding the image dated 30 October 2017 and states that the tree pattern and density had been "greatly reduced" compared to the prior imagery. He determined that although some trees remained in polygons 39 and 46 (albeit in reduced density), approximately 171ha of vegetation was cleared in the period from 25 August 2017 to 18 September 2017 in polygons 34 - 42 and 46 - 59.
Mr Spiers gave evidence that although bushfire (from 11 March 2017) may have resulted in the deaths of some trees and groundcover (and although he could not observe any definite removal of vegetation as a direct result of the bushfire due to the low resolution of the images he was analysing), fire would have had negligible effect on the clearing comprising Northern Clearing Event 5b.
In understanding and accepting Mr Spiers' evidence, I take into account various photographs in the evidence of Scott Terrence Drady, a compliance and regulation officer with the Department of Planning, Industry and Environment, who attended Boolcarrol on 31 August 2017 and observed, from various locations along Waiweira Lane, piles of vegetation. Mr Drady took photographs, recorded GPS waypoints where the photographs were taken, and made notes as the photographs were taken. The photographs depicted a large yellow bulldozer in operation, large burning piles of vegetation on fire, and areas of disturbed or bare soil around the piles.

[54]

Southern Clearing Event 6b (polygons (south) 2 - 18)

This clearing event relates to clearing of vegetation between 25 August 2017 and 18 January 2019 on or near Lots 1, 3, 18, 19, 42, 52, 69, 71, 82 and 83 in DP 753937; and Lot 25 in DP 1221147 and in areas identified by Mr Spiers as polygons (south) 2 - 18.
With reference to aerial photographs and satellite images dated 24 August 2017, 30 October 2017, 9 December 2017, 19 March 2018, 18 May 2018, 27 July 2018, 15 September 2018 and 24 November 2018, Mr Spiers gave the following evidence in relation to the clearing of vegetation.
First, in relation to polygons (as labelled on Exhibit S) (south) 2, 3, 5, 6 and 7 (which Mr Spiers labelled as polygons 2 - 8 on Exhibit K), between 24 August 2017 and 30 October 2017, Mr Spiers observed evidence of groundcover removal and partial clearing of trees; by 9 December 2017, he observed parallel lines consistent with cultivation in polygon (south) 7 (being polygon 6 on Exhibit K) and the northern part of polygon (south) 2 (being polygon 5 on Exhibit K) (which remained observable in images dated 22 July 2018 and 15 September 2018); and by 18 May 2018, he observed a sharp straight line across the centre of polygon (south) 7 (being polygon 6 on Exhibit K), indicative of recent cultivation.
Second, between 9 December 2017 and 19 March 2018, in polygons (south) 10 - 16 (being polygons 12 - 18 on Exhibit K), Mr Spiers observed that compared to the 9 December 2017 imagery, vegetation had been removed and he noted that areas of white spots indicative of ash piles from the burning of downed vegetation had appeared.
Third, between 15 September 2018 and by 24 November 2018, Mr Spiers observed that there had been further clearing of trees and burning of downed vegetation (white spots indicating ash piles). In the 24 November 2018 imagery, he observed coarse parallel lines (of dark brown) indicative of tree clearing equipment during tree-clearing undertaken in polygons (south) 2 and 3 (being polygons 2, 3, 4 and 5 on Exhibit K); and tree clearing within polygons (south) 8 and 9 (being polygons 10 and 11 on Exhibit K).
Fourth, between 24 November 2018 and 18 January 2019, Mr Spiers observed further evidence of tree removal, including a complete absence of trees and the presence of white spots indicating the presence of ash piles from the burning of felled vegetation and of parallel lines consistent with cultivational patterns in polygons (south) 2 - 7 (being polygons 2 - 9 on Exhibit K).

