Secretary, Department of Planning, Industry and Environment v Balmoral Farms Pty Ltd; Secretary, Department of Planning, Industry and Environment v JP & LR Harris Pty Ltd; Secretary, Department of Planning, Industry and Environment v Woolondoon Pty Ltd; Secretary, Department of Planning, Industry and Environment v Harris; Secretary, Department of Planning, Industry and Environment v Harris

Medium Neutral Citation: Secretary, Department of Planning, Industry and Environment v Balmoral Farms Pty Ltd; Secretary, Department of Planning, Industry and Environment v JP & LR Harris Pty Ltd; Secretary, Department of Planning, Industry and Environment v Woolondoon Pty Ltd; Secretary, Department of Planning, Industry and Environment v Harris; Secretary, Department of Planning, Industry and Environment v Harris [2026] NSWLEC 125

Hearing dates: 28 April-2 May, 5, 6 and 8 May 2025 (first trial)
12-14, 19-20 May 2025 (second trial)
21 May 2025 (third trial)
11 August 2025 (all trials)

Date of orders: 28 September 2026

Decision date: 28 September 2026

Jurisdiction: Class 5

Before: Pritchard J

Decision: See orders from [653].

Catchwords: ENVIRONMENT AND PLANNING – Offences – s 60N of the Local Land Services Act 2013 (NSW) – s 12 of the Native Vegetation Act 2003 (NSW) – native vegetation clearing – three separate trials – single judgment – whether clearing was carried out – whether aerial imagery interpretation evidence was generally reliable – whether observations of aerial imagery obvious to the lay eye – whether clearing was of native vegetation – whether ecological evidence was generally reliable – whether clearing was in a regulated rural area within the meaning of s 60N of the Local Land Services Act 2013 – whether prosecutor could rely on evidentiary certificate issued pursuant to s 60F(5) of Local Land Services Act 2013 – whether defendants legally responsible for clearing – whether evidentiary provisions in s 44 of Native Vegetation Act 2003 and s 13.29 of Biodiversity Conservation Act 2016 (NSW) apply in circumstances where prosecutor has not proven manner in which alleged clearing took place or activity constituting alleged offence – whether clearing caused by persons other than defendants without defendants causing or permitting the clearing – whether defendants have established any available defences – whether clearing was for routine agricultural management activities within the meaning of s 11 of the Native Vegetation Act 2003 – meaning of “imminent risk” in s 11(1)(i) of the Native Vegetation Act 2003
EVIDENCE – admissibility – whether evidence in one trial admissible in other trial – rule in Browne v Dunn – whether expert witnesses given opportunity to respond to criticisms of methodology – whether expert witnesses given opportunity to respond to criticisms of specific observations

Legislation Cited: Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW) cl 58
Biodiversity Conservation Act 2016 (NSW) ss 1.6, 12.8, 12.19, 12.23, 13.3, 13.29, 13.31
Criminal Appeal Act 1912 (NSW) s 5AE
Evidence Act 1995 (NSW) s 87
Local Land Services Act 2013 (NSW) Pt 5A, ss 60A, 60B, 60C, 60D, 60F, 60I, 60N, 60N, 60O, 60Q, 60ZM, Pt 5B, Sch 5A cll 2, 4, 5, 7, 13, 29, 31
Local Land Services Amendment Act 2016 (NSW) Sch 1
Local Land Services Regulation 2014 (NSW) cl 106
Native Vegetation Act 2003 (NSW) ss 4, 6, 7, 9, 11, 12, 18, 19, 21, 22, 23, 24, 25, 44, 50 (repealed)
Native Vegetation Regulation 2013 (NSW) cl 25(1)
Rural Fires Act 1997 (NSW)
State Emergency and Rescue Management Act 1989 (NSW)
Surveying and Spatial Information Act 2002 (NSW)
Threatened Species Conservation Act 1995 (NSW)
Water Act 1912 (NSW)
Water Management Act 2000 (NSW)

Cases Cited: Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141
Chief Executive, Office of Environment and Heritage v Geoffrey Phillip Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd (2015) 209 LGERA 280; [2015] NSWLEC 117
Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271
Chief Executive, Office of Environment and Heritage v Wickman [2020] NSWLEC 23
Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15
Department of Environment and Climate Change v Olmwood Pty Ltd (2010) 173 LGERA 366; [2010] NSWLEC 15
Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229
Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232
Director-General, Dept of Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73
Environment Protection Authority v John Michelin & Son Pty Ltd [2019] NSWLEC 88
Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361
Environmental Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204
EPA v Sydney Water (1997) 98 LGERA 361
EPA v Sydney Water in Gregg v The Queen [2020] NSWCCA 245
HG v R (1999) 197 CLR 414; [1999] HCA 2
Hofer v The Queen (2021) 27 4 CLR 351; [2021] HCA 36
Khamis v The Queen (2010) 203 A Crim R 121; [2010] NSWCCA 179
MWJ v The Queen (2005) 80 ALJR 329; [2005] HCA 74
Roads and Traffic Authority (NSW) v Graincorp Operations Ltd [2010] NSWCA 317
Secretary, Department of Planning and Environment v Harris (2024) 259 LGERA 388; [2024] NSWCCA 88
Secretary, Department of Planning and Environment v Khouzame (2024) 261 LGERA 49; [2024] NSWLEC 54
Secretary, Department of Planning and Environment v Namoi Valley farms Pty Ltd (No 6) [2022] NSWLEC 62
Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 7) [2022] NSWLEC 153
Secretary, Department of Planning, Industry and Environment v Balmoral Farms Pty Ltd [2025] NSWLEC 40
Walker Corporation Pty Ltd v Director General, Department of Environment, Climate Change and Water (2012) 82 NSWLR 12; [2012] NSWCCA 210

Category: Principal judgment

Parties: Secretary, Department of Planning, Industry and Environment (Prosecutor)
Balmoral Farms Pty Ltd (Defendant, 2021/69608-2021/69613)
JP & LR Harris Pty Ltd (Defendant, 2021/69629)
Woolondoon Pty Ltd (Defendant, 2021/69633)
Phillip John Harris (Defendant, 2021/69585-2021/69588)
Sue Ellen Harris (Defendant, 2021/69598-2021/69601)

Representation: Counsel:
G Wright SC and T Hammond (Prosecutor)
J Ireland KC and A Connolly (Defendants)
Solicitors:
Litigation and Investigations, Department of Climate Change, Energy, the Environment and Water (Prosecutor)
McGirr Lawyers (Defendants)

File Number(s): 2021/69608; 2021/69609; 2021/69610; 2021/69611; 2021/69612; 2021/69613; 2021/69629; 2021/69633; 2021/69585; 2021/69586; 2021/69587; 2021/69588; 2021/69598; 2021/69599; 2021/69600; 2021/69601

Publication restriction: Nil

JUDGMENT

Introduction

A single judgment

Introduction to the first trial

Background facts relevant to the first trial

Overview of the prosecution case in the first trial

The evidence of Mr Watts

The evidence of Dr Hammill

The s 60F(5) certificate

The s 13.31(2)(a) certificate

The s 50 certificate

Overview of the defence case in the first trial

Introduction to the second trial

Background facts relevant to the second trial

Overview of the prosecution case in the second trial

The evidence of Mr Watts

The evidence of Dr Hammill

The s 60F(5) certificate

The s 13.31(2)(a) certificate

Overview of the defence case in the second trial

Introduction to the third trial

Background facts relevant to the third trial

Overview of the prosecution case in the third trial

The evidence of Mr Watts

The evidence of Dr Hammill

The s 50 certificate

Overview of the defence case in the third trial

Relevant statutory provisions in relation to the first trial

Native Vegetation Act 2003 (NSW)

Local Land Services Act 2013 (NSW)

Local Land Services Regulation 2014 (NSW)

Biodiversity Conservation Act 2016 (NSW)

Relevant statutory provisions in relation to the second trial

Relevant statutory provisions in relation to the third trial

Elements of the NV Act offences

Elements of the LLS Act offences

Rulings in relation to evidence sought to be relied on by the prosecutor in the first trial

Rulings in relation to evidence sought to be relied on by the prosecutor in the second trial

Rulings in relation to evidence sought to be relied on by the prosecutor in the third trial

The First Trial

Key evidence relied on by the prosecutor in the first trial, and the prosecutor’s submissions in relation to the elements of the six offences

For charge 1 (Corombie) – offence against s 12 of the NV Act

Element 1: clearing was carried out (aerial imagery evidence)

Element 2: native vegetation was cleared (ecological evidence)

Element 3: absence of development consent or property vegetation plan

Element 4: liability

For charge 2 (Corombie) – offence against s 12 of the NV Act

Element 1: clearing was carried out (aerial imagery evidence)

Element 2: native vegetation was cleared (ecological evidence)

Element 3: absence of development consent or property vegetation plan

Element 4: liability

For charge 3 (Corombie) – offence against s 12 of the NV Act

Element 1: clearing was carried out (aerial imagery evidence)

Element 2: native vegetation was cleared (ecological evidence)

Element 3: absence of development consent or property vegetation plan

Element 4: liability

For charge 4 (Corombie) – offence against s 60N of the LLS Act

Element 1: clearing was carried out (aerial imagery evidence)

Element 2: native vegetation was cleared (ecological evidence)

Element 3: the clearing was in a regulated rural area

Element 4: liability

For charge 5 (Balmoral) – offence against s 12 of the NV Act

Element 1: clearing was carried out (aerial imagery evidence)

Element 2: native vegetation was cleared (ecological evidence)

Element 3: absence of development consent or property vegetation plan

Element 4: liability

For charge 6 (Balmoral) – offence against s 12 of the NV Act

Element 1: clearing was carried out (aerial imagery evidence)

Element 2: native vegetation was cleared (ecological evidence)

Element 3: absence of development consent or vegetation plan approval

Element 4: liability

Prosecutor’s submissions in relation to defences raised and the evidence of Mark Harris

Division 3 of Part 3 of the NV Act: permitted activities

Defences under the LLS Act

Balmoral Farms’ submissions in the first trial

Evidentiary (or deeming) provisions in s 44 of the NV Act and s 13.29 of the BC Act

Evidence of Mark Harris

Concessions made by Mark Harris

Mark Harris’ recollections of land conditions

Context of Mark Harris’ recollections

Attendance by Mark Harris at Corombie and work on Corombie

Balmoral Farms’ submission in relation to the evidence of Mr Watts

Balmoral Farms’ submissions in relation to the evidence of Dr Hammill

Charge 1 (Corombie) – offence against s 12 of the NV Act

Charge 2 (Corombie) – offence against s 12 of the NV Act

Charge 3 (Corombie) – offence against s 12 of the NV Act

Charge 4 (Corombie) – offence against s 60N of the LLS Act and the s 60F(5) certificate

Charge 5 (Balmoral) – offence against s 12 of the NV Act

Charge 6 (Balmoral) – offence against s 12 of the NV Act

Prosecutor’s submissions in reply

Evidentiary (or deeming) provisions in s 44 of the NV Act and s 13.29 of the BC Act

Evidence of Mark Harris

Evidence of Mr Watts

Evidence of Dr Hammill

Balmoral Farms’ approach to expert evidence generally and the rule in Browne v Dunn

Charge 1 (Corombie) – offence against s 12 of the NV Act

Charge 2 (Corombie) – offence against s 12 of the NV Act

Charge 3 (Corombie) – offence against s 12 of the NV Act

Charge 4 (Corombie) – offence against s 60N of the LLS Act

Charge 5 (Balmoral) – offence against s 12 of the NV Act

Charge 6 (Balmoral) – offence against s 12 of the NV Act

Consideration of whether the prosecutor has discharged its onus in relation to the elements of the six offences charged in the first trial

The evidence of Mark Harris

The application of the rule in Browne v Dunn and general findings in relation to the evidence of Mr Watts and Dr Hammill in the first trial

Charge 1 (Corombie) – offence against s 12 of the NV Act

Element 1: that clearing was carried out on the relevant property between the charged dates

Element 2: that the clearing was of native vegetation

Element 3: that the clearing was not in accordance with a development consent or property vegetation plan

Element 4: that Balmoral Farms was legally responsible for the carrying out of the clearing

Charge 2 (Corombie) – offence against s 12 of the NV Act

Element 1: that clearing was carried out on the relevant property between the charged dates

Element 2: that the clearing was of native vegetation

Element 3: that the clearing was not in accordance with a development consent or property vegetation plan

Element 4: that Balmoral Farms was legally responsible for the carrying out of the clearing

Whether Balmoral Farms has established a defence to the offence in charge 2

Charge 3 (Corombie) – offence against s 12 of the NV Act

Element 1: that clearing was carried out on the relevant property between the charged dates

Element 2: that the clearing was of native vegetation

Element 3: that the clearing was not in accordance with a development consent or property vegetation plan

Element 4: that Balmoral Farms was legally responsible for the carrying out of the clearing.

Whether Balmoral Farms has established a defence to the offence in charge 3

Charge 4 (Corombie) – offence against s 60N of the LLS Act

Element 1: that clearing was carried out on the relevant property between the charged dates

Element 2: that the clearing was of native vegetation

Element 3: that the clearing was on regulated land

Element 4: that Balmoral Farms was legally responsible for the carrying out of the clearing

Whether Balmoral Farms has established a defence to the offence in charge 4

Charge 5 (Balmoral) – offence against s 12 of the NV Act

Element 1: that clearing was carried out on the relevant property between the charged dates

Element 2: that the clearing was of native vegetation

Element 3: that the clearing was not in accordance with a development consent or property vegetation plan

Element 4: that Balmoral Farms was legally responsible for the carrying out of the clearing

Charge 6 (Balmoral) – offence against s 12 of the NV Act

Element 1: that clearing was carried out on the relevant property between the charged dates

Element 2: that the clearing was of native vegetation

Element 3: that the clearing was not in accordance with a development consent or property vegetation plan

Element 4: that Balmoral Farms was legally responsible for the carrying out of the clearing

Whether Balmoral Farms has established a defence to the offence in charge 6

The second trial

Key evidence relied on by the prosecutor in the second trial, and the prosecutor’s submissions in relation to the elements of the two offences

For charge 1 (Curly Whirl) – offence against s 60N of the LLS Act

Element 1: clearing was carried out (aerial imagery evidence)

Element 2: native vegetation was cleared (ecological evidence)

Element 3: the clearing was in a regulated rural area

Element 4: liability

For charge 2 (Woolondoon) – offence against s 60N of the LLS Act

Element 1: clearing was carried out (aerial imagery evidence)

Element 2: native vegetation was cleared (ecological evidence)

Element 3: the clearing was in a regulated rural area

Element 4: liability

Submissions of JP & LR Harris and Woolondoon Pty Ltd in the second trial

Evidentiary (or deeming) provisions

Evidence of Mr Watts and Dr Hammill

The s 60F(5) certificate

Charge 1 (Curly Whirl) – offence against s 60N of the LLS Act

Charge 2 (Woolondoon) – offence against s 60N of the LLS Act

Element 1: clearing was carried out

Element 4: liability

Prosecutor’s submissions in reply

Evidentiary (or deeming) provisions

Evidence of Mr Watts and Dr Hammill and the rule in Browne v Dunn

The s 60F(5) certificate

Charge 2 (Woolondoon) – offence against s 60N of the LLS Act

Element 1: clearing was carried out

Element 4: ownership of Woolondoon

Consideration of whether the prosecutor has discharged its onus in relation to the elements of the offences charged in the second trial

The application of the rule in Browne v Dunn and general findings in relation to the evidence of Mr Watts and Dr Hammill in the second trial

Charge 1 (Curly Whirl) – offence against s 60N of the LLS Act

Element 1: that clearing was carried out on the relevant property between the charged dates

Element 2: that the clearing was of native vegetation

Element 3: that the clearing was on regulated land

Element 4: that JP & LR Harris was legally responsible for the carrying out of the clearing

Consideration of whether JP & LR Harris has established a defence to the first offence charged in the second trial

Charge 2 (Woolondoon) – offence against s 60N of the LLS Act

Element 1: that clearing was carried out on the relevant property between the charged dates – not established beyond reasonable doubt

Conclusion in relation to the offences charged in the second trial

The Third Trial

Key evidence relied on by the prosecutor in the third trial, and the prosecutor’s submissions in relation to the elements of the eight offences

Charges 1 and 2 (North Marlow) – offences against s 12 of the NV Act

Element 1: clearing was carried out (aerial imagery evidence)

Element 2: native vegetation was cleared (ecological evidence)

Element 3: absence of development consent or property vegetation plan

Element 4: liability

Charges 3 and 4 (Glenidyle) – offence against s 12 of the NV Act

Element 1: clearing was carried out (aerial imagery evidence)

Element 2: native vegetation was cleared (ecological evidence)

Element 3: absence of development consent or property vegetation plan

Element 4: liability

Charges 5 and 6 (Waverley South) – offence against s 12 of the NV Act

Element 1: clearing was carried out (aerial imagery evidence)

Element 2: native vegetation was cleared (ecological evidence)

Element 3: absence of development consent or property vegetation plan

Element 4: liability

Charges 7 and 8 (Wondahree) – offence against s 12 of the NV Act

Element 1: clearing was carried out (aerial imagery evidence)

Element 2: native vegetation was cleared (ecological evidence)

Element 3: absence of development consent or property vegetation plan

Element 4: liability

Submissions of Phillip Harris and Sue Harris in the third trial

Evidentiary (or deeming) provisions

Evidence of Mr Watts and Dr Hammill

Charges 1 and 2 (North Marlow) – offence against s 12 of the NV Act

Charges 3 and 4 (Glenidyle) – offence against s 12 of the NV Act

Charges 5 and 6 (Waverley South) – offence against s 12 of the NV Act

Charges 7 and 8 (Wondahree) – offence against s 12 of the NV Act

Prosecutor’s submissions in reply

Evidentiary (or deeming) provision in s 13.29 of the BC Act

Evidence of Mr Watts and Dr Hammill and the rule in Browne v Dunn

Charges 7 and 8 (Wondahree) – offence against s 12 of the NV Act

Consideration of whether the prosecutor has discharged its onus in relation to the elements of the offences charged in the third trial

The application of the rule in Browne v Dunn and general findings in relation to the evidence of Mr Watts and Dr Hammill in the third trial

Charges 1 and 2 (North Marlow) – offence against s 12 of the NV Act

Element 1: that clearing was carried out on the relevant property between the charged dates

Element 2: that the clearing was of native vegetation

Element 3: that the clearing was not in accordance with a development consent or property vegetation plan

Element 4: that Phillip Harris and Sue Harris were legally responsible for the carrying out of the clearing

Charges 3 and 4 (Glenidyle) – offence against s 12 of the NV Act

Element 1: that clearing was carried out on the relevant property between the charged dates – not established beyond reasonable doubt

Charges 5 and 6 (Waverley South) – offence against s 12 of the NV Act

Element 1: that clearing was carried out on the relevant property between the charged dates

Element 2: that the clearing was of native vegetation

Element 3: that the clearing was not in accordance with a development consent or property vegetation plan

Element 4: that Phillip Harris and Sue Harris were legally responsible for the carrying out of the clearing

Charges 7 and 8 (Wondahree) – offence against s 12 of the NV Act

Element 1: that clearing was carried out on the relevant property between the charged dates – not established beyond reasonable doubt

Consideration of whether the defendant has established a defence to any of the offences in charges 1 and 2, and 5 and 6 in the third trial

Conclusions in relation to the offences charged in the third trial

Orders

Proceedings 2021/69608, 2021/69609, 2021/69610, 2021/69611, 2021/69612, and 2021/69613 (the first trial)

Proceedings 2021/69629 and 2021/69633 (the second trial)

Proceedings 2021/69585, 2021/69586, 2021/69587, 2021/69588, 2021/69598, 2021/69599, 2021/69600, 2021/69601 (the third trial)

JUDGMENT

Introduction

1. This judgment concerns three contested criminal trials brought by the Department of Planning, Industry and Environment (DPIE, the prosecutor) which were heard consecutively between 18 April and 21 May 2025, with closing submissions in all three trials on 11 August 2025, namely:

2. Secretary, Department of Planning, Industry and Environment v Balmoral Farms Pty Ltd (defendant in proceedings 2021/69608 to 2021/69613), heard between 28 April and 2 May 2025 (the first trial);

3. Secretary, Department of Planning, Industry and Environment v JP & LR Harris Pty Lt**d (defendant in proceedings 2021/69629) and Secretary, Department of Planning, Industry and Environment v Woolondoon Pty Ltd (defendant in proceedings 2021/69633), heard between 12 and 14, and 19 and 20 May 2025 (the second trial); and

4. Secretary, Department of Planning, Industry and Environment v Phillip John Harris (defendant in proceedings 2021/69585 to 2021/69588) and Secretary, Department of Planning, Industry and Environment v Sue Ellen Harris (defendant in proceedings 2021/69598 to 2021/69601), heard on 21 May 2025 (the third trial).

5. Throughout this judgment I refer to the defendant in the first trial, Balmoral Farms Pty Ltd, as Balmoral Farms, the defendants in the second trial, JP & LR Harris Pty Ltd and Woolondoon Pty Ltd, as JP & LR Harris and Woolondoon Pty Ltd respectively, and the defendants in the third trial, Phillip John Harris and Sue Ellen Harris, as Phillip Harris and Sue Harris. Each of the trials concerned different defendants, different properties, different charge periods and different charges. However, there was significant overlap in events, personae, and the documents and lay and expert evidence relied upon by the prosecutor in each of the trials.

A single judgment

3. At the conclusion of the third trial, all three proceedings were reserved in order for the parties to file and serve written closing submissions. The three proceedings were listed on 11 August 2025 for closing oral submissions. On that occasion, the parties agreed that it would be sensible for all three matters to be determined in one judgment, albeit separately, given the considerable overlap in events, personae, documents and lay and expert evidence, and notwithstanding objections pressed by the defendants in the different trials to the admissibility of certain evidence sought to be relied on by the prosecutor in two or more of the trials. It will be necessary to deal with those objections shortly. As Mr Ireland who appeared with Mr Connolly for the defendants in all three trials put it, to deal with the three proceedings in a single judgment would make “[t]he story coherent”.

4. This judgment commences with an introduction to each of the trials, including the background facts relevant to each and an overview of the prosecution case and the defence case, and then sets out the relevant statutory provisions and the elements of each offence charged. I set out my rulings in relation to the defendants’ objections to the evidence sought to be relied upon in each trial, and next consider the charges in each proceeding, commencing with the first trial, including a consideration of whether the prosecutor has established, beyond reasonable doubt, the elements of each of the offences charged. I last make findings as to whether the defendants have established a defence to any of the offences charged.

Introduction to the first trial

5. In the first trial, the defendant was Balmoral Farms, the sole director of which at all relevant times was Mark Harris. Balmoral Farms was the registered proprietor of two non-contiguous properties in far northeast New South Wales in the Walgett local government area, Corombie, located at 2461 Rowena Road, Rowena (Corombie), and Balmoral, located at 29310 Kamilaroi Highway, Burren Junction (Balmoral). Mark Harris purchased Balmoral on 27 May 2014 and Corombie on 10 April 2015.

6. Corombie consists of a number of parcels of land, including the following lots of relevance in relation to the charges heard in the first trial: Lot 4 in DP 752245, Lot 6 in DP 752247, Lot 25 in DP 752247, and Lot 9 in DP 752254. Balmoral consists of a number of parcels of land, including the following lots of relevance in relation to the charges heard in the first trial: Lot 12 in DP 753926 and Lot 16 in DP 753926. An aerial image depicting the boundaries of the two properties is reproduced below:

7. The charged conduct is alleged to have taken place between about 3 August 2014 and about 31 December 2017 for alleged clearing of native vegetation contrary to s 12 of the now repealed Native Vegetation Act 2003 (NSW) (NV Act) and s 60N of the Local La**nd Services Act 2013 (NSW) (LLS Act). The total area alleged to have been cleared on Corombie and Balmoral is 508.8ha and 170.8ha respectively.

8. In charge 1 (2021/69608), the prosecutor alleges that from about 14 May 2015 to 5 October 2015, Balmoral Farms cleared native vegetation on Corombie, in particular on Lot 6 in DP 752247 contrary to s 12 of the NV Act. In charge 2 (2021/69609), the prosecutor alleges that from about 6 October 2015 to 13 April 2016, Balmoral Farms cleared native vegetation on Corombie on Lots 6 and 25 in DP 752247 contrary to s 12 of the NV Act. In charge 3 (2021/69610), the prosecutor alleges that from about 29 December 2016 to 31 July 2017, Balmoral Farms cleared native vegetation on Corombie, on Lot 4 in DP 752245, contrary to s 12 of the NV Act. In charge 4 (2021/69611), the prosecutor alleges that from about 25 August 2017 to 31 December 2017, Balmoral Farms cleared native vegetation on Corombie, on Lot 6 in DP 752247 and Lot 9 in DP 752254, contrary to s 60N of the LLS Act. In charge 5 (2021/69612), the prosecutor alleges that from about 3 August 2014 to 1 October 2014, Balmoral Farms cleared native vegetation on Balmoral, on Lots 12 and 16 in DP 753926, contrary to s 12 of the NV Act. In charge 6 (2021/69613), the prosecutor alleges that from about 1 July 2016 to 29 December 2016, Balmoral Farms cleared native vegetation on Balmoral, on Lot 16 in DP 753926, contrary to s 12 of the NV Act.

Background facts relevant to the first trial

9. On 18 March 2019, the Office of Environment and Heritage (OEH) received a report of unexplained clearing via the “Statewide Landcover and Tree Study” (SLATS) program which aims to map the location and extent of woody vegetation clearing across New South Wales. On 24 September 2019, the complaint was assigned to Mr Rowan Murphy, former DPIE environment officer, and an investigation began. Mr Murphy searched the Valuer General's valuation portal for the “area of interest” over which it appeared that vegetation had been cleared. The first and second properties identified were Balmoral and Corombie. Mr Murphy conducted ASIC searches which resulted in the investigation being broadened to include other properties. In February 2020, Mr Murphy used a geographic information system (GIS) to determine the areas of interest for the investigation, including Corombie and Balmoral. Mr Murphy conducted current and historical property searches to determine the landholders of each relevant lot, and determined that Balmoral Farms owned Corombie and Balmoral.

10. On 29 November 2019, Mr Murphy issued statutory notices to Balmoral Farms pursuant to s 12.19(2) of the Biodiversity Conservation Act 2016 (NSW) (BC Act) requiring it to nominate a person as its representative for the purpose of answering questions. In December 2019 and March 2020, Mr Murphy issued statutory notices to Balmoral Farms pursuant to s 12.8 of the BC Act requiring it to provide information and records in relation to the clearing of vegetation at the properties. On 12 June 2020, Mr Murphy served a statutory authority to enter premises on Balmoral Farms' solicitor, providing notice that a site inspection of several landholdings, including Corombie and Balmoral, would take place between 15 June 2020 and 6 July 2020.

11. Between 15 and 17 June 2020, Mr Murphy, accompanied by Dr Kathryn Alice Hammill Stone, an ecologist specialising in the field of native vegetation assessment, and Greg Campbell, departmental officer, attended Corombie and Balmoral for the purpose of conducting a site inspection. During each day of the site inspection, Mr Murphy made observations, plotted various photo points, and took photographs reflecting his observations. Mr Murphy’s observations and photographs are contained in his affidavit dated 22 March 2024. While the prosecutor relied on Mr Murphy’s observations and photographs by way of background, the prosecutor primarily relied on the evidence set out immediately below in relation to the elements of each charge.

Overview of the prosecution case in the first trial

12. In the first trial, the prosecutor relied, in particular, on the evidence of Mr Leo Watts, a surveyor specialising in the field of aerial surveying, and Dr Hammill, who had accompanied Mr Murphy during the inspection of the Corombie and Balmoral between 15 and 17 June 2020, as well as evidentiary certificates issued pursuant to s 60F(5) of the LLS Act, s 50 of the NV Act and s 13.31(2)(a) of the BC Act.

The evidence of Mr Watts

13. In 2020, Mr Watts was instructed to provide expert opinion on vegetation clearing on the properties the subject of the three trials as part of a broader investigation. On 4 March 2021, Mr Watts produced a report in which he opined on the time periods, location and extent of vegetation clearing across a number of properties, including Balmoral and Corombie (the Watts 202****1 report).

14. In December 2023, Mr Watts was instructed to supplement his 2021 report with further information about his qualifications, experience and methodology. He was subsequently requested to separate his opinions and present them in three reports. Mr Watts produced three separate reports in March 2024, including one referable to the first trial titled “Updated Expert Report on the Interpretation of Aerial Imagery over the ‘Corombie’ and ‘Balmoral’ Landholdings located at Rowena and Burren Junction, NSW from 31 December to 1 March 2020” dated 21 March 2024 (the Watts 2024 report (Trial 1)). The prosecutor was granted leave to rely on this supplementary report following a decision of the Court of Criminal Appeal. [1]

15. In the Watts 2024 report (Trial 1), Mr Watts analysed aerial and satellite imagery spanning a period from 1978 to 2020 for changes in vegetation on the properties, Corombie and Balmoral. Mr Watts used the GIS, Global Mapper, to ensure that all the spatial datasets would import consistently within a common earth co-ordinate system. He checked and confirmed the extents and contents of the cadastral boundary and Property ID shapefiles. He identified forty dates of aerial photography and satellite imagery captured over the area of interest from 1978 to 2020 and accessed these through DPIE, the Joint Remote Sensing Research Program Data Access Portal (the JDAP p****ortal) and Planet Explorer's Archive Library. All the images were orthorectified and georeferenced. Mr Watts explained that orthorectification is a process which makes it possible to merge imagery taken from multiple perspectives or aerial sensors into a common map coordinate system to enable an accurate comparison between imagery. He undertook his own independent checks to confirm that the dates of the images were accurate and checked the spatial accuracy of the datasets to further confirm their appropriateness and suitability for use in the analysis.

16. Mr Watts said that core attributes within an aerial image form the essential criteria of aerial imagery interpretation. He described the basis of his identification of land cover types, including trees, areas of groundcover/grass and bare earth, tracks and areas of cleared land. He did this by reference to a consideration of tone, colour, shapes, patterns and textures. He said, for example, that trees are visible having regard to their irregular shaped canopies, darker canopy tone and green colour, coarse canopy features and the indication of their vertical height profile above ground by the shadows they cast. Groundcover is typically grey/green colour, has mottled but smoother texture and irregular patterns when compared to surrounding wooded vegetation and casts no shadows. Cultivated or cleared paddocks are identified as having green and sandy colour, much finer texture than trees, groundcover and undisturbed areas, regular and evenly coloured straight lines, and large symmetrical shapes. Ploughed paddocks have lighter grey and sandy colour, fine texture, and repeated and fine straight-line patterns which are indications of manmade activity and cover large contiguous shaped areas.

| Charge | Proceeding number | Period of alleged clearing and total approximate area cleared | Act alleged to have been breached | Lot/DP number and relevant polygon numbers in Watts 2024 report (Trial 1) | | | COROMBIE | | 1 | 2021/69608 | Between 14 May 2015 and 5 October 2015: approximate total of 324.8ha | NV Act, s 12 | Lot 6 DP 752247: polygons 8 (284.6ha) and 67 (40.2ha) | | 2 | 2021/69609 | Between 6 October 2015 and 13 April 2016: approximate total of 86.3ha | NV Act, s 12 | Lots 6 and 25 DP 752247: polygons 88 (12.1ha), 91 (1.1ha), 93 (20.4ha), 94 (6.3ha), 97 (0.7ha), 98 (0.3ha), 99 (1.9ha), 102 (34.4ha), 103 (5.0ha), 104 (3.3ha) and 105 (1.1ha) | | 3 | 2021/69610 | Between 29 December 2016 and 31 July 2017: approximate total of 27.5ha | NV Act, s 12 | Lot 4 DP 752245: polygons 108 (19.9ha), 110 (6.1ha) and 111 (1.5ha) | | 4 | 2021/69611 | Between 25 August 2017 and 31 December 2017: approximate total of 70.2ha [2] | LLS Act, s 60N | Lot 9 DP 752254: polygons 1 (1.4ha), 2 (2.5ha), 3 (1.2ha), 4 (1.3ha), 5 (0.6ha), 6 (0.1ha) and 7 (0.2ha) Lot 6 DP 752247: polygons 15 (0.2ha),16 (0.5ha), 19 (0.1ha), 21 (0.25ha), 25 (0.1ha), 28 (0.2ha), 29 (0.2ha), 32 (0.08ha), 33 (0.3ha), 34 (0.7ha), 35 (0.1ha), 36 (0.4ha), 39 (0.1ha), 43 (0.2ha), 44 (0.3ha), 51 (0.3ha), 53 (0.8ha), 54 (0.1ha), 57 (0.3ha), 60 (0.05ha), 63 (1.6ha), 66 (0.2ha), 69 (0.05ha), 70 (0.04ha), 71 (0.05ha), 72 (0.05ha), 73 (0.04ha), 76 (0.08ha), 77 (0.07ha), 78 (0.08ha), 79 (4.7ha), 81 (0.07ha), 82 (0.3ha), 83 (0.05ha), 85 (0.05ha), 86 (0.04ha), 87 (0.07ha), 89 (3.8ha), 90 (9.7ha), 92 (1.1ha), 95 (35.8ha) and 96 (4.0ha) | | | BALMORAL | | 5 | 2021/69612 | Between 3 August 2014 and 1 October 2014: approximate total of 71.5ha | NV Act, s 12 | Lots 12 and 16 DP 753926: polygons 116 (39.4ha) and 122 (32.1ha) | | 6 | 2021/69613 | Between 1 July 2016 and 29 December 2016: approximate total of 3.4ha | NV Act, s 12 | Lot 16 DP 753926: polygon 124 (3.4ha) |

The evidence of Dr Hammill

20. On 3 March 2021, Dr Hammill produced a report in which she provided her opinion in relation to the vegetation in existence on the relevant land immediately before it was cleared (the Hammill 2021 report). Her report dealt with several properties, including Corombie and Balmoral. In December 2023, Dr Hammill was instructed to supplement her 2021 report with further information about her qualifications, experience and methodology. In response to instructions dated 22 December 2023, Dr Hammill produced a supplementary report dated 25 March 2024 (the Hammill 2024 report). She was not asked to separate her opinion according to the properties dealt with in each trial.

21. In her 2024 report, Dr Hammill set out her methodology, which was in all material respects the same in relation to each of the trials. During her site inspections in June 2020, she made direct observations of vegetation species and communities in patches of native vegetation still present in areas of interest, including any live or dead vegetation in cleared areas. She observed vegetation present in areas adjoining the allegedly cleared areas and inferred what species were present in the cleared areas before clearing took place having regard to the same soil and landscape conditions. Dr Hammill listed plant species in the adjacent patches of extant vegetation, collected photographs and plant samples to assist in species identification, made observations of vegetation structure, landform, soil colour and texture and other relevant site features, measured the diameter at breast height of certain trees, and noted tree hollows and general canopy health. An example of the observations and photographs recorded in the Hammill 2024 report relevant to Corombie is reproduced below:

22. Dr Hammill based her identification of plant species on her ecological experience and botanical knowledge, and by reference to published field guides and databases she identified plants according to plant genus and species, where possible, on the basis of morphological traits and the classification of the Australian National Herbarium (the National Herbarium). She identified species status as “native” or “introduced (non-native)” by reference to the databases of the National Herbarium and the “New South Wales Flora Online”, maintained by the Royal Botanic Gardens and Domain Trust (PlantNet) which provides indicative distribution maps for each species in NSW. All of the native species identified by Dr Hammill were from the Darling Riverine Plains bioregion where the properties the subject of the three trials are located.

23. Dr Hammill also based her opinion on a review of a vegetation map published by the NSW Government, titled “The State Vegetation Type Map: Border Rivers Gwydir/ Namoi Region Version 2.0” (2015), and the associated technical report of the NSW Office of Environment and Heritage, titled “Border Rivers Gwydir/Namoi Regional Native Vegetation Mapping: Technical Notes (Version 1.5)” dated 30 January 2015 (together, ). The OEH (2015) vegetation mapping identified the type and extent of vegetation communities across the Border Rivers, Gwydir and Namoi rivers region of northwestern NSW. It was produced using vegetation datasets, aerial and satellite imagery and environmental layers such as for soil, geology and terrain. Dr Hammill used the OEH (2015) vegetation mapping as context for her own assessment of the vegetation communities present on the land. She explained that her observations and conclusions were consistent with the OEH (2015) vegetation mapping which identified the same native woodland communities in a “mosaic” prior to 2015.

The State Vegetation Type Map: Border Rivers Gwydir / Namoi Region Version 2.0

24. Dr Hammill cross-referenced her site observations with the vegetation patterns visible in two georeferenced satellite images provided by DPIE dated from 2009-2010 (the 2009-2010 satellite image) and March 2020 (the M****arch 2020 image). She opined that she could discern in the 2009-2010 image the presence of eucalyptus trees and groundcover vegetation, and the lack of this vegetation in the 2020 image which she verified on site as a cleared area. In figure 11-10 of the Hammill 2024 report (relevant to Corombie), Dr Hammill provided the following example of the detail of vegetation and tree cover present in the 2009-2010 image and the March 2020 image where “trees are absent”:

25. Between 15 and 17 June 2020, Dr Hammill attended Corombie and Balmoral, accompanied by Mr Murphy and Greg Campbell, and undertook pedestrian traversals at various sites where there had been alleged clearing. In relation to Balmoral, she visited one site on 15 June 2020, plotted on an image in figure 16-1 of her 2024 report. In relation to Corombie, Dr Hammill visited eight sites at four locations on 17 June 2020. The locations she visited are plotted on an image in figure 16-6 of her 2024 report. At each site, she plotted her location using GPS. During cross-examination, Dr Hammill said that the legend in figures 16-1 and 16-6 should be amended from “Pedestrian track of Dr Hammill (in June 2020)” to “Site assessment track …” as, although some of her track was pedestrian, “quite a lot” of it was “actually in the vehicle”:

Figure 16-1 of the Hammill 2024 report depicting the track of Dr Hammill at Balmoral in June 2020

**Figure 16-**6 of the Hammill 2024 report depicting the track of Dr Hammill at Corombie in June 2020

26. The numbering of the polygons in Dr Hammill’s 2024 report is different from the numbering ultimately adopted by Mr Watts in his 2024 report (Trial 1). Dr Hammill was provided with an extract from a draft of Mr Watts’ report of 4 March 2021 which she annexed to her report. Dr Hammill referred to an earlier numbering system that was later changed by Mr Watts. In relation to the first trial, the corresponding polygons between the Watts 2024 report (Trial 1) and the Hammill 2024 report are as follows:

| Polygon number in the Watts 2024 report (Trial 1) | Equivalent polygon number in the Hammill 2024 report | | All charge 1 polygons | No difference | | Charge 2 polygons | 88 | No difference | | 91 | No difference | | 93 | No difference | | 94 | No difference | | 97 | 103 | | 98 | 104 | | 99 | 105 | | 102 | 101 | | 103 | 98 | | 104 | 100 | | 105 | 102 | | All charge 3 polygons | No difference | | All charge 4 polygons | No difference | | Charge 5 polygons | 116 | 264 | | 122 | 270 | | Charge 6 polygon | 124 | 271 |

27. Unless otherwise stated, when I am referring to a polygon number in relation to the first trial, I am referring to the polygon number as it appears in the Watts 2024 report (Trial 1), not the Hammill 2024 report.

28. Dr Hammill said that at Balmoral, plant community types (PCTs) 39, 40 and 49 were affected by clearing. PCT 39 is defined in the OEH (2015) vegetation mapping as Coolabah – River Coobah – Lignum woodland wetland of frequently flooded floodplains mainly in the Darling Riverine Plains Bioregion. PCT 40 is defined as Coolabah open woodland wetland with chenopod/grassy ground cover on grey and brown clay floodplains. PCT 49 is defined as Partly derived Windmill Grass – copperburr alluvial plains shrubbery grassland of the Darling Riverine Plains Bioregion and Brigalow Belt South Bioregion. At Balmoral, Dr Hammill observed evidence of clearing, including herbicide poisoning around the edges of remnant trees, charred woody material, and woody branch fragments in cultivated paddocks.

29. At Corombie, Dr Hammill said that PCTs 27 and 40 were affected by clearing. PCT 27 is defined in the OEH (2015) vegetation mapping as Weeping Myall open woodland of the Darling Riverine Plains Bioregion and Brigalow Belt South Bioregion.

The s 60F(5) certificate

30. In the first and second trials, the prosecutor sought to rely on an evidentiary certificate issued pursuant to s 60F(5) of the LLS Act by Jeremy Black, director remote sensing and landscape science as delegate of the Environmental Agency Head on 12 October 2020, certifying that the land described in the certificate is category 2-regulated land (**the s 60****F(**5) certificate). The certificate was admitted over objection: Secretary, Department of Planning, Industry and Environment v Balmoral Farms Pty Ltd [3] (Balmoral Farms certificate decision). The offence in s 60N of the LLS Act (the offence the subject of charge 4 in the first trial) requires that the clearing be “in a regulated rural area”. Section 60D defines a “regulated rural area” as any area of the State to which Part 5A of the LLS Act applies that is "category 2-regulated land". The certificate, the validity of which was impugned by the defendants, was in the following terms:

The s 13.31(2)(a) certificate

31. In the first and second trials, the prosecutor also sought to rely on an evidentiary certificate issued pursuant to s 13.31(2)(a) of the BC Act by Sarah Carr, director – north west region, biodiversity and conservation division, Department of Climate Change, Energy, the Environment and Water (DCCEEW) as delegate of the Environmental Agency Head on 20 March 2024 (the s 13.31(2)(a) certificate). Relevantly to charge 4 in the first trial, the s 13.31(2)(a) certificate certified that:

1. From 14 May 2015 to 14 November 2019:

a. Balmoral Farms Pty Ltd (ACN 166 257 272)

was a landholder (as defined in s.1.5 of the BC Act) of the following parcels of land which comprise the property known as Corombie situated at 2461 Rowena Road, Rowena in the Walgett Shire Council:

- Lot 6 in DP 752247; and

- Lot 9 in DP 752254.

The s 50 certificate

32. In the first and third trials, the prosecutor also sought to rely on an evidentiary certificate issued pursuant to s 50 of the NV Act by Sarah Carr, director – north west region, biodiversity and conservation division, DCCEEW as delegate of the Secretary of DCCEEW on 20 March 2024 (the s 50 certificate). Relevant to charges 1 to 3, 5 and 6 in the first trial, the s 50 certificate certified that:

6. [From] 25 July 2014 to 14 November 2019:

a. Balmoral Farms Pty Ltd (ACN 166 257 272)

was a landholder (as defined in s.4 of the NV Act) of the following parcels of land which comprise the property known as Balmoral situated at 29310 Kamilaroi Highway, Burren Junction in the Walgett Shire Council:

- Lot 12 and 16 in DP 753926

7. From 14 May 2015 to 14 November 2019:

a. Balmoral Farms Pty Ltd (ACN 166 257 272)

was a landholder (as defined in s.4 of the NV Act) of the following parcels of land which comprise the property known as Corombie situated at 2461 Rowena Road, Rowena in the Walgett Shire Council:

- Lots 6 and 25 in DP 752247; and

- Lot 4 in DP 752245.

Overview of the defence case in the first trial

33. In the first trial, the defendant sought to challenge the evidence of the prosecution witnesses Mr Watts and Dr Hammill, the prosecutor’s reliance on the evidentiary (or “deeming”) provisions in s 44 of the NV Act and s 13.29 of the BC Act, and the s 60F(5) certificate certifying that the land described in the certificate is category 2-regulated land. In relation to the evidentiary provisions in s 44 of the NV Act and s 13.29 of the BC Act, the defendant contended that each section is only available where the prosecutor proves beyond reasonable doubt in what manner the alleged “clearing” has taken place in the case of the NV Act, or “the activity constituting the alleged offence or contravention” in the case of the BC Act as it applies to the LLS Act offence. In relation to the s 60F(5) certificate which was successfully tendered by the prosecutor over the defendant’s objection, and which included maps of the two properties, the defendant contended that although the certificate was received by the Court into evidence, the question remained as to whether, considering other evidence which emerged at the trial, the areas shown in the maps tendered as part of the certificate had been established as areas in which clearing activities were prohibited.

Introduction to the second trial

34. In the second trial, the defendants were JP & LR Harris and Woolondoon Pty Ltd. JP & LR Harris was the registered proprietor of the property known as “Curly Whirl” located at 1 Merrywinebone Road, Rowena in far northeast New South Wales in the Walgett local government area (Curly Whirl). Curly Whirl comprised Lot 15 in DP 753953. Mr John Paul Harris and Ms Lauren Renee Harris were directors of JP & LR Harris, having been appointed as directors on 16 August 2013. Woolondoon Pty Ltd was the registered proprietor of the property known as “Woolondoon” located at 788 Rowena Road, Rowena (Woolondoon). Woolondoon comprised Lot 30 in DP 753953. Mr John Paul Harris and Ms Lauren Renee Harris were directors of Woolondoon Pty Ltd, having been appointed as directors on 26 June 2018. Together, Curly Whirl and Woolondoon formed part of the property known as “Glenidyle” owned by persons and corporate entitles in the family of Phillip Harris and Sue Harris (Glenidyle). An aerial image depicting the boundaries of the two properties is reproduced below (Curly Whirl to the east, Woolondoon to the west):

35. In the second trial, the charged conduct was alleged to have taken place from about 1 December 2017 to 16 January 2019 for alleged clearing of native vegetation contrary to s 60N of the LLS Act, with the total area alleged to have been cleared 283.1ha on Curly Whirl and 107.6ha on Woolondoon. The proceedings concerned two charges brought under the LLS Act, one charge relating to Curly Whirl and the second charge relating to Woolondoon. In charge 1 (2021/69629), the prosecutor alleged that from about 1 December 2017 to 31 July 2018, JP & LR Harris cleared native vegetation on Curly Whirl, in particular on Lot 15 in DP 753953 contrary to s 60N of the LLS Act. In charge 2 (2021/69633), the prosecutor alleged that from about 1 December 2018 to 16 January 2019, Woolondoon Pty Ltd cleared native vegetation on Woolondoon, on Lot 30 DP 753953, contrary to s 60N of the LLS Act.

Background facts relevant to the second trial

36. As set out above in relation to the first trial, on 18 March 2019, the OEH received a report of unexplained clearing via the SLATS program which was assigned to Mr Murphy for investigation on 24 September 2019. In February 2020, Mr Murphy used a GIS system to determine the areas of interest for the investigation, including Curly Whirl and Woolondoon. Mr Murphy conducted current and historical property searches which determined that JP & LR Harris owned Curly Whirl, and Woolondoon Pty Ltd owned Woolondoon.

37. In March 2020, Mr Murphy issued statutory notices pursuant to s 12.8 of the BC Act requiring JP & LR Harris and Woolondoon Pty Ltd to provide information and records, and further notices under s.12.19 of the BC Act requiring JP & LR Harris and Woolondoon Pty Ltd to nominate a representative for the purpose of answering questions. On 12 June 2020, Mr Murphy served a statutory authority to enter premises on the defendants' solicitor, providing notice that a site inspection of several landholdings, including Curly Whirl and Woolondoon, would take place between 15 June 2020 and 6 July 2020.

38. Between 15 and 17 June 2020, Mr Murphy, accompanied by Dr Hammill and Greg Campbell, departmental officer, attended Curly Whirl and Woolondoon for the purpose of conducting a site inspection. During each day of the site inspection, Mr Murphy made observations, plotted various photo points, and took photographs reflecting his observations. Mr Murphy’s observations and photographs are contained in his affidavit dated 22 March 2024. While the prosecutor relied on Mr Murphy’s observations and photographs by way of background, the prosecutor primarily relied on the evidence set out immediately below in relation to the elements of each charge.

Overview of the prosecution case in the second trial

39. In the second trial, the prosecutor relied, in particular, on the evidence of Mr Leo Watts and Dr Kathryn Hammill, as well as on the s 60F(5) certificate and the s 13.31(2)(a) certificate relied on in the first trial.

The evidence of Mr Watts

40. Mr Watts produced a report referable to the second trial titled “Updated Expert Report on the Interpretation of Aerial Imagery over the ‘Curly Whirl’ and ‘Woolondoon’ Landholdings located at Rowena, NSW from 31 December to 1 March 2020” dated 21 March 2024 (the Watts 2024 report (Trial 2)). The methodology of Mr Watts in his 2024 report (Trial 1) set out above at [15] to [18] was in all material respects the same as his methodology in his 2024 report (Trial 2).

41. In the Watts 2024 report (Trial 2), Mr Watts identified the following areas of clearing in relation to each charge:

| Charge | Proceeding number | Period of alleged clearing and total approximate area cleared | Act alleged to have been breached | Lot/DP number and relevant polygon numbers in Watts 2024 report (Trial 1) | | | CURLY WHIRL | | 1 | 2021/69629 | Between 1 December 2017 and 31 July 2018: approximate total of 170.2ha [4] | LLS Act, s 60N(1) | Lot 15 DP 753953: polygons 69 (83.1ha), 70 (126.5ha) and 71 (73.5ha) | | | WOOLONDOON | | 2 | 2021/69633 | Between 1 December 2018 and 16 January 2019: approximate total of 194.3ha | LLS Act, s 60N(1) | Lot 30 DP 753953: polygons 1 (62.8ha), 20 (44.8ha), and 9 (86.7ha) |

The evidence of Dr Hammill

42. The Hammill report 2024 sets out Dr Hammill’s findings in relation to Curly Whirl and Woolondoon. The methodology of Dr Hammill in her 2024 report set out above at [21] to [24] in relation to the first trial was in all material respects the same in relation to the second trial.

43. As set out above in relation to the first trial, Dr Hammill referred to an earlier numbering system that was later changed by Mr Watts. In relation to the second trial, the corresponding polygons between the Watts 2024 report (Trial 2) and the Hammill 2024 report are as follows:

| Polygon number in the Watts 2024 report (Trial 2) | Equivalent polygon number in the Hammill 2024 report | | Charge 1 polygons | 69 | 252 | | 70 | 253 | | 71 | 254 | | Charge 2 polygons | 1 | 168 | | 9 | 176 | | 20 | 187 |

44. Unless otherwise stated, when I am referring to a polygon number in relation to the second trial, I am referring to the polygon number as it appears in the Watts 2024 report (Trial 2), not the Hammill 2024 report.

45. During her visit to Curly Whirl on 16 June 2020, Dr Hammill attended sites she called sites 2 to 7. Sites 2, 6 and 7 were located in and adjacent to polygon 71. Sites 3, 4 and 5 were located in and adjacent to polygon 69. The two polygons Dr Hammill visited on 16 June 2020 were separated by polygon 70, and all three polygons were within Lot 15 in DP 753953. Dr Hammill produced images of the sites and a plot of her route captured by GPS during the inspection on 16 June 2020 in figure 16-2. Figure 16-2 is reproduced below:

Figure 16-2 of the Hammill 2024 report depicting the track of Dr Hammill at Curly Whirl in June 2020

46. Dr Hammill’s opinion was that the PCTs at the time of the clearing of vegetation in Curly Whirl were mainly PCT 40, with smaller areas of PCT 87 and PCT 27. PCT 87 is defined in the OEH (2015) vegetation mapping as Poplar Box – Coolabah floodplain woodland on light clay soil mainly in Darling Riverine Plains Bioregion.

47. During her visit to Woolondoon on 17 June 2020, Dr Hammill attended four sites which she called sites 9 to 12. Sites 9 and 10 were located between and adjacent to polygons 1 and 20. Sites 11 and 12 were located near polygon 9 and slightly north of polygon 20. Dr Hammill produced images of the sites and a plot of her route captured by GPS during her inspection in figure 16-4. Figure 16-4 is reproduced below:

Figure 16-4 of the Hammill 2024 report depicting the track of Dr Hammill at Woolondoon in June 2020

48. Dr Hammill’s opinion was that the PCTs at the time of the clearing of vegetation on Woolondoon were predominantly PCT 40.

The s 60F(5) certificate

49. As set out above in relation to the first trial, in the second trial the prosecutor sought to rely on the s 60F(5) certificate issued by Jeremy Black as delegate of the Environmental Agency Head certifying that the land described in the certificate is category 2-regulated land. The terms of the certificate are reproduced above at [30].

The s 13.31(2)(a) certificate

50. As set out above in relation to the first trial, in the second trial the prosecutor also sought to rely on the s 13.31(2)(a) certificate issued by Sarah Carr as delegate of the Environmental Agency Head. Relevantly to the second trial, the s 13.31(2)(a) certificate certified that:

2. From 27 September 2017 to 18 February 2021:

a. JP & LR Harris Pty Ltd (ACN 165 341 533)

was a landholder (as defined in s.1.5 of the BC Act) of the following parcels of land which comprise the property known as Curly Whirl situated at 1 Merrywinebone [Road], Rowena in the Walgett Shire Council:

- Lot 15 in DP 753953.

3. From 17 October 2018 to 18 February 2021:

a. Woolondoon Pty Ltd (ACN 627 094 268)

was a landholder (as defined in s.1.5 of the BC Act) of the following parcels of land which comprise the property known as Woolondoon situated at 788 Rowena Road, Rowena in the Walgett Shire Council:

- Lot 30 in DP 753953

Overview of the defence case in the second trial

51. In the second trial, as in the first trial, the defendants sought to challenge the evidence of the prosecution witnesses Mr Watts and Dr Hammill, the prosecutor’s reliance on the evidentiary (or “deeming”) provision in s 13.29 of the BC Act, and the s 60F(5) evidentiary certificate sought to be relied on by the prosecutor. In relation to charge 2, the defendants sought to challenge the prosecutor’s evidence in relation to the ownership of Woolondoon and contended that the prosecutor had not proved beyond reasonable doubt that Woolondoon Pty Ltd was the landowner during the charge period from about 1 December 2018 to 16 January 2019, or that the clearing occurred during the charge period.

Introduction to the third trial

52. In the third trial, the defendants were Phillip Harris and Sue Harris. At the time of the alleged offences, Phillip Harris and Sue Harris were the registered proprietors of the following four properties:

53. “North Marlow” located at 1041 Rowena Road, Rowena, consisting of a number of parcels of land including of relevance to the charges the subject of the third trial, Lots 9 and 10 in DP 752245 (North Marlow). Phillip Harris and Sue Harris were the registered proprietors as tenants in common of Lot 9 in DP 752245 between about 15 April 1988 and about 18 February 2021, and the registered proprietors of Lot 10 in DP 752245 between about 25 January 2002 and about 18 February 2021.

54. “Glenidyle” located on Rowena Road, Rowena, consisting of a number of parcels of land, including of relevance to the charges the subject of the third trial, Lot 23 in DP 753953 (Glenidyle). Phillip Harris and Sue Harris were the registered proprietors as tenants in common of Lot 23 in DP 753953 between about 1 May 2001 and about 18 February 2021.

55. “Waverley South” located on Rowena Road, Rowena, comprising Lots 9, 10 and 24 in DP 752247 (Waverley South). Phillip Harris and Sue Harris were the registered proprietors as joint tenants between about 13 June 2007 and about 18 February 2021.

56. “Wondahree” located at 2901 Old Burren Road, Burren Junction, consisting of a number of parcels of land, including of relevance to the charges the subject of the third trial Lot 2 in DP 753914 (Wondahree). Phillip Harris and Sue Harris were the registered proprietors as tenants in common of Lot 2 in DP 753914 between about 1 March 1989 and about 18 February 2021.

57. An aerial image depicting the boundaries of the four properties is reproduced below, showing Waverley South with a white border, North Marlow with a red border, Glenidyle with a purple border, and Wondahree with a yellow border:

58. The charged conduct is alleged to have taken place from about 25 October 2012 to 16 August 2017 for alleged clearing of native vegetation contrary to s 12 of the now repealed NV Act. The total area cleared of native vegetation as defined in the NV Act is alleged to have been about 39.6ha on North Marlow, about 8.8ha on Wondahree, about 45.2ha on Glenidyle, and about 66.6ha on Waverley South.

59. In charges 1 (2021/69585) and 2 (2021/69598), the prosecutor alleges that from about 25 October 2012 to 30 December 2013, Phillip Harris and Sue Harris respectively cleared native vegetation from North Marlow, on Lots 9 and 10 in DP 752245, contrary to s 12 of the NV Act. In charges 3 (2021/69588) and 4 (2021/69601), the prosecutor alleges that from about 1 October 2014 to 6 October 2015, Phillip Harris and Sue Harris respectively cleared native vegetation from Glenidyle, on Lot 23 in DP 753953, contrary to s 12 of the NV Act. In charges 5 (2021/69586) and 6 (2021/69599), the prosecutor alleges that from about 29 December 2016 to 28 February 2017, Phillip Harris and Sue Harris cleared native vegetation from Waverley South, on Lots 9, 10 and 24 in DP 752247, contrary to s 12 of the NV Act. In charges 7 (2021/69587) and 8 (2021/69600), the prosecutor alleges that from about 29 July 2017 to 16 August 2017, Phillip Harris and Sue Harris respectively cleared native vegetation from Wondahree, on Lot 2 in DP 753914, contrary to s 12 of the NV Act.

Background facts relevant to the third trial

56. As set out above in relation to the first and second trials, on 18 March 2019, the OEH received a report of unexplained clearing via the SLATS program which was assigned to Mr Murphy for investigation on 24 September 2019. In February 2020, Mr Murphy used a GIS system to determine the areas of interest for the investigation, including North Marlow, Waverley South, Wondahree and Glenidyle. Mr Murphy conducted current and historical property searches to determine the landholders of each relevant lot. He determined that Phillip Harris and Sue Harris owned the four properties.

57. On 10 March 2020, Mr Murphy issued a statutory notice to Phillip Harris and Sue Harris pursuant to s 12.8 of the BC Act requiring them to provide information and records relating to North Marlow and Glenidyle (also referred to as Rowena Road, Rowena). The notice contained a warning in accordance with s 12.23 of the BC Act that as natural persons, Phillip Harris and Sue Harris might object to providing information and if they did so the information would not be admissible against them in criminal proceedings. By letter dated 10 July 2020, Phillip Harris and Sue Harris responded through their solicitor to the notice without objection. They admitted to clearing "generally regrowth" by bulldozer and stick rake (relevant to Glenidyle). On 12 June 2020, Mr Murphy served on the solicitor for Phillip Harris and Sue Harris a statutory authority to enter premises, providing notice that a site inspection of several landholdings would take place between 15 June 2020 and 6 July 2020.

58. On 16 June 2020, Mr Murphy, accompanied by Dr Hammill, Greg Campbell, departmental officer, and John Harris, attended Glenidyle. On 17 June 2020, Mr Murphy, accompanied by Dr Hammill and Mr Campbell, attended North Marlow. On each day Mr Murphy made observations, plotted various photo points and took photographs reflecting his observations. Mr Murphy's observations and photographs are contained in his affidavit dated 22 March 2024. While the prosecutor relied on Mr Murphy’s observations and photographs by way of background, the prosecutor primarily relied on the evidence set out immediately below in relation to the elements of each charge in the third trial.

Overview of the prosecution case in the third trial

59. In the third trial, the prosecutor relied, in particular, on the evidence of Mr Leo Watts and Dr Kathryn Hammill, as well as on the s 50 certificate relied on in the first trial.

The evidence of Mr Watts

60. Mr Watts produced a report referable to the third trial titled “Updated Expert Report on the Interpretation of Aerial Imagery over the ‘Waverley South, ‘North Marlow’, ‘Glenidyle’ and ‘Wondahree’ Landholdings located at Rowena and Burren Junction, NSW from 31 December to 1 March 2020” dated 21 March 2024 (the Watts 2024 report (Trial 3**)**). The methodology of Mr Watts in his 2024 report (Trial 1) set out above at [15] to [18] was in all material respects the same as his methodology in his 2024 report (Trial 3).

61. In the Watts 2024 report (Trial 3), Mr Watts identified the following areas of clearing in relation to each charge:

| Charges | Proceeding numbers | Period of alleged clearing and total approximate area cleared | Act alleged to have been breached | Lot/DP number and relevant polygon numbers in Watts 2024 report (Trial 1) | | | NORTH MARLOW | | 1 and 2 | 2021/69585 (Phillip Harris) 2021/69598 (Sue Harris) | Between 25 October 2012 and 30 December 2013: approximate total of 39.6ha | NV Act, s 12 | Lot 9 DP 752245: polygon 43 (32ha) Lot 10 DP 752245: polygon 42 (7.6ha) | | | GLENIDYLE | | 3 and 4 | 2021/69588 (Phillip Harris) 2021/69601 (Sue Harris) | Between 1 October 2014 and 6 October 2015: approximate total of 45.2ha | NV Act, s 12 | Lot 23 DP 753953: polygon 44 (45.2ha) | | | WAVERLEY SOUTH | | 5 and 6 | 2021/69586 **(**Phillip Harris) 2021/69599 (Sue Harris) | Between 29 December 2016 and 28 February 2017: approximate total of 7ha [5] | NV Act, s 12 | Lot 9 DP 752247: polygons 1, 2, 3, 4, 5, and 6 Lot 10 DP 752247: polygons 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 Lot 24 DP 752247: polygons 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 and 41 | | | WONDAHREE | | 7 and 8 | 2021/69587 (Phillip Harris) 2021/69600 (Sue Harris) | Between 29 July 2017 and 16 August 2017: approximate total of 8.82ha | NV Act, s 12 | Lot 2 DP 753914: polygons 45 (0.3ha), 46 (0.07ha), 47 (0.08ha), 48 (0.07ha), 49 (7.9ha), 50 (0.4ha) |

The evidence of Dr Hammill

62. As set out in the Hammill report 2024, Dr Hammill visited North Marlow and Glenidyle on 17 June 2020. While she was unable to physically attend a site at Waverley South and Wondahree, she relied on observations from nearby sites in relation to other properties. As set out above in relation to the first and second trials, Dr Hammill referred to an earlier numbering system that was later changed by Mr Watts. In relation to the third trial, the corresponding polygons between the Watts 2024 report (Trial 3) and the Hammill 2024 report are as follows:

| Polygon number in the Watts 2024 report (Trial 2) | Equivalent polygon number in the Hammill 2024 report | | Charge 1 and 2 polygons | 42 | 154 | | 43 | 155 | | Charge 3 and 4 polygon | 44 | 156 | | Charge 5 and 6 polygons | 1 to 41 | 113 to 153 | | Charge 7 and 8 polygons | 45 | 255 | | 46 | 257 | | 47 | 258 | | 48 | 259 | | 49 | 260 | | 50 | 261 |

63. Unless otherwise stated, when I am referring to a polygon number in relation to the third trial, I am referring to the polygon number as it appears in the Watts 2024 report (Trial 3), not the Hammill 2024 report.

64. During her visit to North Marlow, Dr Hammill attended a location she called site 13 which was located adjacent to polygons 42 and 43. She produced images of the sites and plotted her pedestrian route captured by GPS during the inspection, as shown in figure 16-5:

Figure 16-5 of the Hammill 2024 report depicting the track of Dr Hammill at North Marlow in June 2020

65. Dr Hammill assessed extant native vegetation adjacent to polygons 42 and 43 as a “reference site” for the vegetation that was cleared in the polygons. She concluded that PCT 27 (Weeping Myall open woodland of the Darling Riverine Plains Bioregion and Brigalow Belt South Bioregion) existed in the area of alleged clearing before it was cleared.

66. During her visit to Glenidyle (also known as “Rowena Road”) on 17 June 2020, Dr Hammill attended a location she called site 8. Site 8 was within polygon 44. Again, she plotted her pedestrian routes, as shown in figure 16-3:

Figure 16-3 of the Hammill 2024 report depicting the track of Dr Hammill at Glenidyle (“Rowena Road”) in June 2020

67. On 17 June 2020 at Glenidyle, Dr Hammill observed scattered native trees (including Acacia pendula and Alectryon oleifolius) over patches of native groundcover which allowed her to conclude that the native vegetation immediately before clearing would have been an open to sparse low woodland mosaic of native shrubby-grassland and woodland, including PCT 27.

68. Dr Hammill was unable to physically attend Waverley South and so relied on observations from the adjacent Corombie property and patterns in the satellite imagery. She drove through Waverley South (see figure 16-6 at [25] above which records her route in an orange line). Dr Hammill opined that the native species forming part of PCT 40 were cleared at Waverley South. In relation to Wondahree, Dr Hammill opined that PCT 39 and PCT 40 would have been affected, relying on observations she made at nearby sites on Woolondoon, as well as visible patterns on satellite imagery. Dr Hammill drove close to the relevant polygons at Wondahree, as shown in figure 16-7:

The s 50 certificate

69. As set out above in relation to the first trial, in the third trial the prosecutor also sought to rely on the s 50 certificate issued by Sarah Carr as delegate of the Secretary of DCCEEW. Relevantly to the third trial, the s 50 certificate certified that:

From 15 April 1988 to 18 February 2021:

a. Phillip John Harris, and

b. Sue Ellen Harris

were each a landholder (as defined in s.4 of the NV Act) of the following parcels of land which comprise the property known as North Marlow situated at 1041 Rowena Road, Rowena in the Walgett Shire Council:

- Lot 9 in DP 752245

2. From 1 March 1989 to 18 February 2021:

a. Phillip John Harris; and

b. Sue Ellen Harris

were each a landholder (as defined in s.4 of the NV Act) of the following parcels of land which comprise the property known as Wondahree situated at 2901 Old Burren Road, Burren Junction in the Walgett Shire Council:

- Lot 2 in DP 753914

3. From 1 May 2001 to 18 February 2021:

a. Phillip John Harris; and

b. Sue Ellen Harris

were each a landholder (as defined in s.4 of the NV Act) of the following parcels of land which comprise the property known as Glenidyle situated at Rowena Road, Rowena in the Walgett Shire Council:

- Lot 23 in DP 753953

4. From 25 January 2002 to 18 February 2021:

a. Phillip John Harris, and

b. Sue Ellen Harris

were each a landholder (as defined in s.4 of the NV Act) of the following parcels of land which comprise the property known as North Marlow situated at 1041 Rowena Road, Rowena in the Walgett Shire Council:

- Lot 10 in DP 752245

5. From 13 June 2007 to 18 February 2021:

a. Phillip John Harris; and

b. Sue Ellen Harris

were each a landholder (as defined in s.4 of the NV Act) of the following parcels of land which comprise the property known as Waverley South situated at Rowena Road, Rowena in the Walgett Shire Council:

Lots 9, 10 and 24 in DP 752247.

Overview of the defence case in the third trial

70. In the third trial, as in the first and second trials, the defendants sought to challenge the evidence of the prosecution witnesses Mr Watts and Dr Hammill, and the prosecutor’s reliance on the evidentiary (or “deeming”) provision in s 44 of the NV Act.

Relevant statutory provisions in relation to the first trial

71. The NV Act was repealed with effect from 25 August 2017 by the Local Land Services Amendment Act 2016 (NSW) at which time Part 5A containing s 60N was inserted into the LLS Act. [6] However, the repeal of the NV Act with effect from 25 August 2017 did not affect any offence against that Act committed before the repeal by reason of cl 58 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW). Accordingly, in the first trial, five charges were brought against the defendant for an offence under s 12 of the NV Act, and one charge for an offence under s 60N of the LLS Act. The key statutory provisions are as follows.

Native Vegetation Act 2003 (NSW)

72. Section 12(1) of the NV Act provided at all relevant times in relation to clearing of native vegetation:

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.

73. In ss 6 and 7 of the NV Act, “clearing” and “native vegetation” were defined as follows:

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.

(3) For the purposes of this Act, native vegetation does not include any mangroves, seagrasses or any other type of marine vegetation to which section 205 of the Fisheries Management Act 1994 applies.

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.

74. Section 44 of the NV Act provided an evidentiary provision in relation to the circumstances in which the landholder of any land on which native vegetation was cleared was taken to have carried out the clearing:

44 Evidentiary provision

In any criminal or civil proceedings, the landholder of any land on which native vegetation is cleared is taken to have carried out the clearing unless it is established that:

(a) the clearing was carried out by another person, and

(b) the landholder did not cause or permit the other person to carry out the clearing.

This section does not prevent proceedings being taken against the person who actually carried out the clearing.

75. In s 4 “landholder” was defined to mean "a person who owns land or who, whether by reason of ownership or otherwise, is in lawful occupation or possession, or has lawful management or control, of land."

76. In Division 2 “Permitted clearing”, s 18 provided in relation to the application of Division 2:

18 Application

(1) This Division sets out the clearing of native vegetation that is permitted to be carried out without the authority conferred by a development consent or property vegetation plan.

(2) This Division does not permit clearing without an approval or other authority required by another Act or in contravention of another Act.

77. Section 19 provided that clearing of native vegetation that is only regrowth, but not protected regrowth, is permitted. The section was subject to any exclusion in a property vegetation plan.

78. In s 9, the term “regrowth” was relevantly defined:

9 Meanings of remnant native vegetation and regrowth

(1) For the purposes of this Act, remnant native vegetation means any native vegetation other than regrowth.

(2) For the purposes of this Act, regrowth means any native vegetation that has regrown since the earlier of the following dates:

(a) 1 January 1983 in the case of land in the Western Division and 1 January 1990 in the case of other land,

(b) the date specified in a property vegetation plan for the purposes of this definition (in exceptional circumstances being a date based on existing rotational farming practices).

…

(4) Regrowth does not include any native vegetation that has regrown following unlawful clearing of remnant native vegetation or following clearing of remnant native vegetation caused by bushfire, flood, drought or other natural cause.

79. Section 21 provided in relation to the application of Division 3 “Permitted activities”:

21 Application

(1) This Division sets out the activities that do not constitute the clearing of native vegetation for the purposes of this Part and, accordingly, are permitted to be carried out without the authority conferred by a development consent or property vegetation plan.

(2) This Division does not permit an activity without an approval or other authority required by another Act or in contravention of another Act.

80. Section 22 provided that clearing for routine agricultural management activities is permitted:

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.

81. Section 11 defined “routine agricultural management activities” as follows:

11 Meaning of routine agricultural management activities

(1) For the purposes of this Act, “routine agricultural management activities” mean any of the following activities on land carried out by or on behalf of the landholder:

(a) the construction, operation and maintenance of rural infrastructure:

(i) including (subject to the regulations) dams, permanent fences, buildings, windmills, bores, air strips (in the Western Division), stockyards, and farm roads, but

(ii) not including rural infrastructure in areas zoned as rural-residential under environmental planning instruments or on small holdings (as defined in the regulations),

…

(h) the maintenance of public utilities (such as those associated with the transmission of electricity, the supply of water, the supply of gas and electronic communication),

(i) any activity reasonably considered necessary to remove or reduce an imminent risk of serious personal injury or damage to property.

82. Clause 25(1) of the Native Vegetation Regulation 2013 (NSW) (NV Regulation) provided in relation to the meaning of “rural infrastructure” for the purposes of s 11(1) of the NV Act:

25 Meaning of “rural infrastructure”

(1) A building, structure or work on land is rural infrastructure for the purposes of section 11 (1) (a) of the Act and this Part only if the building, structure or work is used for the purposes of, or in connection with, an agricultural activity or private native forestry that is being carried out on the land.

83. Section 23 of the NV Act provided in relation to continuation of existing cultivation, grazing or rotational farming practices:

23 Continuation of existing farming activities

(1) The continuation of existing cultivation, grazing or rotational farming practices is permitted if it does not involve the clearing of:

(a) remnant native vegetation, and

(b) in the case of the Western Division—native vegetation comprising trees not less than 3 metres high of any of the following species: Eucalyptus camaldulensis (river red gum), Casuarina cristata (belah), Casuarina pauper (belah) or Callitris glaucophylla (white cypress pine).

(2) In this section, “existing” means existing at the commencement of this Act.

84. Section 24 provided that sustainable grazing that is not likely to result in the substantial long-term decline in the structure and composition of native vegetation is permitted.

85. In Division 4 “Excluded clearing”, s 25 provided that the NV Act does not apply to specified types of clearing of native vegetation including, for instance, any clearing for the purpose of a survey under the Surveying and Spatial Information Act 2002 that is undertaken by or under the direction of a surveyor, any clearing carried out in accordance with a licence, permit, authority or approval under the Water Act 1912 or the Water Management Act 2000, clearing authorised under the (then) State Emergency and Rescue Management Act 1989, clearing carried out in accordance with a bush fire management plan under the Rural Fires Act 1997, clearing authorised under a licence issued under Division 1 of Part 6 of the Threatened Species Conservation Act 1995, or clearing that is or is part of designated development within the meaning of the EPA Act and for which development consent has been granted under that Act.

86. In Part 6 “Miscellaneous provisions”, s 50 provided in relation to the admissibility of certificates signed by the Director-General certifying specified matters:

50 Evidence

A certificate signed by the Director-General certifying any one or more of the following:

(a) that a written notice, order or direction purporting to be given under this Act, and a copy of which is set out or annexed to the certificate, was given on a day specified in the certificate,

(b) that a person was, at a time or during a period specified in the certificate, a landholder,

(c) that a person was, at a time or during a period specified in the certificate, an authorised officer,

(d) that any instrument made under this Act was, at a time or during a period specified in the certificate, in force,

is admissible in any proceedings under this Act and is prima facie evidence of the matters so specified.

Local Land Services Act 2013 (NSW)

87. In the first trial, the prosecutor alleged one offence against s 60N of the LLS Act.

88. On 25 August 2017, the NV Act was repealed and s 60N was inserted (together with the whole of Part 5A) into the LLS Act. [7] At all relevant times, s 60N of the LLS Act provided in relation to the offence of unauthorised clearing of native vegetation:

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).

…

89. Like the offence against s 12 of the NV Act, an offence against s 60N of the LLS Act is a strict liability offence. [8] Any person who clears native vegetation in a "regulated rural area" is guilty of an offence unless they establish a relevant defence. [9]

90. In s 60B, “native vegetation” is relevantly defined as follows:

60****B 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.

(3) For the purposes of this Part, native vegetation extends to a plant that is dead or that is not native to New South Wales if—

(a) the plant is situated on land that is shown on the native vegetation regulatory map as category 2-vulnerable regulated land, and

(b) it would be native vegetation for the purposes of this Part if it were native to New South Wales.

…

91. In s 60C of the LLS Act, “clearing” is defined 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.

92. In relation to the requirement that the land be a “regulated rural area”, s 60D of the LLS Act defines this expression as meaning any area of the State to which Part 5A of the LLS Act applies that is “category 2-regulated land”. Section 60A provides that Part 5A applies to any area of NSW except those identified in that section. The term “category 2-regulated land” is defined in s 60D of the LLS Act as areas of the State designated as such on the "native vegetation regulatory map". Such a map was to be prepared in accordance with Division 2 of Part 5A of the LLS Act. No such map was at any relevant time finalised in these proceedings. It follows that the transitional arrangement described in s 60F applied.

93. Pursuant to s 60F(2), an area was taken to be category 2-regulated land during the transitional period if, relevantly, Part 5A requires the land to be so designated on the native vegetation regulatory map. That requirement is addressed in s 60I which set out the type of land that "is to be designated" as category 2-regulated land. This turns on the reasonable belief of the Environment Agency Head. Section 60I provides in relation to category 2-regulated land mapping:

60****I Category 2-regulated land mapping

(1) Land is to be designated as category 2-regulated land if the Environment Agency Head reasonably believes that—

(a) the land was not cleared of native vegetation as at 1 January 1990, or

(b) the land was unlawfully cleared of native vegetation after 1 January 1990.

…

94. Section 60F(5) provides relevantly that the Environment Agency Head may issue an evidentiary certificate in connection with any legal proceedings against a landholder "that the land described in the certificate is (for the reasons set out in the certificate) … category 2-regulated land”. The certificate is, in those legal proceedings, prima facie evidence of the category of the land during the transitional period.

95. Section 60Q provides in relation to the clearing of native vegetation for allowable activities:

60Q Allowable activities clearing—Schedule 5A

(1) 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.

(2) Schedule 5A does not permit clearing or any other activity—

(a) without an approval or other authority required by or under another Act or another Part of this Act (or in anticipation of the grant of any such approval or other authority), or

(b) in contravention of any provision of or made under (or in contravention of any agreement made under) another Act or another Part of this Act.

96. Clause 2 of Schedule 5A provides in relation to landholders authorised to clear native vegetation:

2 Only landholders authorised to clear

(1) Clearing of native vegetation authorised by this Schedule to be carried out on a landholding may only be carried out by or on behalf of the landholder (unless this Schedule provides to the contrary).

(2) If this Schedule authorises the clearing of native vegetation by an infrastructure owner or other person who is not the landholder, this Schedule does not authorise the entry onto land to carry out the clearing.

97. Clause 29 provides the following definition of rural infrastructure:

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.

98. Clause 7 provides that the clearing of native vegetation that is authorised by Schedule 5A for any purpose only authorises clearing to the minimum extent necessary for that purpose. Clause 13 provides that clearing of native vegetation that is reasonably necessary to remove or reduce an imminent risk of serious personal injury or damage to property is allowed. Clause 30 permits clearing for rural infrastructure in, relevantly, the Central Zone. In relation to the Central Zone, cl 29(2) provides the following definition of “rural infrastructure”:

29 Definition of “rural infrastructure”

…

(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.

99. Clause 31(b) provides that the maximum clearing distance for rural infrastructure that is authorised by the Part in the Central Zone (except on small holdings and for temporary fences) is 30 metres.

100. The LLS Act provides for distances to be measured in accordance with cl 5 of Schedule 5A:

5 Measurement of maximum distances for clearing

(1) For the purposes of this Schedule, the maximum distance of clearing of native vegetation comprises—

(a) in the case of linear infrastructure—the total width of clearing that is authorised for the infrastructure, or

(b) in the case of fixed point infrastructure—the maximum distance of clearing that is authorised measured from the perimeter of the infrastructure.

(2) For fixed point infrastructure, clearing of native vegetation is authorised for the area occupied by the infrastructure in addition to the authorised maximum distance of clearing from the perimeter of the infrastructure.

101. A small holding is defined in cl 4 as a single landholding in the same ownership that has an area of less than 40ha, in the case of land in the Western Zone, or less than 10ha in any other part of the State.

102. Section 60ZM of the LLS Act provides as follows in relation to the enforcement of Part 5A and Schedule 5A:

60ZM Enforcement under Biodiversity Conservation Act 2016

(1) The Biodiversity Conservation Act 2016 contains provisions relating to the enforcement of this Part and Schedule 5A.

Note.

The following provisions of that Act apply (to the extent specified in those provisions) to the enforcement of this Part—

(a) Part 11 (Regulatory compliance mechanisms),

(b) Part 12 (Investigation powers),

(c) Part 13 (Criminal and civil proceedings),

(d) Section 14.7A (Provisions relating to regulation or enforcement of native vegetation legislation).

(2) Accordingly—

(a) functions under Part 11 (Powers of authorised officers) are not exercisable in relation to any matter arising under this Part or Schedule 5A,

(b) proceedings for an offence against this Part or the regulations under this Part cannot be instituted under Part 12 (Enforcement provisions) and that Part does not apply to any such alleged offence.

Local Land Services Regulation 2014 (NSW)

103. At all relevant times, cl 106 of the Local Land Services Regulation 2014 (NSW) (LLS Regulation) provided that for the purposes of Pt 5A of the LLS Act, a species of plant may be conclusively presumed to be native to NSW if it is listed on “the official database”:

106 Meaning of “native vegetation”—species native to New South Wales (s 60B (2))

(1) For the purposes of Part 5A of the Act, a species of plant may be conclusively presumed to be native to New South Wales if it is listed on the official database, unless it is identified on that database as an introduced species only.

(2) In this clause—

the official database means the database of flora known as “New South Wales Flora Online”, maintained by the Royal Botanic Gardens and Domain Trust and published on the website of the Trust.

Biodiversity Conservation Act 2016 (NSW)

104. Criminal proceedings for an offence against Part 5A of the LLS Act are instituted under the BC Act, rather than the LLS Act: see s 60ZM of the LLS Act and s 13.3(1) of the BC Act. At all relevant times, s 13.3 of the BC Act provided:

13.3 Authority to take proceedings

(1) Any legal proceedings for an offence against this Act or the regulations, or for a native vegetation offence, may only be taken by a police officer, by the Environment Agency Head or by a person duly authorised by the Environment Agency Head in that behalf, either generally or in any particular case.

(2) In any proceedings referred to in this section the production of an authority purporting to be signed by the Environment Agency Head is evidence of the authority without proof of the signature of the Environment Agency Head.

(3) In subsection (1), a reference to the Environment Agency Head is, in the case of an offence against this Act or the regulations arising from the carrying out of forestry operations, taken to include a reference to the Environment Protection Authority.

105. In relation to the responsibility of a landholder for activities carried on any land on which an offence is alleged to have occurred at all relevant times, s 13.29(1) of the BC Act provided as follows: [10]

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.

106. In s 1.6 “landholder” was defined as “a person who is the owner of land or who, whether by reason of ownership or otherwise, is in lawful occupation or possession, or has lawful management or control, of land”.

107. Section 13.29 applied to proceedings for an offence against s 60N of the LLS Act.

108. At all relevant times, s 31.31 provided in relation to certificate evidence:

13.31 Certificate evidence of certain matters

(1) A document signed by the Environment Agency Head (or by an officer prescribed by the regulations) and certifying any one or more of the relevant matters specified in subsection (2) is admissible in criminal or civil proceedings under this Act and (in the absence of evidence to the contrary) is evidence of the matters so certified.

(2) The relevant matters are as follows—

(a) that a specified person was, at a specified time or during a specified period, a landholder of specified land,

(b) that specified particulars were or were not included in a public register under Division 2 of Part 9 at a specified time or during a specified period,

(c) that a specified person was served with a specified document under this Act or the native vegetation legislation,

(d) that specified information required to be furnished under this Act or the native vegetation legislation was or was not received,

(e) that a specified function of the Minister or the Environment Agency Head was delegated to a specified person under this Act during a specified period,

(f) that a specified person was or was not, at a specified time or during a specified period, an authorised officer under Part 12 or an employee of a specified public authority,

(g) that a specified native vegetation regulatory map published under Part 5A of the Local Land Services Act 2013 was duly prepared and published in accordance with that Part,

(h) any other matter prescribed by the regulations.

Relevant statutory provisions in relation to the second trial

109. Both charges in the second trial are brought for offences against s 60N of the LLS Act. The provisions set out above at [87] to [103] in relation to the first trial also apply to the second trial.

Relevant statutory provisions in relation to the third trial

110. Each of the charges in the third trial is brought for offences against s 12 of the NV Act. The provisions set out above at [72] to [86] in relation to the first trial also apply to the third trial.

Elements of the NV Act offences

111. The elements of the offence which the prosecutor must prove beyond reasonable doubt in respect of each charge under s 12 of the NV Act are as follows: [11]

112. clearing was carried out on the relevant property between the charged dates;

113. the clearing was of native vegetation;

114. the clearing was not in accordance with a development consent or property vegetation plan; and

115. the defendant was legally responsible for the carrying out of the clearing.

116. The prosecutor is not required to prove how the clearing was effected or the precise dates on which it took place within the relevant charge period because it is alleged that the unlawful clearing was carried out in the course of a continuing operation. [12]

Elements of the LLS Act offences

113. The elements of the offence which the prosecutor must prove beyond reasonable doubt in respect of each charge under s 60N of the LLS Act are as follows:

114. clearing was carried out on the property;

115. the clearing was of native vegetation;

116. the clearing was in a regulated rural area; and

117. the defendant was legally responsible for the carrying out of the clearing. [13]

Rulings in relation to evidence sought to be relied on by the prosecutor in the first trial

114. At the hearing of closing submissions on 11 August 2025, the defendant pressed objections to the following evidence sought to be relied on by the prosecutor in the first trial:

115. affidavit of Rowan Murphy dated 5 March 2025, paragraphs 51 to 60 which concern Mr Murphy’s visits to properties not the subject of the first trial;

116. affidavit of Rowan Murphy dated 22 March 2024, paragraphs 27 to 70 which concern Mr Murphy’s visits to properties not the subject of the first trial;

117. Hammill 2024 report, paragraphs 229 to 266 concerning Curly Whirl, Glenidyle, Woolondoon, North Marlow, paragraphs 283 to 291 concerning Waverley South, Wondahree, Appendix C and Attachment C concerning the columns relating to properties the subject of the second and third trials; and

118. affidavit of Dennis Boschma dated 22 March 2024, paragraphs 7 to11, 26 and 16, 22 to 25 which set out the witness’ interrogation of LLS records and databases and concern the absence of applications, approvals and consents relating to vegetation clearing.