[55]

Element (2) - the clearing was of "native vegetation"

To prove the second element of the Local Land Services offences, the prosecutor must prove beyond reasonable doubt that the vegetation cleared in each of Northern Clearing Event 5b and Southern Clearing Event 6b was native vegetation as defined in s 60B of the Local Land Services Act (at [72] above).
I accept and do not repeat Mr Mazzer's evidence at [195]-[215] above and find beyond reasonable doubt that the vegetation which I have found (above) was cleared was native vegetation as defined in s 60B of the Local Land Services Act which included the native species identified in Table 5 of the Northern Report and Table 5 of the Southern Report. In reaching my finding, I have given consideration to the evidence of Mr Flynn (at [222] above), Dr Duretto (at [223] above), Mr Murie (at [219] above) and, as further addressed in relation to my consideration of the defences below, Mr Greentree's evidence that some native vegetation was removed in polygons 34 - 35, 40 - 41 and 47 - 59 (being part of Northern Clearing Event 5b) and in polygons (south) 4, 8 and 9 (being part of Southern Clearing Event 6b).
Even though Mr Mazzer found that the groundcover at "Tr01" within polygon 48 (being within Northern Clearing Event 5b) comprised 52% introduced species, he opined and I accept that this area nonetheless comprised native vegetation because, first, "Tr01" was within an area of Coolabah open woodland; second, the adjacent area comprised native vegetation; and, third, the groundcover was of poor quality and was in the highest state of seasonal flux at the time of his field visit. Further, although Mr Mazzer accepted in cross-examination that his report did not state how he came to conclude that the cleared vegetation in polygon 47 was Coolabah open woodland or how he came to determine the predominate vegetation type in polygons 38 and 39 (Tcpt, 25 August 2020, pp 173(24)-177(22)), this does not affect my findings that there was clearing of native vegetation in the area the subject of Northern Clearing Event 5b.
In making my finding above, I take into account the evidentiary certificate issued pursuant to s 13.31 of the Biodiversity Conservation Act dated 18 August 2020 ('s 13.31 Certificate') which, apart from certifying that each defendant was a landholder (as defined in s 1.6 of the Biodiversity Conservation Act), annexed a list of species of plants which are classified as "native to NSW" 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 (NSW)). The s 13.31 Certificate included in the species list a number of native species found by Mr Mazzer.

[56]

Element (3) - the clearing was in a "regulated rural area"

At [75] above, I noted that a "regulated rural area" is an area to which Pt 5A of the Local Land Services Act applies and, as I am satisfied that, as there had been no native vegetation regulatory map prepared and published showing land designated as "category 2-regulated land" at the time of the clearing the subject of the Local Land Services Act offences, the transitional arrangements in s 60F of the Local Land Services Act apply. As s 60F(5) provides that the Environmental Agency Head may issue a certificate that land is "category 2-regulated land", based upon the evidentiary certificate dated 22 August 2019 issued by Jeremy Black, a delegate of the Environmental Agency Head, I am satisfied beyond reasonable doubt that the land detailed in the certificate (which includes all of the portions of Boolcarrol the subject of Northern Clearing Event 5b and all of the portions of the land the subject of Southern Clearing Event 6b was category 2-regulated land.

[57]

Element (4) - responsibility for carrying out clearing

In relation to the Local Land Services Act offences, the prosecutor must prove beyond reasonable doubt that each defendant carried out, or was responsible for the carrying out of, each clearing event.
As the regulatory regime of the Local Land Services Act and Biodiversity Conservation Act, at least in relation to this element of an offence under s 60N of the Local Land Services Act, reflects that within the Native Vegetation Act, my consideration of this element largely corresponds with my consideration and findings made earlier. I adopt, but do not repeat, the background facts summarised at [234]-[236] above.
An offence against s 60N of the Local Land Services Act is a strict liability offence whereby any person who clears native vegetation in a regulated rural area is guilty of an offence unless they establish a relevant defence. As canvassed in my findings in relation to element (1) and element (2) of the Local Land Services Act offences, Mr Greentree (although he was reluctant to use the word 'clearing') admitted that he, or persons acting under his instruction, removed vegetation on land the subject of a number of the clearing events. In circumstances where I have found that this removal was clearing of native vegetation, I find beyond reasonable doubt that Mr Greentree cleared (or gave instructions to others to clear) native vegetation in contravention of s 60N of the Local Land Services Act and is therefore liable for each clearing event (subject to my later consideration of a number of defences raised by the defendants).
Section 13.29 of the Biodiversity Conservation Act provides that a person who is a "landholder" of any land on which an offence is alleged to have occurred is taken to have carried out the activity constituting the alleged offence. Section 13.29, which I repeat for convenience, relevantly provides: 13.29 Responsibility of landholder for activities carried out on the land (1) In any criminal or civil proceedings under this Act, the landholder of any land on which an offence or contravention is alleged to have occurred is taken to have carried out the activity constituting the alleged offence or contravention unless it is established that: (a) the activity was carried out by another person, and (b) the landholder did not cause or permit the other person to carry out the activity. …