119. Mr Connolly for the defendant submitted that the paragraphs to which objection was taken should be dealt with property by property and trial by trial:

the defendants’ overall position is that because the properties are quite distinct, in that they are treated as the subject of each specific trial and the defendants are different in each trial, there should be a limitation in respect of some evidence as to its application, and that evidence that’s relevant to a particular property, or a particular charge area - particular property should only be - is only relevant to the property in the trial in question. So, that applies principally to the evidence of Dr Hammill.

116. In relation to the objections pressed by the defendant, the prosecutor submitted as follows. In relation to the affidavits of Mr Murphy dated 5 March 2025 (paragraphs 51 to 60) and 22 March 2024 (paragraphs 27 to 70) containing evidence of Mr Murphy’s visits to properties not the subject of the first trial, the prosecutor relied on this evidence as relevant to the nature of the vegetation cleared from each property on the basis that the ecological evidence was obtained during those inspections. Without Mr Murphy’s evidence, Dr Hammill’s evidence would be unsupported as she explained visiting all the properties over a three day period accompanied by Mr Murphy and the Harris parties, and Mr Murphy corroborated the route taken by Dr Hammill and the observations she made. Mr Murphy also gave evidence about the nature of the vegetation and the status of the land inspected. Ultimately, if Dr Hammill’s evidence of the site inspections was admissible, it would follow that Mr Murphy’s evidence was also admissible. Separately, the prosecutor submitted that the site inspections were carried out on the instructions of and in the presence of Mr Murphy in circumstances where all properties were owned by Harris family entities (and persons), that fact being clear not only from the land titles evidence, but also because Phillip and John Harris attended the site inspections (including of properties each did not legally own). This was submitted to be relevant to the first trial “given Mark Harris’s evidence”.

117. I reject the defendant’s objections to the affidavits of Mr Murphy. I accept, as submitted by the prosecutor, that the photographs the subject of Dr Hammill’s visits to the properties were the subject of the first trial and hence the route she took on those inspections and the observations she made. This evidence is relevant to the identification of the areas of interest and the ownership of the properties by Harris family entities. I reject Mr Murphy’s evidence insofar as he purports to give evidence in relation to any act of clearing, or the nature of the vegetation that was cleared.

118. In relation to paragraphs 229 to 266 of the Hammill 2024 report (concerning Curly Whirl, Glenidyle, Woolondoon, North Marlow), paragraphs 283 to 291 (concerning Waverley South, Wondahree), Appendix C and Attachment C (concerning the columns relating to other properties), the prosecutor submitted that while Dr Hammill’s opinions as to the species of vegetation cleared at each property relied substantially on her inspection of the properties (namely, of the polygons or sites adjacent or proximate to the relevant polygon), together with her assessment of satellite imagery of the property of interest (dated 2009/2010) and State vegetation mapping, her ecological and botanical analysis was admissible as a whole. Having inspected numerous properties in the same bioregion added relevant information to Dr Hammill’s assessment and weight to her opinions about the vegetation at each property. In her report, Dr Hammill noted that all the properties were located in a particular bioregion context:

11.1 Location and Bioregion context

73. The Properties are situated in the Walgett Local Government Area. The Properties are the vicinity of Thalaba Creek, Pian Creek and Cubbaroo Warrambool (creek). Elevation at the site is approximately 158 metres ASL (above sea level) in the east falling slightly to 150 metres ASL in the west, over a distance of approximately 24 kilometres

74. The Properties are located in the Castlereagh-Barwon subregion of the Darling Riverine Plains Interim Bioregionalisation of Australia (IBRA) bioregion [footnote 2] (Thackway & Cresswell, 1995). The Castlereagh Barwon subregion is generally is characterised by the following features, depending on location within the subregion.

Extensive plains and alluvial fans of several rivers including the Namoi (DPIE, 2020a).

Soils derived from Jurassic sandstones on the Castlereagh fan and from basalts on the Namoi fan (DPIE, 2020a).

Vegetation including Eucalyptus camaldulensis (River Red Gum) on larger watercourses and Eucalyptus coolabah (Coolibah) woodlands with Acacia pendula (Weeping Myall), Acacia stenophylla (River Cooba), Atalaya hemiglauca (Whitewood), Casuarina cristata (Belah) on alluvial plains. Astrebla lappacea (Mitchell Grass) grass/shrubland occurs on clay plains. Eucalyptus populnea (Poplar Box) with Callitris glaucophylla (White Cypress Pine), Eucalyptus melanophloia (Silver-leaf Ironbark) and occasional Acacia harpophylla (Brigalow) occurs on higher red soils adjacent to the plains (DPIE, 2020a).

[footnote 2: Bioregions and subregions are defined by major geological, landform and climate patterns that influence ecosystems across Australia. They are used to contextualise ecological studies and to define and predict vegetation types, threatened species and ecological communities.]

119. Under cross-examination, Dr Hammill drew on “these aspects” when referring to the very small degree of variance in landscape and vegetation characteristics between properties over a large area. Dr Hammill explained that:

So as with any assessment, you only get to see certain sample points across a whole site that you’re required to assess, whatever the ecology assessment it is, so, yeah, I, I think, in, particularly in this landscape where there’s vast areas of quite similar vegetation, it’s not a highly changeable landscape for the scale, you do get mosaics of, of subtle changes in vegetation but by and large, and especially on these areas that, that are favoured for, you know, agriculture, it’s fairly consistently flat, similar soil, similar suite of species with subtle variations.

120. Dr Hammill added that the vegetation, soil and terrain was “very consistent across the landscape. The soil remained the same. The terrain difference was, you know, a metre over many kilometres”. It was:

incredibly flat terrain, so it’s ecologically sensible and reasonable to infer over a very short distance the vegetation that is still there and able to be observed is quite representative of vegetation that was very close by in the same landscape position, the same soil, and including that, sometimes there was a remnant tree that also confirmed or was able to be used to identify the vegetation that was previously there in terms of the community.

121. I find, as submitted by the prosecutor, that in assessing Dr Hammill’s expert opinion it would be unrealistic to exclude the fact that she physically inspected other properties in the same bioregion at the same time she inspected the property the subject of a particular charge or group of charges. I accept her opinion in relation to common characteristics of native vegetation across the landscape in the north-east of New South Wales and find that her observations across the properties assisted her to form opinions about each property the subject of her assessment. Dr Hammill’s assessment at a regional level was also relevant to her use of the State vegetation mapping. For example, she said at [76] of her 2024 report:

I refer to the OEH (2015) map due to it being a comprehensive and collated technical work that defines the recognised PCTs in the Border Rivers Gwydir and Namoi region of NSW (from Tenterfield, Tamworth and Murrurundi and west to Walgett), and which is the region of the areas of interest. I refer to the published mapping of OEH (2015) in that it provides an historical depiction of the vegetation on the Properties and surrounding areas prior to the clearing. The published map provides additional context for this study.

122. Dr Hammill also said that “all of the native species I have identified have been previously recorded in the Darling Riverine Plains bioregion, where the Properties occur”. In relation to the Coolabah and Myall Woodland ecological communities which she had identified, she said that “the property is located within the Darling Riverine Plains, which is one of the main bioregions where the endangered community occurs”.

123. In relation to Appendix C to the Hammill 2024 report (columns relating to other properties), I find as submitted by the prosecutor that having regard to the large areas of uniformity across the landscape, Dr Hammill’s observations in relation to one property were relevant to other properties the subject of charges in the other trials. Attachment C to the Hammill 2024 report illustrates the proximity of the properties and provides a sound basis upon which Dr Hammill was able to draw inferences in relation to similar landscapes. I reject the defendant’s objection to the paragraphs of Dr Hammill’s 2024 report relating to other properties, specifically paragraphs 229 to 266 (concerning Curly Whirl, Glenidyle, Woolondoon, North Marlow), 283 to 291 (Waverley South, Wondahree), Appendix C and Attachment C (concerning the columns relating to properties which are not the subject of the proceedings in the first trial).

124. In relation to the defendant’s objections to paragraphs 7 to 11 of the affidavit of Dennis Boschma dated 22 March 2024, Mr Boschma’s evidence sets out his interrogation of LLS records and databases and is evidence of the absence of applications, approvals and consents relating to vegetation clearing. I find that this is relevant to the first trial as the defendant Balmoral Farms responded to a statutory notice claiming “self-assessment system which our client adhered to”. I find that the evidence in paragraphs 16, and 22 to 25 of Mr Boschma’s affidavit dated 22 March 2024 is relevant to the same issue, and establishes that the only notification made under the Code relevant to the LLS Act was made in September 2019 and did not provide a defence to any of the charges. It is evidence capable of rebutting a suggestion by the defendant that any clearing subject of the charges was authorised under the LLS Act. I reject the defendant’s objection to those paragraphs of Mr Boschma’s affidavit.

Rulings in relation to evidence sought to be relied on by the prosecutor in the second trial

125. At the hearing of closing submissions on 11 August 2025, the defendants pressed the following objections to the prosecutor’s evidence in the second trial:

126. paragraphs 50, 54 to 55, and 59 to 62 of the affidavit of Rowan Murphy dated 5 March 2025, concerning Mr Murphy’s visits to properties not the subject of the proceedings in the second trial;

127. paragraphs 27 to 70 of the affidavit of Rowan Murphy dated 22 March 2024, concerning Mr Murphy’s visits to properties not the subject of the proceedings in the second trial;

128. paragraphs 219 to 228 (Balmoral), 242 to 249 (Glenidyle), 259 to 291 (North Marlow, Corombie and Wondahree), Appendix C and Attachment C to the Hammill 2024 report in relation to concerning the columns relating to properties not the subject of the second trial; and

129. paragraphs 7 to 11, 16 and 22 to 25 of the affidavit of Dennis Boschma dated 22 March 2024, setting out the witness’ interrogation of LLS records and databases and concerning the absence of applications, approvals and consents relating to vegetation clearing.

130. At the hearing of closing submissions on 11 August 2025, Mr Connolly for the defendants pressed objections of JP & LR Harris and Woolondoon Pty Ltd to the affidavits of Mr Murphy and the Hammill 2024 report as containing material relevant to the properties in the other trials, and submitted that the paragraphs should be dealt with property by property and trial by trial. In relation to each objection pressed by the defendants in the second trial, the prosecutor repeated its submissions summarised above at [116] and [118] to [120].

131. In relation to paragraphs 50, 54 to 55, 59 to 62 (concerning properties not the subject of the proceedings in the second trial) and the affidavit of Rowan Murphy dated 22 March 2024, paragraphs 27 to 70, objections to the affidavit of Rowan Murphy dated 5 March 2025 (concerning properties not the subject of the proceedings in the second trial), for the reason given at [117] above, I reject the defendants’ objections to those paragraphs, but also reject Mr Murphy’s evidence insofar as he purports to give evidence in relation to any act of clearing, or the nature of the vegetation that was cleared.

132. In relation to paragraphs 219 to 228 (Balmoral), 242 to 249 (Glenidyle), 259 to 291 (North Marlow, Corombie and Wondahree), Appendix C and Attachment C (concerning the columns relating to properties which were not the subject of the second trial) to the Hammill 2024 report, for the reasons given at [121] to [123] above, I reject the defendants’ objections to those paragraphs.

133. In relation to paragraphs 7 to 11 and paragraphs 16, 22 to 25 of the affidavit of Dennis Boschma dated 22 March 2024, for the reasons given at [124] above, I reject the defendants’ objections to those paragraphs.

Rulings in relation to evidence sought to be relied on by the prosecutor in the third trial

130. At the hearing of closing submissions on 11 August 2025, the defendants pressed the following objections to the prosecutor’s evidence:

131. paragraphs 50 to 53, 56 to 58, 61 to 62 of the affidavit of Rowan Murphy dated 5 March 2025 concerning Mr Murphy’s visits to properties not the subject of the third trial;

132. paragraphs 27 to 70 of the affidavit of Rowan Murphy dated 22 March 2024 concerning Mr Murphy’s visits to properties not the subject of the third trial;

133. paragraphs 219 to 241 (Balmoral, Curly Whirl), 250 to 258 (Woolondoon), 267 to 282 (Corombie), Appendix C and Attachment C to the Hammill 2024 report concerning the columns relating to properties not the subject of the third trial; and

134. paragraphs 7 to 11 and 16 paragraphs 16, 22 to 25 of the affidavit of Dennis Boschma dated 22 March 2024 setting out the witness’ interrogation of LLS records and databases and concern the absence of applications, approvals and consents relating to vegetation clearing.

135. At the hearing of closing submissions on 11 August 2025, Mr Connolly pressed the objections of Phillip Harris and Sue Harris to the admission of the affidavits of Mr Murphy and the Hammill 2024 report containing material relevant to the properties in the other trials, and submitted that the paragraphs should be dealt with property by property and trial by trial. In relation to each objection pressed by the defendants in the third trial, the prosecutor repeated its submissions set out above at [116] and [118] to [120]. In addition, the prosecutor submitted that if only the parts of the Hammill 2024 report that are relevant to each property were admitted, this would principally affect the admissibility of Appendix B to Dr Hammill’s report containing detailed observations about each property. The prosecutor submitted that the section on each property in Appendix B was admissible in each trial with which that property was concerned. However, Dr Hammill relied in part on her site inspection at Woolondoon to draw conclusions about the nature of the vegetation cleared at Wondahree, and in part on her site inspection nearby at Corombie to draw conclusions about the nature to the vegetation cleared at Waverley South. Therefore, Dr Hammill’s attendance at those additional properties was at least relevant in the third trial. The prosecutor submitted that in the third trial, the parts of Dr Hammill’s report relevant to Woolondoon and Corombie were admissible in relation to the charges concerning Wondahree and Waverley South respectively.

136. In relation to the objections to the affidavits of Rowan Murphy dated 5 March 2025, paragraphs 50 to 53, 56 to 58, 61 to 62 (concerning properties not the subject of the third trial) and dated 22 March 2024, paragraphs 27 to 70 (concerning properties not the subject of the third trial), for the reason given at [117] above, I reject the defendants’ objections to those paragraphs, but also reject Mr Murphy’s evidence insofar as he purports to give evidence in relation to any act of clearing, or the nature of the vegetation that was cleared.

The First Trial

135. It was common ground that Balmoral Farms was the landholder during each of the charge periods: from about 3 August 2014 to 1 October 2014, from about 14 May 2015 to 5 October 2015, from about 6 October 2015 to 13 April 2016, from about 1 July 2016 to 29 December 2016, from about 29 December 2016 to 31 July 2017, and from about 25 August 2017 to 31 December 2017.

136. It was also common ground that Mark Harris was at all relevant times the governing mind of Balmoral Farms. Mark Harris gave evidence on behalf of Balmoral Farms.

Key evidence relied on by the prosecutor in the first trial, and the prosecutor’s submissions in relation to the elements of the six offences

For charge 1 (Corombie) – offence against s 12 of the NV Act

137. The prosecutor alleged that the clearing in charge 1 took place from about 14 May 2015 to 5 October 2015 within two areas located at the northern end of Lot 6 DP 755247 at Corombie, known as polygons 8 and 67, being a large rectangular shape and, below its western end, a quadrilateral shape:

Appendix 80 – m****ap of vegetation change polygons between 25 October 2012 to December 2017 (Watts 2024 report (Trial 1))

Element 1: clearing was carried out (aerial imagery evidence)

138. In relation to element 1 of charge 1, the prosecutor relied on Mr Watts’ analysis of aerial and satellite images relating to two consecutive time periods to determine whether changes in vegetation had or had not occurred on Lot 6 DP 752247. He used the methodology described above at [15] to [18]. Throughout the Watts 2024 report (Trial 1), for each area of identified clearing, Mr Watts attributed a polygon number, and plotted the polygon on a map in Appendix 80. The green shaded areas indicate the areas cleared, and Mr Watts listed the polygon in his “Table of Vegetation Change”, recording the polygon number, the size of the polygon and Lot/DP details. Mr Watts also recorded the most recent date of imagery on which he observed vegetation to be present on the land and the earliest date he observed vegetation to be cleared, which indicated the timeframe within which clearing is alleged to have occurred.

139. The prosecutor submitted that the Watts 2024 report (Trial 1) contained Mr Watts’ opinion with respect to each image he analysed by image date, commencing with the image dated 21 February 2013 for Corombie and 25 October 2012 for Balmoral. These dates of imagery were submitted to provide a baseline for his subsequent observations. At both dates, Corombie and Balmoral appeared to Mr Watts to be covered with significant amounts of vegetation in the order of up to 50% and more. He observed some level of infrastructure on both properties including buildings, dams, and tracks.

140. In relation to charge 1, Mr Watts said there was clearing between 12 June 2015 to 5 October 2015, with the following image showing the area cleared in green:

6 October 2015 Satellite Imagery (Sentinel 2) – Corombie – Property 2680413 with a****reas of vegetation cleared between 12 June 2015 and 6 October 2015

141. Mr Watts considered that clearing took place on two large areas on Lot 6/752247 which he labelled A and B (later called polygons 8 and 67). A close-up view comparing the area identified as cleared “between 12 June 2015 and 6 October 2015” can be seen in the imagery below:

142. The prosecutor submitted that linear ground markings indicative of manmade activity appeared by 6 October 2015. Mr Watts said in his report:

While I noted that the ground's appearance was not yet identical to nearby areas to the north and south which had become paddocks for cultivation, it did appear to me that the land was being prepared for future cultivation purposes. In addition, as observed by me in the 6 March 2017 ADS imagery, both areas would later become cultivated paddocks.

143. For the clearing the subject of charge 1, the areas A and B were polygons 8 and 67, and were 284.6ha and 40.2ha in size respectively within Lot 6 DP 752247. The clearing was submitted to have involved significant clearing of most of the existing scattered “light to medium” coverage of trees plus the thinning of groundcover. Small clumps of trees remained.

144. During cross-examination, Mr Watts said that the maps provided to him by Mr Murphy alerted him to the areas of interest of potential clearing on the properties, but did not influence his assessment. The prosecutor submitted that when cross-examined, Mr Watts’ observations and opinions about the images were not challenged in relation to their accuracy or reliability. The questions put to him in cross-examination concerned the source of the images he analysed, the resolution of the images, maps provided to him by DPIE, his draft report of 14 April 2020 and the initial creation of polygons therein, that he did not attend the land, his comparison of land identified in maps annexed to the s 60F(5) certificate with his work identifying areas of clearing, his comparison of land identified as “paddock tree areas” by DPIE with his own work, and how his report from 2021 evolved to the 2024 report and taking in account infrastructure in his analysis. No expert evidence was adduced on behalf of Balmoral Farms challenging the images relied upon by Mr Watts or the opinions he provided. In the absence of challenge to Mr Watts’ opinions, the prosecutor submitted that the Court should accept his opinion that clearing was carried out during the charge period from about 3 August 2014 to 1 October 2014.

145. To the extent that the Watts 2024 report (Trial 1) referred to vegetation changes observed outside the charge period, the prosecutor submitted that the Court would not draw any inferences of unlawful clearing against Balmoral Farms based on that evidence. That evidence was led as relevant to prove (or to rebut any suggestion as to), the state of the land over time, but not to prove unlawful clearing by Balmoral Farms outside or inside the charge period. The prosecutor submitted that the Court should find that Mr Watts’ evidence established beyond reasonable doubt that clearing was carried out on Lot 6 from about 14 May 2015 to 5 October 2015, as alleged.

146. In relation to the evidence of Mark Harris given on 5, 6 and 8 May 2025, the prosecutor submitted that during cross-examination Mark Harris did not deny that clearing took place in the four months between 12 June 2015 and 6 October 2015 in polygons 8 and 67, but denied doing any clearing himself. The prosecutor submitted that if the Court accepts that clearing was carried out on Lot 6 during the charge period based on Mr Watts’ evidence, no defence would arise on the evidence which would avoid the liability of Balmoral Farms for this charge. No explanation was provided by the Balmoral Farms’ director about the clearing which occurred. Mark Harris denied any knowledge of it and could not explain it. The prosecutor submitted that the effect of the Mark Harris evidence was that he could not recall what the Corombie property looked like when he purchased it, but when it came to commencing farming the property at the beginning of 2016, it already looked like cultivated paddocks. That evidence was submitted to be unconvincing.

No, no, I haven’t directed any more clearing that what I’ve just did that one conversation, or one drive where I took him for a drive down here and we, I showed him what I wanted to do for those two reasons whether it was these fence lines and the airstrip and those individual trees that were causing me problems with the machinery.

149. The prosecutor submitted that it appeared that the explanation provided by Mark Harris about clearing done with the assistance of his father in 2017 sought to address charge 4 (which alleged clearing of the same areas between 25 August 2017 and 31 December 2017), but that it did not and could not explain the significant clearing of most of the existing scattered “light to medium” coverage of trees plus the thinning of groundcover during 2015 observed by Mr Watts in the areas he delineated as polygons 8 and 67. The contrast between the images was submitted to be clear, with linear ground markings indicative of human activity noted by Mr Watts in the 6 October 2015 image. Further, the prosecutor submitted that Mark Harris was distancing himself from any knowledge of clearing in 2015, for which he had no explanation consistent with lawful activity. A much more likely explanation was that Mark Harris purchased the land and embarked on clearing activity in the following months to increase the land available for cropping in order to develop his new farm. Ultimately, of importance to the question of any defence, the defence case did not dispute that the clearing alleged on Lot 6 during this charge period took place. Balmoral Farms’ director merely denied any knowledge of the clearing which was a “distinct issue and of little relevance given that it is a strict liability offence”.

Element 2: native vegetation was cleared (ecological evidence)

150. In relation to element 2 of charge 1 (in the first trial), the prosecutor submitted that on 17 June 2020, Dr Hammill visited Corombie attending sites she called sites 14 and 15 (see figure 16-6 of the Hammill 2024 report reproduced at [25] above). Site 14 was located adjacent to polygon 8. Site 15 was a patch of woodland located between polygons 8 and 67. Dr Hammill produced images of the sites and a plot of her route captured by GPS during her inspection. She took photos of cleared land within polygons 8 and 67. These included photos indicating that clearing activity had taken place, including a large, felled tree with a sawn stem, remnants of a woody burn pile and dead apparently poisoned trees and vegetation. Dr Hammill observed extant native vegetation adjacent to polygons 8 and 67, and used these as a reference for the vegetation that she said would have been present within the polygons. She provided photographs of the plant species she observed along the north edge of polygon 8 and between polygons 8 and 67. Dr Hammill determined that the PCTs at the time of the vegetation being cleared in polygons 8 and 67 were PCT 40 (Coolabah open woodland wetland with chenopod/grassy ground cover on grey and brown clay floodplains) and PCT 27 (Weeping Myall open woodland of the Darling Riverine Plains Bioregion and Brigalow Belt South Bioregion). She listed various species that she saw in her Hammill 2024 report.

151. Peter Jobson, information botanist, provided expert opinion on a list of plants which reflected the species found by Dr Hammill to have been present before clearing took place. At Annexure 3 to his affidavit, Mr Jobson indicated whether the species were trees/shrubs/scrub, groundcover, wetland plants or understorey and whether the species were native to New South Wales (as having been established in New South Wales at the time of European settlement). He identified all but two species as native species, and marked two members of the genus Salsola and Portulaca “M”, meaning “Metropolitan”.

152. The prosecutor submitted that the species nominated by Dr Hammill as existing in each PCT prior to clearing were native vegetation, that is, plants (trees, understorey plants, groundcover or plants occurring in a wetland) that existed in New South Wales before European settlement. Further, the Court would accept the expert evidence of Dr Hammill and Mr Jobson on the type of vegetation cleared, and find that it established to the criminal standard that it was native vegetation as defined in the NV Act. Dr Hammill’s methodology is summarised above at [21] to [24] above. She took detailed observations at the sites she visited and made general observations of the vegetation and landscape in which it was found while travelling between sites. Although she was unable to visit every polygon the subject of every charge, she said that she was able to obtain sufficient information to provide a large, robust set of data from which to extrapolate about the vegetation present in areas she did not visit. She said during cross-examination:

as with any assessment, you only get to see certain sample points across a whole site that you’re required to assess, whatever the ecology assessment it is, so yeh, I, I think, in, particularly in this landscape where there’s vast areas of quite similar vegetation, it’s not a highly changeable landscape for the scale, you do get mosaics of, of subtle changes in vegetation but by and large, and especially on these areas that, that are favoured for, you know, agriculture, it’s fairly consistently flat, similar soil, similar suite of species with subtle variations.

… I was able to collect observations that were very useful and by and large, robust enough to be able to extrapolate to other areas, similar vegetation types.

153. Dr Hammill also said that the polygons of interest to which she had access at the time of her site visit in June 2020 were based on Mr Watts’ draft report of early 2020. They were “clearing areas of interest” or “a preliminary version of the clearing polygons of interest”. They were provided as spatial files which she loaded into her mapping device to orient herself in the field. Apart from site visits and interpretation of aerial imagery (something Dr Hammill said ecologists do daily), Dr Hammill used the published OEH (2015) vegetation mapping in her assessment as “background context” for her own assessment which was “typically … done in an ecological assessment”. She said it was predictive mapping and not necessarily field-validated at all locations, being “the nature of broadscale mapping”. In relation to this mapping she said “we refer to authoritative published information that does certainly have inaccuracies in it, then we go onsite and validate with actual observations on the ground”. The published mapping was “one line of information” in her assessment. Separately, Dr Hammill also used the 2009-2010 satellite image provided by DPIE “to examine the broad vegetation coverage that previously was there”.

Element 3: absence of development consent or property vegetation plan

154. In relation to element 3, the absence of development consent or property vegetation plan approval, the prosecutor submitted that no property vegetation plan or development consent applied to Corombie during the charge period, from about 14 May 2015 to 5 October 2015.

155. On 3 December 2019, Mr Murphy issued a statutory notice to Balmoral Farms under s 12.8 of the BC Act requiring it to provide information and/or records including (inter alia) “details of any Property Vegetation Plan approved or Development consent granted that authorised clearing", and copies of any property vegetation plan or application and any development consent or application in respect of Corombie. By email and letter dated 30 March 2020 from its solicitor, Balmoral Farms’ response was “not applicable”. In respect of the first matter, the letter also stated “Not applicable. The current regime under the [BC Act] brought in a self-assessment system which our client adhered to”. The prosecutor submitted that that reply was inconsistent with any development application having been made.

156. On 10 March 2020, Mr Murphy issued a statutory notice under s 12.8 of the BC Act requiring Balmoral Farms to provide information and/or records including (inter alia) “details of any Property Vegetation Plan approved or Development consent granted that authorised clearing", and copies of any development consent or application in respect of Balmoral and Corombie. By letter dated 14 April 2020 from its solicitor, Balmoral Farms’ response was “Our client is not aware”. No documents were produced.

Element 4: liability

157. In relation to element 4 of charge 1, the prosecutor relied on s 44 of the NV Act which provides that the landholder of any land on which native vegetation is cleared is taken to have carried out the clearing unless it is established that the clearing was carried out by another person and the landholder did not cause or permit the other person to carry it out. The prosecutor relied on evidence of Balmoral Farms’ ownership of the land, land title records dated 24 February 2020, as well as the certificate of evidence of Sarah Carr dated 20 March 2024 certifying pursuant to s 50 of the NV Act that Balmoral Farms was the landholder of Corombie (Lots 6 and 25 in DP 752247 and Lot 4 in DP 752245) from 14 May 2015 to 14 November 2019 and the landholder of Balmoral (Lots 12 and 16 in DP 753926) from 25 July 2014 to 14 November 2019.

158. The prosecutor submitted that Balmoral Farms’ director Mark Harris made admissions as to Balmoral Farms’ ownership and management of the land. By a statutory notice issued under ss 12.19 and 12.29 of the BC Act, Mark Harris was directed to attend an interview on 11 February 2021 with Mark Smith, DPIE authorised officer and Mr Murphy. At that interview, Mark Harris said that he lived at Balmoral, grew up at the Wondahree property, had a university degree, and was (then) 33 years old. Balmoral Farms owned Balmoral and Corombie and Mark Harris was its director. He operated Balmoral and Corombie and was Balmoral Farms’ only current employee. At harvest and crop time, he would get temporary contractors in to help and he managed this. He operated and farmed Corombie. He planted the wheat, sprayed it and harvested it and did everything on Corombie. He was learning to farm, like everyone and made all of the day-to-day decisions for the operation of Corombie. He used an agronomist, Brad Coleman, to advise on long term strategic decisions and also got advice from family. He made all the decisions in relation to Corombie, “but for the accounting stuff”. John Harris, his brother, and Phillip Harris, his father, ran the other farms. He had not made any changes to the property vegetation. Mark Harris identified areas of cultivation and cropping and areas he cultivated by reference to images shown to him. He said that the land was used for cultivation when he took over the property. He had not given any orders to anybody to clear any of the country without his permission, and had no idea as to what authority John Harris had to undertake work, clearing work or vegetation clearing work on Corombie. He had not given any instructions to John Harris or Phillip Harris to operate Balmoral and/or Corombie. He had not put fencelines in. He did not own any bulldozers and had not needed one at Balmoral or Corombie. He had no knowledge of a notification made in 2019 by John Harris to Local Land Services. He had no experience identifying native vegetation apart from spraying. The agronomist told him to spray the weeds and crops. There was no change to the vegetation at Corombie after he purchased it.

159. The prosecutor submitted that no explanation having been produced for the clearing during the charge period, the Court could not be satisfied that the clearing was carried out by another person in circumstances where the landholder did not cause or permit the other person to carry it out. Section 44 of the NV Act applied such that the Court ought to be satisfied beyond reasonable doubt that Balmoral Farms was legally responsible for the carrying out of the clearing on Lot 6 as the landholder at the time of the clearing activity in charge 1, namely from about 14 May 2015 to 2 October 2015.

For charge 2 (Corombie) – offence against s 12 of the NV Act

161. The prosecutor alleged that the clearing alleged in charge 2 took place at Corombie from about 6 October 2015 to 13 April 2016 within Lot 6 DP 752247 and in Lot 25 DP 752247, situated to the south of polygons 8 and 67 relevant to charge 1. The prosecutor submitted that there were “numerous areas of irregular shapes”, namely polygons 88, 91, 93, 94, 97, 98, 99, 102, 103, 104, and 105.

Element 1: clearing was carried out (aerial imagery evidence)

162. In relation to element 1 of charge 2, the prosecutor relied on Mr Watts’ identification of two periods of clearing on Corombie, the first between 6 October 2015 and 12 January 2016 in which he said a total area of 84.5ha of vegetation was cleared on Lot 6 DP 752247 and Lot 25 DP 752247 (in areas later identified in the Watts report 2024 (Trial 1) as polygons 88, 91, 93, 94, 97, 98, 102, 103, 104 and 105), and the second between 12 January 2016 and 13 April 2016 in which he said an area of 1.9ha of vegetation was cleared on Lot 6 DP 752247 (in an area later identified in the Watts report 2024 (Trial 1) as polygon 99). Polygons 88 to 94 and 100 to 104 were shown in the bottom half of the following map in Appendix 80:

Appendix 80 – m****ap of vegetation change polygons between 25 October 2012 to December 2017 (Watts 2024 report (Trial 1))

163. Polygons 97 to 99 and polygon 105 were shown in the top half of the following map in Appendix 80 to Mr Watts’ report:

Appendix 80 – map of vegetation change polygons between 25 October 2012 to December 2017 (Watts 2024 report (Trial 1))

164. Mr Watts provided a close-up view comparing the area identified as cleared between 6 October 2015 and 12 January 2016 in the Watts 2024 report (Trial 1) which is reproduced below. These areas were identified as polygons 88, 91, 93, 94, 97, 98, 102, 103, 104 and 105, totalling 84.6ha in size on Lots 6 and 25 DP 752247:

165. In addition to opining that these areas were cleared of vegetation, Mr Watts noted numerous ground markings and “scratchings” which had not previously been visible in these areas which he considered were indicative of a manmade activity. It appeared to him that the land was being prepared for future cultivation purposes, and he noted that in later imagery (dated 6 March 2017) the land became ploughed paddocks.

166. In relation to the second period of clearing relevant to charge 2, between 12 January 2016 and 13 April 2016, Mr Watts considered that there had been a small amount of clearing of all the remaining scattered trees plus groundcover thinning since 12 January 2016. This area was polygon 99 which was 1.9ha in size on Lot 6 DP 752247. Mr Watts provided a close-up image comparing the area as between 12 January 2016 and 13 April 2016 in the Watts 2024 report (Trial 1):

167. The changes involved clearing of all the existing scattered trees, plus groundcover thinning. The presence of trees later cleared was submitted to be obvious in the earlier image below. The earlier image was submitted to show by reference to the parallel lines running north to south that by 6 March 2017 that the area had become part of a large paddock.

6 March 2017 Aerial Photography (ADS80) – Corombie – property 2680413 with c****leared a****reas now c****ultivated p****addocks – Area A

168. The prosecutor repeated its submissions in relation to charge 1 at [144] to [145] concerning the cross-examination of Mr Watts and the reliability and accuracy of his methodology, and submitted that the Court should find beyond reasonable doubt that areas on Lots 6 and 25 DP 752247 were cleared of vegetation between the relevant dates.

Element 2: native vegetation was cleared (ecological evidence)

169. In relation to element 2 of charge 2, the prosecutor relied on Dr Hammill’s assessment of eight sites at Corombie (figure 16-6 at [25] above which records the route taken by Dr Hammill in orange), and said that all of the woodland reference sites were high-quality woodlands with very few to nil non-native species present. She concluded that the PCTs at the time the vegetation was cleared in polygons 91, 93, 94, 97, 98, 99, 102, 103, 104 and 105 were PCT 40 and in polygon 88, PCT 49. The prosecutor submitted that Dr Hammill was not challenged in relation to her conclusions regarding the sites areas she visited, and that the Court would be satisfied that her opinions were soundly based and were not undermined, repeating its submissions in relation to charge 1 at [152] to [153] concerning the reliability of Dr Hammill’s methodology. In relation to the evidence of Mr Jobson, the prosecutor repeated its submissions in relation to charge 1 at [151] to [152].

Element 3: absence of development consent or property vegetation plan

170. In relation to element 3 of charge 2, the prosecutor relied on its submissions in relation to element 3 of charge 1 at [155] to [156] to prove that the clearing was not in accordance with a development consent or property vegetation plan.

Element 4: liability

171. In relation to element 4 of charge 2, the prosecutor relied on its submissions in relation to element 4 of charge 1 at [157] to [158] to prove that Balmoral Farms was legally responsible for the carrying out of the clearing pursuant to s 44 of the NV Act as the landholder at the time of the clearing activity on Lot 6 DP 752247 and Lot 25 DP 752247 from about 6 October 2015 to 13 April 2016.

For charge 3 (Corombie) – offence against s 12 of the NV Act

172. The prosecutor alleged that the clearing alleged in charge 3 took place from about 29 December 2016 to 31 July 2017 within polygons 108, 110 and 111 in Lot 4 DP 752245, being the separate quadrilateral shape to the south-east of Corombie in the map reproduced above at [163].

Element 1: clearing was carried out (aerial imagery evidence)

173. In relation to element 1 of charge 3, the prosecutor relied on Mr Watts’ identification of two periods of clearing: the first between 29 December 2016 and February 2017 in which he said that a total area of 7.6ha of vegetation was cleared on Lot 4 DP 752245 (polygons 110 and 111), and the second between February 2017 and July 2017 in which he said that an area of 19.9ha of vegetation was cleared on Lot 4 DP 752245 (polygon 108).

174. Mr Watts provided a close-up view (which is reproduced below) of the polygons of clearing comparing the changes between 29 December 2016 and February 2017 in the Watts 2024 report (Trial 1). In addition to opining that these areas had been cleared of vegetation, Mr Watts said that the land patterns and markings were consistent with crop cultivation activities, rather than resulting from a natural occurrence. One area looked to be “becoming part of the adjoining cultivated paddock”. The areas identified by Mr Watts were given numbered polygons 110 and 111 and marked on the map reproduced above at [163] as 7.6ha in total within Lot 4 DP 752245:

175. In relation to the second period of clearing relevant to charge 3, 29 December 2016 to February 2017, Mr Watts opined that this involved clearing of all scattered “light to medium” density tree coverage and groundcover thinning since February 2017. Mr Watts provided a close-up view comparing the area identified as having been cleared between February 2017 and July 2017 in the Watts 2024 report (Trial 1):

176. The prosecutor repeated its submissions in relation to charge 1 at [144] to [145] concerning the cross-examination of Mr Watts and the reliability and accuracy of his methodology, and submitted that the Court should find beyond reasonable doubt that areas on Lot 4 in DP 752245 were cleared of vegetation between the relevant dates.

Element 2: native vegetation was cleared (ecological evidence)

177. In relation to element 2 of charge 3, the prosecutor submitted that Dr Hammill's observations of the vegetation at Corombie were also relevant to this charge. Dr Hammill opined that at the time of the clearing of the vegetation in polygons 108, 110 and 111, the dominant vegetation was E**ucalyptus coolabah which formed part of PCT 40 (Coolabah open woodland wetland with chenopod/grassy ground cover on grey and brown clay floodplains). The prosecutor otherwise repeated its submissions in relation to the evidence of Dr Hammill at [152] to [153] and Mr Jobson at [151] to [152] in relation to element 2 of charge 1.

Element 3: absence of development consent or property vegetation plan

178. In relation to element 3 of charge 3, the prosecutor relied on the same evidence and submissions as in relation to element 3 of charge 1 at [155] to [156], namely that the clearing was not in accordance with a development consent or property vegetation plan.

Element 4: liability

179. In relation to element 4 of charge 3, the prosecutor relied on its submissions in relation to element 4 of charge 1 at [157] to [158] to prove that Balmoral Farms was legally responsible for the carrying out of clearing on Lot 4 DP 752245 pursuant to s 44 of the NV Act as the landholder at the time of the clearing activity from about 29 December 2016 to 31 July 2017.

For charge 4 (Corombie) – offence against s 60N of the LLS Act

180. The prosecutor alleged that the clearing alleged in charge 4 took place from about 25 August 2017 to 31 December 2017 within numerous small areas on Lot 6 DP 752247 and Lot 9 DP 752254. In respect of Lot 6, the prosecutor alleged that this was the second clearing event over the same areas cleared in 2015 (then called polygons 8 and 67 and the subject of charge 1: see [137] above).

Element 1: clearing was carried out (aerial imagery evidence)

181. In relation to element 1 of charge 4, the prosecutor relied on Mr Watts’ identification of clearing between 25 August 2017 to 31 December 2017 of 7.4ha on Lot 9 in DP 752254 and 70.0ha of clearing on Lot 6 DP 752247. The polygons identified by Mr Watts as category 2-regulated land and the subject of charge 4 were polygons 1 to 7 in Lot 9 DP 752254 and polygons 15, 16, 19, 21, 25, 28, 29, 32 to 36, 39, 43, 44, 51, 53, 54, 57, 60, 63, 66, 69 to 73, 76 to 78, 81 to 83, 85 to 87, 89, 90, 92, 95 and 96 in Lot 6 DP 752247. Polygons 1 to 7 are shown in the top left of the map reproduced above at [137]. Polygons 15 to 96 are shown in the top half of the map reproduced above at [162].

182. In relation to this period of clearing, Mr Watts split the areas of clearing into Areas A to E (as shown in the image below), each with polygons shown in green. The areas identified as A, B and C by Mr Watts were numbered polygons 1 to 7, 9 to 66, 68 to 69, and Areas D and E were numbered polygons 79, 89, 90, 92, 95 and 96:

December 2017 Satellite Imagery (RapidEye**)** – Corombie – Property 2680413 areas of vegetation cleared between 25 August 2017 and December 2017

183. The prosecutor submitted that the images reproduced below displayed the differences between August 2017 and December 2017 in polygons 1 to 7 (then called Area A):

184. Mr Watts said that the clearing in polygons 9 to 66, 68 to 69 (then called Areas B and C) consisted of numerous small polygons as evident in the images of the differences between August 2017 and December 2017 below. Mr Watts observed the appearance of ground markings consistent with manmade activity in the December 2017 image:

185. The prosecutor submitted that the clearing in polygons 79, 89, 90, 92, 95 and 96 (then called Areas D and E) consisted of numerous small polygons that resulted in the removal of all existing low-density trees in these areas plus the thinning of groundcover. Images of the differences between August 2017 and December 2017 are reproduced below. Mr Watts noted that most areas became part of the adjoining cultivated paddocks, although approximately 13.7ha of the cleared Areas D and E did not appear to become future cultivated land:

186. In relation to Areas B and C, the prosecutor noted that most of the polygons fell within the earlier identified polygons 8 and 67 (the subject of charge 1). During a second episode of clearing the subject of charge 4, the prosecutor submitted that the remaining trees and groundcover were cleared. The prosecutor submitted that the land the subject of the clearing alleged in charge 4 was certified as category 2-regulated land in the s 60F(5) certificate dated 12 October 2020 issued by Jeremy Black, director remote sensing and landscape science as delegate of the Environmental Agency Head, under s 60F(5) of the LLS Act.

187. Following receipt of further instructions, Mr Watts distilled the polygons of relevance to this timeframe into areas identified as category 2-regulated land. He found the total area over which native vegetation was cleared on rural regulated land during this period was 70.2ha. The prosecutor repeated its submissions in relation to charge 1 at [144] to [145] concerning the cross-examination of Mr Watts and the reliability and accuracy of his methodology.

188. Further, the prosecutor submitted, Mark Harris admitted that he caused the clearing the subject of this charge during examination in chief (as set out above in relation to element 1 of charge 1). He identified this clearing by reference to Area B, namely polygons 9 to 66 (situated in the area called polygon 8 in charge 1). On the basis of this admission at trial, the prosecutor submitted that the Court could find that clearing was carried out at Corombie from about 25 August 2017 to 31 December 2017 in Lot 6 DP 752247. The prosecutor submitted that the Court could accept beyond reasonable doubt that areas on Lot 6 DP752247 and Lot 9 DP752254 were cleared of vegetation during the charge period.