[58]

Whether each defendant was a "landholder"

Apart from the s 13.31 Certificate, I find that each of Mr Greentree and (as the Harris defendants accepted) Mr Harris was a "landholder" in accordance with the definition within s 1.6 of the Biodiversity Conservation Act, in that each is "a person who is the owner of land…" because land title records for each of the lots comprising Boolcarrol show that each was a registered proprietor of the lots on Boolcarrol on which I have found the clearing events took place.
In relation to Auen Grain, I find beyond reasonable doubt that Auen Grain was a "landholder" of the parcels of land which comprise Boolcarrol on which I have found the clearing events took place. I make this finding based upon the s 13.31 Certificate, and in circumstances where Auen Grain is captured by the definition of "landholder" within s 1.6 of the Biodiversity Conservation Act for the reasons noted at [242] above.
In relation to Merrywinebone, the Harris defendants submit that Merrywinebone was not a "landholder" because: first, the s 13.31 Certificate applying to Merrywinebone is of no presumptive effect on the basis that it was not issued by a duly authorised delegate pursuant to s 14.4(2) of the Biodiversity Conservation Act; and second, Merrywinebone does not fall within the definition of "landholder" in s 1.6 of the Biodiversity Conservation Act.
In relation to the s 13.31 Certificate, the Harris defendants contend that it was not issued properly in circumstances where there is no evidence that the person who signed the certificate, Sarah Carr was in a "Senior Executive" role as defined by the instrument of delegation (issued pursuant to s 14.4(2) of the Biodiversity Conservation Act) dated 13 December 2017.
I do not accept the submission that the prosecutor has not adduced "sufficient" evidence that the s 13.31 Certificate was issued by a duly authorised delegate of the Director-General under s 14.4(2) of the Biodiversity Conservation Act. Section 14.4(2) specifically provides that the Environment Agency Head may delegate to "any person employed in the Office of Environment and Heritage" or "any person, or any class of persons, authorised for the purposes of this section by the regulations" any of the Agency Head's functions under the Biodiversity Conservation Act. The prosecutor tendered a copy of an instrument of delegation dated 13 December 2017 which delegates the power under s 13.31 of the Biodiversity Conservation Act to any persons assigned to "Senior Executive" roles.

[59]

Whether the defendants did not cause or permit the clearing

Although the principles applicable to s 13.29(1) of the Biodiversity Conservation Act have not been judicially considered, where the provision is largely similar to s 44 of the Native Vegetation Act, I consider it appropriate to adopt the principles set out at [250]-[252] above.
Before turning to the issue of whether Auen Grain, Merrywinebone and/or Mr Harris caused or permitted the clearing, I rely upon my earlier finding that (subject to my consideration of certain defences raised by the defendants) it has been proved beyond reasonable doubt that Mr Greentree carried out, or authorised the carrying out of, the clearing that I have found the subject of Northern Clearing Event 5b and Southern Clearing Event 6b and I find that Mr Greentree has not established (pursuant to s 13.29(1)) on the balance of probabilities, first, that someone other than Mr Greentree carried out clearing; and second, (where others did carry out the clearing under his instruction) that he did not cause or permit others to carry out the clearing. Therefore, Mr Greentree, as a landholder, is taken to have carried out the clearing the subject of the alleged Local Land Services Act offences pursuant to s 13.29(1) of the Local Land Services Act.
In relation to Auen Grain, the prosecutor submits that Auen Grain can be found to have caused (by attribution) the clearing. In considering whether the conduct of Mr Greentree is to be regarded as the conduct of Auen Grain, noting that s 60N of the Local Land Services Act is similar to s 12 of the Native Vegetation Act, and that s 13.29(1) of the Biodiversity Conservation Act is similar to s 44 of the Native Vegetation Act, I adopt the comments of Biscoe J in Issa considered at [254] above.
I am satisfied that the 'special attribution rule' articulated by Biscoe J in Issa applies and I adopt my findings at [254]-[255] above.
In addition to the 'special attribution rule' under s 13.29(1)(b) of the Local Land Services Act, consistent with my reasons at [257] above, I find that separate from the statutory basis of landholder liability under s 13.29(1) of the Biodiversity Conservation Act, the conduct of Mr Greentree can be attributed to Auen Grain pursuant to the strict liability nature of an offence against s 60N of the Local Land Services Act and the principles of vicarious liability in circumstances where Mr Greentree was the sole director of Auen Grain and Mr Greentree undertook the clearing in furtherance of the farming business enterprise (the partnership in Greentree Farming) in which Auen Grain was engaged at Boolcarrol.