Element 2: native vegetation was cleared (ecological evidence)

189. In relation to element 2 of charge 4, the prosecutor noted that Dr Hammill visited Corombie on 17 June 2020 and attended sites 14, 15, 16 and 17 relevant to this charge (see sites in figure 16-6 of the Hammill report reproduced at [25] above). Site 14 was adjacent to polygons 9 to 66; site 15 was close to polygons 20, 21, 67, 68, and 70; site 16 was at the southwestern corner of polygon 95; and site 17 was near polygon 92. Dr Hammill determined that the vegetation present at sites 14 to 17 was a mosaic of PCT 40 and PCT 27. In her 2024 report she provided a detailed description and photos of the species and landscape she observed at Corombie including these sites. A photo looking northeast across polygon 95, from the southwestern corner of the polygon at site 16 was submitted to show cleared land.

190. The prosecutor submitted that the species identified by Dr Hammill were native vegetation. Mr Jobson gave evidence that they were listed on PlantNet and were not listed as introduced species, where cl 106 of the LLS Regulation provided that a species of plant may be conclusively presumed to be native if listed on New South Wales Flora Online (PlantNet).

191. For the purpose of charge 4, the prosecutor repeated its submissions at [151] to [153] above concerning the evidence of Dr Hammill and Mr Jobson and submitted that the evidence established beyond reasonable doubt that native vegetation was cleared from about 25 August 2017 to 31 December 2017, being the species listed in the Hammill report 2024.

Element 3: the clearing was in a regulated rural area

192. In relation to element 3 of charge 4, the prosecutor relied on the s 60F(5) certificate issued by Jeremy Black, director remote sensing and landscape science, a delegate of the Environment Agency Head, on 12 October 2020 which certified that the land identified in the certificate which included relevantly Lot 9 DP 752254 and Lot 6 DP 752247 (being the parcels of land within Corombie of relevance to the single charge under the LLS Act, charge 4) was category 2-regulated land for the purposes of the LLS Act.

193. Mr Watts was provided with shapefiles by DCCEEW for the land identified in the map annexed to the s 60F(5) certificate and confirmed in the Global Mapper software its contents of it against the calculated area of the lots the subject of charge 4. He noted in a table in his 2024 report (Trial 1) that the s 60F certificate categories aligned “exactly” with the cadastral boundaries supplied by DCCEEW in shapefiles. The prosecutor submitted that Mr Watts was cross examined about the s 60F(5) certificate, but no challenge was made to his conclusions that the vegetation which he opined was cleared fell within the land categorised by the s 60F(5) certificate as category 2-regulated land.

Element 4: liability

194. As charge 4 was under s 60N of the LLS Act, the prosecutor relied on s 13.29 of the BC Act which provided that the landholder is legally responsible for the clearing unless it is established that the clearing was carried out by another person and the landholder did not cause or permit the other person to carry it out. To prove that Balmoral Farms was the landholder of Corombie, the prosecutor relied on evidence of Balmoral Farms’ ownership of the land (the land title records dated 24 February 2020 and the admissions of Balmoral Farms’ director, Mark Harris) and the certificate of evidence of Sarah Carr dated 20 March 2024 certifying pursuant to s 13.31(2)(a) of the BC Act that Balmoral Farms was the landholder of Corombie (namely, Lot 6 in DP 752247 and Lot 9 in DP 752254) from about 25 August 2017 to 31 December 2017, the charge period for charge 4. The prosecutor otherwise relied on its submissions in relation to element 4 of charge 1 at [157] to [158] to prove that Balmoral Farms was legally responsible for the clearing.

For charge 5 (Balmoral) – offence against s 12 of the NV Act

195. The prosecutor alleged that the clearing in charge 5 took place on Lots 12 and 16 DP 753926 at Balmoral from about 3 August 2014 to 1 October 2014 within polygons 116 and 122.

Element 1: clearing was carried out (aerial imagery evidence)

196. In relation to element 1 of charge 5, the prosecutor relied on Mr Watts’ analysis of images relating to two epochs to determine whether changes in vegetation had occurred on Lots 12 and 16 DP 753926. Mr Watts identified 167.4ha of clearing on Lots 12 and 16 DP 753926 between 3 August 2014 to 1 October 2014. Of that clearing, the prosecutor submitted that 71.5ha was “new” clearing, meaning it occurred in an area where Mr Watts had not observed clearing previously. The remaining 95.9ha of clearing was a “continuation” of clearing, meaning further vegetation clearing within areas where Mr Watts had previously observed clearing to have occurred between 15 June 2014 and 3 August 2014. The areas identified by Mr Watts relevant to this charge period were numbered polygon 116 and polygon 122. [14] Mr Watts calculated the surface areas of the polygons he identified as 39.4ha in polygon 116, and 32.1ha in polygon 122, 71.5ha in total:

Appendix 80 – m****ap of vegetation change polygons between 25 October 2012 to December 2017 (Watts 2024 report (Trial 1))

197. The two areas were depicted as Area A (later called polygons 116 and 122) and Area B. Area B (later called polygon 125) was not pressed by the prosecutor as part of charge 5:

198. In relation to element 1 of charge 5, the prosecutor otherwise repeated its submissions in relation to element 1 of charge 1 at [144] to [145] concerning the cross-examination of Mr Watts and the reliability and accuracy of his methodology. The prosecutor submitted that the Court would accept beyond reasonable doubt that the areas within Lots 12 and 16 alleged in charge 5 were cleared of vegetation in the charge period.

Element 2: native vegetation was cleared (ecological evidence)

199. In relation to element 2 of charge 5, the prosecutor noted that Dr Hammill visited Balmoral on 15 June 2020 and attended site 1 after travelling through polygon 122 (figure 16-6 of the Hammill report reproduced at [25] above). Site 1 was located north-east of polygons 116 and 122. Dr Hammill assessed site 1, and opined that the native vegetation in the remnant woodland there was PCT 40. Dr Hammill opined that the native vegetation previously present in polygons including polygon 122 would have been small patches of an open native woodland of PCT 40, and also PCT 39 in depressions and nearer the creek lines, with large areas of native shrubby grassland comprising PCT 49 between. The prosecutor relied on the evidence of Mr Jobson referred to at [151] above to prove that the species identified were native vegetation.

200. The prosecutor repeated its submissions at [152] to [153] above concerning the evidence of Dr Hammill and Mr Jobson, and submitted that the evidence established beyond reasonable doubt that native vegetation was cleared from about 3 August 2014 to 1 October 2014.

Element 3: absence of development consent or property vegetation plan

201. In relation to element 3 of charge 5, the prosecutor relied on submissions in relation to element 3 of charge 1 at [155] to [156], namely that the clearing of native vegetation at Balmoral from about 3 August 2014 to 1 October 2014 was not in accordance with a development consent or property vegetation plan.

Element 4: liability

202. In relation to element 4 of charge 5, the prosecutor relied on its submissions in relation to element 4 of charge 1 at [157] to [158] to prove that Balmoral Farms was legally responsible for the carrying out of the clearing pursuant to s 44 of the NV Act as the landholder at the time of the clearing activity from about 3 August 2014 to 1 October 2014. In addition, the prosecutor submitted that Balmoral Farms’ director Mark Harris made admissions as to Balmoral Farms’ ownership and management of Balmoral. Further to the summary of Mark Harris' record of interview on 11 February 2021 outlined above in relation to charge 1 element 4 and Corombie, the prosecutor submitted that Mark Harris said in respect of Balmoral that he organised the plant rotation of wheat and chickpeas and sprayed and harvested it. In response to a question about changes in vegetation at Balmoral since he had been there, Mark Harris said “it’s just been farming the whole time” by cropping. He said that it was open, windy country. Mark Harris made the day-to-day operational decisions about Balmoral and the longer term strategic decisions. Balmoral Farms was going to grow cotton in 2021, and grew wheat, chick peas, and barley. He did not own any cattle or sheep. He operated and controlled all the farming at Balmoral and made all the decisions, not Phillip Harris. Clearing occurred before he moved to Balmoral. People used to run sheep on Balmoral, “before us”. He did not know anything about changes of vegetation and had not moved any fences. He just drove on the road. He had not been around any clearing at all.

For charge 6 (Balmoral) – offence against s 12 of the NV Act

203. In relation to charge 6, the prosecutor submitted that Balmoral Farms cleared native vegetation on Lot 16 DP 753926 at Balmoral from about 1 July 2016 to 29 December 2016 within polygon 124 (as set out in the bottom of the figure “Map of vegetation change polygons between 25 October 2012 to December 2017” above at [196]). The prosecutor submitted that the total area over which native vegetation was cleared during this period was 3.4ha.

Element 1: clearing was carried out (aerial imagery evidence)

204. In relation to element 1 of charge 6, the prosecutor relied on Mr Watts’ analysis of images relating to two epochs to determine whether changes in vegetation had occurred on Lot 16 DP 753926. Mr Watts identified clearing of 3.4ha on Lot 16 DP 753926 between 1 July 2016 to 29 December 2016. The clearing in Area A, later called polygon 124, involved the thinning of groundcover since July 2016:

205. The prosecutor repeated its submissions in relation to charge 1 at [144] to [145] concerning the cross-examination of Mr Watts and the reliability and accuracy of his methodology and submitted that the Court should find beyond reasonable doubt that areas on Lot 16 DP 753926 were cleared of vegetation between the relevant dates.

Element 2: native vegetation was cleared (ecological evidence)

206. In relation to element 2 of charge 6, the prosecutor noted that Dr Hammill visited Balmoral on 15 June 2020 and travelled through polygon 124 on the way to attending site 1 (figure 16-6 of the Hammill report reproduced at [25] above). The prosecutor repeated its submissions in relation to element 2 of charge 5 at [199] concerning the evidence of Dr Hammill, namely that the vegetation previously present in polygons, including polygon 124, would have been small patches of an open native woodland of PCT 40, and also PCT 39 in depressions and nearer the creek lines with large areas of native shrubby grassland comprising PCT 49 between.

207. The prosecutor repeated its submissions at [151] to [153] above concerning the evidence of Dr Hammill and Mr Jobson, and submitted that the evidence established beyond reasonable doubt that native vegetation was cleared from about 1 July 2016 to 29 December 2016.

Element 3: absence of development consent or vegetation plan approval

208. In relation to element 3 of charge 6, the prosecutor relied on its submissions in relation to element 3 of charge 1 at [155] to [156] to prove that the clearing of native vegetation at Balmoral from about 1 July 2016 to 29 December 2016 was not in accordance with a development consent or property vegetation plan.

Element 4: liability

209. In relation to element 4 of charge 6, the prosecutor repeated its submissions in relation to element 4 of charges 1 (at [157] to [158]) and 5 (at [202]) to prove that Balmoral Farms was legally responsible for the carrying out of the clearing pursuant to s 44 of the NV Act as the landholder at the time of the clearing activity from about 1 July 2016 to 29 December 2016.

Prosecutor’s submissions in relation to defences raised and the evidence of Mark Harris

210. The prosecutor accepted that it would be a defence in proceedings for an offence against s 12 of the NV Act if it were established that the clearing was permitted under Division 2 (Permitted Clearing) or Division 3 (Permitted Activities) of Part 3, or if the clearing was excluded from the Act by Division 4 of Part 3. The onus of establishing a defence on the balance of probabilities fell on Balmoral Farms. The prosecutor submitted that none of the clearing in question fell within Divisions 2, 3 or 4 of Part 3, and that no defence was available to Balmoral Farms.

211. In response to statutory notices issued under s 12.8 of the BC Act, Balmoral Farms said that it was “not aware” whether any clearing was permitted clearing or permitted activities under Division 2 and 3 of Part 3 or was claimed to be excluded by Division 4 of Part 3 of the NV Act. The prosecutor noted that as set out in relation to element 4 of charge 1 and element 4 of charge 5, in a directed interview with DPIE’s authorised officers Mr Murphy and Mark Smith on 11 February 2021, Balmoral Farms’ director Mark Harris made no admissions in relation to clearing the properties. He denied carrying out any clearing or instructing any person to clear vegetation on the Balmoral Farms’ lands, while acknowledging that he made all day-to-day operational decisions with respect to the properties. He denied being aware of any changes to vegetation during the relevant time periods.

Division 3 of Part 3 of the NV Act: permitted activities

212. In relation to Division 3 of Part 3 of the NV Act, the prosecutor submitted that Division 3 sets out activities that were permitted to be carried out without development consent or the authority conferred by a property vegetation plan. The prosecutor submitted that none of those exceptions applied. Section 22 did not apply as the clearing was not for “routine agricultural management activities” as defined in s 11 (and, in any event, s 22(2) would not be satisfied); s 23 could not apply as the vegetation cleared was “remnant native vegetation” as defined in s 9(1), and the clearing was not for “sustainable grazing”: s 24.

Defences under the LLS Act

213. A person will not be guilty of an offence against s 60N if the person establishes any of the five defences set out in s 60N(1) of the LLS Act on the balance of probabilities. The prosecutor submitted that none of the defences referred to in s 60N(1) applied to Balmoral Farms. Contrary to the defence raised by Balmoral Farms, there was no evidence that the clearing was an “allowable activity” as defined in Schedule 5A.

Balmoral Farms’ submissions in the first trial

Evidentiary (or deeming) provisions in s 44 of the NV Act and s 13.29 of the BC Act

214. In relation to s 44 of the NV Act and s 13.29 of the BC Act, Balmoral Farms submitted that these evidentiary (or deeming) provisions are only available where, as part of the prosecution case, the prosecutor proves beyond reasonable doubt in what manner the alleged “clearing” has taken place (in the case of the NV Act) or the nature of “the activity constituting the alleged offence or contravention” (in the case of the LLS Act). Balmoral Farms submitted that the activity of “clearing” may take differing forms including felling, poisoning, ringbarking and burning, and that the prosecutor “must aver one or more activities and then prove that activity or those activities before the attribution of legal responsibility from someone else's activity can follow”. Only when that point is reached, does the onus shift to the defendant landowner to establish the statutory defence.

215. Balmoral Farms submitted that the mechanism of attribution of liability by the words “is taken to” in each provision “demands both exposition and proof of the manner or the activity by which the alleged clearing has occurred”. Only then can a defendant landholder address whose clearing or whose activity may have to be explained in evidence to be called in the defence case. In the present case, Balmoral Farms submitted, the prosecutor failed to prove beyond reasonable doubt the nature of the “clearing” for the purpose of the NV Act or the nature of the “activity” for the purpose of the LLS Act.

Evidence of Mark Harris

216. Balmoral Farms submitted that the Court would accept the following evidence of Mark Harris given on 5 May 2025. After secondary school, he worked in construction and project management. He had a serious accident in 2006 and suffered the amputation of his right leg above the knee. In 2013, he began working in the family farming business and learning how to operate a farm. He was assisted to establish Balmoral Farms. In the period relevant to the first trial, 13 August 2014 to 31 December 2017, he was learning farming. He relied heavily on an agronomist and communicated with the agronomist mostly by telephone, not on site. When the operations of the Balmoral and Corombie properties “got going”, he only went to the properties when he needed to do something there, such as spraying, sowing or harvesting. He made the day-to-day decisions about the operation of Balmoral and Corombie. He worked on other family farms throughout the period from August 2015 to the end of 2017. He could not operate bulldozers at all and trucks except with great difficulty, and he could not carry out clearing work himself. Balmoral Farms acquired Balmoral in May 2014 and Corombie in April 2015. As the time for planting crops was in March and April, each property was acquired too late in the agricultural cycle for Balmoral Farms to be able to sow crops in the year of acquisition. In addition, 2014 and 2015 were dry years. Consequently, there was nothing to be done on Balmoral until summer rains in early 2015 promoted weed growth and spraying was required. Similarly, there was nothing to be done on Corombie until spraying was required after summer rains had come in early 2016.

217. Further, Mark Harris’ evidence was that in June 2014, he did not go to Balmoral to work on the property. He was living at Collymongle, about 100km from Balmoral. There was no work to be done on Balmoral, and he was busy working on Collymongle and other family properties. For nearly a month after his wedding on 20 September 2014, he was away on his honeymoon. Consequently, Mark Harris was not well acquainted with the property when he began spraying on Balmoral in early 2015. Nor had he been on the property observing any changes taking place there in the period from 3 August 2014 to 1 October 2014. Likewise, he did not go to Corombie in 2015. He was not familiar with the property when he began spraying there in early 2016, and he was not aware of any changes on the property in the period from 14 May 2015 to late 2015. In 2014 and 2015, the weather was dry, the land looked “bare and similar”, and he spent his time doing productive work, especially feeding cattle on Collymongle, not driving around the properties. He did not notice changes in vegetation that he was now asked about because in the early years he was unfamiliar with Balmoral and Corombie and the paddocks are very large. As a result of DPIE’s interview of him on 11 February 2021, he became aware of alleged clearing about which he had had no prior knowledge, and he learnt that his father Phillip Harris had carried out that clearing.

Concessions made by Mark Harris

218. Balmoral Farms referred to Mark Harris’ acceptance that he requested his father to carry out some work, and submitted that this was “legitimate and exempted work with equipment which constituted routine agricultural management activities and this work only occurred on the property Corombie”. Balmoral Farms set out the details of that work in the table below:

| Polygon | Area | Description | Charge | | 1 | 1.4ha | Part of a farm road | Charge 4 | | 2 | 2.5ha | Part of a farm road | Charge 4 | | 79 | 4.7ha | Fencelines | Charge 4 | | 89 | 3.8ha | Fencelines | Charge 4 | | 90 | 9.7ha | Fencelines | Charge 4 | | 91 | 1.1ha | Fencelines | Charge 4 | | 92 | 1.1ha | Fencelines | Charge 4 | | 94 | 6.3ha | Road/airstrip | Charge 2 | | 96 | 4.0ha | Fencelines | Charge 4 | | 110 | 6.1ha | Fencelines | Charge 3 |

219. In addition, Balmoral Farms referred to some evidence of work carried out by Phillip Harris in Mr Watts’ polygon 95, but submitted that this was not done with the sanction or approval of Mark Harris, and hence Balmoral Farms. Balmoral Farms submitted that Mark Harris found out about the work only after it had occurred.

Mark Harris’ recollections of land conditions

220. In relation to element 1 of charge 1, Balmoral Farms disputed the prosecutor’s submission that Mark Harris did not recall the areas marked A and B (being polygons 8 and 67) on the image reproduced at [141] as looking like cleared land. Balmoral Farms submitted that this interpretation of Mark Harris’ evidence was incorrect, his evidence being that his earliest recollection of those areas was of cultivated land.

Context of Mark Harris’ recollections

221. Further, Balmoral Farms said that the prosecutor’s submission that Mark Harris’ recollections were unconvincing should be rejected. Mark Harris was submitted to have provided substantial context for his recollections: he was a novice farmer, the property was large, the land was drought-affected when he first saw it, and he did not spend time on the property after the purchase until late 2015 or early 2016. It was unsurprising that he did not recall the state of specific areas until he undertook spraying and sowing in 2016.

Attendance by Mark Harris at Corombie and work on Corombie

222. Contrary to the prosecutor’s submission, Balmoral Farms submitted that Mark Harris' responses to the suggestion that he needed to attend Corombie for planning immediately after the company took ownership were not implausible. His evidence was that 2015 was a dry year, he had missed the sowing season, and he did not need to work on Corombie, but needed to focus on other properties, such as feeding cattle at Collymongle and developing his skills.

223. Further, Balmoral Farms submitted, the prosecutor misstated Mark Harris’ evidence by saying that his only visits to Balmoral in 2015 were social visits to his sister when he testified that his visits to Balmoral in 2014 were limited to social visits to his sister, not in 2015. Nor were Mark Harris’ responses to the proposition that he would have needed to attend Corombie for planning as soon as the company took ownership implausible. His evidence was that 2015 was a dry year, he had missed the sowing season, he did not need to do work on Corombie, but he did need to work on other properties (including feeding cattle in the dry conditions on Collymongle and developing his skills), and he lived a substantial distance from both Corombie and Balmoral.

224. The prosecutor’s submission that Mark Harris would have needed to go to Corombie in 2015 was based on premises about how a farm should be run that had not been made out. Mark Harris’ evidence on these matters was consistent and credible. The submission that his evidence was “inadequate” when it was put to him that he could not have been ignorant of the carrying out by someone else of clearing of such an extensive swathe of vegetation on his property Corombie in 2015 “ignored the fact that Mark Harris had already explained what his recollections of the areas in question were and he had already explained why he had not become familiar with Corombie earlier referring to what he had said about Balmoral”. All his evidence on these points was submitted to be consistent.

225. Finally, Balmoral Farms submitted that the prosecutor’s submission that Mark Harris’ lack of knowledge of the alleged clearing was “of little relevance” failed to deal with the importance of Mark Harris’ ignorance to the defence under s 44 of the NV Act. He did not carry out the clearing himself. He could not have carried out the clearing, and he was unaware that the clearing had taken place.

Balmoral Farms’ submission in relation to the evidence of Mr Watts

226. In relation to the evidence of Mr Watts, Balmoral Farms referred to the difficulties of interpretation and the limitations of 10m resolution in the method employed by Mr Watts. Mr Watts used images of varying resolutions including images with a 10m resolution, the lowest resolution. During cross-examination, he explained how 10m resolution can display objects on the ground, and was taken to an example in his Appendix 85 which illustrated the importance of resolution in interpretation and the limitations of 10m resolution. He had to use several 10m resolution images for his analysis of changes in vegetation. Balmoral Farms submitted that the difficulties of interpretation using such images could be seen in the images relied on by Mr Watts in relation to charges 1, 2, 3 and 6. The similarities of colouration in 10m resolution images between areas said to have been cleared and areas said not to have been cleared rendered his conclusions based on asserted differences “unpersuasive”.

227. Comparison of the allegedly cleared and uncleared areas in relation to charge 1 depicted in the top left hand corner of the image of 6 October 2015 (reproduced above at [141]) provided an example, as did in the same image comparison of the allegedly cleared land in Area B (later called polygon 67) and the allegedly uncleared land between Area B (later, polygon 67) and Area A (later, polygon 8). Balmoral Farms submitted that the differences in texture, tone and colour relied on by Mr Watts in distinguishing land allegedly cleared of ground cover from land allegedly undisturbed were not observable in the image of 6 October 2015. Likewise, in relation to the comparison in the image of 13 April 2016 (reproduced above at [166]) of the allegedly cleared Area A (polygon 99), with the immediately adjacent land said by Mr Watts to be “Undisturbed trees and ground cover”, the presence and absence of dots in Area A (polygon 99) and the adjacent land relied on by Mr Watts were not observable in the image of 13 April 2016.

228. Balmoral Farms submitted that this deficiency in Mr Watts' method was considered by Pain J in Secretary, Department of Planning and Environment v Namoi Valley farms Pty Ltd (No 6) [15] (Namoi), and “resulted in the exclusion of substantial portions of Mr Watts' evidence in those proceedings”.

229. Balmoral Farms further submitted that Mr Watts’ evidence about the timing and the extent of what he concluded to be clearing of vegetation on the two farms was opinion evidence, and that the onus of establishing the conditions of admissibility of his evidence rested with the prosecutor. In the formation of an admissible expert opinion, there are facts which the expert observes and facts which the expert assumes. An expert must identify “the facts that he was assuming to be true so that they could be measured against the evidence”: HG v R [16] at [41] (Gleeson CJ). Balmoral Farms submitted that nothing of that kind was attempted by Mr Watts. Mr Watts conducted a subjective investigation of aerial images using a computer which apparently allowed him to zoom in and out of individual images on a screen. The images that he produced in his reports were the “poor relations of what he claimed to have actually seen”. The Court could not make the same judgment about what was seen by him and could not evaluate the reliability of his conclusions.

Balmoral Farms’ submissions in relation to the evidence of Dr Hammill

230. Balmoral Farms submitted that Dr Hammill used “three main lines of evidence” to inform her conclusions on the type and extent of native vegetation species and communities that she considered were present in the alleged clearing polygons before they were cleared: a review of imagery from 2009/2010 in which, she said, she could “discern the broad vegetation type covering the areas of interest in 2009”; a site inspection; and a review of the mapping published in the OEH (2015) vegetation mapping. There were submitted to be significant deficiencies in each line of evidence, sufficient to raise real doubts about the reliability of her conclusions.

231. The deficiencies in relation to Dr Hammill’s site inspection were that she had “very limited time”, three days, in which to carry out site inspections across all the properties under investigation. She had little control over where she went on the properties, and orientated herself in the field using spatial files provided to her by DPIE, the origin of which she was otherwise unaware. She did not do any “full floristic plots” and did “not identify all the plants she saw”, which was “irregular”. Her inspection sites were few in number and not in or adjacent to “or even near” many of the charge polygons, and the basis on which she inferred the age of the vegetation that had been cleared in areas proximate to her sites was not persuasively explained. In particular, she inspected one site on Balmoral and eight sites on Corombie. The site on Balmoral was not in or adjacent to, or even near, the charge polygons for Balmoral. Her viewing of Balmoral comprised only one inspection site (site 1) and a drive through some parts of the property. Site 1 was approximately one and half kilometres from the nearest portion of polygon 122 (the subject of charge 5), even further from the nearest portion of polygon 116 (the subject of charge 5), and more than 2 kilometres from the nearest part of polygon 124 (the subject of charge 6). The photographs taken at site 1 did not depict any of the charge areas on Balmoral. Dr Hammill went to eight sites on Corombie. None was in Lot 9 DP 752254 in the northwest (the location of polygons 1 to 7 and the subject of charge 4), and her sites 14 and 15 were about 2km from the nearest part of Lot 9 DP 752254. None of her sites on Corombie were in Lot 25 DP 752247 in the central west (the location of polygons 102 to 105 and the subject of charge 2). Her site 17 in Lot 6 DP 752247 was more than 3 km from the southwest corner of Lot 25 DP 752247 where polygon 103 was located, and approximately 3km from polygon 99 in the bottom corner of lot 6/752247 (polygons 103 and 99 also being the subject of charge 2). In some cases, the proximity of her sites to charge polygons was difficult to ascertain. Site 14 was “probably” near Mr Watts’ polygon 39 (the subject of charge 4). Site 15 was “probably” near Mr Watts’ polygons 11, 68, 74 and 75, none of which was a charge polygon. She said that her site 17 was “near” her polygons 91 to 94 (the subject of charge 4), but precisely where it was in relation to them was unknown. Her site 18 was in a non-charge polygon. No site was near any part of Mr Watts' polygons 1 to 7, 88, 89, 99, 102, 103, 104, 105 (the subject of charge 4), or polygon 111 (the subject of charge 3).

… it was important in the sense, it wasn't important in the sense of identifying native vegetation in the location immediately adjacent to the polygons though I, I could have done, I could have identified vegetation without any reference to images at all ... but it would have been a far more limited conclusion because, to me, I needed to use images as, as a way to infer or compare sites that I could identify native vegetation at the time I was in the field and whether that appeared similar.

233. Further, Balmoral Farms submitted, Dr Hammill conceded in cross-examination that she could only identify tree species in the 2009-10 image where she had verified the species of specific trees or clusters of trees by her inspection on the ground. She said that this kind of image interpretation was applicable to some areas “to some degree”, but could not be applied reliably “across these vast areas”. Balmoral Farms submitted that “it was unknown where it could be applied”. Dr Hammill confirmed that otherwise the limit of what she was able determine from the 2009-10 and 2020 images was to broadly interpret vegetation structure, either woodland or grassland, and that she did not identify native species from imagery and could not tell from aerial or satellite images whether ground cover was native or non-native.

234. Balmoral Farms submitted that the use of the OEH (2015) vegetation mapping was deficient as “Dr Hammill said that she used the OEH 1025 mapping only for context”. She said in her report that she considered the OEH (2015) vegetation mapping to be "a relative robust depiction of native vegetation", but in cross-examination explained that “relative” was a reference to the fact that there had been no prior mapping. She conceded that the OEH (2015) vegetation mapping was only predictive, it was not fully field validated, and it contained inaccuracies. She said that she took the distribution of uncertainty provided by the authors of the OEH (2015) vegetation mapping into account by using the mapping “for context only”, and her conclusions were based primarily on her field observations. In addition, her method of extrapolating from her sites to other areas “at best established that native vegetation could have been in places other than the sites at some time, not that it was in fact in those other places at the relevant times”. She said that she was only reporting on native species and that there may have been non-native species present. She agreed in cross-examination that cattle had had some impact on the natural landscape in the area in which the subject properties were situated, that there had been large areas of cropped land there in recent decades, and that cropping allows weeds to establish themselves. She said that non­native vegetation was present.

235. Further, Balmoral Farms submitted that Dr Hammill’s maps must also be used with caution because they showed polygon boundaries that did not always correspond to the polygon boundaries later drawn by Mr Watts, and polygon numbers were often different from those used by Mr Watts in his final report. For example, the boundaries of polygons 116 and 122 on Balmoral and the polygon numbers 116 and 122 did not appear on Dr Hammill’s maps of Balmoral. She used polygon shape files and numbering that related to the Watts 2021 report which were later superseded. Her maps also incorrectly described her marked path as a "Pedestrian track", when in fact it was partly pedestrian and mostly vehicular.

236. Balmoral Farms submitted that Dr Hammill’s evidence was unsatisfactory and did not establish beyond reasonable doubt that cleared vegetation was native vegetation, either throughout the charge polygons in which Dr Hammill's sites were located, or in polygons in which no site was located.

Charge 1 (Corombie) – offence against s 12 of the NV Act

237. In relation to charge 1, Balmoral Farms submitted that Mark Harris rarely went to Corombie in 2015 because the purchase had settled too late for planting that year, it was a dry year and there was no work to be done on Corombie until rain came in the summer and it was necessary to spray for weeds. He did not ask his father to clear polygons 8 and 67. He later asked his father to clear only the following areas on Corombie: fence lines (polygons 79, 89, 90, 91, 92, 95 and 96), the airstrip (polygon 94), the individual trees in the north of lot 6/752247 (polygons 15, 16, 19, 21, 25, 28, 29, 32 to 36, 39, 43, 44, 51, 53, 54, 57, 60, 63, 66, 69 to 73, 76 to 78, 81 to 83 and 85 to 87), and two strips (polygons 1 and 2 in Lot 9/752254 in the northwest of Corombie) for an internal road. When Mark Harris came to start farming polygons 8 and 67 in early 2016, they were cultivated land. He first went to those areas in December 2015 or January 2016 to begin spraying.

238. Balmoral Farms submitted that Mark Harris did not carry out any clearing on Corombie in 2015. Clearing was carried out on Corombie without Mark Harris' knowledge. Such clearing as was carried out on Corombie in the charge period from about 14 May 2015 to 5 October 2015 was carried out by Mark Harris' father, Phillip Harris, and Mark Harris and Balmoral Farms neither caused him nor permitted him to do so. There was no evidence that Balmoral Farms carried out any of the clearing alleged in charge 1. The defence available under s 44 of the NV Act was made out, and Balmoral Farms should be acquitted of the offence alleged in charge 1.

Charge 2 (Corombie) – offence against s 12 of the NV Act

239. In relation to charge 2 in the first trial, Balmoral Farms submitted that Mark Harris had no knowledge of the clearing alleged to have occurred in polygons 88, 93, 97, 98, 99, 102, 103, 104 and 105. He only knew polygons 93, 97, 98, 102, 103, 104 and 105 as cultivated land and did not cause or allow them to be cleared. Polygon 88 was a saltbush paddock that had already been cleared of trees and was cultivated for stock feed; it was not cleared by Mark Harris or with his authority. Polygons 93, 102 and the surrounding area (including polygons 98, 99, 103, 104 and 105) were only known to Mark Harris as cultivated land. He did not clear polygons 93 and 102 or cause anyone else to do so. Polygon 103 (shown in the bottom left corner of the top image titled “Corombie – property 2680413 with areas of cleared vegetation” above at [162]) had a bore drain that was cleared. Mark Harris did not clear polygon 103, but it was cleared without his knowledge by his father, Phillip Harris. Mark Harris did not have any knowledge of clearing of polygon 99, had never talked to his father or anyone else about clearing that area, and only knew it as cultivated land. Polygon 91 was cleared for a fence line. Polygon 94 was cleared for a road and airstrip. If those polygons were cleared in 2015 before Mark Harris came to Corombie to begin spraying, they would not have come to his attention. Further, polygons 97, 98, 103, 104 and 105 ranged in size from 0.3ha to 5.0ha. Similarly, polygon 99, which was 1.9ha or perhaps only 1.8ha, may have been cleared in early 2016 and the clearing never came to Mark Harris’ notice before he began working Corombie.

240. Balmoral Farms submitted that there was no evidence that it carried out any of the clearing alleged in charge 2 in respect of polygons 88, 93, 97 to 99 and 102 to 105. The prosecutor relied on s 44 of the NV Act in relation to the clearing alleged in charge 2, the charge period being 6 October 2015 to 13 April 2016. However, the evidence of Mr Watts was that 10 of the 11 polygons were cleared “sometime” between 6 October 2015 and 12 January 2016, and the remaining polygon, polygon 99, was cleared “sometime” between 12 January 2016 and 13 April 2016. The prosecutor’s submissions were submitted to be based on the premise that at the time of the alleged clearing, Mark Harris and his father had been jointly farming the area around polygon 99, when they had not been. Mark Harris’ evidence that polygon 91 was cleared for a fence line was submitted to be entirely believable: “It was hard to think why a long, thin, straight area would be cleared otherwise … [It] was later connected with other fence lines”. Polygon 91 was only 1.1ha. If a 1.1ha area is 20m wide, it will be 550m long. Polygon 91 was substantially longer than 550m (approximately 790m long). The length of polygon 91 could be calculated from the aerial image below:

241. The northern boundary of Lot 25 in DP752247 was approximately 2,372m, according to the scale on the map above (2000m/43mm = 46.5116m/1mm; 51mm for the boundary on the map represents 2,372.0916m). The northern boundary of Lot 25 in DP752247 on the map at [132] was 90mm; 2,372m/90mm = 26.3555m/1mm; polygon 91 is shown above at [132] as 30mm long; 30 x 26.3555 = 790.665. It followed that the fence line in polygon 91 “did not exceed the appropriate width”, as asserted by the prosecutor. In relation to polygon 94 which was 6.3ha, Balmoral Farms submitted that Mark Harris described it as both a road and an airstrip, and gave plausible details about the use of the area as an airstrip.

Charge 3 (Corombie) – offence against s 12 of the NV Act

243. In relation to charge 3, Balmoral Farms submitted that polygon 110 was cleared for a fence line in order to create an area with water and shade where cattle could be enclosed, but let out into the cultivated paddock to feed on stubble or weeds. Polygon 111 was cleared without the knowledge or consent of Mark Harris. Mark Harris did not notice the change to a “small area in the huge areas of the farms”. He did not have any knowledge of the clearing of polygon 108, and had never talked to his father or anyone else about that area. Mark Harris did not notice in mid-2017 that there had been any reduction of vegetation in the area of polygon 108; the change was small relative to the size of the surrounding paddock.

244. Balmoral Farms submitted that the prosecutor’s submission that Mark Harris did not straighten the edge of the vegetation in polygon 110 to create a fence line rested on “nothing more” than the delay in installing the fence and buying the livestock. During cross-examination, Mark Harris gave evidence about the suitability of that location for strip grazing because it had water, and his overall plan for mixed farming in which livestock could have shade and water in the nature strip and be let into the cropping paddock to feed on stubble and weeds. The future installation of fencing and the purchase of livestock depended on his ability to pay for them. The cost of clearing a narrow area was not warranted by the small increase in cropping. The fact that there was an increase in the cropping area did not make Mark Harris’ evidence about fencing for livestock untrue and the submission that he was not being frank was unfounded.

245. In relation to polygons 111 and 108, Balmoral Farms submitted that Mark Harris explained that he had limited familiarity with the property at the time, the areas involved were “massive”, “things looked the same”, especially when the vegetation “looked dead” due to the dry conditions and he had been busy working on other properties. The prosecutor relied on the overhead views of the areas of alleged clearing and failed to take into account how things would have looked to Mark Harris at ground level.

246. As to the prosecutor’s reliance on s 44 of the NV Act, Balmoral Farms submitted that it had made out the defence under s 44 in respect of polygons 111 and 108. The clearing in polygon 110 was carried out in the course of routine agricultural management activities. Balmoral Farms should be acquitted of all allegations in charge 3.

Charge 4 (Corombie) – offence against s 60N of the LLS Act and the s 60F(5) certificate

247. In relation to charge 4, Balmoral Farms submitted that the clearing alleged was of various kinds: much of it for allowable construction of infrastructure (fences and roads); some carried out by Phillip Harris without permission from Mark Harris; and some carried out at Mark Harris’ request. Mark Harris explained how he arranged for his father to remove individual trees in the area in the north of Lot DP 6/752247 in order to prevent damage to equipment and reduce risks to safe work. This clearing occurred in polygons 15, 16, 19, 21, 25, 28, 29, 32 to 36, 39, 43, 44, 51, 53, 54, 57, 60, 63, 66, 69 to 73, 76 to 78, 81 to 83, 85 to 87, and amounted to a total area of 8.12ha.

248. Balmoral Farms submitted that areas D and E (polygons 95 and 96 comprising area D and polygons 79, 89, 90, 91 and 92 comprising area E) were cleared for fence lines to create paddocks to contain stock so that Corombie could be used for mixed farming in the way the family property Collymongle was used. Polygon 96 was cleared for a fence line, as was polygon 95. However, without Mark Harris’ permission and contrary to his instructions, his father cleared an area wider than was necessary for a fence line in polygon 95. The part of polygon 95 that was a triangle below polygon 96 was also a fence line to create a nature strip for cattle. Polygon 90 was cleared for a fence line, as was polygon 79, save for several trees at the eastern end of polygon 79 that appeared to have been removed to allow machinery to pass safely. Polygon 92 was cleared for a fence line, likewise polygon 89. Balmoral Farms submitted that the purpose of clearing fence lines was to create spaces where trees would not fall onto the fence and were straight “so that the fence can be strained without the use of heavy straining posts for changes in direction, so that the fences last and the cost of the fences is not wasted”. The clearing distance used by Mark Harris for fence lines was 30m, in accordance with cl 31(b) of Schedule 5A to the LLS Act.

249. Balmoral Farms submitted that polygons 1 and 2 in Lot 9 DP 752254 in the northwest of Corombie were cleared for an internal road. Mark Harris did not discuss clearing polygons 3 to 7 with his father. This was clearing that Balmoral Farms did not cause or permit another person to carry out. Polygons 1, 2, 79 and 89 to 92 were cleared for allowable infrastructure construction, polygon 95 was cleared in part for allowable infrastructure construction and in part without Balmoral Farms’ knowledge or permission.

250. In relation to the prosecutor’s submissions concerning Mark Harris’ evidence in relation to charge 4, Balmoral Farms submitted that “[it was] clear from the shapes of polygons 79, 89, 90, 92, 95 and 96 that they were fence lines”. They were “all long, thin and straight”. In view of what Mark Harris said about fence lines 30m wide, Balmoral Farms submitted that the later answer given by Mark Harris “30 metres for a fence line I gave” was clearly a reference to the total width on both sides of the fence, not 30m on each side, contrary to the prosecutor's submission. It was “not clear what Mark Harris was saying, except that the width of a fence line might be variable”; but it was “clear that he was working with the width of 30m” at that time. Mark Harris gave instructions for fence line clearing with a total width of 30m. If his father Mr Phillip Harris made wider corridors, then he did so without authority. Mark Harris explained how polygon 95 came to include an area wider than necessary for a fence line. His father cleared more area than Mark Harris asked him to clear. The long perpendicular lines in polygons 95 and 96 supported Mark Harris’ evidence that he intended to create fence lines in those polygons.

Charge 5 (Balmoral) – offence against s 12 of the NV Act

255. In relation to charge 5, Balmoral Farms submitted that the oral evidence given by Mark Harris on 5, 6 and 8 May 2025 was to the effect that in 2014, he was a novice farmer. Balmoral was acquired in April 2014, the sowing period was missed and the weather was dry, so there was no work to be done on Balmoral and no need to go there until spraying in early 2015. During this period, Mark Harris worked on other farms. He was also away for part of the charge period following his wedding in September 2014. Balmoral was about 100km from the property Collymongle where he was living. He was unable to carry out clearing work himself due to his inability to operate a bulldozer, and did not carry out any clearing himself. He did not ask his father to carry out any clearing on Balmoral, and did not instruct or allow anyone to do any clearing on Balmoral. His father carried out any clearing that was done on Balmoral in this period (3 August 2014 to 1 October 2014) without Mark Harris' knowledge or permission.

256. In relation to the prosecutor’s reliance on s 44 of the NV Act, Balmoral Farms submitted that it had made out the defence under s 44 and should be acquitted of charge 5.

Charge 6 (Balmoral) – offence against s 12 of the NV Act

257. In relation to charge 6, Balmoral Farms submitted that the oral evidence given by Mark Harris on 5, 6 and 8 May 2025 was to the effect that polygon 124 which was situated on either side of a road running in front of the house on Balmoral was slashed by Jason Sharp, who lived in the house with his family, in order to keep the vegetation low so that snakes and other animals were not living close to the house and to reduce the fire hazard. Jason Sharp carried out the slashing without having first consulted Mark Harris. It was carried out by someone other than the landholder and the landholder had not caused or permitted Mr Sharp to carry out the slashing. Mark Harris believed that the vegetation was turnip weed and winter trash that grew after rain came in 2016. Dr Hammill did not visit this area, and it was not established that the vegetation that was cut was native. In any event, the clearing was a routine agricultural management activity because it was an activity reasonably considered necessary to remove or reduce an imminent risk of serious personal injury or damage to property by reducing the risk posed by snakes to the occupants of the house and the risk of fire that could have affected the house and its surrounds within the meaning of s 11(1)(i) of the NV Act.

258. Balmoral Farms submitted that the transcript of Mark Harris' interview on 11 February 2021 with DPIE officers Mark Smith and Mr Murphy “throws no useful light on the issues in these proceedings”. The interview was submitted to have been “poorly conducted”; Mark Harris was asked numerous vague questions that failed to identify relevant time periods; he was shown low quality and unexplained images that he had not previously seen and he was asked general or confusing questions about them; and he was in the difficult position of being asked about alleged clearing said to have occurred between 4 and 7 years before the interview and most of which he was learning about for the first time at the interview. What did emerge from the interview was that Mark Harris had been unaware of most of the clearing that had become the subject of the charges.