[60]

Defences

In relation to each of the Local Land Services Act offences, the Greentree defendants raise a number of explanations for the loss of vegetation which are similar to those raised in relation to each Native Vegetation Act offence, some apparently in reliance (without specification) upon statutory defences noted at [78]-[94] above.

[61]

Northern Clearing Event 5b (polygons 34 - 42 and 46 - 59)

In relation to Northern Clearing Event 5b (a Local Land Services Act offence), the Greentree defendants refer to Mr Greentree's evidence, as noted at [387]-[395] above, that he (or others) had undertaken various activities that would explain the loss of vegetation in particular polygons including: "clean-up" from wind and fire damage; construction of firebreaks and firefighting; weed control; clearing of "hazardous" dead limbs, branches and stumps in cattle yards; clearing of saplings; clearing of regrowth groundcover on land where weeds had been controlled by cultivation prior to 2017; preparation for and construction of a road and fencelines; harvesting of a previous crop of oats; and damage caused by inexperienced persons operating farming machinery whilst cropping.
In relation to the submission that the loss of vegetation (namely in polygons 38, 39, 41 and 46 - 59) could be explained by damage caused by bushfires and the "clean-up" of debris thereafter (noting that Mr Greentree gave evidence that fire impacted polygons 38, 39, 41, 46 and 47 - 58 (Tcpt, 10 June 2021, pp 966(47), 967(36), 968(2)), I am not satisfied that the clearing was caused by, or resulted from, fire, nor am I satisfied that it is referable to any activities (such as firebreaks, as considered below) which may be authorised or permitted by the Rural Fires Act pursuant to s 60O(d) of the Local Land Services Act. In making this finding, although Mr Greentree gave evidence of Coolabah and/or box "trees damaged from the fires" with reference to a photograph (Exhibit 8) which he says was taken near polygon 40 or 41 ("or something like that") (Tcpt, 10 June 2021, p 895(6-23)), I accept the evidence of Mr Brooks (noted at [282] above) that while there is a record in the RFS records of three fire events at Boolcarrol (only one of which could be described as significant, none related to the area of Northern Clearing Event 5b, and there is no evidence of a registered bushfire in the area of the relevant polygons.
Further, although Mr Spiers accepted that bushfire may be an explanation for a certain amount of vegetation clearing (Tcpt, 4 September 2020, p 504(20)) and stated that the imagery did not allow him to observe any patterns consistent with fire at Boolcarrol, I accept Mr Spiers' evidence that any fire that may have occurred in the area of Northern Clearing Event 5b would have had "negligible effect on the clearing" based upon what he could determine from the imagery: Tcpt, 4 September 2020, p 505(8).