259. Balmoral Farms submitted that it had made out the defence under s 44 of the NV Act, and also “the defence based on routine agricultural management activity” within the meaning of s 11, and that it should be acquitted of charge 6.

Prosecutor’s submissions in reply

260. At the hearing of closing submissions on 8 August 2025, the prosecutor sought to rely on a lengthy document titled “Prosecutor’s reply to Defendant’s Closing Submissions (Trial one)”. Balmoral Farms did not object to that document being filed in court and relied on by the prosecutor.

Evidentiary (or deeming) provisions in s 44 of the NV Act and s 13.29 of the BC Act

261. The prosecutor referred to Balmoral Farms’ primary submission that each of the evidentiary (or deeming) provisions in s 44 of the NV Act and s 13.29 of the BC Act (applicable to the one charge brought under LLS Act) was only available where the prosecutor proved beyond reasonable doubt in what manner the alleged “clearing'” had taken place (in the case of the NV Act) or the nature of "the activity constituting the alleged offence or contravention" (in the case of the LLS Act). The prosecutor referred to Pepper J’s consideration of s 44 of the NV Act in Director-General, Dept of Environment and Climate Change v Walker Corp**oration Pty Ltd (No 2) [17] (Walker 2010) and submitted that her Honour affirmed that the statutory language of s 44 places liability for clearing on the landholder unless the landholder proves on the balance of probabilities the defences available under s 44(a) or (b). The prosecutor also referred to Auen Grain [18] where Robson J said at [430] that having found that Mr Greentree, being someone other than the other landholders, Auen Grain, Mark Harris and Merrywinebone, undertook the clearing the subject of the LLS Act offences (satisfying s 13.29(1)(a)), the onus fell on each of Auen Grain, Mark Harris and Merrywinebone to establish on the balance of probabilities that they each “did not cause or permit” Mr Greentree to carry out the clearing pursuant to s 13.29(1)(b) of the BC Act. There was no support in the statutory language for an argument that the prosecution must prove the particular physical action done to clear the land. Further, the prosecutor noted that that the particulars of the clearing charges in Walker 2010 and Auen Grain were set out in the Court's judgments at [4] and [19] respectively, and the summonses in those cases did not particularise the type of clearing alleged. In both cases, s 44 was applied. It was also be recalled that the prosecutor is required to prove the essential elements of an offence, not the particulars: Environment Protection Authority v Sydney Water Corporation Ltd [19] (EPA v Sydney Water) at 364 (Gleeson CJ, Ireland and Bruce JJ agreeing).

262. The prosecutor submitted that Balmoral Farms, through its director Mark Harris, did not prove on the balance of probabilities that another person carried out the clearing, and that it did not cause or permit that other person to do so.

Evidence of Mark Harris

263. The prosecutor submitted that Mark Harris’ evidence should be viewed “with great scrutiny” and where it was the only evidence relied upon in the defence case, it fell well short of meeting the required threshold of proof insofar as defences are sought to be relied upon. Insofar as the evidence sought to negate the prosecutor's onus of proof on any element (such as whether clearing took place), the evidence did not cast doubt on that element. Mark Harris' evidence that he only went to his new properties when “he needed to do something there” was unrealistic and was not supported by any other evidence. It was “unbelievable to think that an unknown person came onto his land and cleared hundreds of ha of vegetation without his say-so or knowledge”. Mark Harris chose to deny any knowledge of clearing, and claimed that he did not know who had erected fences on his properties. Rather than throwing no useful light on the issues, this spoke “volumes” and was “valuable evidence” from which the Court could draw inferences about his credibility. Despite Balmoral Farms’ submission that Mark Harris had been unaware at the time of the interview of most of the clearing that became the subject of the charges, he went on to give evidence about instructions given to his father about fence lines.

264. The effect of Mark Harris’ evidence was that he could not remember whether, when he first drove around the property before purchasing it (in April 2015), it looked like the top image or the bottom image reproduced at [141]. When he started farming the property (early 2016), it looked like the top image (that is, cultivated). He would have gone there some time in between the dates, but he could not remember when that was. He neither agreed nor disagreed that there had been clearing in 2015 because he could not remember the state of the paddocks when he first went there.

265. The difficulty with the defence submission that Mark Harris’ account of not attending Corombie during 2015 was not implausible, and that the prosecutor’s submissions were based on premises “about how a farm should be run” that had not been made out on the evidence, was that Mark Harris claimed he was a "novice" farmer with little experience of running a farm, yet he presented no credible evidence in relation to how a farm should be run in circumstances where the onus under s 44 of the NV Act fell upon Balmoral Farms to prove that any clearing undertaken on the properties was done without its knowledge. The evidence of Mark Harris that he did not attend Corombie in 2015 and as to the purported reasons he did not need to attend the property was submitted to be “an attempt to deny a motivation to carry out unlawful clearing”. The prosecutor was not required to prove any motivation to carry out clearing.

266. In response to Balmoral Farms’ submission that the prosecutor's reference to Mark Harris' conversation with his father about resolving the issue of damage to the spray rig by clearing paddock trees was not relevant because it did not concern the alleged clearing in 2015, the prosecutor submitted that this evidence was directly relevant to the issue of the timing of Mark Harris' conversations with his father about clearing on Corombie, given that charges 1 and 4 concern the same land. Mark Harris said that the conversation occurred in August/September 2017, and the plan to clear was enacted shortly thereafter. This could not explain the clearing that took place in 2015, and provided no defence for that charge.

Evidence of Mr Watts

268. In response to Balmoral Farms’ criticism of Mr Watts' use of 10m resolution imagery, the prosecutor submitted that Mr Watts provided complete explanations of the role played by 10m resolution imagery in his analysis, and the imagery he analysed included 0.5m to 0.6m high resolution imagery and medium (between 2m to 15m) resolution imagery. He said that both were appropriate resolutions for identifying vegetation change over large areas, and that he could also use his identification of vegetation types in the high resolution imagery to identify the same vegetation types in the medium resolution imagery through comparing their spatial positions and patterns. He did not use the medium resolution imagery in isolation. Further, no competing expert evidence was called by the defence to impugn Mr Watts’ technique that included the use of 10m resolution imagery, and it was never suggested to him that that resolution was insufficient or inappropriate for him to provide expert opinion. Where there has been a failure on behalf of a party to challenge an expert in cross-examination to impugn their methodology and conclusions, the party failing to do so cannot rely on subsequent submissions that seek to do the same.

269. In response to Balmoral Farms’ reliance on the decision of Pain J in Namoi, the prosecutor submitted that a decision made in separate proceedings about different evidence had no relevance to these proceedings.

270. In response to Balmoral Farms’ criticism of Mr Watts for not identifying the facts he assumed in order to formulate his opinion, the prosecutor submitted that the evidence was to the contrary: Mr Watts' report had a separate section titled "Assumptions"; he set out his methodology in detail, and provided an appendix titled "Elements of Aerial Imagery Interpretation" in which he clearly set out the processes in which he engaged to provide his expert opinions. The criticism of Mr Watts for not producing "in Court" everything that he viewed on his specialised equipment to provide his opinion was unfair and unrealistic, similar to criticising a DNA expert for not bringing samples of bodily fluids and slides from the laboratory in order to explain how they determined their opinion about genealogy. Further, there was no cross-examination of Mr Watts as to his opinions about the timing and the extent of what he concluded to be clearing of vegetation on the two farms.

Evidence of Dr Hammill

271. The prosecutor referred to three respects in which Balmoral Farms criticised Dr Hammill: the limited time to inspect the properties; her use of 2009/10 image; and her use of the OEH (2015) vegetation mapping. As to the first respect, it was not put to Dr Hammill that she had insufficient time to conduct the surveys in order to provide her opinion. As to the criticism that she had not visited all of the sites the subject of opinion, as noted by Pepper J in Environment Protection Authority v John Michelin & Son Pty Ltd [20] at [152], the Court regularly accepts the evidence of experts who have not visited the subject site. In this case, Dr Hammill explained how she extrapolated information about vegetation and landscape on the adjoining land in order to form opinions on polygons she did not physically enter. The prosecutor also referred to Dr Hammil’s evidence of the vast areas having similar vegetation, and it not being a “highly changeable landscape” such that inferences would be more readily drawn about similar vegetation types. Further, the criticism that she did not conduct a full floristic plot during the assessment was without substance and unfair as it was not put to her that there was some irregularity in not doing so. She also described being “very confident in interpreting imagery” because it was something ecologists “do regularly”.

272. In relation to the 2009/10 image, Dr Hammill said that it served a discrete and limited purpose, namely, to provide "general context" of the vegetation that existed before the alleged clearing. In relation to OEH mapping, she said that it served a discrete and limited purpose, namely, to provide "context" and as "a supplementary line of information" about the vegetation that existed previously.

Balmoral Farms’ approach to expert evidence generally and the rule in Browne v Dunn

273. Generally, the prosecutor submitted, there was a failure to challenge Mr Watts and Dr Hammill on many aspects of their methodology and conclusions the subject of criticism in Balmoral Farms’ closing submissions. Those submissions should not be accepted as they breach the rule in Browne v Dunn*,* referring to MWJ v The Queen [21] (MWJ) at [18] (Gleeson CJ and Heydon J) and [38] to [39] (Gummow, Kirby and Callinan JJ); and Hofer v The Queen [22] at [28] to [29] (Gageler CJ, Gleeson and Jagot JJ). In the present case, Balmoral Farms did not give the experts the opportunity to respond to the criticisms, and did not seek to have them recalled.

274. In terms of options available to the trial judge for breaches of the rule, the prosecutor referred to Khamis v The Queen (Khamis), [23] where Whealy J (Campbell JA and Simpson J agreeing) said at [41] to [43]:

[41] … there are a number of sanctions generally available for a court's consideration where, in a criminal trial, there has been a breach of the rule in Browne v Dunn. The more recent authority to which I have referred, makes it clear, however, that a trial court must always endeavour to demonstrate flexibility in its response to the particular problem before it. This will be largely determined by the particular circumstances involved in the case and the course of the proceedings. I will mention, without attempting to be exhaustive, a number of the available responses.

[42] First, if a witness is not cross-examined on a point, cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it. That was one of the options suggested by Mahoney JA in Seymour, although that was a civil case.

[43] Secondly, if the witness has not been cross-examined on a particular matter, that may be, depending on the circumstances, a good reason for accepting that witness's evidence, particularly if it is uncontradicted by other evidence. Where however, a witness's evidence upon a particular matter appeared to be incredible or unconvincing, or if it were contradicted by other evidence which appeared worthy of belief, the fact that the witness had not been cross-examined might be of little importance in deciding whether to accept his evidence (Bulstrode v Trimble [1970] VR 840 at 848-9; Precision Plastics v Demir (1975) 132 CLR at 371). Thirdly, the trial judge may, on application by counsel for the party who called the witness in respect of whom the rule was broken, accede to the application so that matters not put to the witness earlier may be put (s 46 Evidence Act 1995 (NSW)) …

275. If Balmoral Farms sought to assert that Mr Watts and Dr Hammill proffered incorrect opinions, adopted erroneous methodologies or made false assumptions, it ought to have put those asserted errors to each of them. Insofar as it failed to do so, the Court would not be inclined to give the opinions proffered by the experts limited or no weight as urged by Balmoral Farms. The second option in Khamis concerning uncontroverted evidence was submitted to be the appropriate course to be taken by the Court where the evidence of Mr Watts and Dr Hammill was not directly challenged or subject of competing evidence.

Charge 1 (Corombie) – offence against s 12 of the NV Act

276. In relation to charge 1 (Corombie), the prosecutor referred to the characteristics of each alleged clearing event. Polygons 8 and 67 were about 324ha in total, and the clearing involved removal of most trees and thinning of groundcover. The submissions of Balmoral Farms repeated Mark Harris' denials of clearing, claiming that Phillip Harris cleared this “extremely large” area of vegetation in 2015 and Mark Harris had no knowledge of it. The prosecutor submitted that an assertion by an unreliable witness that someone else cleared the land did not meet the threshold of proof required to establish a defence to charge 1.

Charge 2 (Corombie) – offence against s 12 of the NV Act

277. In relation to charge 2 (Corombie), the clearing the subject of which charge is shown above at [162] and which involved eleven polygons in a similar area on Corombie and the removal of most trees and thinning of groundcover, the prosecutor submitted that the Court would reject the submission that Mark Harris had no knowledge of the clearing of these substantial areas. The best example of the implausibility of Mark Harris’ claim not to have noticed the disappearance of vegetation related to polygon 99. The "before and after'' images were submitted to show the stark differences between January 2016 and April 2016. It was inconceivable that Mark Harris would not notice the removal of almost 2ha of trees (and a fence line) on a well-used corner of the farm that was previously separate fields and was now worked in conjunction with his father. Given the lack of evidence concerning the actual construction of fences or an airstrip, the Court would also reject the submission that clearing in polygons 91 and 94 was for fences at all under the routine agricultural management activities category, as defined in s 11 of the NV Act.

Charge 3 (Corombie) – offence against s 12 of the NV Act

278. In relation to charge 3 (Corombie), the prosecutor submitted that the total amount cleared was 27.5ha, with all trees in each polygon removed and the thinning of groundcover. Mark Harris’ evidence that polygon 110 was cleared for a fence line and that he did not notice the clearing of polygons 111 and 108 should be rejected. Specifically in relation to polygon 110, not only was there no evidence supporting the erection of fences to provide a shaded area for livestock at the edge of the paddock, there was evidence that by at least June 2020 (3 years later) no fence even existed. Nor was there any evidence that livestock was ever bought to the property. The routine agricultural management activities defence was not sufficiently raised to have any prospect of succeeding.

279. As to Balmoral Farms’ submissions in relation to polygons 108 and 111, the prosecutor submitted that it was implausible that Mark Harris who had commissioned some clearing by his father in that corner of the paddock on Corombie, "did not notice" the clearing of over 20ha of trees and groundcover that stood out in the middle of a paddock.

Charge 4 (Corombie) – offence against s 60N of the LLS Act

280. In relation to charge 4 (Corombie), Mark Harris’ evidence in relation to the numerous small polygons on Lot 6 of 752247 raised a statutory defence under the "allowable activities" provisions in s 60Q of the LLS Act and Schedule 5A to the LLS Act. However, the defence was not sustainable without evidence of "imminent risk" in the sense described in Chief Executive, Office of Environment and Heritage v Rummery [24] (Rummery).

281. The prosecutor submitted that Balmoral Farms led no supporting evidence of clearing for fence lines or an internal road to substantiate the “bald assertions” made by Mark Harris. In relation to polygon 95, Mark Harris said he did not see it as a “big problem” that his father “went a bit wider on the fence line” in excess of the statutory limit of 10m on either side. The prosecutor submitted that the area cleared in polygon 95, (reproduced at [185] above and marked as Area D) was much more than going “a bit wider”. The area cleared in polygon 95 was over 3ha. As to a clearing for a road, there was no evidence (aside from Mark Harris’ claim) of an internal road being constructed, the images reproduced at [185] not indicating the presence of a road. This possibility was never put to Mr Watts, an expert in interpreting imagery who was ideally placed to comment on features such as human infrastructure.

282. In reply to the defendant’s submission that the s 60F(5) certificate should not be accepted as reliable evidence of the areas of category 2-regulated land, the prosecutor submitted that the assumption made by Mr Watts that the category boundaries in the Shapefile were correct was appropriate. Under s 60F, the certificate is prima facie evidence that the areas so marked were category 2-regulated land and there was no evidence led to undermine the certificate. Where the party challenging the accuracy of the certificate provides no evidence capable of undermining its accuracy, the prosecutor submitted that the Court would accept the s 60F(5) certificate as accurate evidence.

Charge 5 (Balmoral) – offence against s 12 of the NV Act

283. In relation to charge 5 (Balmoral) which alleged the clearing of an area of more than 71ha in total, the prosecutor referred to Balmoral Farms’ submission that no work was done on the Balmoral property until 2015, and that any clearing conducted in 2014 was done without Mark Harris’ knowledge or consent. This explanation was submitted to be unbelievable, it making no sense for Phillip Harris to go there to clear land without Mark Harris' knowledge or permission, especially if there was "no work to be done" on the property, and apart from a bare assertion from Mark Harris, there was no evidence that Phillip Harris did this.

Charge 6 (Balmoral) – offence against s 12 of the NV Act

284. In relation to charge 6 (Balmoral), the prosecutor submitted that Mark Harris’ evidence that his brother-in-law "slashed" vegetation near the residence on Balmoral to keep vegetation low in order to prevent snakes and other animals living near the house was simply speculation because he claimed not to have spoken to his brother-in-law about it. The prosecutor submitted that Mark Harris appeared to have intentionally allowed this clearing to occur so as to fall within the definition of "permit" in s 44, as discussed by Pepper J in Walker 2010. Further, the routine agricultural management activities defence sought to be relied on asserted that there was an "imminent risk" of personal injury caused by the presence of snakes. Without more evidence on the threat posed by snakes the Court could not be satisfied that there was an imminent risk as required by cl 13 of Sch 5A to the LLS Act.

Consideration of whether the prosecutor has discharged its onus in relation to the elements of the six offences charged in the first trial

The evidence of Mark Harris

285. In critical respects, I am unable to accept the evidence of Mark Harris. No evidence was called in support of numerous claims made by him in circumstances where evidence might be expected to have been available to be called if it existed. For example, no other person was called to support Mark Harris' claim that land was cleared without his authority; no invoices for fence posts, wires, equipment were produced; no photographs of erected fences or a finished airstrip were produced; and no correspondence in relation to instructions (or failure to follow them) was tendered. In the course of his oral evidence on 5, 6 and 8 May 2025, Mark Harris claimed that he worked on other family farms, yet no evidence was called from any other family member to support that claim. There was no evidence from an expert agronomist or other suitably qualified person to support Mark Harris’ claim that “there was nothing to do” at Balmoral until the summer rains in early 2015. Mark Harris' evidence that he did not go to Corombie at all in 2015 and he was unaware of changes to the property (that is, clearing) that took place from 14 May 2015 to late 2015 was unconvincing.

286. Moreover, there were significant unexplained discrepancies in Mark Harris’ evidence. He was formally interviewed by DPIE authorised officers Mark Smith and Mr Murphy on 11 February 2021 (and cautioned about answering questions truthfully). On that occasion, he made no mention of fence lines or an airstrip, despite being specifically asked about fences and denying that he erected any fences. This gave the evidence he gave on this topic in the first trial the flavour of recent invention.

287. I find that the evidence he gave was at times vague and imprecise, at times internally inconsistent, and at times evasive. He initially said that he only had one conversation with his father about clearing on Corombie. He was asked during examination in chief on 5 May 2025: “Did you have any other conversations with your father about clearing on Balmoral or Corombie?” He answered:

No, no, I haven’t directed any more clearing that what I’ve just did that one conversation, or one drive where I took him for a drive down here and we, I showed him what I wanted to do for those two reasons whether it was these fence lines and the airstrip and those individual trees that were causing me problems with the machinery.

288. After further cross-examination, this became numerous conversations. In relation to polygon 94, Mark Harris gave evidence during examination in chief on 5 May 2025 that it was cleared to make an airstrip. When asked about the timing of this during cross-examination, he said that the land could have been cleared for an airstrip before August/September 2017 or after, saying: “So, we talked about an airstrip probably earlier than fence lines”. In response to the prosecutor’s question: “Didn’t you say you only had one conversation with your father about what you wanted to do, and it was after August September 2017?”, Mark Harris said “I have more than one conversation with my father if I want work done because I have to borrow his equipment sometimes that I don’t own for work”. Mark Harris confirmed that he potentially had more than one conversation with his father about removing vegetation at Corombie:

Q. So, are you now saying that you had more than one conversation with your father about matters to do with taking out or removing vegetation at Corombie?

A. Well, potentially, yes. I’m not sure - I don’t remember every exact conversation, but I know I’ve had - the conversation doing the drive about the trees and these fences lines. I’ve also talked to him about this air strip. Now, thinking about this air strip, I remember when we had an agronomy meeting early in the piece of 2016 planning with our agronomist and different farmers, weather reports that we were going to get wet and get a good season.

289. This was a significant shift from Mark Harris’ evidence in chief on 5 May 2025 when he said that there was only one conversation with his father about clearing on Corombie.

290. In relation to element 1 of charge 1 (Corombie) below at [316] to [321], I make further findings in relation to Mark Harris’ evidence which have led me to find that in critical respects he was not a credible witness.

The application of the rule in Browne v Dunn and general findings in relation to the evidence of Mr Watts and Dr Hammill in the first trial

291. As noted above at [273], the prosecutor submitted that the Court would not accept Balmoral Farms’ criticism of the evidence of Mr Watts and Dr Hammill in circumstances where there was a failure to challenge them on many aspects of their methodology and conclusions.

292. In MWJ Gleeson CJ and Heydon J said at [18] in relation to the principle of fair conduct on the part of an advocate stated in Browne v Dunn (citations omitted):

[18] The principle of fair conduct on the part of an advocate, stated in Browne v Dunn, is an important aspect of the adversarial system of justice. It has been held in England, New South Wales, South Australia, Queensland, and New Zealand, to apply in the administration of criminal justice, which, as well as being accusatorial, is adversarial. Murphy J, in this Court, even applied it to the conduct of an unrepresented accused. However, for reasons explained, for example, in R v Birks, and R v Manunta, it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings.

293. In MWJ at [38] to [39] Gummow, Kirby and Callinan JJ said in relation to the rule in Browne v Dunn:

[38] The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness’s credit.

[39] One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her.

294. In Hofer v The Queen the plurality (Kiefel CJ, Keane and Gleeson JJ) said at [28] (Gageler J agreeing, Gordon J dissenting in the result):

[28] Browne v Dunn was a civil proceeding, which is adversarial in nature. So too is a criminal proceeding. The rule may be regarded as both appropriate to and an important aspect of the adversarial system of justice. There would seem to be no reason in principle why the requirements of the rule should not be followed in criminal trials. As a general rule, defence counsel should put to witnesses for the Crown for comment any matter of significance which is inconsistent with or contradicts the witness's account and which will be relied upon by the defence. In MWJ v The Queen, it was noted that in many jurisdictions the rule has been held to apply in the administration of criminal justice.

295. The plurality observed that an accused in a criminal trial is not equivalent to a defendant in a civil matter and thus fairness may have a different practical content in relation to the "course to be taken when the rule is not observed" (at [29]). Relevantly, the plurality referred to recalling the witness so that the omission can be corrected.

296. In terms of the options available to the trial judge for breaches of the rule, in Khamis Whealy J (with whom Campbell J and Simpson J agreed) said at [42] to [44]:

[42] It may be said, however, there are a number of sanctions generally available for a court's consideration where, in a criminal trial, there has been a breach of the rule in Browne v Dunn**.** The more recent authority to which I have referred, makes it clear, however, that a trial court must always endeavour to demonstrate flexibility in its response to the particular problem before it. This will be largely determined by the particular circumstances involved in the case and the course of the proceedings. I will mention, without attempting to be exhaustive, a number of the available responses.

[43] First, if a witness is not cross-examined on a point, cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it. That was one of the options suggested by Mahoney JA in Seymour**,** although that was a civil case.

[44] Secondly, if the witness has not been cross-examined on a particular matter, that may be, depending on the circumstances, a good reason for accepting that witness's evidence, particularly if it is uncontradicted by other evidence. Where however, a witness's evidence upon a particular matter appeared to be incredible or unconvincing, or if it were contradicted by other evidence which appeared worthy of belief, the fact that the witness had not been cross-examined might be of little importance in deciding whether to accept his evidence (Bulstrode v Trimble [1970] VR 840 at 848-9); Precision Plastics v Demir (1975) 132 CLR at 371). Thirdly, the trial judge may, on application by counsel for the party who called the witness in respect of whom the rule was broken, accede to the application so that matters not put to the witness earlier may be put (s 46 Evidence Act 1995).

297. In relation to the evidence of Mr Watts, during cross-examination Mr Watts explained how 10m resolution can display objects on the ground. He was taken to Appendix 85 “Elements of aerial imagery interpretation” to his 2024 report (Trial 1). In Appendix 85, Mr Watts said that “[s]cale or Image Resolution is perhaps the most significant criteria in image interpretation and underpins the other image characteristics which follow”, and provided a comparison between two images, one at 0.5m resolution, the other at 10m resolution. However, it was not put to Mr Watts that there were “difficulties” in his interpretation of the images he relied upon in relation to charges 1, 2, 3 and 6, notwithstanding that Balmoral Farms later submitted that the similarities of colouration in the 10m resolution images between areas said to have been cleared and areas said not to have been cleared rendered his conclusions based on asserted differences “unpersuasive”. Nor was Mr Watts taken to the specific images submitted by Balmoral Farms to provide examples of such “difficulties” (at [141] and [166]), and he was not asked to comment on observations he made in respect of those images which Balmoral Farms submitted were “not observable”.

298. In their written submissions, Balmoral Farms referred to the deficiencies identified by Pain J in Namoi in relation to imagery interpretation evidence given by Mr Watts in that case. Balmoral Farms appeared to be referring to [26] to [28] of Pain J’s decision in Namoi where her Honour said:

[26] … Mr Watts does not provide any specific detail of how he was able to detect changes in vegetation based on his visual inspections …

[27] … Mr Watts provides no basis for how he identifies undercover and understorey or its absence as he purports to do in relation to several images. Trees are said to be black blobs and that is the extent of his description of identification.

[28] Further, the quality of production and resolution of the images in the report appears to vary so that some of his conclusions appear obvious to a lay eye (mine) but others do not. Whether his conclusions should be obvious to a lay eye is not necessarily determinative given that this is material presented as an expert report based on specialised knowledge. However to a lay eye his conclusions on what are pale areas of land on some images, for example those referred to in par 47(e), (f), and (g), are not readily apparent and without more detail as to the basis for these opinions the conclusions expressed do not enable his opinions to be readily tested. How his specialised knowledge is applied to the comparison of images is addressed at a very shallow level in his report.

299. However, it was not put to Mr Watts that any of the deficiencies identified by Pain J in Namoi in relation to his evidence in that case existed in relation to his evidence in the present case. Nor was it put to Mr Watts that he conducted a “subjective investigation of aerial images using a computer which apparently allowed him to zoom in and out of individual images on a screen”, as Balmoral Farms sought to submit.

300. I find that Balmoral Farms did not give Mr Watts the opportunity to respond to the criticisms made of him in their submissions summarised at [226] to [228] above and did not seek to have him recalled. If Balmoral Farms wished to assert that Mr Watts proffered incorrect opinions, adopted erroneous methodologies or made false assumptions, that ought to have been put to him. Insofar as counsel for Balmoral Farms failed to do so, I do not give the opinions proffered by Mr Watts the limited weight urged upon me.

301. In any event, I do not accept Balmoral Farms’ submissions in relation to Mr Watts’ evidence generally. I find, as submitted by the prosecutor, that Mr Watts provided complete explanations of the role played by 10m resolution imagery (see above at [17]) which was not challenged by competing expert evidence. In his 2024 report (Trial 1), Mr Watts referred to the analytical skills he has used for over 25 of the 35 years he has spent in the mapping and surveying industry, and said:

The majority of the imagery I analysed in this report to determine changes in vegetation was acquired at a medium image ground resolution from between 2m to 15m which are appropriate resolutions for identifying vegetation change over large areas. These resolutions represent the size of each image pixel in ground units being the smallest visible unit within the image. When I analyse medium resolution imagery, I can identify trees and groundcover by their patterns, tones, shapes and textures and through a visual comparison of their spatial positions and patterns with higher resolution imagery. Trees were identified by me through a combination of their unique shaped canopies, darker canopy tone and colour, coarser canopy texture and their vertical height profile above ground indicated by the shadows they cast. When compared to trees, I identified areas of groundcover in the images through a combination of their lighter grey or green colour, more mottled but smoother texture, more irregular shaped patterns which were visible in most areas between trees and open spaces, and their low ground profile due to no shadows being cast by groundcover. As such I therefore limit the types of vegetation I identified in this report to trees and groundcover/grassland and do not include the identification of understorey plants.

302. In relation to Balmoral Farms’ reliance on Namoi, the deficiency identified in Namoi at [27] that Mr Watts provided “no basis for how he identifies undercover and understorey or its absence” does not apply to the present case. In relation to the deficiencies identified in Namoi that Mr Watts did not “provide any specific detail of how he was able to detect changes in vegetation based on his visual inspections” (at [26]), and that trees were “said to be black blobs” and that was “the extent of his description of identification” (at [27]), I consider that Mr Watts explained in significant detail his methodology for identifying trees and groundcover and detecting changes in vegetation. In addition to the explanation quoted directly above, Mr Watts said in a subsection titled “Analysis of Aerial imagery for Changes in Vegetation” in the methodology section of his 2024 report (Trial 1):

I visually examined each aerial image and compared each selected image with other dates of aerial imagery captured both before and after to determine the extent of change in the vegetation between consecutive dates … The use of a comparison technique is a highly effective method when making assessments of changes in land cover types, including vegetation, from aerial imagery. When viewing the imagery in Global Mapper I used the ‘Toggle’ function within the software to compare pairs of selected dates of images to undertake my analysis and determine whether changes to the vegetation had occurred between the selected dates. …

In undertaking the analysis, I used combinations and variations of the core characteristics common to all aerial images to form the criteria of identifying trees and groundcover and to determine what areas of trees and groundcover had and had not changed over time. … a summary of these image attributes which are fundamental to the analysis are as follows:

Scale

Shape

Size

Pattern

Tone/Colour

Texture

Shadow

Site, and

Association

303. In Appendix 85 to his 2024 report (Trial 1), Mr Watts explained in detail how he used each of these attributes to analyse imagery and provided examples of such attributes in images reproduced in that section. He said in relation to the “comparison” of different dates and resolutions (scales) of imagery captured over the same area:

Comparison of different dates and resolutions (scales) of imagery captured over the same area is an important strategy used in the identification of objects and features and the detection of change. The human eye is perceptive to even the most subtle differences in the characteristics listed above and is able to detect whether changes have occurred particularly in colour/tone, shape, texture and pattern. As highlighted previously, direct identification of features is possible from a single high resolution (large scale) image. This applies to trees, shrubs, grasslands, bare or cleared land, and other natural and manmade features. On the other hand direct identification of such objects can be more difficult from a single lower resolution (small scale) image. The comparison of images of different scales and resolutions, together with the other image characteristics outlined above, can however provide a powerful tool for the reliable identification of land cover features and types. The comparison of multiple dates of imagery is therefore used to determine when and where changes both have and have not occurred.

304. Having regard to such explanations, the deficiencies identified in Namoi that Mr Watts did not “provide any specific detail of how he was able to detect changes in vegetation based on his visual inspections”, and that “the extent of his description of identification” was that trees were “black bobs”, do not arise in the present case. In relation to the deficiency identified in Namoi that some of Mr Watts’ conclusions were not obvious to a lay eye so as to enable his opinions to be readily tested, and the related submission of Balmoral Farms that the images produced in his 2024 report (Trial 1) were the “poor relations of what he claimed to have actually seen” such that the Court could not evaluable the reliability of his conclusions, I note, as Pain J did in Namoi (at [28]), that this is not necessarily determinative given that the material is expert evidence based on specialised knowledge. In Namoi, Pain J nonetheless found that Mr Watts’ explanation as to how “his specialised knowledge is applied to the comparison of images [was] addressed at a very shallow level”, and “without more detail as to the basis for these opinions [not obvious to a lay eye] the conclusions expressed do not enable his opinions to be readily tested”. In the present case, however, Mr Watts has set out in significant detail his specialist knowledge and how he applied that knowledge to come to his conclusions.

305. In any event, insofar as there are “some” observations of Mr Watts in the present case that are not obvious to a lay eye, and insofar as the Court has not been able to see what Mr Watts was able to see in making those observations, this is not a reason to impugn his methodology and the reliability of his evidence generally, as was urged by Balmoral Farms. As I find below in relation to the images relied upon by the prosecutor to prove element 1 of charges 1, 2, 3 and 6 (the images which Balmoral Farms submitted rendered Mr Watts’ conclusions unpersuasive), the majority of the observations made by Mr Watts regarding those images are obvious to the lay eye. This allows the Court to evaluate the general reliability of Mr Watts’ conclusions, and to conclude as I do that his conclusions are generally reliable. I consider the weight to be attached to particular observations in my consideration of whether the prosecutor has proven element 1 of each of the charges in this trial.

306. Finally, I do not accept Balmoral Farms’ submission that Mr Watts did not identify the facts he assumed in order to formulate his opinion. In addition to Mr Watts’ explanations of his methodology and specialist knowledge set out above, in a section titled “assumptions” in his 2024 report (Trial 1), Mr Watts set out the other facts that he assumed to be true in accordance with HG v R.

307. For these reasons, I do not give the opinions proffered by Mr Watts the limited or no weight urged upon me by Balmoral Farms. I do not accept that Mr Watts conducted a “subjective investigation of aerial images”. I find that Mr Watts’ opinion was based on his specialised knowledge in aerial imagery interpretation, and that his reasoning process was adequately exposed in the Watts 2024 report (Trial 1) in which he detailed the methodology he adopted in analysing the satellite and aerial images (as set out above at [15] to [18]). The images he analysed were reproduced in appendices to his report. He summarised the resolution, date and type of imagery and other details in a table, and provided close-ups of the areas of interest in the body of the report, together with an explanation of the changes in vegetation he perceived during his analysis, including both “before” and “after” representations. To the extent that the Watts 2024 report (Trial 1) referred to vegetation changes observed outside the charge period, I do not draw any inferences of unlawful clearing against Balmoral Farms based on that evidence. I will need a good reason to reject Mr Watts’ evidence; for example, if it does not fit with other facts which I have found proved. For the reasons set out below in relation to element 1 of each of the charges, I have found no reason to reject the evidence of Mr Watts in relation to the clearing that was carried out on Corombie and Balmoral during the charge periods in this first trial.

Charge 1 (Corombie) – offence against s 12 of the NV Act

312. The clearing in charge 1 (Corombie) was alleged to have taken place within two areas located at the northern end of Lot 6 DP 755247 at Corombie known as polygons 8 and 67, being a large rectangular shape and, below its western end, a quadrilateral shape, from about 14 May 2015 to 5 October 2015.

Element 1: that clearing was carried out on the relevant property between the charged dates

313. In relation to clearing on Lot 6 in DP 755247 at Corombie in the period from about 14 May 2015 to 5 October 2015, I accept Mr Watts’ evidence that clearing took place at Corombie on two areas to the north of Lot 6, namely polygon 8 (a large rectangular shape comprising approximately 284.6ha) and 67 (a quadrilateral shape comprising approximately 40.2ha). The clearing involved significant clearing of most of the existing scattered “light to medium” coverage of trees, and the thinning of groundcover. Linear ground markings indicative of manmade activity appeared at Corombie by 6 October 2015. “Removal” and “thinning” of vegetation fall within the definition of “clearing” in s 7 of the NV Act.

314. I do not accept Balmoral Farms’ submission that the similarities of colouration in 10m resolution images between areas said to have been cleared and areas said not to have been cleared in relation to charge 1 rendered Mr Watts’ conclusions “unpersuasive”, and that the differences in texture, tone and colour relied on by Mr Watts in distinguishing land allegedly cleared of ground cover from land allegedly undisturbed were not observable in a comparison of the 6 October 2015 and 12 June 2015 images (see [141]). Unlike the situation in Namoi (at [28]), I find that the differences in texture, tone and colour in those images are for the most part obvious to the lay eye. A lay eye comparing the images reproduced above at [141] can readily see that a large number of trees is no longer present, that there is now a greater uniformity in the tone and colour of the area between the trees across the whole of the image indicating the removal of groundcover, and that there are linear ground markings which did not previously exist and which are indicative of manmade activity looking at the whole of the image, that there are some small dark areas, particularly in the top left of the 6 October 2015 image, that are not obvious to the lay eye as having been cleared unlike other small dark areas does not give rise to any reasonable doubt that clearing was carried out on Lot 6 in DP 75247. In any event, as set out above at [297] to [307], Mr Watts was not given an opportunity to respond to the criticism of his opinion that some of these dark areas were cleared while others were not, and I accept that Mr Watts was able to use higher resolution imagery, as well as apply his specialised knowledge in opinions that these areas were cleared.

315. In relation to the evidence of Mark Harris, Mark Harris did not deny that clearing in polygons 8 and 67 took place in the four months between 12 June 2015 and 6 October 2015. In examination in chief on 5 May 2025, when shown images of polygons 8 and 67 as at 12 June 2015 and 6 October 2015, he said that he was familiar with those areas which were “the front of [Corombie] on the north side”. He said that he had seen the areas looking like the top (6 October 2015) image, that is “cultivated”, rather than the “scrub” on the bottom (12 June 2015) image. It was “already cultivated” when he drove onto Corombie. He “reckon[ed]” that he first went into the area in “either December but more likely January 2016” when he had to spray. In cross-examination, he confirmed that he did not recall “being there and it looking like that” (in reference to the image showing land alleged to have been cleared). He said that he had driven around the whole property before he purchased it, but claimed not to remember what the land looked like at that time. He said that after the purchase, he did not attend the property to do work until the start of 2016 as “[t]here was no work to be done” before then. He agreed that neither he nor Balmoral Farms obtained approval from any government authority in order to carry out any clearing in 2015 on Corombie.

Element 2: that the clearing was of native vegetation

323. In relation to the type of vegetation cleared at Corombie in polygons 8 and 67 from about 14 May 2015 to 5 October 2025, I accept the evidence of Dr Hammill and of Peter Jobson, information botanist at the National Herbarium.

324. Dr Hammill took detailed observations at the sites she visited, including at Corombie which she visited on 17 June 2020, and made general observations in relation to the vegetation and the landscape. At Corombie, she visited site 14, adjacent to polygon 8, and site 15, a patch of woodland located between polygons 8 and 67. Although Dr Hammill was unable to visit every polygon the subject of charge 1, as set out above at [308] to [311], I accept her methodology and evidence generally, and find that she was able to obtain sufficient information during her site visits between 15 and 17 June 2020 at Balmoral and Corombie and at the properties the subject of the second and third trials which had vast areas of “quite similar vegetation” from which to extrapolate about the vegetation present in the polygons she did not visit.

325. I likewise accept Dr Hammill’s evidence that the PCTs at the time the vegetation was cleared in polygons 8 and 67 were PCT 40 (Coolabah open woodland wetland with chenopod/grassy ground cover on grey and brown clay floodplains) and PCT 27 (Weeping Myall open woodland of the Darling Riverine Plains Bioregion and Brigalow Belt South Bioregion). Dr Hammill listed in her report the individual species that she recorded as present in the area at the time of her visit. She excluded Vachellia Farnesiana in her oral evidence. During cross-examination, Dr Hammill gave evidence that she deferred to the authority of the PlantNet database “which is the authority on whether plant species are native or non-native.” Her evidence was that she only included in her list of species the flora species which she was confident existed in the area before clearing took place. She considered this to be a “very conservative approach” to identifying PCTs.

326. I also accept the evidence of Mr Jobson who administered PlantNet that each of the species identified by Dr Hammill (except two members of the genus Salsola and Portulaca) was native vegetation within the meaning of s 6 of the NV Act and LLS Act, being species that were established in New South Wales at the time of European settlement. [25]

327. I am satisfied that the prosecutor has established beyond reasonable doubt that the clearing from about 14 May 2015 to 5 October 2015 at Corombie in polygons 8 and 67 was of native vegetation as defined in s 6 of the NV Act.

Element 3: that the clearing was not in accordance with a development consent or property vegetation plan

328. I find that no property vegetation plan or development consent applied to Corombie during the charge period from about 14 May 2015 to 5 October 2015. I also accept the prosecutor’s submission that Balmoral Farms’ responses to the statutory notices issued by Mr Murphy dated 3 December 2019 and 10 March 2020 indicated that no development application or property vegetation plan applied to Corombie in the period from about 14 May 2015 to 5 October 2015. Mark Harris confirmed in cross-examination that neither he nor Balmoral Farms obtained any approval from any government authority to carry out any clearing on Corombie in 2015. In addition, a search of the public register kept by the Minister for the Environment of all development consents and property vegetation plans approved under the NV Act yielded nil results for Corombie.

329. Under s 13 of the NV Act, the Minister was the consent authority for any development application made under that Act for any clearing of native vegetation that required development consent because of that Act. Local Land Services had at all relevant times in the first trial (namely until 25 August 2017) responsibility for the assessment and approval of property vegetation plans under the NV Act (as delegate for the Minister). On about 27 November 2020, DCCEEW issued a statutory notice to produce records under s 12.8 of the BC Act to Local Land Services North West Region, requiring information and/or records for the period between 1 October 2012 and 1 February 2020 in relation to Corombie and Balmoral. I accept the evidence of Mr Boschma, team leader in land management in the North West Region who searched the records of the LLS, that no property vegetation plan applied to Corombie and Balmoral and that LLS had no records of any notification of land clearing or application to clear land in relation to those properties in the period between 2014 and 2018. On about 27 November 2020, DCCEEW also issued Walgett Shire Council with a statutory notice to produce records under s 12.8 of the BC Act requiring information and/or records for the period between 1 October 2012 to 1 February 2020, including in relation to development consents for Corombie and Balmoral. DCCEEW issued a further request for such records. I accept the evidence of Kimley Gene Talbert, Director Environmental Services at Walgett Shire Council in her affidavit of 25 March 2024 that no development applications were made by or consents issued to Balmoral Farms.

330. I find established beyond reasonable doubt that the clearing on Corombie in polygons 8 and 67 in the period from about 14 May 2015 to 5 October 2015 was not in accordance with a development consent or property vegetation plan.

Element 4: that Balmoral Farms was legally responsible for the carrying out of the clearing

331. Further, I find for the purposes of the evidentiary provision in s 44 of the NV Act and the attribution of legal responsibility that Balmoral Farms, the landholder of Corombie, is taken to have carried out the clearing of native vegetation on Corombie in the period from about 14 May 2015 to 5 October 2015.

332. Balmoral Farms was the landholder of Corombie during the clearing period. It was the owner of Lot 6 during the charge period from about 14 May 2015 to 5 October 2015. In his oral evidence, Mark Harris admitted that Balmoral Farms bought Corombie in April 2015 and was the owner of Corombie at the time of the clearing which I have found beyond reasonable doubt to have occurred during the charge period.

333. In relation to Balmoral Farms’ submission that in order to rely on s 44 of the NV Act the prosecutor must prove beyond reasonable doubt the manner in which the alleged clearing took place such as felling, poisoning, removal etc, I am satisfied that the prosecutor did allege a type of clearing, namely removal and thinning of vegetation, and that the prosecutor has proved beyond reasonable doubt the nature of the clearing. I do not accept that s 44 of the NV Act (and s 13.29 of the BC Act) would be construed in the constricted way urged by Balmoral Farms. I was not taken to any authority for the proposition that the words "is taken to" in an evidentiary provision such as s 44 "demands both exposition and proof of the manner (or the activity) by which the alleged clearing has occurred". The prosecutor is required to prove the essential elements of the offence charged, not the particulars of the offence charged, the view to the contrary being described by Gleeson CJ in EPA v Sydney Water at 364 (Ireland and Bruce JJ agreeing) as heterodox. [26] Neither of the cases to which the Court was taken in relation to s 44 of the NV Act, Walker 2010 and Auen Grain, provides any support for a construction of s 44 of the NV Act (or s 13.29 of the BC Act) so as to require the prosecutor to prove the particular physical acts done to clear the land.

334. In Walker 2010, Pepper J at [274] collated the following principles in relation to s 44 in the context of a prosecution under s 12 of the NV Act, citing Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [27] (Issa) and Department of Environment and Climate Change v Olmwood Pty Limited [28] (Olmwood):

[274] … (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]).

335. Section 44 was also considered by Preston CJ of LEC in Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [29] (Walker 2011) at [97] to [109]. At [99], the chief judge said that s 44 is not itself concerned with whether the clearing is in contravention of s 12(1) of the NV Act. It is only concerned with the attribution of responsibility of the act of carrying out clearing to a person (the landholder of land on which the clearing was carried out) who did not physically carry out the clearing, without regard to the lawfulness or unlawfulness of the clearing.

336. Pursuant to s 44 of the NV Act, Balmoral Farms is taken to have carried out and have legal responsibility for the unauthorised clearing of native vegetation on Lot 6 in the period from about 14 May 2015 to 5 October 2015 unless it establishes on the balance of probabilities that the clearing was carried out by another person (s 44(a)) and that the landholder did not cause or permit the other person to carry out the clearing (s 44(b)).

337. In his interview on 11 February 2021 and during his oral evidence on 5 and 6 May 2025, Mark Harris did not suggest that another person had carried out clearing during the charge period. Indeed, he denied knowledge of any clearing on Corombie in 2015 and denied speaking to his father about clearing at any time before 2017.

338. Apart from Mark Harris’ testimony in the first trial, there was no evidence that Phillip Harris undertook or caused to be undertaken the clearing of polygons 8 and 67 without the permission of Mark Harris or Balmoral Farms during the charge period. The submission that Phillip Harris carried out clearing from about 14 May 2015 to 5 October 2015 also appears to be inconsistent with Mark Harris' answers in cross-examination when he said that clearing was done on Corombie without his knowledge, but that he was not asserting that it was done by a member of his family:

Q: I see, so are you saying that some of the clearing was done by people without your knowledge, is that what you’re saying?

A: That’s what I’m saying.

Q: Are you telling her Honour that it was someone in the family that did clearing without your knowledge?

A: No.

339. I accept the prosecutor’s submission that an assertion by an unreliable witness that someone else cleared the land does not meet the threshold of proof required to rebut the evidentiary presumption in s 44 in relation to clearing at Corombie, particularly in circumstances where there was a fundamental inconsistency in the evidence of Mark Harris in this regard. It follows that Balmoral Farms has not rebutted the evidentiary presumption in s 44 of the NV Act in relation to polygons 8 and 67.

340. I am satisfied beyond reasonable doubt that as the landholder at the time of the clearing activity on Lot 6 DP 752247, Balmoral Farms was legally responsible for unauthorised clearing of native vegetation on that lot from about 14 May 2015 to 5 October 2015.

Charge 2 (Corombie) – offence against s 12 of the NV Act

341. The clearing in charge 2 (Corombie) was alleged to have taken place from about 6 October 2015 to 13 April 2016 at Corombie within Lot 6 DP 752247 and in Lot 25 DP 752247, situated to the south of polygons 8 and 67 relevant to charge 1. The prosecutor submitted that there were “numerous areas of irregular shapes”, namely polygons 88, 91, 93, 94, 97, 98, 99, 102, 103, 104 and 105.

Element 1: that clearing was carried out on the relevant property between the charged dates

342. As set out above at [297] to [307] in relation to charge 1 (Corombie), I generally accept Mr Watts’ methodology and his opinion. In relation to charge 2 (Corombie), I find that there were two periods of clearing on Corombie: between 6 October 2015 and 12 January 2016 when a total area of approximately 84.5ha of vegetation was cleared on Lot 6 DP 752247 and Lot 25 DP 752247, and between 12 January 2016 and 13 April 2016 when an area of approximately 1.9ha of vegetation was cleared on Lot 6 DP 752247.

343. In relation to the first period of clearing identified by Mr Watts (between 6 October 2015 and 12 January 2016), I find that polygons 88, 91, 93, 94, 97, 98, 102, 103, 104 and 105 were cleared as depicted in the map in Appendix 80 to the Watts 2024 report (Trial 1) (at [162] and [163] above). The clearing involved the removal of the majority of existing trees which varied in density from “light to medium” to “medium”, and thinning of groundcover.

344. In relation to the second period of clearing identified by Mr Watts (between 12 January 2016 and 13 April 2016), I find that polygon 99 was cleared. I accept Mr Watts’ evidence that there was a small amount of clearing of the scattered trees after 12 January 2016, and groundcover thinning after 12 January 2016. A close-up view comparing the area identified by Mr Watts as having been cleared between 12 January 2016 and 13 April 2016 is reproduced above at [166]. The presence of trees later cleared is evident in the earlier image dated 12 January 2016.

345. As in relation to charge 1, I do not accept Balmoral Farms’ submission in relation to charge 2 that the similarities of colouration in 10m resolution images between areas said to have been cleared and areas said not have been cleared rendered Mr Watts’ conclusions “unpersuasive”, and that the “presence and absence of dots” in polygon 99 and the adjacent land were not observable in the image of 13 April 2016 (see [166]). The vast majority of differences between the images reproduced at [164] (for polygons 88 to 105) and [166] (for polygon 99) observed by Mr Watts are obvious to the lay eye, unlike in Namoi. Insofar as minor areas of difference are not obvious, this does not give rise to a reasonable doubt that clearing was carried out on Lot 6 DP 752247 and Lot 25 DP 752247. In any event, as set out above at [297] to [307], Mr Watts was not given an opportunity to respond to the criticism of his opinion that such areas were cleared whereas others were not, and I accept that Mr Watts was able to use higher resolution imagery as well as to apply his specialised knowledge in opining that these areas were cleared.

346. I find established beyond reasonable doubt that approximately 86.3ha of clearing was carried out at Corombie on Lots 6 and 25 DP 752247 from about 6 October 2015 to 13 April 2016, comprising a period of clearing between 6 October 2015 to 12 January 2016 in which polygons 88, 91, 93, 94, 97, 98, 102, 103, 104 and 105 were cleared (totalling approximately 84.5ha), and a period of clearing between 12 January 2016 and 13 April 2016 in which polygon 99 was cleared (approximately 1.9ha).

Element 2: that the clearing was of native vegetation

347. I accept the evidence of Dr Hammill that the PCT at the time the vegetation was cleared at Corombie in the period between about 6 October 2015 and 13 April 2016 was in polygons 91, 93, 94, 97, 98, 99, 102, 103, 104 and 105 PCT 40 (Coolabah open woodland wetland with chenopod/grassy ground cover on grey and brown clay floodplains). Dr Hammill visited and travelled through the area near polygons 91, 93 and 94 and stopped at site 17. She observed E**ucalyptus coolabah woodland with a grassy groundcover, and opined that similar woodland would have been present inside the polygons prior to clearing. Her opinion that similar high-quality woodlands would have been present before the clearing, comprising a “mosaic” of PCT 40 and PCT 27, was consistent with the OEH (2015) vegetation mapping which identified these same woodland communities across the property prior to 2015. Although Dr Hammill was unable to visit every polygon the subject of charge 2, as set out above at [308] to [311], I accept the methodology and evidence generally of Dr Hammill, and find that she was able to obtain sufficient information during her site visits between 15 and 17 June 2020 to Balmoral and Corombie and at the properties the subject of the second and third trials which had vast areas of “quite similar vegetation” from which to extrapolate about the vegetation present in the polygons she did not visit.

348. In relation to polygon 88, however, Dr Hammill’s conclusion was that the PCT in polygon 88 at the time the vegetation was cleared at Corombie in the period between about 6 October 2015 and 13 April 2016 was PCT 49 (Partly derived Windmill Grass – copperburr alluvial plains shrubby grassland of the Darling Riverine Plains Bioregion and Brigalow Belt South Bioregion). She did not visit polygon 88 or make observations there. Nor did she provide an explanation as to how polygon 88 was PCT 49 and not PCT 40 or a mosaic of PCT 40 and PCT 27 as were the other polygons relevant to charge 2. Given her conclusion that polygon 88 was a different PCT from the other polygons the subject of charge 2, I am unable to accept that Dr Hammill was able to extrapolate to polygon 88 from the vegetation in the polygons in relation to charge 2 that she did visit. Accordingly, I am not satisfied beyond reasonable doubt that the vegetation cleared in polygon 88 was PCT 49.

349. As in relation to charge 1, I accept the evidence of Mr Jobson that each of the species identified by Dr Hammill (except two of the members of the genus Salsola and Portulaca) was native vegetation within the meaning of s 6 of the NV Act.

350. I am satisfied that the prosecutor has established beyond reasonable doubt that the clearing at Corombie in polygons 91, 93, 94, 97, 98, 99, 102, 103, 104 and 105 from about 6 October 2015 to 13 April 2016 was of native vegetation as defined in s 6 of the NV Act. I am not satisfied that the prosecutor has established beyond reasonable doubt that the clearing at Corombie in polygon 88 was of native vegetation as defined in s 6 of the NV Act. Accordingly, I am only satisfied beyond reasonable doubt that approximately 74.2ha of native vegetation was cleared at Corombie from about 6 October 2015 to 13 April 2016.

Element 3: that the clearing was not in accordance with a development consent or property vegetation plan

351. To prove element 3 of charge 2, the prosecutor relied on the same evidence relied as in relation to element 3 of charge 1. I find established beyond reasonable doubt that the clearing of native vegetation at Corombie from about 6 October 2015 to 13 April 2016 was not in accordance with a development consent or property vegetation plan.

Element 4: that Balmoral Farms was legally responsible for the carrying out of the clearing

352. In relation to Balmoral Farms’ submission that the evidentiary provision in s 44 of the NV Act is only available where, as part of the prosecution case, the prosecutor proves beyond reasonable doubt in what manner the alleged "clearing" has taken place, I repeat my findings at [333] to [335] above in relation to element 4 of charge 1. As the landholder at the time of the clearing activity on Lot 6 DP 752247, Balmoral Farms is taken to have carried out and to be legally responsible for the carrying out of the clearing from about 6 October 2015 to 13 April 2016 unless it establishes on the balance of probabilities that the clearing was carried out by another person (s 44(a)) and that the landholder did not cause or permit the other person to carry out the clearing (s 44(b)).

353. Balmoral Farms submitted that the evidentiary presumption in s 44 of the NV Act was rebutted in respect of polygons 88, 91, 93, 94, 97, 98, 99, 102, 103, 104 and 105 as the clearing from about 6 October 2015 to 13 April 2016 was carried out by another person, Phillip Harris, and Balmoral Farms did not cause or permit Phillip Harris to carry out the clearing.

354. I find that Mark Harris provided no explanation for the clearing in polygon 103 apart from “it could have been someone else that’s cleared it”. His evidence that “someone else” could have cleared polygon 103 during the charge period does not establish on the balance of probabilities that the clearing was carried out by another person which the landholder, Mark Harris for Balmoral Farms, did not cause or permit.

355. In relation to polygons 101, 103 and 93, I find that Mark Harris’ evidence that he only knew polygons 93 to 102 as “farming country” and that he recalled polygons 102 and 93 as cultivated paddocks was unconvincing given that the total area cleared in the period from about 6 October 2015 to 13 April 2016 was 84.5ha. This evidence is insufficient to prove on the balance of probabilities for the purpose of s 44 of the NV Act that the clearing was carried out by another person which clearing Balmoral Farms did not cause or permit.

356. I also find Mr Harris’ claim not to have noticed the disappearing vegetation in polygon 99 to be implausible. Polygon 99 appears in the image reproduced at [166] titled “13 April 2016 Satellite Imagery (Sentinel 2) Corombie – property 2680413 with areas of cleared vegetation – Area A”. The "before and after'' images show the difference in vegetation between 12 January 2016 and 13 April 2016. The 6 March 2017 image titled “6 March 2017 Aerial Photography (ADS80) Corombie – property 2680413 with cleared areas now cultivated paddocks – Area A” (reproduced at [167] above) shows continuous vertical plough lines after the fence had been removed between the land owned by Balmoral Farms and Waverley South, land owned by Mark Harris’ parents, Phillip Harris and Sue Harris. During cross-examination, in answer to the question “have you been ploughing the same field with your father in this area [polygon 99] of Corombie and Waverley South?”, Mark Harris answered “Yes. It’s been connected”. He agreed that the field surrounding polygon 99 was an example of where he and his father “not only share[d] machinery but … [did] work for each other, ploughing, sowing, harvesting a single paddock”. Absent any corroborating evidence, I am unable to accept as plausible that Mark Harris would not have noticed the removal of almost 2ha of trees (and a fence line) on a well-used corner of the farm that was previously separate fields and was now worked in conjunction with his father. It follows that Balmoral Farms has not rebutted the evidentiary presumption in s 44 of the NV Act in relation to polygon 99.

Whether Balmoral Farms has established a defence to the offence in charge 2

358. In relation to polygons 91 and 94, Balmoral Farms submitted that clearing in those polygons was permitted for routine agricultural management activities pursuant to s 22 of the NV Act. I accept the prosecutor’s submission that the various claims by Mark Harris about clearing to accommodate fence lines and an airstrip ought be rejected. Mark Harris said during his interview with DPIE authorised officers Mark Smith and Mr Murphy on 11 February 2021 that he had not done any of the fence line work, and he did not know who did it and he “would be guessing who would be doing fences”. This evidence is inconsistent with Mark Harris’ oral evidence during the first trial that he spoke to his father about erecting fences. Given the conflicting evidence concerning the actual construction of fences or an airstrip, Balmoral Farms’ has not established on the balance of probabilities that clearing in polygons 91 and 94 was for the construction of fences for routine agricultural management activities pursuant to s 22 of the NV Act.

Charge 3 (Corombie) – offence against s 12 of the NV Act

359. The clearing in charge 3 (Corombie) was alleged to have taken place from about 29 December 2016 to 31 July 2017 within polygons 108, 110 and 111 in Lot 4 DP 752245, being the separate quadrilateral shape to the south-east of Corombie.

Element 1: that clearing was carried out on the relevant property between the charged dates

360. As set out above at [297] to [307], I generally accept Mr Watts’ methodology and opinion. In relation to charge 3, I accept Mr Watts’ evidence that there were two periods of clearing on Corombie: between 29 December 2016 and February 2017 when a total area of approximately 7.6ha of vegetation was cleared on Lot 4 DP 752245, and between February 2017 and July 2017 when an area of approximately 19.9ha of vegetation was cleared on Lot 4 DP 752245.

361. In relation to the first period of clearing identified by Mr Watts (29 December 2016 to February 2017), I accept Mr Watts’ evidence that approximately 7.6ha were cleared in polygons 110 and 111, as depicted in the map in Appendix 80 to the Watts 2024 report (Trial 1) at [163]. The clearing involved the removal of all existing “light to medium density” trees, plus the thinning of groundcover. Mr Watts found that the land patterns and markings were consistent with crop cultivation. A close-up view comparing the area identified as having been cleared between 29 December 2016 and February 2017 is reproduced above at [174].

362. In relation to the second period of clearing identified by Mr Watts (between February 2017 and July 2017), I accept Mr Watts’ evidence that there was clearing in polygon 108 which involved clearing of all scattered to “light to medium” density trees, plus groundcover thinning. In the July 2017 imagery, Mr Watts observed an island of trees within a paddock which had been substantially reduced in size since February 2017 so that the affected parts were now consistent in appearance with the surrounding cultivated paddocks. A close-up view comparing the area identified as having been cleared between February 2017 and July is reproduced above at [175].

363. As in relation to charge 1, I do not accept Balmoral Farms’ submission in relation to charge 3, that the similarities of colouration in 10m resolution images between areas said to have been cleared and areas said not have been cleared rendered Mr Watts’ conclusions “unpersuasive”. The vast majority of differences between the images reproduced at [174] (for polygons 110 and 111) and [175] (for polygon 108) observed by Mr Watts are obvious to the lay eye, unlike in Namoi. Insofar as minor areas of difference are not obvious, this does not give rise to a reasonable doubt that clearing was carried out on Lot 6 DP 752247 and Lot 25 DP 752247. In any event, as set out above at [297] to [307], Mr Watts was not given an opportunity to respond to this criticism of his opinion that such areas were cleared whereas others were not, and I accept that Mr Watts was able to use higher resolution imagery as well as to apply his specialised knowledge in opining that such areas were cleared.

364. I find established beyond reasonable doubt that approximately 27.5ha of clearing was carried out at Corombie on Lot 4 DP 752245 from about 29 December 2016 to 31 July 2017 comprising two periods of clearing: the first, between 29 December 2016 and February 2017 in which polygons 110 and 111 were cleared (totalling approximately 7.6ha); and the second, and between February 2017 and July 2017 in which polygon 108 was cleared (approximately 19.9ha).

Element 2: that the clearing was of native vegetation

365. I accept the evidence of Dr Hammill that the PCT at the time the vegetation was cleared at Corombie in the period between about 29 December 2016 and 31 July 2017 in polygons 108, 110 and 111 was PCT 40 (Coolabah open woodland wetland with chenopod/grassy ground cover on grey and brown clay floodplains). Dr Hammill visited and travelled through polygons 110 and 111, and stopped at sites 19, 20 and 21. The reference site 21 contained “mixed age stands of Eucalyptus coolabah” which reflected a “healthy ecosystem”. In contrast, polygon 108 was characterised by "Dark brown-grey soil … cleared and cropped paddock". Dr Hammill concluded that the PCT at the time of the clearing of vegetation in polygons 108, 110 and 111 was PCT 40.

366. As in relation to charge 1, I accept the evidence of Mr Jobson that each of the species identified by Dr Hammill (except two of the members of the genus Salsola and Portulaca) was native vegetation within the meaning of 6 of the NV Act.

367. I am satisfied that the prosecutor has established beyond reasonable doubt that the clearing at Corombie from about 29 December 2016 to 31 July 2017 was of native vegetation as defined in s 6 of the NV Act.

Element 3: that the clearing was not in accordance with a development consent or property vegetation plan

368. To prove element 3 of charge 3, the prosecutor relied on the same evidence as in relation to element 3 of charge 1. I find established beyond reasonable doubt that the clearing of native vegetation at Corombie from about 29 December 2016 to 31 July 2017 was not in accordance with a development consent or property vegetation plan

Element 4: that Balmoral Farms was legally responsible for the carrying out of the clearing.

369. In relation to Balmoral Farms’ submission that the evidentiary provision in s 44 of the NV Act is only available where, as part of the prosecution case, the prosecutor proves beyond reasonable doubt in what manner the alleged "clearing" has taken place, I repeat my findings at [333] to [335] above in relation to element 4 of charge 1. As the landholder at the time of the clearing activity on Lot 4 DP 752245 from about 29 December 2016 to 31 July 2017, pursuant to s 44 of the NV Act, Balmoral Farms is taken to have carried out and to be legally responsible for the clearing unless it establishes on the balance of probabilities that the clearing was carried out by another person (s 44(a)) and that the landholder did not cause or permit the other person to carry out the clearing (s 44(b)).

370. In relation to polygons 111 and 108, Balmoral Farms submitted that Mark Harris did not notice the clearing in those polygons. Mark Harris gave evidence during cross-examination that he learned of the clearing only after his interview with DPIE on 11 February 2021. Given that polygon 111 is a discrete island of trees within a large paddock that simply vanished, I am unable to accept the reliability of that evidence. In relation to polygon 108, a circular shape, Mr Harris said in examination in chief that he had no knowledge of the clearing in this polygon. It was put to him in cross-examination that polygon 108 was cleared to make room for more cultivation within the surrounding paddock. He agreed that that may have been the case, but said that it was not at his instruction. He claimed not to have noticed that this area of 19.9ha had been cleared, saying that it was a small size, compared to a 500ha paddock. I accept the prosecutor’s submission that this evidence was implausible having regard to the fact that polygon 108 was an identifiable stand of trees in the middle of a paddock. It follows that Balmoral Farms failed to establish on the balance of probabilities the matters necessary to rebut the evidentiary presumption in s 44 of the NV Act in relation to polygons 108 and 111.

371. I am satisfied beyond reasonable doubt that as the landholder at the time of the clearing activity on Lot 4 DP 752245, Balmoral Farms was legally responsible for unauthorised clearing of native vegetation on that lot from about 29 December 2016 to 31 July 2017.

Whether Balmoral Farms has established a defence to the offence in charge 3

372. In relation to polygon 110, Balmoral Farms sought to rely on the defence in s 22 of the NV Act which permits clearing for routine agricultural management activities. Relying on the evidence of Mark Harris, Balmoral Farms submitted that polygon 110 was cleared for a fence line “to create an area with water and shade where cattle could be enclosed but let out into the cultivated paddock to feed on stubble or weeds”. However, relation to polygon 110, there was evidence that as at June 2020, no fence existed and no livestock was run on the area. During cross-examination, Mark Harris was shown a photograph of polygon 110 taken on 17 June 2020 (reproduced below) which indicated that no fence existed at that time. Mark Harris ultimately said that a fence was not put in until after June 2020. I find that clearing carried out in 2017 for a fence line not installed until an undefined date 3 years later cannot fall within the defence in s 22 of the NV Act, and is not infrastructure “used for the purposes of, or in connection with, an agricultural activity” for the purpose of cl 25 of the NV Regulation.

Charge 4 (Corombie) – offence against s 60N of the LLS Act

373. The clearing in charge 4 was alleged to have taken place at Corombie from about 25 August 2017 to 31 December 2017 within numerous small areas on Lot 6 DP 752247 and Lot 9 DP 752254. In respect of Lot 6, the prosecutor alleged that this was the second clearing event over the same areas cleared in 2015 (then called polygons 8 and 67 and the subject of charge 1).

Element 1: that clearing was carried out on the relevant property between the charged dates

374. As set out above at [297] to [307], I generally accept Mr Watts’ methodology and expert opinion. In relation to charge 4, I accept Mr Watts’ evidence that clearing totalling approximately 77.4ha was carried out at Corombie from about 25 August 2017 to 31 December 2017, approximately 70.2ha of which was category 2-regulated land and the subject of charge 4. This clearing was carried out in polygons 1 to 7 in Lot 9 DP 752254 and polygons 15 to 16, 19, 21, 25, 28, 29, 32 to 36, 39, 43, 44, 51, 53, 54, 57, 60, 63, 66, 69 to 73, 76 to 78, 81 to 83, 85 to 87, 89, 90, 92, 95 and 96 in Lot 6 DP 752247.

375. I accept Mr Watts’ opinion that the clearing in polygons 1 to 7 in Lot 9 DP 752254 involved the removal of all existing low-density trees, plus the thinning of groundcover. The clearing in relation to the numerous small polygons in Lot 6 DP 752247 (polygons 15 to 16, 19, 21, 25, 28, 29, 32 to 36, 39, 43, 44, 51, 53, 54, 57, 60, 63, 66, 69 to 73, 76 to 78, 81 to 83, 85 to 87 and 89) resulted in the removal of “in excess of 80 existing single trees or larger clumps of light to medium density trees plus the thinning of groundcover”. These polygons fall within the area of the earlier identified polygons 8 and 67, the subject of charge 1. The clearing in charge 1 which occurred from about 14 May 2015 to 5 October 2015 left behind some native trees that were later cleared from about 25 August 2017 to 31 December 2017, and the subject of charge 4. In relation to polygons 95, 90, 79, 89, 90, 92 in Lot 6 DP 752247, Mr Watts said that the clearing resulted in the removal of all existing low-density trees plus the thinning of groundcover. I accept that Mr Watts distilled these polygons into areas identified as category 2-regulated land in accordance with the s 60F(5) certificate.

376. Mark Harris admitted in examination in chief that he caused the clearing in former polygon 8 (polygons 9 to 66 for the purpose of this charge) in Lot 6 DP 752247 from about 25 August 2017 to 31 December 2017. Mark Harris said that that he first sprayed Corombie in 2016 using a 48-metre-wide boom. He said there were “issues with these trees doing damage to the booms of the spray rig because they wouldn’t fit between all the trees”. He said that it was hard to manage machinery operation in that paddock and that this was a “safety issue”. He said that he therefore “formed a plan [with his father] for the end of the year in 2017 for him to come through and help [Mark] isolate some of the individual trees and remove them so that we’d stop having that issue”. He asked his father to go for a drive with him and help work out a plan to get rid of some of the trees. He said that the plan was put into effect shortly after August/September 2017 and before the end of 2017.

377. Having regard to the evidence of Mr Watts and the admissions of Mark Harris, I am satisfied beyond reasonable doubt that approximately 70.2ha of clearing was carried out in polygons 1 to 7 in Lot 9 DP 752254 and polygons 15 to 16, 19, 21, 25, 28, 29, 32 to 36, 39, 43, 44, 51, 53, 54, 57, 60, 63, 66, 69 to 73, 76 to 79, 81 to 83, 85 to 87, 89, 90, 92, 95 and 96 in Lot 6 DP 752247 from about 25 August 2017 to 31 December 2017.

Element 2: that the clearing was of native vegetation

378. I accept the evidence of Dr Hammill and Mr Jobson, information botanist at the National Herbarium, concerning the type of vegetation cleared at Corombie in polygons 1 to 7 in Lot 9 DP 752254 and polygons 15 to 16, 19, 21, 25, 28, 29, 32 to 36, 39, 43, 44, 51, 53, 54, 57, 60, 63, 66, 69 to 73, 76 to 79, 81 to 83, 85 to 87, 89, 90, 92, 95 to 96 in Lot 6 DP 752247 from about 25 August 2017 to 31 December 2017.

379. I accept Dr Hammill’s evidence that the cleared areas would have mostly contained PCT 40 (Coolabah woodland with a variable tree cover ranging from relatively sparse to dense). On 17 June 2020, Dr Hammill travelled to areas adjacent to polygons 9 to 66 (site 14), polygons 20, 21, 67, 68, 70 (site 15), polygon 95 (site 16) and polygon 92 (site 17). She said that Weeping Myall woodlands would have occurred mainly in the northern polygons, including near sites 14, 15, 16 and 17. She considered that her observations were consistent with the OEH (2015) vegetation mapping which identified the same native woodland communities in a mosaic across the property prior to 2015.

380. Dr Hammill provided a detailed description and photos of the species and landscape at sites 14 to 17 in her 2024 report. For example, she included a photo of a large Acacia pendula tree which had multiple stems which she considered each to have a diameter at breast height of 40 cm. Dr Hammill opined that a tree of this size was of substantial age, likely many decades, and noted that the tree was visible in the 2009-2010 satellite imagery, and that there were similar sized trees in the cleared areas in polygon 95. She reasoned that similar trees of substantial size and age were cleared in polygon 95. She also provided photos of large Eucalyptus coolabah trees forming a grass woodland in extant vegetation to the immediate west of polygon 95. She opined that similar woodland had been present and was cleared in polygon 95. She considered this to have been clearing of the NSW and Federal endangered Coolibah-Black Box woodland endangered ecological community.

381. Although Dr Hammill was unable to visit every polygon the subject of charge 4, as set out above at [308] to [311], I accept the methodology and evidence generally of Dr Hammill and find that she was able to obtain sufficient information during her site visits between 15 and 17 June 2020 at Balmoral and Corombie and at the properties the subject of the second and third trials which had vast areas of “quite similar vegetation” from which to extrapolate about the vegetation present in the polygons she did not visit.

382. I am likewise satisfied that the species identified by Dr Hammill were native vegetation. Clause 106 of the LLS Regulation provided that for the purposes of Pt 5A of the LLS Act, a species of plant may be conclusively presumed to be native to NSW if it is listed on the official database, PlantNet, unless it is identified on the database as an introduced species. Mr Jobson's evidence was to the effect that the species Dr Hammill identified were identified on PlantNet as native species.

Element 3: that the clearing was on regulated land

384. Balmoral Farms submitted that the status of the cleared land as category 2-regulated land had not been proved beyond reasonable doubt, and therefore the clearing was not carried out on a rural regulated area for the purpose of ss 60N and 60D of the LLS Act. In support of this submission, Balmoral Farms challenged the s 60F(5) certificate on the grounds that Mr Watts was not entitled to assume that the shapefiles containing the boundaries of the s 60F(5) certificate provided to him by DPIE were reliable, and that Mr Black who issued the certificate did not “perform whatever ‘review’ lead to the categorisation of Corombie” as category 2-regulated land. I accept the prosecutor’s submission that pursuant to s 60F of the LLS Act, a s 60F(5) certificate is prima facie evidence that the areas so marked are category 2-regulated land, and that Balmoral Farms did not proffer any evidence to undermine the certificate. Mr Watts gave evidence that he visually checked and confirmed the content of shapefiles for the land identified in the map annexed to the section 60F(5) certificate against the calculated area of the lots the subject of this charge as determined by him in the Global Mapper software. As Balmoral Farms provided no evidence capable of undermining the accuracy of the s 60F(5) certificate, I do not accept Balmoral Farms’ challenge to it.

385. On the basis of the s 60F(5) certificate, I am satisfied beyond reasonable doubt that the polygons relevant to charge 4 (polygons 1 to 7 in Lot 9 DP 752254 and polygons 15 to 16, 19, 21, 25, 28, 29, 32 to 36, 39, 43, 44, 51, 53, 54, 57, 60, 63, 66, 69 to 73, 76 to 79, 81 to 83, 85, 87, 89, 90, 92, 95 and 96 in Lot 6 DP 752247) were situated on land that is shown on the native vegetation regulatory map in the s 60F(5) certificate as category 2-regulated land within the meaning of ss 60N and 60D of the LLS Act. Mr Watts confirmed the contents of the map annexed to the section 60F(5) certificate (Trial 1) (provided to him by DCCEEW as a shapefile) against the area of charge 4 he determined in the Global Mapper software. The section 60F(5) certificate (Trial 1) categories aligned exactly with the cadastral boundaries of Lot 9 DP 752254 and Lot 6 DP 752247 at Corombie.

Element 4: that Balmoral Farms was legally responsible for the carrying out of the clearing

386. Balmoral Farms’ ownership of the land at Corombie the subject of charge 4 was established by the land title records dated 24 February 2020, the certificate of evidence of Sarah Carr dated 20 March 2024 certifying pursuant to s 13.31(2)(a) of the BC Act that Balmoral Farms was the landholder of Corombie from 14 May 2015 to 14 November 2019, and the admission of Balmoral Farms’ director Mark Harris that Balmoral Farms owned Corombie. I am satisfied that Balmoral Farms was the landholder of Corombie from about 25 August 2017 to 31 December 2017.

387. In relation to the defendant’s submission that the evidentiary provision in s 13.29 of the BC Act is only available where, as part of the prosecution case, the prosecutor proves beyond reasonable doubt the nature of “the activity constituting the alleged offence or contravention” (in the case of the LLS Act), I repeat my findings at [333] to [335] above in relation to element 4 of charge 1.

388. As the landholder of Corombie at the time of charge 4 (from about 25 August 2017 to 31 December 2017), Balmoral Farms is taken pursuant s 13.29 of the BC Act to have carried out the clearing under s 60N of the LLS Act, unless it establishes on the balance of probabilities that the clearing was carried out by another person (s 13.29(1)(a)) and that the landholder did not cause or permit the other person to carry out the activity (s 13.29(1)(b)).

389. In relation to the clearing of polygons 3 to 7, Balmoral Farms submitted that Mark Harris did not discuss clearing polygons 3 to 7 with his father, and that this was not clearing which Balmoral Farms caused or permitted. Balmoral Farms further submitted that polygon 95 was cleared in part for allowable infrastructure and in part without Balmoral Farms’ knowledge or permission where Phillip Harris “went a bit wider on the fence line” in excess of the statutory limit of 10m on each side. As in relation to element 4 of charge 3, I find it implausible that Mark Harris would not have noticed the clearing of polygons 3 to 7 comprising 3.4ha of an identifiable stand of vegetation in the middle of the paddock in circumstances where he had asked his father to clear polygons 1 and 2 in order to connect a road in the corner of that paddock. In relation to polygon 95, I also find it implausible that Mark Harris would not have been aware of the extent of the clearing comprising polygon 95. As submitted by the prosecutor, polygon 95 was considerably more than “a bit wider” than the area necessary for a fence line and was over 3ha (see the area marked as Area D in the image reproduced at [185]). It follows that Balmoral Farms has failed to establish on the balance of probabilities the matters necessary to rebut the evidentiary presumption in s 13.29 of the BC Act in relation to polygons 3 to 7.

390. I am satisfied beyond reasonable doubt that as the landholder at the time of the clearing activity on Lot 6 DP 752247 and Lot 9 DP 752254, Balmoral Farms was legally responsible for unauthorised clearing of native vegetation on those lots from about 25 August 2017 to 31 December 2017, Corombie being a regulated rural area.

Whether Balmoral Farms has established a defence to the offence in charge 4

391. In relation to the numerous small polygons in the north of Lot 6 of 752247 (polygons 15, 16, 19 to 21, 25, 28, 29, 32 to 36, 39, 43, 44, 51, 53, 54, 57, 60, 63, 66, 69 to 73, 76 to 78, 81 to 83 and 85 to 87), Mr Harris' evidence and Balmoral Farms’ submissions sought to raise a statutory defence under the "allowable activities" provisions in s 60Q of the LLS Act and Schedule 5A to the LLS Act. Mark Harris said in examination in chief on 5 May 2025 that he arranged for his father to remove individual trees in the area in the north of Lot 6 DP 752247 in order to prevent damage to “the booms of the spray rig because they wouldn’t fit between all the trees” and to reduce the safety issue posed because “you can’t see … there’s individual trees for the width of our equipment so it becomes a bit of an issue trying to farm in between that, around the trees”.

392. Clause 13 of Schedule 5A of the LLS Act provided that the clearing of native vegetation that is reasonably necessary to remove or reduce an “imminent risk” of serious personal injury or damage to property is allowed. In Rummery, where the defendant said that clearing was undertaken for "safety reasons" pursuant to the exception in s 11(1)(i) of the NV Act, Pepper J said at [57] that the phrase “imminent risk” in s 11(1)(i) “involves a temporal nexus insofar as the risk must be assessed against the likelihood of the serious personal injury occurring relatively soon and not at some inchoate point in time”. Her Honour said at [59] to [60] (emphasis added):

[59] When construed in the broader context of the NVA, the phrase "imminent risk" in s 11(1)(i) is plainly directed towards the risk posed by native vegetation and not the activity per se. That is to say, clearing is permitted where native vegetation creates an immediate danger, and not some indeterminate danger at large derived from mustering. Accordingly, where a hanging branch may, at any moment, fall and injure a person, clearing would be permitted under the RAMA.

[60] Such a construction also conforms with the objects contained in s 3 of the NVA because it envisages the clearing of only select trees or shrubs (or select areas of vegetation, for example, fire breaks) without consent, justifiable on the basis that there is a likely probability that an identifiable risk will soon eventuate, or at the very least, will eventuate within the time necessary to complete routine approval processes. Were it otherwise, clearing to remove or reduce the risks of mustering would facilitate the clearing of native vegetation on a broad scale, thereby defeating the objects of the statutory scheme (see specifically s 3(b) of the NVA).

393. Here, there was no evidence of any imminent risk created by the trees which were removed from polygons 15, 16, 19, 21, 25, 28, 29, 32 to 36, 39, 43, 44, 51, 53, 54, 57, 60, 63, 66, 69 to 73, 76 to 78, 81 to 83 and 85 to 87 in the sense described by her Honour in Rummery at [57]. Mark Harris’ evidence concerning the clearing of individual trees to prevent damage to the booms of a spray rig and to prevent obstruction of the vision of a person operating farming equipment lacks the requisite temporal nexus to an imminent risk of personal injury or damage to property. It can at its highest be characterised as some indeterminate risk at some inchoate point in time danger at large derived from the operation of spray rigs or other unspecified farming equipment. Balmoral Farms has not established on the balance of probabilities that the clearing of native vegetation from about 25 August 2017 to 31 December 2017 was reasonably necessary to remove or reduce an imminent risk of serious personal injury or damage to property for the purposes of cl 13 of Schedule 5A of the LLS Act.

394. Mark Harris also gave evidence that he asked his father Phillip Harris to clear polygons 95, 96, 79, 89, 90, 91 and 92 in order to erect fence lines. This evidence was inconsistent with the response to a question concerning the fence lines given by Mark Harris during the 11 February 2021 interview with DPIE officers Mark Smith and Mr Murphy. Then, Mr Harris’ answer was “I don’t know”. In relation to polygon 95, in cross-examination, Mr Harris said that he did not see it as a "big problem" that his father "went a bit wider on the fence line" in excess of the statutory limit of 10m on either side. In fact, the area cleared in polygon 95 was over 3ha (see [185]). In relation to polygon 95, Mr Harris said during his interview of 11 February 2021 that he did not think it was clearing, and had not given it a second thought.

395. I do not accept Mark Harris’ evidence in relation to the clearing of polygons 95, 96, 79, 89, 91 and 92 in order to erect fence lines. He gave no evidence as to when the fences were erected. There was no evidence as to who erected them, and no invoices or photographs. He accepted that widening a cultivation paddock increased his productivity on the farm. I accept the prosecutor’s submission that this created a motivation for Mark to expand the area of Balmoral Farms’ paddocks for cultivation. Mark Harris’ evidence about fence lines contradicted the answers given by Balmoral Farms to the statutory notice issued by DPIE which included questions about clearing for routine agricultural management activities. Mark Harris confirmed in cross-examination that he understood that questions asking whether clearing was undertaken for routine agricultural management activities were referring to things like fences. That position was maintained by Mark Harris in his own compulsory interview with DPIE’s investigators on 11 February 2021 in which he did not advert to any instructions to his father to put in fence lines. This was inconsistent with the evidence he gave in Court. Even if fences were erected in some of the areas labelled as polygons 95, 96, 79, 89, 90, 91 and 92, Mark Harris’ instructions to his father about the areas to clear exceeded the maximum extent authorised under Schedule 5A of the LLS Act. In excess of the statutory limit for permitted rural infrastructure in the Central Zone of a total width of clearing of 30 metres for linear infrastructure (cll 5, 31(b) of Schedule 5A to the LLS Act), Mark Harris instructed Phillip Harris to clear 30 metres either side of the fence lines in polygon 89, and an area of 3ha was cleared in polygon 95. Accordingly, I am not satisfied that any defence of clearing polygons 95, 96, 79, 89, 90, 91 and 92 in order to erect fence lines has been established on the balance of probabilities.

Charge 5 (Balmoral) – offence against s 12 of the NV Act

397. The clearing in charge 5 (Balmoral), was alleged to have taken place on Lots 12 and 16 DP 753926 at Balmoral from about 3 August 2014 to 1 October 2014 within areas known as polygons 116 and 122.

Element 1: that clearing was carried out on the relevant property between the charged dates

398. As set out above at [297] to [307], I generally accept Mr Watts’ methodology and opinion. Mr Watts’ evidence establishes beyond reasonable doubt that clearing was carried out at Balmoral on Lots 12 and 16 DP 753926 from about 3 August 2014 to 1 October 2014, comprising approximately 39.4ha in polygon 116 and approximately 32.1ha in polygon 122. I accept Mr Watts’ evidence that the clearing involved the thinning of groundcover after 3 August 2014 and that linear patterns had formed on the ground by 1 October 2014.

Element 2: that the clearing was of native vegetation

399. I likewise accept the evidence of Dr Hammill in her 2024 report and examination in chief on 1 May 2025 that the PCTs at the time the vegetation was cleared at Balmoral in polygons 116 and 122 would have consisted of shrubby grassland PCT 49 with occasional mature trees and regenerating trees of Eucalyptus coolabah. Small areas within those polygons would have consisted of PCT 40 with more-closely spaced trees of Eucalyptus coolabah. Dr Hammill opined that the 2009-2010 satellite imagery of Balmoral showed areas of predominantly native groundcover with scattered trees including within polygons 116 and 122. The OEH (2015) vegetation mapping also identified patches of native woodland in the area with native grassland, the mapped woodland being PCT 40, PCT 39 and PCT 87. Dr Hammill travelled through polygon 122 and stopped at a nearby site, site 1. Although she was unable to stop at polygons 116 and 122 and record observations there, I am satisfied, as set out above at [308] to [311], that she was able to obtain sufficient information during her site visits between 15 and 17 June 2020 to Balmoral, Corombie and the properties the subject of the second and third trials which all had vast areas of “quite similar vegetation” from which she was able to extrapolate about the vegetation present in polygons 116 and 122.

400. As in my consideration of charge 1, I accept the evidence of Mr Jobson that each of the species identified by Dr Hammill (except two of the members of the genus Salsola and Portulaca) was native vegetation within the meaning of s 6 of the NV Act.

401. I am satisfied beyond reasonable doubt that clearing on Balmoral from about 3 August 2014 to 1 October 2014 was of native vegetation as defined in s 6 of the NV Act.