[62]

Southern Clearing Event 6b (polygons (south) 2 - 18)

In relation to Southern Clearing Event 6b, the Greentree defendants refer to the clearing of regrowth groundcover on land where weeds had been controlled by cultivation prior to 2017; the construction of a road and fencelines; and wind damage.
I have noted some of Mr Greentree's evidence at [406] and [407] above, that: in relation to polygons (south) 2 and 3, he undertook clearing of vegetation in preparation for, during, and clean-up after, bushfires and ploughed saplings and noxious weeds in the area of Southern Clearing Event 6b; in relation to polygons (south) 4, 8 and 9, a 24-metre-wide access road was cleared; that he had pushed over fire-damaged trees in polygon (south) 5 and polygon (south) 7; and that (although he denied undertaking clearing) polygons (south) 10 - 16 were impacted by, and cleaned up following, wind damage and fires, and made safe for the parking of vehicles.
To the extent that there was clearing in polygons (south) 2 and 3 both before (being clearing the subject of Southern Clearing Event 6a in polygons (south) 1 - 3) and after 24 August 2017, although it is unclear whether the defendants rely upon the same explanations as were raised in Southern Clearing Event 6a for the loss of vegetation in relation to this event, I adopt my earlier findings (at [366]-[367] above) in relation to the explanations proffered in relation to polygons (south) 2 and 3. First, in relation to polygon (south) 2, there is no evidence of bushfire that would substantiate Mr Greentree's claim of bushfire "clean-up", or that would authorise any clearing works pursuant to s 60O of the Local Land Services Act (and thereby the Rural Fires Act). Second, in relation to "pasture improvement" in polygon (south) 3, in circumstances where Mr Spiers' evidence is that the density of tree cover was consistent from 1989 to July 2017, where there was no evidence of a mandatory code compliant certificate (cl 53 of the 2017 and 2018 Native Vegetation Codes), and there is no evidence that the clearing was consistent with any prior activity or caused no more than minimal disturbance (cl 56 of the 2017 and 2018 Native Vegetation Codes), I do not find that a defence under s 60S of the Local Land Services Act has been established on the balance of probabilities.
To the extent that the Greentree defendants submit that the groundcover cleared from polygons (south) 4 - 9 must have regrown following cultivation to control weeds prior to 2017, such that the "regrowth" defence applies, I do not accept this explanation for the loss of groundcover vegetation or that this clearing was otherwise permissible. I accept Mr Spiers' evidence and find that from June 1989 through to 24 August 2017 the density of tree cover in polygons (south) 4 - 9 was consistent, and that the area consisted of "uncleared grass cover" until shrubs, groundcover (and trees) were removed from polygons (south) 5, 6 and 7 (being numbers 6 - 8 on Exhibit K) between 24 August 2017 and 30 October 2017; polygons (south) 8 and 9 (being numbers 10 and 11 on Exhibit K) between 15 September 2018 and 24 November 2018; and polygons (south) 4 - 7 (being numbers 6 - 9 on Exhibit K) between 24 November 2018 and 18 January 2019.

[63]

Conclusion on the Local Land Services Act offences

For the above reasons, I find beyond reasonable doubt: 1. Ronald Lewis Greentree is guilty of the offence against s 60N of the Local Land Services Act as charged in each of the Local Land Services Act offences. 2. Auen Grain Pty Ltd is guilty of the offence against s 60N of the Local Land Services Act as charged in each of the Local Land Services Act offences.
For the above reasons, I find: 1. Kenneth Bruce Harris is not guilty of the offence against s 60N of the Local Land Services Act as charged in each of the Local Land Services Act offences. 2. Merrywinebone Pty Ltd is not guilty of the offence against s 60N of the Local Land Services Act as charged in each of the Local Land Services Act offences.

[64]