Element 3: that the clearing was not in accordance with a development consent or property vegetation plan

402. In relation to element 3 of charge 5, the prosecutor relied on the same evidence as in relation to element 3 of charge 1. I find established beyond reasonable doubt that the clearing of native vegetation at Balmoral from about 3 August 2014 to 1 October 2014 was not in accordance with a development consent or property vegetation plan.

Element 4: that Balmoral Farms was legally responsible for the carrying out of the clearing

403. In relation to the defendant’s submission that the evidentiary provision in s 44 of the NV Act is only available where, as part of the prosecution case, the prosecutor proves beyond reasonable doubt in what manner the alleged "clearing" has taken place (in the case of the NV Act), I repeat my findings at to [333] to [335] above in relation to element 4 of charge 1. On the basis of the admissions made by Mark Harris in relation to Balmoral Farms’ ownership and management of the property Balmoral in his record of interview on 11 February 2021, I am satisfied beyond reasonable doubt that Balmoral Farms was the landholder of Lots 12 and 16 DP 753926 at the time of the clearing activity from about 3 August 2014 to 1 October 2014. Pursuant to s 44 of the NV Act, Balmoral Farms is taken to have carried out and to be legally responsible for the carrying out of the clearing of Lots 12 and 16 DP 753926 unless it establishes on the balance of probabilities that the clearing was carried out by another person (s 44(a)) and that the landholder did not cause or permit the other person to carry out the clearing (s 44(b)).

404. Mark Harris did not give any explanation for the clearing of native vegetation at Balmoral in the period from about 3 August 2014 to 1 October 2014. During cross-examination, he said that he could not recall groundcover in polygons 116 and 122, and that “It’s ten years ago” and was “dry”. Mr Harris said he had access to equipment to clear ground cover, but in relation to polygons 116 and 122, he did not clear any ground cover and did not instruct or permit anyone else to clear it.

405. Balmoral Farms has not established on the balance of probabilities that the clearing in polygons 116 and 122 from about 3 August 2014 to 1 October 2014 was carried out by another person and that it did not cause or permit the other person to carry out the clearing.

406. I am satisfied beyond reasonable doubt that as the landholder at the time of the clearing activity on Lots 12 and 16 DP 753926, Balmoral Farms was legally responsible for unauthorised clearing of native vegetation on those lots from about 3 August 2014 to 1 October 2014.

Charge 6 (Balmoral) – offence against s 12 of the NV Act

407. The clearing of native vegetation in charge 6 (Balmoral) was alleged to have taken place on Lot 16 DP 753926 at Balmoral from about 1 July 2016 to 29 December 2016 in polygon 124 (as set out in the figure “Map of vegetation change polygons between 25 October 2012 to December 2017” above at [196]). The prosecutor submitted that the total area over which native vegetation was cleared during this period was approximately 3.4ha.

Element 1: that clearing was carried out on the relevant property between the charged dates

408. As set out above at [297] to [307], I accept Mr Watts’ methodology and expert opinion generally. In relation to charge 6, I accept Mr Watts’ evidence that clearing of a total of approximately 3.4ha was carried out at Balmoral in polygon 124 on Lot 16 DP 753926 from about 1 July 2016 to 29 December 2016. Mr Watts observed that as at July 2016, the ground surface of polygon 124 was covered with some form of groundcover due to its finer and smoother, but also variable coloured textured appearance. By 29 December 2016, Mr Watts observed at the same location a noticeable difference in tone and colour which was in contrast to its previous appearance and to the immediately surrounding undisturbed land. This indicated to Mr Watts, and I find, that there was groundcover thinning in polygon 124.

409. As in relation to charge 1, I do not accept Balmoral Farms’ submission in relation to charge 6 that the similarities of colouration in 10m resolution images between areas said to have been cleared and areas said not to have been cleared rendered Mr Watts’ conclusions “unpersuasive”. Mr Watts’s observations in relation to polygon 124 are for most part obvious to the lay eye in a comparison of the images reproduced above at [204], unlike in Namoi. The lay eye can readily see that Area A (which became polygon 124) is lighter in tone and colour in the 29 December 2016 image when compared to the previous July 2016 image and the surrounding areas of what is said to be undisturbed groundcover in the 29 December 2016 image. Insofar as minor areas of difference are not obvious, this does not give rise to a reasonable doubt that clearing was carried out on Lot 16 DP 753926. This is especially so considering the evidence of Mark Harris that slashing had occurred in polygon 124 to keep vegetation low so that snakes and other animals were not living close to the house occupied by his sister and brother-in-law.

410. In any event, as set out above at [297] to [307], Mr Watts was not given an opportunity to respond to the criticism of his opinion that these areas were cleared whereas others were not. I accept that Mr Watts was able to use higher resolution imagery as well as to apply his specialised knowledge in opining that such areas were cleared.

Element 2: that the clearing was of native vegetation

411. As in relation to element 2 of charge 5, I accept the evidence of Dr Hammill that at the time native vegetation was cleared in polygon 124, the dominant vegetation would have consisted of PCT 49, shrubby native grassland. Dr Hammill travelled through polygon 124 and stopped at a nearby site, site 1. Although she was unable to stop at polygon 124 and record observations there, I am satisfied as set out above at [308] to [311] that she was able to obtain sufficient information during her site visits between 15 and 17 June 2020 to Balmoral, Corombie and the properties the subject of the second and third trials which all had vast areas of “quite similar vegetation” from which she was able to extrapolate about the vegetation present in polygon 124.

412. As in relation to element 2 of charge 1, I accept the evidence of Mr Jobson that each of the species identified by Dr Hammill (except two of the members of the genus Salsola and Portulaca) was native vegetation within the meaning of the NV Act.

413. I am satisfied beyond reasonable doubt that the clearing on Lot 16 DP 753926 at Balmoral from about 1 July 2016 to 29 December 2016 was of native vegetation within the meaning of s 6 of the NV Act.

Element 3: that the clearing was not in accordance with a development consent or property vegetation plan

414. In relation to element 3 of charge 6, the prosecutor relied on the same evidence as in relation to element 3 of charge 1. I find established beyond reasonable doubt that the clearing of native vegetation on Lot 16 DP 753926 at Balmoral from about 1 July 2016 to 29 December 2016 was not in accordance with a development consent or property vegetation plan.

Element 4: that Balmoral Farms was legally responsible for the carrying out of the clearing

415. In relation to the defendant’s submission that the evidentiary provision in s 44 of the NV Act is only available where, as part of the prosecution case, the prosecutor proves beyond reasonable doubt in what manner the alleged "clearing" has taken place (in the case of the NV Act), I repeat my findings at [333] to [335] above in relation to element 4 of charge 1. Pursuant to s 44 of the NV Act, Balmoral Farms, as the landholder at the time of the clearing activity on Lot 16 DP 753926 from about 1 July 2016 to 29 December 2016, is taken to have carried out and is legally responsible for the carrying out of the clearing unless it establishes on the balance of probabilities that the clearing was carried out by another person (s 44(a)) and that the landholder did not cause or permit the other person to carry out the clearing (s 44(b)).

416. Balmoral Farms submitted that polygon 124 was cleared by Mark Harris’ brother-in-law Jason Sharp without Mr Sharp having first consulted Mark Harris. As submitted by the prosecutor, however, no evidence from Jason Sharp was adduced to explain the reason for the groundcover thinning, and Mark Harris did not say anything to investigators during the interview on 11 February 2021 about his sister or brother-in-law slashing vegetation near the house when he was shown the image of polygon 124. As I held in relation to element 4 of charge 1, an assertion by an unreliable witness that someone else cleared the land does not meet the threshold of proof required to rebut the evidentiary presumption in s 44. It follows that Balmoral Farms has not rebutted the evidentiary presumption in s 44 of the NV Act in relation to polygon 124 that the landholder was legally responsible for the carrying out of the clearing.

417. I am satisfied beyond reasonable doubt that as the landholder at the time of the clearing activity on Lot 16 DP 753926, Balmoral Farms was legally responsible for unauthorised clearing of native vegetation on that lot from about 1 July 2016 to 29 December 2016.

Whether Balmoral Farms has established a defence to the offence in charge 6

418. As a defence to charge 6, Balmoral Farms sought to rely on cl 13 of Schedule 5A of the LLS Act. Mark Harris gave evidence during cross-examination that his brother-in-law Jason "slashed" the 3.4ha of vegetation in polygon 124 with a tractor slasher “so that snakes and other animals didn’t live in it outside the front of the house … where he’s [Jason’s] got kids, animals, chooks, dogs”. Mr Harris’ evidence was that he was not told by his brother-in-law beforehand that the clearing would be done. Without corroborative evidence on the threat posed by snakes and the imminence of that threat, I am not satisfied on the balance of probabilities that the clearing was reasonably necessary to remove or reduce an imminent risk of serious personal injury or damage to property as required by cl 13 of Sch 5A. Nor am I satisfied on the balance of probabilities that the defence of routine agricultural management activities in s 22 of the NV Act has been made out.

Conclusions in relation to the offences charged in the first trial

419. I am satisfied that each of the elements of the six charges in the first trial has been proved beyond reasonable doubt.

420. It has been proved beyond reasonable doubt that Balmoral Farms Pty Ltd is liable for unlawful clearing of native vegetation contrary to s 12 of the NV Act from about 14 May 2015 to 5 October 2015 on the property Corombie on Lot 6 in DP 752247; from about 6 October 2015 to 13 April 2016 on the property Corombie on Lots 6 and 25 in DP 752247; from about 29 December 2016 to 31 July 2017 on the property Corombie on Lot 4 in DP 752245; from about 3 August 2014 to 1 October 2014 on the property Balmoral on Lots 12 and 16 in DP 753926; and from about 1 July 2016 to 29 December 2016 on the property Balmoral on Lot 16 of DP 753926.

421. It has been proved beyond reasonable doubt that Balmoral Farms Pty Ltd is liable for unlawful clearing of native vegetation contrary to s 60N of the LLS Act from about 25 August 2017 to 31 December 2017 on the property Corombie on Lot 6 in DP 752247 and Lot 9 in DP 752254.

422. I find that the defendant Balmoral Farms Pty Ltd has failed to establish on the balance of probabilities any available defence to any of the six charges.

423. I will enter a verdict of guilty in relation to each of the six charges in proceedings 2021/69608 to 2021/69613.

The second trial

Key evidence relied on by the prosecutor in the second trial, and the prosecutor’s submissions in relation to the elements of the two offences

For charge 1 (Curly Whirl) – offence against s 60N of the LLS Act

424. In the second trial in relation to charge 1 (Curly Whirl), the prosecutor alleged that from about 1 December 2017 to 31 July 2018 JP & LR Harris cleared native vegetation on Curly Whirl, in particular in polygons 69, 70 and 71 on Lot 15 in DP 753953 (shown in the map reproduced below):

Appendix 69 – map of vegetation change polygons Between 25 October 2012 to December 2019 (the Watts report 2024 (Trial 2))

Element 1: clearing was carried out (aerial imagery evidence)

425. In relation to element 1 of charge 1, the prosecutor relied on Mr Watts’ interpretation of the aerial imagery as establishing that clearing was carried out on Lot 15 from about 1 December 2017 to 31 July 2018. Using the methodology described above at [15] to [18], Mr Watts gave evidence about two consecutive periods in which he observed vegetation change on satellite and aerial imagery: between 1 December 2017 and February 2018 (the first period) and between February 2018 and 31 July 2018 (the second period).

426. In the Watts 2024 report (Trial 2), Mr Watts gave his opinion with respect to each image he analysed by image date, commencing with the image dated 25 October 2012 for the two properties, Curly Whirl and Woolondoon. These dates of imagery provided a baseline for his subsequent observations. On 25 October 2012, both properties appeared to him to consist in varying degrees of a combination of existing cultivated paddocks plus open areas of grassland, with other areas covered with light to medium scattered trees and a continuous groundcover. Both properties appeared to be covered with significant amounts of vegetation in the order of up to 50% or more, and he observed some level of infrastructure on both properties, including buildings, dams and tracks.

427. In relation to the first period of clearing, Mr Watts considered that clearing took place on two large areas on Lot 15/753953 which he labelled A and B (later named polygons 69 and 71) on depictions of the imagery in his report. He observed a noticeable change in the appearance of the areas he identified as having been cleared between 1 December 2017 and February 2018:

428. In relation to the second period of clearing, Mr Watts considered that clearing took place on a large area within Lot 15/753953 which he separately labelled A (later becoming polygon 70). A depiction of the area he identified as cleared by 31 July 2018 is reproduced below:

429. The prosecutor submitted that Mr Watts’ opinions in relation to clearing on Lot 15 during the charge period were not undermined by cross-examination, and that his interpretation of the imagery was not challenged. No expert evidence was adduced on behalf of JP & LR Harris challenging the images relied upon by Mr Watts or the opinions he provided. To the extent that the Watts 2024 report (Trial 2) refers to vegetation changes observed outside the charge periods, the Court would not draw any inferences of unlawful clearing against JP & LR Harris based on that evidence.

Element 2: native vegetation was cleared (ecological evidence)

430. In relation to element 2 of charge 1, the prosecutor referred to Dr Hammill’s visit to Curly Whirl on 16 June 2020 when she attended sites she referred to as sites 2 to 7. Sites 2, 6 and 7 were located in polygon 71, and sites 3, 4 and 5 in polygon 69. The two polygons were separated by polygon 70, and all three were within Lot 15. Dr Hammill produced images of the sites and a plot of her route captured by GPS during her inspection. The sites she visited are plotted on an image in figure 16-2 in her 2024 report (reproduced above at [45]). The information she collected at each site is set out at in the Hammill 2024 report, and includes GPS waypoints, a list of plant species found in patches immediately adjacent to the alleged clearing, photographs and plants samples, observations of vegetation structure, landform, soil colour and texture and of adjacent extent vegetation, measurements of stem diameter at breast height, the presence of any hollows and observations as to canopy health.

431. Dr Hammill concluded that the PCTs at the time of the clearing of the vegetation in polygons 69 to 71 were mainly PCT 40 Coolabah open woodland wetland with chenopod/grassy ground cover on grey and brown clay floodplains, with smaller areas of PCT 87 Poplar Box – Coolabah floodplain woodland on light clay soil mainly in Darling Riverine Plains Bioregion, and also PCT 27 Weeping Myall open woodland of the Darling Riverine Plains Bioregion and Brigalow Belt South Bioregion in some areas.

432. The prosecutor submitted that Dr Hammill’s opinions as to the species of plant and PCTs cleared at Curly Whirl were soundly based and were not undermined in cross-examination. No expert ecological evidence was adduced by JP & LR Harris. In preparing her report, Dr Hammill used site visits, interpretation of aerial imagery and the OEH (2015) vegetation mapping. She used the OEH (2015) vegetation mapping in her assessment as “background context” or “a supplementary line of information” for interpreting the vegetation on site. She agreed that OEH (2015) mapping was predictive, broadscale mapping and not necessarily field-validated at all locations, and that it contains inaccuracies. She did not agree that part of her method was to “extrapolate from her observations at the sites on the basis of the OEH 2015 mapping”. She said “that’s not entirely right no”, and that:

I used my site observations and my understanding of the published descriptions of the plant community types to then – and also my observations into the cleared polygons – to extrapolate that the environmental conditions were similar enough that I was comfortable to conclude that the vegetation in a reference site would have also extended across into that clearing polygon. So, the OEH mapping is – is more a supplementary line of information then exactly what I’ve relied on.

433. Dr Hammill only identified species from the information obtained on the ground and did not use the two satellite images of Lot 15 dated 2009/10 and 2020 to pinpoint dates of clearing, or to identify any species of vegetation. When asked to confirm that she could not tell a species of plant from the inspection of imagery, Dr Hammill qualified her answer, saying:

I can in the sense that I’ve field validated particular locations and that has a particular appearance in the imagery and where the appearance is similar nearby in the same landscape, other environmental traits are the same ... it’s a fair and reasonable assumption as an ecologist, to say that the vegetation over there is also native, based on those different lines of ecological interpretation. This is what we do every day in our work.

434. Dr Hammill referred to the colour appearance and patterns of non-native species vs native species as “clues” to discern a change in vegetation that might be non-native species. However, she agreed that reliance on colour as a way of identifying species or categories of native and non-native species has some, albeit not significant, difficulties. The prosecutor submitted that if the Court is satisfied that the species identified by Dr Hammill were in fact cleared during the charge period, then they were native vegetation pursuant to cl 106 of the LLS Regulation as they were listed on PlantNet.

435. The prosecutor provided Dr Hammill’s list of species to Mr Jobson who administered PlantNet. In his affidavit dated 20 March 2024, Mr Jobson confirmed that each of the species identified by Dr Hammill was native vegetation within the meaning of s 60B of the LLS Act, being “plants” that were established in NSW before European settlement (except portulaca oleracea, given that preliminary studies on salsola and portulaca had suggested that both native and introduced forms were present).

Element 3: the clearing was in a regulated rural area

436. In relation to element 3 of charge 1, namely that the clearing was in a regulated rural area, the prosecutor relied on the s 60F(5) certificate issued on 12 October 2020 which certified that Lot 15 DP 753953 was “Category 2 - Regulated land” for the purposes of the LLS Act, together with Mr Watts’ opinion that 170.2ha of the land cleared on Lot 15 was category 2-regulated land.

437. In the second trial, the prosecutor tendered a transcript of the evidence of Susan Rae, team leader of the spatial imagery services in DCCEEW, given in the first trial on 2 May 2025. Ms Rea was asked about the production of the maps attached to the s 60F(5) certificate, and said that a number of teams were involved in the preparation of s 60F certificates generally. She did not give any evidence about the preparation of the particular s 60F(5) certificate and said she had no involvement in its preparation. It was not put to her that there were any inaccuracies in the category boundaries or any other issue on the face of the certificate.

438. Mr Watts gave evidence that he was briefed with the s 60F(5) certificate describing land in Lot 15 as category 1-exempt and category 2-regulated land, and was instructed to identify whether the changes in vegetation which he identified occurred on category 2-regulated land. The prosecutor submitted that Mr Watts was able to accurately differentiate between category 1-exempt land and category 2-regulated land on the basis of the s 60F(5) certificate. In cross-examination, Mr Watts was asked about the categories of land and whether he was suggesting that the clearing was illegal. Mr Watts said that he was indifferent to whether the clearing of the land was legal or illegal, adding “I just made a record of what vegetation I saw that was cleared between certain dates”. He confirmed that he was not informed of the meaning of exempt land and regulated land and that he understood that the categorisation had been undertaken within DPIE. Mr Watts was taken to a copy of the maps attached to the s 60F(5) certificate provided to him as part of his instructions, and confirmed that he had assumed that the category numbers and colour coding were accurate. As well as the maps attached to the certificate, Mr Watts was provided with digital shapefiles of the category boundaries. He checked that the categories aligned exactly with the supplied cadastral boundaries.

439. Mr Watts was also taken to a black and white image of Curly Whirl dated 8 and 20 June 1985 found at Appendix 12 to the Watts 2024 report (Trial 2), and asked for his interpretation of the image. He agreed that there was clearing shown in the far northeast of the property having regard to the distinct straight lines shown (which clearing is not part of the proceedings). He said that the south-west corner contained “a random shape of trees and patterns of trees” and that he could not say if there had been historical clearing. He was asked about an area under the numbers “485” on the marked image dating from 1985 and said that it looked like a very low-density coverage of trees. In re-examination, he said that there were limitations on what he could interpret on an A3 page compared to using a digital version of images on his screen, there being a “big difference in the limitation”. The prosecutor submitted that none of this evidence raised any doubt as to the accuracy of the land categories in the s 60F(5) certificate.

Element 4: liability

442. In relation to element 4 of charge 1, the prosecutor relied on the certificate of evidence of Sarah Carr dated 20 March 2024 which certified pursuant to s 13.31(2)(a) of the BC Act (the s 13.31(2)(a) certificate) that JP & LR Harris was the landholder of Curly Whirl relevantly from about 1 December 2017 to 31 July 2018 (the charge period for charge 1), land title records dated 27 September 2017 that established that JP & LR Harris purchased Lot 15 on 27 September 2017, and admissions of JP & LR Harris’ director John Harris in an interview with DPIE officers on 12 February 2021 in which he said he owned and operated Curly Whirl.

443. The prosecutor submitted that JP & LR Harris was a “landholder” within the meaning of s 13.29 (and s 6.1) of the BC Act. In relation to JP & LR Harris’ responsibility for the clearing, the prosecutor relied on the evidentiary or deeming provision in s 13.29 of the BC Act which provided that the landholder is taken to have carried out the activity constituting the alleged offence 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.

For charge 2 (Woolondoon) – offence against s 60N of the LLS Act

444. The prosecutor alleged that from about 1 December 2018 to 16 January 2019, Woolondoon Pty Ltd cleared native vegetation on Lot 30 DP 753953 at Woolondoon, in particular in polygons 1 and 20 as well as polygon 9 (shown in the map reproduced below):

Appendix 69 – map of vegetation change polygons Between 25 October 2012 to December 2019 (the Watts report 2024 (Trial 2))

Element 1: clearing was carried out (aerial imagery evidence)

445. In relation to element 1 of charge 2, the prosecutor submitted that in a compulsory interview with DPIE officers on 12 February 2021, the director of Woolondoon Pty Ltd, Mr John Harris, admitted that clearing was carried out on the property during the charge period by the use of a bulldozer.

446. The prosecutor also relied on the evidence of Mr Watts as establishing that clearing was carried out on Lot 30 at Woolondoon during the charge period from about 1 December 2018 to 16 January 2019. Mr Watts analysed images to determine that changes in vegetation had occurred on Lot 30, and opined that there had been some significant thinning of groundcover between July 2018 and December 2018. In relation to the period 1 December 2018 to 16 January 2019, he opined that clearing took place within two large areas of Lot 30 DP 753953 which he labelled A and B, later becoming polygons 1 and 20. He considered that this was a continuation of the clearing between July 2018 and December 2018. He observed that from December 2018 the “far majority” of existing light to medium density trees were removed and that there was also thinning of groundcover. Some scattered clumps or single trees remained. In his opinion, the area cleared was 107.6ha. Mr Watts said that the December 2018 imagery depicted “clumps of tree canopies of variable sizes represented as dark grey/black shapes and scattered single trees shown as dark grey/black dots”, but these were no longer visible by 28 February 2019. Similarly, he considered that groundcover was shown in the December 2018 imagery “due to its finer and smoother but also variable textured appearance” which was “also very similar to immediately adjoining areas to the east and west of what [he] observed as undisturbed groundcover”. This was in contrast to existing cultivated paddocks further to the east and west. By February 2019, these same locations appeared to have “a far smoother texture, more uniform tone and colour”, and had become identical to the adjoining areas. In Mr Watts’ opinion, the groundcover had been thinned or removed.

447. A close-up view comparing the two areas identified as having been cleared between December 2018 and February 2019 is found in the Watts report 2024 (Trial 2) and is reproduced below. Mr Watts refers to these in his report as polygons 1 and 20**:**

448. Mr Watts also identified a further area of clearing during the charge period shown as Area A, immediately north of polygon 20. He opined that “the far majority of existing light to medium density trees had been removed plus the thinning of groundcover since July 2018”, and that the area also had groundcover which he observed “due to its finer and smoother but also variable textured appearance”. The appearance of this surface was very similar to immediately adjoining areas which he observed as undisturbed groundcover and “in total contrast” to what he identified as the cultivated paddock to the southeast. By December 2018, he observed that these same locations had a far smoother texture, more uniform tone and colour, and were in contrast to their previous appearance and the adjoining undisturbed land. He also observed numerous ground markings and “scratchings”, particularly in Area A, which had not previously been visible in these locations which he considered to be indicative of a manmade activity. A close up view comparing the area identified as having been cleared between July 2018 and December 2018 referred to by Mr Watts as polygon 9, is found in the Watts report 2024 (Trial 2) and is reproduced below:

Element 2: native vegetation was cleared (ecological evidence)

451. In relation to element 2 of charge 2, the prosecutor again submitted that the Court would accept the evidence of Dr Hammill and Mr Jobson in relation to the type of vegetation cleared at Woolondoon and find that it was native vegetation as defined in s 60B of the LLS Act.

452. During her visit to Woolondoon on 17 June 2020, Dr Hammill inspected four sites she referred to as sites 9 to 12, and shown on an image in figure 16-4 (reproduced above at [47]) as red triangles connected by orange lines plotting her pedestrian route on that visit. Sites 9 and 10 were located on the western side of polygon 1 and eastern side of polygon 9, and to the north of polygon 20. Sites 11 and 12 were located on the western side of polygon 9 and north of polygon 20. Dr Hammill produced images of the sites she inspected. She took photos of cleared land and remnant vegetation within and near polygons 1, 9 and 20. These included photos consistent with clearing activity such as evidence of herbicide poisoning, charred woody material indicating clearing by burning, and large woody fragments indicating substantial woody plants present before clearing.

453. Dr Hammill took photographs of the plant species she observed. She observed extant native vegetation in and adjoining polygons 1 and 20 (and nearby polygon 9), and used this as a basis to infer the vegetation that would have been present within the polygons based on equivalent soil and landscape conditions. Some of it was high quality, intact native Coolabah woodland that she considered existed in the polygons before clearing. She also had regard to the 2009-2010 satellite imagery on which she could discern the presence and broad structure of the vegetation and to the OEH (2015) vegetation mapping. Dr Hammill concluded that the PCT present in Lot 30 at the time the vegetation was cleared in polygons 1, 9 and 20 was predominantly PCT 40 Coolabah open woodland wetland with chenopod/grassy ground cover on grey and brown clay floodplains.

454. Dr Hammill’s photographs of polygon 1 included photographs of native groundcover adjacent to the clearing polygon with “very few to nil weeds”, meaning it was predominantly native groundcover; photographs of the cultivated paddock in polygon 1; photos of a stand of Eucalyptus coolabah in the cropped paddock in polygon 1 which she considered “representative of the woodland that has been cleared”; and photographs of dead native groundcover under the remnant trees, apparently due to herbicide poisoning.

455. Dr Hammill’s photos at her site 11 (on the eastern side of polygon 9) included extant native Coolabah woodland with a mix of large and smaller trees on the eastern side of polygon 9 which was equivalent to the woodland that had been cleared; healthy canopy and large habitat hollows she observed in some trees at site 11 near polygon 9, indicating the high quality of woodland that would have been present and has been cleared in polygon 9; the native shrub (Golden goosefoot) which was present in the extant woodland at site 11; and the chenopod shrub in the groundcover in the extant woodland at site 11 which she considered to be typical of PCT 40 woodlands generally.

Element 3: the clearing was in a regulated rural area

459. In relation to element 3 of charge 2, the prosecutor relied on the s 60F(5) certificate dated 12 October 2020 which certified that the land identified in the certificate, including relevantly Lot 15 in DP 753953, is “Category 2-Regulated land” for the purposes of the LLS Act. Generally, in relation to this element of charge 2, that the clearing was of a regulated rural area, the prosecutor repeated its submissions at [437] to [441] in relation to element 3 of charge 1.

Element 4: liability

460. In relation to element 4 of charge 2, the prosecutor submitted that the company Woolondoon Pty Ltd is both directly liable (as having carried out the clearing through its director) and liable as landholder pursuant to s 13.29 of the BC Act. Either basis of liability was submitted to be sufficient to prove this element of the offence in charge 2.

461. In relation to liability for carrying out the clearing through its director, the prosecutor referred to admissions made by John Harris, director of Woolondoon Pty Ltd, in a record of interview as to the ownership and management of Woolondoon and the carrying out of clearing in the charge period from about 1 December 2018 to 16 January 2019. In his interview, John Harris said that he has been a director of the company since “we” created it (meaning himself and his wife Lauren). He did not have workers and farmed Woolondoon himself. No one lived at the property. He did everything at Woolondoon and made the long term strategic decisions for Woolondoon. He made the operational and strategic decisions with help from an agronomist. The property had steel cattle yards and was used for mixed farming, that is, grazing and cropping. There was a seven-year rotation basis. While Woolondoon Pty Ltd owned the property, the business that operated it was JP & LR Harris. When asked what he could tell the investigators about alleged clearing between 25 August 2017 and 29 February 2020 at Woolondoon, John Harris said that “there were changes” and “we went to LLS, went through the code”, but he did not know a date. He said “we took out regrowth and that was it pretty much”. He said he sought approval from LLS once. He removed young trees by using a bulldozer with a stick rake and a cutter bar. He believed his parents Phillip Harris and Sue Harris owned the bulldozer he used. The bulldozer pulls out the roots so the suckers do not grow back. He removed regrowth on the whole property. In relation to the “approval” from LLS, he said LLS attended the property and that “we put the notice in, it’s a paddock tree area notice” that “we did for the self-assessment code”. The notice was “approved” 14 days later. The notice in his name (and other family names) was shown to him, and he submitted it on 29 August 2019. His father Phillip Harris mapped the trees for the purpose of the notice, but John Harris put the notice in.

462. The prosecutor referred to images to which John Harris was taken during the interview alleged to show clearing from about 1 December 2018 to February 2019 (the charge period). John Harris said all that was removed was regrowth which he did with the bulldozer using the cutter bar and the blade and it was a D9 bulldozer. The same “approval” (from the LLS) applied. He understood that a paddock tree area was an area of 25m by 20m, but he did not know how many trees were allowed to be cleared in that area. It could be two trees. He burned the vegetation after clearing it by putting a match to it. He pushed them in a pile and burned them after four days of drying out. There was no ground cover. John Harris said that the land is now used for cultivation; he grew wheat and fava beans there “last year”. The suckers that were cleared were and black wattle, 10cms “maybe maximum” and “[a]ll the big trees were left”. All the clearing was done mechanically, and no poisoning was done. Everything was in drought and dying. John Harris said that the Harris Family Group had nothing to do with Woolondoon. He did not have a great understanding about the laws and rules around clearing of native vegetation on his property.

Submissions of JP & LR Harris and Woolondoon Pty Ltd in the second trial

Evidentiary (or deeming) provisions

465. In the second trial, in relation to s 13.29 of the BC Act JP & LR Harris and Woolondoon Pty Ltd made essentially the same submissions as Balmoral Farms in the first trial in relation to the evidentiary (or deeming) provision in s 44 of the NV Act, namely that the provision is only available where the prosecutor proves beyond reasonable doubt the nature of the “activity constituting the alleged offence or contravention”.

Evidence of Mr Watts and Dr Hammill

466. In the second trial, JP & LR Harris and Woolondoon Pty Ltd made essentially the same submissions as Balmoral Farms in the first trial in relation to what were asserted to be the deficiencies in and unreliability of the evidence of Mr Watts and Dr Hammill, particularly the methodologies used by each. As in the first trial, in the second trial JP & LR Harris and Woolondoon Pty Ltd submitted that there were difficulties in Mr Watts using 10m resolution images, that his observations and conclusions reached by “zooming” in and out were not verifiable by the Court, and that these problems were analogous to the problems identified by Pain J in Namoi.

467. As in the first trial, in the second trial JP & LR Harris and Woolondoon Pty Ltd submitted that there were deficiencies in relation to Dr Hammill’s site inspections, her use of the 2009-2010 imagery and her use of the OEH (2015) vegetation mapping. In addition to the submissions made by Balmoral Farms in the first trial in relation to the evidence of Dr Hammill, in the second trial JP & LR Harris and Woolondoon Pty Ltd submitted that Dr Hammill had simply assumed that the 2009-2010 imagery provided a relevant record of what vegetation was in the charge polygons immediately prior to the clearing events, however no basis for that assumption had been established. This did not eliminate the strong possibility that earlier farming events well prior to the clearing alleged had removed vegetation. Further, Dr Hammill's evidence did not establish beyond reasonable doubt that cleared vegetation was native vegetation, either throughout each charge polygon in which Dr Hammill identified a site or in polygons in which no site was identified.

The s 60F(5) certificate

468. In the second trial, JP & LR Harris and Woolondoon Pty Ltd made essentially the same submissions as Balmoral Farms in the first trial in relation to the s 60F(5) certificate issued by Jeremy Black certifying that the land described in the certificate is category 2-regulated land, namely that the certificate should not be accepted as reliable evidence of the areas of category 2-regulated land. In addition, JP & LR Harris and Woolondoon Pty Ltd submitted that Mr Watts was unaware of the basis on which land was categorised by the DPIE as category 1-exempt or category 2-regulated, and that he did not conduct any checks to verify the certificate maps or seek to determine what areas on the properties had been cleared before 1990. He made no independent assessment of whether the images on the certificate maps on the certificate took account of cleared areas on Curly Whirl. Looking at an A3 paper copy of the 1985 image that was Appendix 12 to his report, Mr Watts was unable to say whether or not certain areas of Curly Whirl and Woolondoon to which he was taken on the 1985 image had been cleared prior to the date of that image.

469. Accordingly, JP & LR Harris and Woolondoon Pty Ltd submitted, that it was possible that areas of Curly Whirl and Woolondoon were cleared prior to 1990 and were erroneously not eliminated as category 1-exempt land. The maps attached to the s 60F(5) certificate may contain inaccuracies and be unreliable in depicting what is exempt land and what is not exempt land for the purposes of the LLS Act.

Charge 1 (Curly Whirl) – offence against s 60N of the LLS Act

470. In relation to charge 1 (Curly Whirl), JP & LR Harris relied on the submissions summarised above in relation to the evidentiary (or deeming) provision in s 13.29 of the BC Act, the evidence of Mr Watts and Dr Hammill, and the s 60F(5) certificate.

Charge 2 (Woolondoon) – offence against s 60N of the LLS Act

471. In relation to charge 2 (Woolondoon), in addition to the submissions set out above in relation to s 13.29 of the BC Act, the evidence of Mr Watts and Dr Hammill, and the s 60F(5) certificate, Woolondoon Pty Ltd made the following further submissions.

Element 1: clearing was carried out

472. In relation to element 1 of charge 2, Woolondoon Pty Ltd submitted that the prosecutor had not established that the alleged clearing of Woolondoon, specifically in polygons 1 and 20, occurred in the charge period from about 1 December 2018 to 16 January 2019. Mr Watts' opinion was that clearing occurred in the period from some time in December 2018 to some time in February 2019. If the clearing occurred after 16 January 2019, it fell outside the charge period.

473. Woolondoon Pty Ltd referred to a footnote Mr Watts added in Appendix 68 to his report that on a review of other imagery, the earliest date on which vegetation was observed to be cleared in polygons 1 and 20 was 16 January 2019. He was asked to explain the reference to 16 January 2019 in examination in chief, and said that the clearing he had observed in the February 2019 image included in the Watts report 2024 (Trial 2) and reproduced above at [447] was already observable in an image of 16 January 2019. There were no extracts from the 16 January 2019 image in evidence which purported to show clearing in polygons 1 and 20 on Woolondoon, as there were from the February 2019 image. Mr Watts’ evidence in cross-examination was submitted to take the form of bare assertions that on the basis of the 16 January 2019 image, the clearing had occurred by that date. He conceded that without the footnote, he was saying in the table in Appendix 68 that the clearing could have occurred at any time up to 28 February 2019. Mr Watts also conceded that he had not provided any description of the additional review that led him to shift ground to say that all clearing in question was carried out by 16 January 2019, nor any explanation of observations leading to that conclusion, nor any examination of images leading to that conclusion.

474. Woolondoon Pty Ltd submitted that given the absence of any explanation of Mr Watts’ change of position, the Court could not be satisfied that the alleged clearing had occurred by 16 January 2019. It may well have occurred later than the charge period, as Mr Watts initially opined.

Element 4: liability

475. In relation to element 4 of charge 2 in the second trial, Woolondoon Pty Ltd submitted that for the purpose of the evidentiary (or deeming) provision in s 13.29 of the BC Act, the prosecutor had not established that Woolondoon Pty Ltd was the landholder of Woolondoon for the whole of the relevant charge period, 1 December 2018 to 16 January 2019. Woolondoon Pty Ltd acquired Woolondoon in 2018. While the transfer dated 20 September 2018, the title search and the historical search indicated that the new ownership was registered on 17 October 2018. From 1 December to 31 December 2018, Woolondoon remained subject to a lease. The alleged clearing could have occurred in December 2018 when Woolondoon Pty Limited was not the landholder.

Prosecutor’s submissions in reply

476. At the hearing of closing submissions, the prosecutor sought to rely on a document titled Prosecutor’s Submissions in reply to Defendant’s Closing Submissions (Trial 2). JP & LR Harris and Woolondoon Pty Ltd did not object to that document being filed in court.

Evidentiary (or deeming) provisions

477. In relation to the submission by JP & LR Harris and Woolondoon Pty Ltd that in order to rely on s 13.29 of the BC Act, the prosecutor must aver one or more of the activities listed as a "clearing" activity (in s 60C of the LLS Act), the prosecutor essentially repeated the submissions it made in the first trial (see above at [261]), namely that the defendants did not put forward any authority in support of this proposition and that it ought be rejected.

Evidence of Mr Watts and Dr Hammill and the rule in Browne v Dunn

478. In reply to the defendants’ criticism of the evidence of Mr Watts and Dr Hammill in the second trial, the prosecutor made essentially the same submissions as it did in relation to Balmoral Farms’ critique of the evidence of Mr Watts and Dr Hammill in the first trial. This included that the approach of the defendants to the evidence of Mr Watts and Dr Hammill generally was in breach of the rule in Browne v Dunn. In relation to the defendants’ submission that Mr Watts’ opinion was unverifiable as the Court was not able to see all of the features of the images which Mr Watts said he saw in his analysis, the prosecutor further submitted that the defendants had four years to obtain their own expert evidence to undermine Mr Watts’ evidence, and chose not to do so.

479. In relation to the defendants’ criticism of the evidence of Dr Hammill that she assumed that the 2009/10 satellite imagery “recorded what vegetation was in the charge polygons immediately prior to the clearing events”, the prosecutor said that the submission misrepresented Dr Hammill’s evidence. She did not make that claim, and in fact said when asked if she could state when the clearing took place, “I can't pinpoint a date or a year, but I think it was relatively recently. As in not in the distant past, but probably in the last sort of few years prior to when I was there.”

The s 60F(5) certificate

480. In reply to the defendants’ submission that the s 60F(5) certificate should not be accepted as reliable evidence of the areas of category 2-regulated land, the prosecutor repeated the submission it made in relation to element 3 of charge 4 in the first trial, namely that pursuant to s 60F(5) of the LLS Act, the certificate is prima facie evidence that the areas so marked were category 2-regulated land and no evidence was led to undermine the accuracy or reliability of the certificate. Further to its submission in relation to element 3 of charge 4 in the first trial, the prosecutor also referred to Balmoral Farms certificate decision where the Court found at [53] in relation to s 60F(5) certificate: “None of the matters raised by the defendant concerning the reasons and conclusions of the certificate, the authorship and timing of the review referred to in the certificate, or the timing and authorship of the maps attached to the certificate establish a basis to impugn the validity of the certificate”. This was submitted to extend to the accuracy of the certificate.

Charge 2 (Woolondoon) – offence against s 60N of the LLS Act

Element 1: clearing was carried out

481. In reply to Woolondoon Pty Ltd’s submission that the prosecutor had not established that the alleged clearing in polygons 1 and 20 took place during the charge period, the prosecutor submitted that the colour key footnote was an integral part of the appendix that sets out the clearing dates. The clearing in polygons 1 and 20 occurred between December 2018 and February 2019, but Mr Watts obtained further imagery dated 16 January 2019 and was able to narrow the dates of clearing to the period between 1 December 2018 and 16 January 2019. The table should not be read without the colour coding footnote, as Mr Watts explained under cross-examination:

No, it's not just a footnote. I referred to in my- as I said to ... (not transcribable) ... on page 2155, that I, I reviewed additional dates of imagery. While I didn't go into the same level of detail with all those additional dates of imagery to, to explain exactly how I reached my conclusions, I undertook the same process. With all dates of imagery, whether they're listed or not listed within this, in the body of the report, I, I undertook the same methodology, the same thoroughness to reach the conclusions on when vegetation was there and when it was cleared.

482. The Court would be satisfied, the prosecutor submitted, that Mr Watts’ conclusion in relation to the dates of clearing is adequately expressed in his report (as supplemented by his oral evidence), and proves that the clearing of the charge polygons 1 and 20 took place between 1 December 2018 and 16 January 2019. Woolondoon Pty Ltd’s submissions to the contrary failed to cast reasonable doubt on Mr Watts' analysis or the fact that clearing took place before 16 January 2019.

Element 4: ownership of Woolondoon

483. In reply to Woolondoon Pty Ltd’s submission that it was not the landholder of Woolondoon from 1 December to 31 December 2018, the prosecutor submitted that a lease would not have the result that Woolondoon Pty Ltd was not landholder within the meaning of s 1.6 of the BC Act, or result in any necessary inference that its director did not carry out the clearing alleged. Nor would a lease registered prior to the transfer of land to the defendant mean that the defendant was not in lawful occupation of the land in the charge period, or that its director did not carry out activities on the land at that time. Further, in response to a statutory notice lawfully issued to it on 10 March 2020, Woolondoon Pty Ltd said that only John Harris carried out works on the property after 20 September 2018.

Consideration of whether the prosecutor has discharged its onus in relation to the elements of the offences charged in the second trial

484. In the second trial, the prosecutor alleged that from 1 December 2017 to 31 July 2018 JP & LR Harris cleared native vegetation on Curly Whirl, in particular on Lot 15 in DP 753953 (charge 1); and from 1 December 2018 to 16 January 2019 Woolondoon Pty Ltd cleared native vegetation on Woolondoon on Lot 30 in DP 753953 (charge 2). Before turning to consider whether the prosecutor has established the commission of the two offences against s 60N of the LLS Act beyond reasonable doubt, I first consider the prosecutor’s submissions in relation to the application of the rule in Browne v Dunn to the evidence of Mr Watts and Dr Hammill.

The application of the rule in Browne v Dunn and general findings in relation to the evidence of Mr Watts and Dr Hammill in the second trial

485. The authorities set out above at [292] to [296] in relation to the application of the rule in Browne v Dunn to the evidence of Mr Watts and Dr Hammill in the first trial are also relevant to an assessment of the evidence of Mr Watts and Dr Hammill in the second trial.