Conclusion - all proceedings

In each of proceedings 2019/00265266; 2019/00265270; 2019/00265274; 2019/00265278; 2019/00265282; 2019/00265290, I find, beyond reasonable doubt, Ronald Lewis Greentree guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged.
In each of proceedings 2019/00265286 and 2019/00265294, I find, beyond reasonable doubt, Ronald Lewis Greentree guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged.
In each of proceedings 2019/00265268; 2019/00265272; 2019/00265276; 2019/00265280; 2019/00265284; 2019/00265292, I find, beyond reasonable doubt, Auen Grain Pty Ltd guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged.
In each of proceedings 2019/00265264 and 2019/00265288, I find, beyond reasonable doubt, Auen Grain Pty Ltd guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged.
The above proceedings involving Ronald Lewis Greentree and Auen Grain Pty Ltd now need to be fixed for a hearing on the sentence to be imposed for each offence. I list each matter before the List Judge on 10 February 2023 for the purpose of fixing a date for the sentence hearing and making appropriate directions to prepare for the sentence hearing.
In each of proceedings 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265291, I find Kenneth Bruce Harris not guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged and each summons is dismissed.
In each of proceedings 2019/00265287 and 2019/00265295, I find Kenneth Bruce Harris not guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged and each summons is dismissed.
In each of proceedings 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265293, I find Merrywinebone Pty Ltd not guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged and each summons is dismissed.
In each of proceedings 2019/00265289 and 2019/00265265, I find Merrywinebone Pty Ltd not guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged and each summons is dismissed.
As the prosecutor requested in relation to Kenneth Bruce Harris and Merrywinebone Pty Ltd that no final orders be made to allow the prosecutor to consider its position in relation to an application pursuant to s 5AE of the Criminal Appeals Act 1912 (NSW) and in circumstances where this was not opposed by the Harris defendants, I stand the above proceedings involving Kenneth Bruce Harris and Merrywinebone Pty Ltd over to 10 February 2023.

[65]

In proceedings 2019/00265266: 1. Ronald Lewis Greentree is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265266. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[66]

In proceedings 2019/00265268: 1. Auen Grain Pty Ltd is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265268. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[67]

In proceedings 2019/00265270: 1. Ronald Lewis Greentree is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265270. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[68]

In proceedings 2019/00265272: 1. Auen Grain Pty Ltd is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265272. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[69]

In proceedings 2019/00265274: 1. Ronald Lewis Greentree is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265274. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[70]

In proceedings 2019/00265276: 1. Auen Grain Pty Ltd is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265276. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[71]

In proceedings 2019/00265278: 1. Ronald Lewis Greentree is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265278. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[72]

In proceedings 2019/00265280: 1. Auen Grain Pty Ltd is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265280. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[73]

In proceedings 2019/00265282: 1. Ronald Lewis Greentree is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265282. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[74]

In proceedings 2019/00265284: 1. Auen Grain Pty Ltd is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265284. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[75]

In proceedings 2019/00265290: 1. Ronald Lewis Greentree is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265290. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[76]

In proceedings 2019/00265292: 1. Auen Grain Pty Ltd is found guilty of the offence against s 12 of the Native Vegetation Act 2003 (NSW) as charged in proceedings 2019/00265292. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[77]

In proceedings 2019/00265286: 1. Ronald Lewis Greentree is found guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged in proceedings 2019/00265286. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[78]

In proceedings 2019/00265288: 1. Auen Grain Pty Ltd is found guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged in proceedings 2019/00265288. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[79]

In proceedings 2019/00265294: 1. Ronald Lewis Greentree is found guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged in proceedings 2019/00265294. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[80]

In proceedings 2019/00265264: 1. Auen Grain Pty Ltd is found guilty of the offence against s 60N of the Local Land Services Act 2013 (NSW) as charged in proceedings 2019/00265264. 2. The proceedings are listed on 10 February 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

[81]

In each of proceedings concerning Kenneth Bruce Harris, 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265291: 1. Stand each summons over until 10 February 2023 for the entry of orders.

[82]

In each of proceedings concerning Kenneth Bruce Harris, 2019/00265287 and 2019/00265295: 1. Stand each summons over until 10 February 2023 for the entry of orders.

[83]

In each of proceedings concerning Merrywinebone Pty Ltd, 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265293: 1. Stand each summons over until 10 February 2023 for the entry of orders.

[84]

In each of proceedings concerning Merrywinebone Pty Ltd, 2019/00265289 and 2019/00265265: 1. Stand each summons over until 10 February 2023 for the entry of orders.

[85]

Annexure A (2098023, pdf) Annexure B (3472785, pdf) 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: 23 December 2022

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