486. As in relation to the first trial, I find that JP & LR Harris and Woolondoon Pty Ltd, the defendants in the second trial, did not give Mr Watts the opportunity to respond to the criticisms made of him in their submissions summarised above at [466], and did not seek to have him recalled. If they wished to assert that Mr Watts proffered incorrect opinions, adopted erroneous methodologies or made false assumptions, that ought to have been put to him. Insofar as counsel for JP & LR Harris and Woolondoon Pty Ltd failed to do so, I do not give the opinions proffered by Mr Watts the limited weight urged upon me.

487. In any event, for the reasons set out above at [301] to [307] in relation to the first trial, I accept the reliability of the evidence and methodology of Mr Watts generally. I find that Mr Watts’ opinion relied on by the prosecutor in the second trial was based on his specialised knowledge in aerial imagery interpretation, and that his reasoning process was adequately exposed in the Watts 2024 report (Trial 2) in which he detailed the methodology he adopted in analysing the satellite and aerial images. The images he used were reproduced in appendices to his report. The resolution, date, and type of imagery and other details were summarised in a table, and close-ups of the areas of interest were provided in the body of the report, together with an explanation of the changes in vegetation he perceived during his analysis, including both “before” and “after” representations of the land concerned. I will need a good reason to reject Mr Watts’ evidence in the second trial.

488. As in relation to the first trial, I find that the criticisms of the methodology and evidence generally of Dr Hammill made by JP & LR Harris and Woolondoon Pty Ltd summarised above at [467] were sufficiently put to her in the course of cross-examination. Accordingly, there was no breach by the defendants of the rule in Browne v Dunn in relation to the evidence of Dr Hammill in the second trial.

489. However, as in the first trial, I do not accept the criticisms made by JP & LR Harris and Woolondoon Pty Ltd of the methodology and evidence of Dr Hammill generally. For the reasons set out above at [308] to [311] in relation to the first trial, I accept the reliability of Dr Hammill’s evidence generally. She gave evidence that she only listed in her report the PCTs she was “certain” existed on the property Curly Whirl after conducting her site visit. She used site visits, interpretation of aerial imagery and published State vegetation mapping (the OEH (2015) vegetation mapping) in her assessment of the type of vegetation cleared in Curly Whirl and Woolondoon. She used the OEH (2015) vegetation mapping as “background context” or “a supplementary line of information” for interpreting the vegetation on site, rather than as a source she “relied on”. She also used two satellite images dated 2009/10 and 2020 as a point of comparison “before and after” in order to ascertain the broad vegetation structure at the times of the alleged clearing. Under cross-examination, while she agreed that she had assumed that the date of the imagery provided to her was correct, she said that the vegetation she could discern in the 2009/10 image “looked to [her] as an ecologist, like a good match” for the vegetation mapping published soon after that timeframe. This was plainly a reference to the OEH (2015) vegetation mapping to which she had referred elsewhere in her evidence. Further, when Dr Hammill went into the field, she “made a point in her professional assessment” of checking that the 2020 image “depicted the landscape and the vegetation coverage and the cleared areas quite similarly”. She said, and I accept that she had been doing satellite image interpretation and aerial imagery interpretation for 20 years as part of her ecology work. I will need a good reason to reject any of Dr Hammill’s evidence in the second trial.

Charge 1 (Curly Whirl) – offence against s 60N of the LLS Act

Element 1: that clearing was carried out on the relevant property between the charged dates

490. In relation to clearing on Lot 15 in DP 753953 in the period from about 1 December 2017 and 31 July 2018, I accept Mr Watts’ evidence that clearing took place in polygons 69, 70 and 71 in two periods: between 1 December 2017 to February 2018 (for polygons 69 and 71) and between February 2018 and 31 July 2018 (for polygon 70). The total cleared area of the three areas in polygons 69, 70 and 71 within Curly Whirl from about 1 December 2017 to 31 July 2018 was approximately 283.1ha.

491. I accept Mr Watts’ evidence in relation to the first period of clearing between 1 December 2017 to February 2018. The clearing involved the removal of most of the existing light to medium density trees in polygon 69 and the removal of low-density trees in polygon 71, as well as the thinning of groundcover (see the images reproduced above at [427]). Both “removal” and “thinning” of vegetation are within the definition of “clearing” in s 7 of the LLS Act. The Watts 2024 report (Trial 2) defines tree cover densities ranging from “sparse”, “low density or scattered”, “light to medium”, “medium” to “dense” according to the proportion of crown cover. By February 2018, numerous ground markings and scratchings of manmade activity had appeared. Mr Watts opined that although the appearance of the ground as at February 2018 was not yet similar to that of nearby areas to the north which had become paddocks for cultivation, it appeared to him that the land was being prepared for future cultivation purposes. In addition, as he observed in later dated imagery, all areas became part of a larger cleared paddock. Mr Watts calculated the surface areas of the two polygons as 83.1ha (polygon 69) and 73.5ha (polygon 71) (giving an approximate total of 156.6ha).

492. I also accept Mr Watts’ evidence in relation to the second period of clearing between February 2018 and 31 July 2018. Mr Watts opined that clearing took place in polygon 70, a large area within Lot 15 in DP 53953. He observed noticeable changes between the images spanning this period (see the images reproduced above at [428]). The changes involved the removal of the “far majority” of existing light to medium density trees, and the thinning of groundcover, with some scattered trees remaining. He calculated the surface area cleared as 126.5ha. He considered this to be a continuation of vegetation clearing from Curly Whirl in the five months since February 2018.

493. As in relation to charges 1, 2, 3 and 6 in the first trial, I do not accept JP & LR Harris and Woolondoon Pty Ltd’s submission that there were “difficulties” in Mr Watts’ use of 10m resolution images in relation to charge 1 in the second trial. The vast majority of differences between the images reproduced at [427] (for polygons 69 and 71) and [428] (for polygon 70) observed by Mr Watts are obvious to the lay eye, unlike in Namoi. Insofar as minor areas of difference are not obvious, this does not give rise to a reasonable doubt that clearing was carried out on Lot 15 in DP 753953. In any event, as set out above at [485], Mr Watts was not given an opportunity to respond to this criticism, and I accept that Mr Watts was able to use higher resolution imagery as well as apply his specialised knowledge to determine that such areas were cleared.

Element 2: that the clearing was of native vegetation

495. In relation to element 2 of charge 1, I accept the evidence of Dr Hammill and Mr Jobson concerning the type of vegetation cleared from polygons 69, 70 and 71 at Curly Whirl during the charge period.

496. Dr Hammill took detailed observations at the sites she visited including, on 16 June 2020, Curly Whirl. Dr Hammill observed extant native vegetation adjacent to and within polygons 69 (at sites 3, 4 and 5), 70 (at site 2) and 71 (at sites 2, 6 and 7) and used those as a reference for the vegetation that would have been present within the polygons. She also took photographs of cleared land and remnant vegetation within polygons 69 and 71. She opined, and I find, that those photographs indicate that clearing activity had taken place and show herbicide poisoning, charred woody material indicating clearing by burning, leaf death and signs of severe herbicide effect due to overspray and physical damage to remnant trees apparently caused by large machinery. Dr Hammill observed a diverse range of species in extant woodland areas at various sites within Curly Whirl. She concluded that the PCTs at the time of the clearing of vegetation in polygons 69 to 71 were a mosaic of high quality woodland to open woodland of mainly PCT 40 Coolabah open woodland wetland with chenopod/grassy ground cover on grey and brown clay floodplains with smaller areas of PCT 87 Poplar Box – Coolabah floodplain woodland on light clay soil mainly in Darling Riverine Plains Bioregion and also PCT 27 Weeping Myall open woodland of the Darling Riverine Plains Bioregion and Brigalow Belt South Bioregion in some areas.

497. I accept the prosecutor’s submission that the cross-examination of Dr Hammill focussed upon her methodology generally. She was not challenged about her specific observations and opinions about the species of vegetation that were cleared from Curly Whirl. I accept Dr Hammill’s evidence as to the type of vegetation cleared at Curly Whirl during the charge period.

498. The prosecutor provided Dr Hammill’s list of species to Mr Jobson who administered PlantNet. Mr Jobson gave evidence that each of the species identified by Dr Hammill was recorded on the database of flora known as “New South Wales Flora Online” maintained by the Royal Botanic Gardens and Domain Trust, and published on the Trust’s website as “PlantNet”. He identified all forms of vegetation referred to in s 60B(1) of the LLS Act, being trees, understorey plants, groundcover and plants occurring in a wetland. Clause 106 of the LLS Regulation provided that for the purpose of Part 5A of the LLS Act, a species of plant may be conclusively presumed to be native to NSW if it is listed on the official database defined as PlantNet.

499. The evidence of Dr Hammill and Mr Jobson establishes to the criminal standard that the vegetation cleared from about 1 December 2017 to 31 July 2018 on Curly Whirl, in particular on Lot 15 in DP 753953, was native vegetation as defined in s 60B of the LLS Act.

Element 3: that the clearing was on regulated land

500. I find that the s 60F(5) certificate dated 12 October 2020 together with Mr Watts’ opinion that 170.2ha of the land cleared on Lot 15 was category 2-regulated land establish beyond reasonable doubt that the clearing on Curly Whirl was within a “regulated rural area” within the meaning of s 60N of the LLS Act, having regard to the definition of that expression in s 60D read with 60I.

501. Nothing in the cross-examination of any of the prosecution witnesses impugned the accuracy of the categorisation of the land as category 2-regulated land under s 60I of the LLS Act. Mr Watts was provided with digital shapefiles of the category boundaries and compared the categorisation of land as set out in the s 60F(5) certificate with the areas of clearing he identified through his aerial imagery interpretation. He gave evidence that of the total 283.1ha cleared in the relevant polygons, 170.2ha occurred on category 2-regulated land. It was this clearing that is the subject of charge 1. I find that Mr Watts was able accurately to differentiate between category 1-exempt land and category 2 land on the basis of the s 60F(5) certificate.

502. I am satisfied beyond reasonable doubt that the clearing on Lot 15 in DP 753953 was within a “regulated rural area” within the meaning of s 60N of the LLS Act.

Element 4: that JP & LR Harris was legally responsible for the carrying out of the clearing

503. In relation to element 4 of charge 1, the certificate of evidence of Sarah Carr dated 20 March 2024 certified pursuant to s 13.31(2)(a) of the BC Act that JP & LR Harris was the landholder of Curly Whirl, relevantly from about 1 December 2017 to 31 July 2018 (the charge period for charge 1). The land title record dated 27 September 2017 also establishes that JP & LR Harris purchased Lot 15 on 27 September 2017. I find that during the charge period, JP & LR Harris was the owner of Lot 15 and therefore a “landholder” within the meaning of s 13.29 of the BC Act.

504. In relation to the legal responsibility of JP & LR Harris for the clearing, s 13.29 of the BC Act applies to proceedings for an offence against s 60N of the LLS Act and makes a landholder responsible for carrying out the activity constituting the alleged offence unless (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. Section 13.29 applies to “any criminal or civil proceedings under this Act”. Criminal proceedings for an offence against Part 5A of the LLS Act are instituted under the BC Act (rather than the LLS Act): see s 60ZM of the LLS Act and s 13.3 BC Act.

505. A “native vegetation offence” was defined in s 1.6 of the BC Act as “any offence under the native vegetation legislation”. The expression “native vegetation legislation” was defined in s 1.6 of the BC Act to include relevantly provisions in “Part 5A (Land management (native vegetation)) of, and Schedule 5A to, the Local Land Services Act 2013”. Section 60ZM of the LLS Act provided (in summary) that the BC Act contains provisions relating to the enforcement of Part 5A and that proceedings for an offence against Part 5A cannot be instituted under the LLS Act.) For the purpose of s 13.29 of the BC Act in relation to the responsibility of the landholder for activities carried out on the land, “landholder” was defined in s 1.6 of the BC Act as “a person who is the owner of land or who, whether by reason of ownership or otherwise, is in lawful occupation or possession, or has lawful management or control, of land.”

506. In addition, JP & LR Harris’ director John Harris made admissions as to JP & LR Harris’s ownership and management of Curly Whirl. By a statutory notice issued under ss 12.19 and 12.29 of the BC Act, John Harris was directed to attend an interview on 12 February 2021. In that interview, he said that he owned Curly Whirl and operated the property, but later in the interview said he did not know who owned Curly Whirl.

507. In relation to the defendant’s submission that the evidentiary (or deeming) provision in s 13.29 of the BC Act is only available where, as part of the prosecution case, the prosecutor proves beyond reasonable doubt the nature of “the activity constituting the alleged offence or contravention” (in the case of the LLS Act), I repeat my findings at [333] to [336] above in relation to element 4 of charge 1 in the first trial. As the landholder of Curly Whirl at the time of charge 1 (from about 1 December 2017 to 31 July 2018), JP & LR Harris is taken pursuant to s 13.29 of the BC Act to have carried out the clearing under s 60N of the LLS Act, unless it establishes on the balance of probabilities that the clearing was carried out by another person (s 13.29(1)(a)) and that the landholder did not cause or permit the other person to carry out the activity (s 13.29(1)(b)). I was not taken to any material capable of suggesting that another person carried out, and JP & LR Harris did not cause or permit, the clearing on Curly Whirl the subject of charge 1.

Consideration of whether JP & LR Harris has established a defence to the first offence charged in the second trial

509. I was not taken to any material capable of suggesting on the balance of probabilities a defence available to JP & LR Harris to the first offence charged in the second trial.

Charge 2 (Woolondoon) – offence against s 60N of the LLS Act

510. The prosecutor alleged that from about 1 December 2018 to 16 January 2019, Woolondoon Pty Ltd cleared native vegetation on Lot 30 in DP 753953 at Woolondoon.

Element 1: that clearing was carried out on the relevant property between the charged dates – not established beyond reasonable doubt

511. In relation to element 1 of charge 2, Mr Watts’ evidence was that clearing was carried out on Lot 30 in DP 752952 during the charge period, that is from about 1 December 2018 to 16 January 2019 in polygons 1 and 20, as well as in polygon 9. Mr Watts analysed images relating to two consecutive time periods to determine whether changes in vegetation had occurred on Lot 30. He considered that there had been some significant thinning of groundcover between July 2018 and December 2018. In relation to the period 1 December 2018 to 16 January 2019, he considered that clearing took place within two large areas of Lot 30 which he labelled A and B, and which later became polygons 1 and 20. He considered this to be a continuation of the clearing between July 2018 and December 2018 referred to above. He observed that from December 2018, the “far majority” of existing light to medium density trees were removed and there was also thinning of groundcover. Some scattered clumps or single trees remained. He estimated the area to have been cleared to be 107.6ha.

512. Mr Watts considered that whilst the December 2018 imagery depicted “clumps of tree canopies of variable sizes represented as dark grey/black shapes and scattered single trees shown as dark grey/black dots”, by 28 February 2019 these were no longer visible. Likewise, groundcover is shown in the December 2018 imagery “due to its finer and smoother but also variable textured appearance” and which was “also very similar to immediately adjoining areas to the east and west of what I observed as undisturbed groundcover”. This was in contrast to existing cultivated paddocks further to the east and west. By February 2019, these same locations appeared to have “a far smoother texture, more uniform tone and colour” and had become identical to the adjoining areas. In Mr Watts’ opinion, the groundcover had been thinned or removed. In his report, Mr Watts provided a close-up view comparing the two areas identified by him as having been cleared between December 2018 and February 2019 and referred to these areas as polygons 1 and 20.

513. Mr Watts also identified a further area of clearing during the charge period from about 1 December 2018 to 16 February 2019 immediately north of polygon 20, also shown in his report as Area A (not to be confused with polygon 1 which was also initially labelled Area A). He considered that “the far majority of existing light to medium density trees had been removed plus the thinning of groundcover since July 2018”. The area also had groundcover which he observed “due to its finer and smoother but also variable textured appearance”. The appearance of this surface was also very similar to immediately adjoining areas of what he observed as undisturbed groundcover and in contrast to what he identified as the cultivated paddock to the southeast. By December 2018, however, the same locations had “a far smoother texture, more uniform tone and colour”, and were in contrast to how they had appeared previously and to the adjoining undisturbed land. Mr Watts also observed numerous ground markings and scratchings which had not previously been visible in the same locations. These were indicative of a manmade activity. In his report, Mr Watts provided a close-up view comparing the area identified as having been cleared between December 2018 and February 2019 and referred to this area as polygon 9.

Conclusion in relation to the offences charged in the second trial

520. I am satisfied that each of the elements of the first offence charged in the second trial has been established beyond reasonable doubt.

521. It has been proved beyond reasonable doubt that JP & LR Harris Pty Ltd is liable for unlawful clearing of native vegetation contrary to s 60N of the LLS Act from about 1 December 2017 to 31 July 2018 on the property Curly Whirl, Lot 15 in DP 753953, being rural regulated land.

522. I find that JP & LR Harris Pty Ltd has not established on the balance of probabilities any available defence to the first offence charged in the second trial.

523. In proceedings 2021/69629, I will enter a verdict of guilty in relation to JP & LR Harris Pty Ltd.

524. I am not satisfied that the first element of the second offence charged in the second trial has been established beyond reasonable doubt. Accordingly, it has not been proved beyond reasonable doubt that Woolondoon Pty Ltd is liable for unlawful clearing of native vegetation contrary to s 60N of the LLS Act from about 1 December 2018 to 16 January 2019 on the property Woolondoon, Lot 30 in DP 753953, being rural regulated land.

525. In proceedings 2021/69633, I will enter a verdict of not guilty in relation to Woolondoon Pty Ltd.

The Third Trial

Key evidence relied on by the prosecutor in the third trial, and the prosecutor’s submissions in relation to the elements of the eight offences

Charges 1 and 2 (North Marlow) – offences against s 12 of the NV Act

526. In charges 1 and 2 (North Marlow), the prosecutor alleged that from about 25 October 2012 to 30 December 2013, the defendants Phillip Harris and Sue Harris respectively cleared native vegetation on the property North Marlow, in particular on Lots 9 and 10 in DP 752245.

Element 1: clearing was carried out (aerial imagery evidence)

527. In relation to element 1 of charges 1 and 2, the prosecutor relied on the evidence of Mr Watts as establishing that clearing was carried out on Lots 9 and 10 in DP 752245 during the charge periods. In the Watts 2024 report (Trial 3), Mr Watts analysed images relating to two consecutive time periods to determine whether changes in vegetation had occurred on Lots 9 and 10. Mr Watts analysed each image by date, commencing with the images dated 25 October 2012 (North Marlow, Glenidyle, Wondahree) and 21 February 2013 (Waverley South) which dates provided a baseline for his subsequent observations. At both dates, all four properties consisted mainly of land that had already been cultivated, with a little undisturbed vegetation remaining which consisted to varying degrees of open areas of grassland covered with a scattered to light density of trees and a continuous groundcover.

528. The prosecutor referred to the attribution by Mr Watts to each area of identified clearing a polygon number. Mr Watts plotted the polygon on a map in Appendix 73, the green shading indicating the areas alleged to have been cleared; and listed the polygon in the Table of Vegetation Change in Appendix 72, recording the polygon number, the size of the polygon and the Lot/DP details, and the most recent date of imagery on which he observed vegetation to have been present and the earliest date he observed vegetation to have been cleared. An extract from Appendix 73 as it relates to charges 1 and 2 is reproduced below:

Appendix 73 – map of vegetation change polygons between 25 October 2012 to December 2017 (Watts 2024 report (Trial 3))

529. The prosecutor relied on Mr Watts’ evidence that clearing took place on a long rectangular area in Lot 10 which he labelled Area A and on a larger rectangular area in Lot 9 which he labelled Area B, and which he numbered polygons 42 and 43 respectively. Mr Watts also gave evidence that groundcover between the trees was observable in the image of 25 October 2012, having a finer, smoother and variable grey textured appearance, but by December 2013 the appearance was far smoother and more uniform in tone, with a darker colour contrasting with adjoining land, causing him to opine that it had been thinned. He provided a close-up view comparing the areas he identified as having been cleared between 25 October 2012 to 30 December 2013 in which there was a noticeable change in appearance:

530. Mr Watts considered that the changes in vegetation involved the clearing or removal of trees, plus the thinning of groundcover, and that all the existing light to medium tree coverage on Lot 10 was removed while on Lot 9, most of the existing low-density tree coverage was removed, with a few clumps retained. The two areas contained dark grey/black dots in a particular pattern and geographical position on the earlier image, but these were no longer visible by 30 December 2013. Mr Watts calculated the surface areas of the two polygons as 7.6ha (polygon 42) and 32ha (polygon 43). For charges 1 and 2, he considered that clearing was carried out between 25 October 2012 and 30 December 2013. The prosecutor submitted that such removal of trees and thinning of groundcover falls within the definition of clearing in s 7 of the NV Act.

Element 2: native vegetation was cleared (ecological evidence)

531. In relation to element 2 of charges 1 and 2, the prosecutor relied on the evidence of Dr Hammill as establishing the clearing of native vegetation within the meaning of s 6 of the NV Act, and the evidence of Mr Jobson as confirming that the vegetation that was cleared was native vegetation of a kind established in New South Wales at the time of European settlement within the meaning of s 6 of the NV Act.

532. During her visit to North Marlow on 17 June 2020, Dr Hammill attended a location she called site 13 which was located adjacent to polygons 42 and 43. She produced images of the sites and plotted her pedestrian route captured by GPS during the inspection (see figure 16-5 above at [64]). Dr Hamill took photographs of cleared land within polygon 43. She assessed extant native vegetation adjacent to polygons 42 and 43 to use as a reference site for the vegetation that was cleared in the polygons. In her 2024 report, she provided photos of the native plant species of native shrubs and native groundcover she observed and concluded that PCT 27 (W**eeping Myall open woodland of the Darling Riverine Plains Bioregion and Brigalow Belt South Bioregion) existed in polygons 42 and 43 before the alleged clearing occurred. She observed that polygon 43 had become a cropped paddock and considered that Weeping Myall woodland had been present at that location prior to clearing, consistent with the OEH (2015) vegetation mapping in the location.

533. Dr Hammill identified native vegetation and examples of the component native vegetation that had resprouted amongst the cropped paddock from a woody rootstock. She took measurements of three large trees within polygon 43.

534. Dr Hammill opined that the vegetation adjacent to polygons 42 and 43 consisted of a low open woodland, with trees of Acacia pendula (Weeping Myall) and Alectryon oleifolius over a native shrub-grass groundcover. That woodland adjoined the cultivated and cropped paddock within polygon 43. Dr Hammill concluded that the PCT present at the time of the clearing of vegetation in polygons 42 and 43 was PCT 27 (Weeping Myall open woodland of the Darling Riverine Plains Bioregion and Brigalow Belt South Bioregion), consistent with the OEH (2015) vegetation mapping for that area. She had regard to the OEH (2015) vegetation mapping and a pre-clearing satellite image dated 2009-2010 as background context for her ecological assessment.

535. The prosecutor also relied on the evidence of Peter Jobson, information botanist at the National Herbarium of NSW, who was provided with the species listed by Dr Hammill. Mr Jobson said that the species identified by Dr Hammill were plants (trees, shrubs or groundcover, wetland plants or understorey) and (with 2 possible exceptions) were established in New South Wales at the time of European settlement, and accordingly native vegetation within the meaning of s 6 of the NV Act.

Element 3: absence of development consent or property vegetation plan

536. In relation to element 3 of charges 1 and 2, the prosecutor referred to the following evidence as establishing that there was no development consent or property vegetation plan in place relevant to clearing on North Marlow during the charge periods:

537. An affidavit of Julie Power affirmed 16 April 2025 confirmed that a search of the public register kept by the Minister for the Environment of all development consents and property vegetation plans approved under the NV Act yielded nil results for North Marlow, Waverley South, Wondahree or Glenidyle for the period 2005 to 25 August 2017. Under s 13 of the NV Act, the Minister was the consent authority for any development application made under that Act for any clearing of native vegetation that required development consent because of that Act.

538. Local Land Services as delegate of the Minister had at all relevant times, namely until 25 August 2017, responsibility for the assessment and approval of property vegetation plans under the NV Act. On about 27 November 2020, DPIE issued a statutory notice to produce records under s 12.8 of the BC Act to Local Land Services North West Region requiring information and/or records for the period between 1 October 2012 and 1 February 2020 in relation to native vegetation plans, applications, notifications, assessment or any approval or determination granted any time for the properties and any applications, approvals or rejections to undertake any activity requiring approval for the properties. Dennis Boschma of LLS searched records of the LLS and confirmed that no property vegetation plan applied to North Marlow and that LLS had no records of any notification of land clearing or application to clear land in relation to the property or the defendants in the period between 2014 and 2018.

539. On or about 7 November 2020 and again on or about 7 March 2024, DPIE also issued Walgett Shire Council with a statutory notice to produce records pursuant s 12.8 of the BC Act requiring information and/or records for the period between 1 October 2012 and 1 February 2020, including in relation to any development applications, approvals or rejections to undertake any activity requiring approval for the properties. Council records indicated that no development applications were made or consents issued.

Element 4: liability

537. In relation to element 4 of charges 1 and 2, the prosecutor relied on s 44 of the NV Act which attributes liability to the landholder for unlawful clearing unless it is established that (a) the clearing was carried out by another person and (b) the landholder did not cause or permit the other person to carry it out.

538. As evidence of the defendants’ ownership of the land, the prosecutor relied on land title records, as well as an evidentiary certificate pursuant to s 50 of the NV Act dated 20 March 2024 certifying that Phillip Harris and Sue Harris were the landholders of North Marlow during the charge period. There was no dispute that they bought Lot 10 on 11 March 1988 and Lot 9 on 11 January 2002, and that they were the owners of North Marlow at the time of the clearing. The prosecutor submitted that there was no evidence that another person carried out the clearing in circumstances where the defendants did not cause or permit it. Accordingly, the prosecutor submitted that the evidence established beyond reasonable doubt that there was unlawful clearing of native vegetation from about 25 October 2012 to 30 December 2013 within Lots 9 and 10 in DP 752245 for which the defendants Phillip Harris and Sue Harris are liable.

Charges 3 and 4 (Glenidyle) – offence against s 12 of the NV Act

539. In charges 3 and 4 in the third trial (Glenidyle), the prosecutor alleges that from about 1 October 2014 to 6 October 2015, the defendants Phillip Harris and Sue Harris respectively cleared native vegetation on the property Glenidyle on Lot 23 in DP 753953.

Element 1: clearing was carried out (aerial imagery evidence)

540. In relation to element 1 of charges 3 and 4, the prosecutor relied on Mr Watts’ analysis of images relating to two consecutive time periods of clearing on Lot 23: the first, from 1 October 2014 to 12 June 2015 when Mr Watts said that clearing of vegetation was in progress on Lot 23; and the second, from 1 October 2014 to 6 October 2015 when Mr Watts said that an area of 45.2ha of vegetation was cleared on Lot 23.

541. In relation to the first of these periods, Mr Watts observed the commencement of some thinning and clearing of vegetation. During this period, the clearing was of a scattered nature and as such he did not define a boundary (polygon) or measure the area. Mr Watts marked an Area A on an image in his 2024 report (Trial 3) within which the scattered clearing took place. He opined that this initial clearing involved the clearing of some of the scattered trees and the thinning of groundcover, as shown in before and after images:

542. In relation to the second of these periods, Mr Watts observed that there had been clearing of most of the remaining scattered trees, plus the thinning of groundcover. He considered this to have been a continuation of the clearing up to 12 June 2015 and he did not double count the calculated area of clearance:

543. Mr Watts then identified with more specificity the clearing that occurred over the two periods. He identified the area as polygon 44, shown on the map in Appendix 73 to his 2024 report (Trial 3), being 45.2ha in size, as listed in Appendix 72. An extract from Appendix 73 showing polygon 44 is reproduced above at [528]. The prosecutor referred to the cross-examination of Mr Watts where he was asked questions in relation to Glenidyle about the comparison images reproduced above at [542], and it was put to him in relation to the image later in time (dated 6 October 2015) that “you can’t tell whether there were any trees there at all on the page, can you?” Mr Watts said that the trees had been removed. He was asked to compare various areas outside the area depicted as Area A and to compare those areas between the two dates of imagery. The prosecutor submitted that the effect of the cross-examination appeared to be that areas clearly visible as trees in the earlier image (dated 1 October 2014) were not visible on the later, blurrier image (dated 6 October 2015), the inference presumably being that this should call into question Mr Watts’ interpretation of the absence of trees within the polygon in the later image.

544. The prosecutor referred to the following aspects of Mr Watts’ evidence in relation to the difference in resolution between the two images:

545. whilst the image dated 6 October 2015 did not have the same clarity as the image dated 1 October 2014, he “was still very confident that I could use that top image to make my comparison and the - to reach the - the conclusions that I did”;

546. whilst the particular scale of magnification is not as clear on the page, in his examination using his software it was “definitely clear” to him that there were no trees in Area A in the 6 October 2015 image compared to Area A in the 1 October 2014 image;

Element 2: native vegetation was cleared (ecological evidence)

547. In relation to element 2 of charges 3 and 4, the prosecutor referred to Dr Hammill’s visit to Glenidyle on 17 June 2020 when she inspected site 8 which was located within polygon 44 (see figure 16-3 reproduced at [66] above).

548. Dr Hammill observed low woodland native trees and healthy native shrub-grass groundcover, and captured images of this area in photographs. She opined that the remnant woodland site was relatively free of weeds, indicating that prior to clearing the vegetation in polygon 44 would have been in good condition and dominated by native species. The scattered native trees (including Acacia pendula (Weeping Myall), Alectryon oleifolius) over patches of native groundcover allowed Dr Hammill to conclude that the native vegetation immediately before clearing would have been an open to sparse low woodland mosaic of native shrubby-grassland and woodland consisting of PCT 27 (Weeping Myall open woodland of the Darling Riverine Plains Bioregion and Brigalow Belt South Bioregion).

549. Having regard also to the evidence of Mr Jobson (the prosecutor repeating its submissions at [535] above in relation to the evidence of Mr Jobson), the prosecutor submitted that the Court would be satisfied beyond reasonable doubt that the vegetation that was cleared from about 1 October 2014 to 6 October 2015 on Lot 23 in DP 753953 was native vegetation within the meaning of s 6 of the NV Act.

Element 3: absence of development consent or property vegetation plan

550. In relation to element 3 of charges 3 and 4 (Glenidyle), the prosecutor repeated its submissions at [536] above in relation to North Marlow and submitted that the submissions applied correspondingly to Glenidyle.

Element 4: liability

551. In relation to liability for the clearing the subject of charges 3 and 4, the prosecutor again relied on the evidentiary (or deeming) provision in s 44 of the NV Act pursuant to which the landholder is taken to have carried out unlawful clearing unless it is established that (a) the clearing was carried out by another person, and (b) the landholder did not cause or permit the other person to carry it out.

552. As evidence of the defendants’ ownership of the land, the prosecutor relied on land title records, as well as an evidentiary certificate issued pursuant to s 50 of the NV Act certifying that the defendants Phillip Harris and Sue Harris were the landholders of Glenidyle relevantly from 1 October 2014 to 6 October 2015. They purchased Lot 23 on or about 18 April 2001.

553. The prosecutor otherwise relied on its submissions in relation to element 4 of charges 1 and 2, and submitted that the evidence established beyond reasonable doubt that there was unlawful clearing of native vegetation from about 1 October 2014 to 6 October 2015 within Lot 23 in DP 753953 for which the defendants Phillip Harris and Sue Harris are liable.

Charges 5 and 6 (Waverley South) – offence against s 12 of the NV Act

554. In charges 5 and 6 (Waverley South), the prosecutor alleged that from about 29 December 2016 to 28 February 2017, the defendants Phillip Harris and Sue Harris respectively cleared native vegetation on the property Waverley South in Lots 9, 10 and 24 in DP 752247.

Element 1: clearing was carried out (aerial imagery evidence)

555. In relation to element 1 of charges 5 and 6, the prosecutor relied on Mr Watts’ analysis of images of Waverley South and his identification of the clearing of numerous trees. In his analysis, Mr Watts depicted numerous small polygons identified as polygons 1 to 16 and 20 to 41 containing areas of cleared vegetation totalling 7.8ha on Lots 9, 10 and 24 in DP 752247. [30] It was later accepted by the parties that the total amount of area cleared in the charge period 29 December 2016 to 28 February 2017 was 7ha. These polygons were depicted in Appendix 73 to his Watts 2024 report (Trial 3):

Appendix 73 – map of vegetation change polygons between 25 October 2012 to December 2017 (Watts 2024 report (Trial 3))

556. The prosecutor referred to Mr Watts’ detailed analysis of the changes visible on the images reproduced in his 2024 report (Trial 3) which show that since 29 December 2016, clearing involved the removal of in excess of 100 existing single trees or large clumps of low-density trees, plus the thinning of groundcover. Mr Watts provided a close-up view of the polygons of clearing comparing the changes between 29 December 2016 and February 2017:

557. The prosecutor submitted that Mr Watts’ opinion that clearing took place was not challenged and that it was not suggested (in respect of any of the charges) that clearing of vegetation did not occur during the charge period, or that his methodology was flawed or unable to be relied upon. The prosecutor submitted that the Court would find that Mr Watts’ evidence proved beyond reasonable doubt element 1 of charges 5 and 6.

Element 2: native vegetation was cleared (ecological evidence)

558. In relation to element 2 of charges 5 and 6, the prosecutor noted that Dr Hammill was unable to physically attend Waverley South and so relied on observations from the adjacent property Corombie and patterns on the satellite imagery. By using her observations at Corombie, having reference to the OEH (2015) vegetation mapping and the 2009-2010 satellite imagery and applying her ecological expertise, Dr Hammill was able to conclude that the clearing was of Eucalyptus coolabah trees and small isolated patches of PCT 40 with limited native groundcover.

559. The various species that Dr Hammill considered were cleared were listed in her report, and formed a list of species that was provided to Mr Jobson who confirmed the plant forms and that these species were established in NSW at the time of settlement. In relation to Mr Jobson’s evidence, the prosecutor repeated its submissions at [535] above in relation to charges 1 and 2. The prosecutor submitted that the evidence established beyond reasonable doubt that native vegetation was cleared from about 29 December 2016 to 28 February 2017 on Lots 9, 10 and 24 in DP 752247, being species in the list of species forming part of PCT 40.

Element 3: absence of development consent or property vegetation plan

560. In relation to element 3 of charges 5 and 6, the prosecutor submitted that no property vegetation plan or development consent applied to Waverley South during the charge period. The prosecutor repeated its submissions above at [536] in relation to charges 1 and 2, and submitted that they applied correspondingly to Waverley South. The prosecutor submitted that the evidence proved beyond reasonable doubt that the clearing the subject of charges 5 and 6 was not in accordance with a development consent or property vegetation plan.

Element 4: liability

561. As for the previous charges in the third trial, the prosecutor relied on the evidentiary (or deeming) provision in s 44 of the NV Act which attributes liability to the landholder for unlawful clearing unless it is established that (a) the clearing was carried out by another person, and (b) the landholder did not cause or permit the other person to carry it out.

562. As evidence of the defendants’ ownership of Lots 9 and 10, the prosecutor relied on an evidentiary certificate dated 20 March 2024 issued pursuant to s 50 of the NV Act certifying that Phillip Harris and Sue Harris were the landholders during the charge period. There was no dispute that they bought Lot 10 on 11 March 1988 and Lot 9 on 11 January 2002, and were the landholders of Waverley South relevantly from 29 December 2016 to 28 February 2017.

563. The prosecutor submitted that the evidence established beyond reasonable doubt that from about 29 December 2016 to 28 February 2017 there was unlawful clearing of native vegetation on Waverley South specifically within Lots 9, 10 and 24 in DP 752247 for which the defendants were liable.

Charges 7 and 8 (Wondahree) – offence against s 12 of the NV Act

564. In charges 7 and 8, the prosecutor alleged that from about 29 July 2017 to 16 August 2017, the defendants Phillip Harris and Sue Harris respectively cleared native vegetation on the property Wondahree on Lot 2 in DP 753914.

Element 1: clearing was carried out (aerial imagery evidence)

565. In relation to element 1 of charges 7 and 8, the prosecutor relied on Mr Watts’ identification of a period of clearing between July 2017 and 25 August 2017 in the form of six small polygons totalling an area of approximately 8.82ha. Mr Watts provided a detailed analysis of the changes visible on the images, identifying four small areas of clearing in the north of Waverley South, and two larger areas in the centre of the property. He referred to the small area in the north as Area A, and the larger areas in the centre of the property as Area B. He considered that since July 2017, there had been in Area A the removal of several single trees and one clump of scattered trees, plus the thinning of groundcover. In Area B Mr Watts observed the removal of all low-density trees, plus the thinning of groundcover.

566. Mr Watts provided a close-up view of the polygons of clearing comparing the changes between July 2017 and 25 August 2017:

567. The areas identified by Mr Watts were given polygon numbers 45 to 50, marked on the map in Appendix 73 to his report, and identified in Appendix 72 to his report as 8.82ha in total within Lot 2 in DP 753914:

Appendix 73 – map of vegetation change polygons between 25 October 2012 to December 2017 (Watts 2024 report (Trial 3))

568. In the table in Appendix 72 to his 2024 report, Mr Watts used colour-coding to indicate a refinement of the dates of clearing following a review of further satellite imagery. In relation to polygons 45 to 48, the green colour indicated that the most recent date on which Mr Watts observed vegetation to be present was 29 July 2017, and the blue colour indicated that the earliest date on which he observed vegetation to be cleared was 4 August 2017. In relation to polygons 49 and 50, the green colour indicated that the most recent date on which Mr Watts observed vegetation to be present was 29 July 2017, and the orange colour indicated that the earliest date on which he observed vegetation to be cleared was 19 August 2017 (although he noted that this should state 16 August 2017, being a matter disclosed to the defendants, and explained in his report).

Element 2: native vegetation was cleared (ecological evidence)

569. In relation to element 2 of charges 7 and 8, the prosecutor relied on the evidence of Dr Hammill that prior to clearing, polygons 45 to 50 would “most likely have consisted of isolated trees of Eucalyptus coolabah with some native groundcover beneath”. While Dr Hammill did not attend a site at Wondahree, she drove close to polygons 45 and 50 (see figure 16-7 at [68] above), and relied on observations she made at nearby sites on the nearby property Woolondoon, as well as visible patterns on satellite imagery and the OEH (2015) vegetation mapping which identified PCT 39 and PCT 40 in the area of the polygons. The prosecutor submitted that by using her observations at nearby Woolondoon, having reference to the OEH (2015) vegetation mapping and the 2009-2010 satellite imagery, and by applying her ecological expertise, Dr Hammill was able to conclude that the clearing was of isolated Eucalyptus coolabah trees with some native groundcover beneath. In Table 13-1 of her 2024 report Dr Hammill categorised polygons 45 to 50 as areas in which vegetation constituting PCT 40 was cleared.

570. In relation to Mr Jobson’s evidence, the prosecutor repeated its submissions at [535] above in relation to element 2 of charges 1 and 2.

571. The prosecutor submitted that the evidence established beyond reasonable doubt that native vegetation was cleared from about 29 July 2017 to 16 August 2017 on Wondahree, being species within the list of species forming part of PCT 40.

Element 3: absence of development consent or property vegetation plan

572. In relation to element 3 of charges 7 and 8, the prosecutor submitted that no property vegetation plan or development consent applied to Wondahree during the charge period. The prosecutor repeated its submissions above at [536] in relation to charges 1 and 2, and submitted that they applied correspondingly to Wondahree.

Element 4: liability

573. In relation to element 4 of charges 7 and 8, as for the previous charges in the third trial, the prosecutor relied on s 44 of the NV Act which attributes liability to the landholder for unlawful clearing unless it is established that (a) the clearing was carried out by another person, and (b) the landholder did not cause or permit the other person to carry out the clearing.

574. As evidence of the defendants’ ownership of Lot 2, the prosecutor relied on land title records, as well as an evidentiary certificate pursuant to s 50 of the NV Act certifying that the defendants were the landholders of Wondahree from 29 July 2017 to 16 August 2017.

575. The prosecutor submitted that the evidence established beyond reasonable doubt that from about 29 July 2017 to 16 August 2017 there was unlawful clearing of native vegetation within Lot 2 in DP 753914 for which the defendants were liable.

Submissions of Phillip Harris and Sue Harris in the third trial

Evidentiary (or deeming) provisions

576. In the third trial, the defendants Phillip Harris and Sue Harris made essentially the same submissions in relation to the offences with which each of them was charged as the defendants in the first and second trials in relation to the evidentiary (or deeming) provisions in s 44 of the NV Act and s 13.29 of the LLS Act, namely that those provisions are only available where the prosecutor proves beyond reasonable doubt the nature of the “activity constituting the alleged offence or contravention”.

577. In addition, Phillip Harris and Sue Harris submitted that nothing said by Preston CJ of LEC in Walker 2011 at [99] or by Pepper J in Walker 2010 allowed the prosecutor to avoid proving the manner in which the alleged clearing took place. Indeed, the references by Pepper J in Walker 2010 to “the third party whose actions resulted in the clearing” and to the “clearing by a third party” were submitted to invite and require proof of the identification of such a “third party” as part of the prosecution case.

Evidence of Mr Watts and Dr Hammill

578. In the third trial the defendants Phillip Harris and Sue Harris made largely the same submissions as the defendants in the first and second trials in relation to what they asserted to be the deficiencies in and the unreliability of the evidence of Mr Watts and Dr Hammill, particularly the methodologies used by each. In particular, Phillip Harris and Sue Harris submitted that there were difficulties in Mr Watts’ use of 10m resolution images, referring to the consideration of Mr Watts’ methodology by Pain J in Namoi.

579. In addition, Phillip Harris and Sue Harris submitted that the asserted absence of dark dots said by Mr Watts to indicate clearing of trees could not be perceived in the "after" images relied on by Mr Watts in his 2024 report (Trial 3), referring in particular to the images of Glenidyle, Waverley South and Wondahree. Likewise, the asserted changes of texture, tone and colour said by Mr Watts to indicate thinning or removal of ground cover could not be discerned in the "after" images in Mr Watts' report, referring to the images of North Marlow, Glenidyle, Waverley South and Wondahree. Further, his report did not disclose for examination what the observations were on which he based his opinions, and he viewed images, not in the side-by-side manner and at the magnification displayed in the images reproduced in his report, but by toggling between images viewed electronically at various magnifications. His report did not adequately reveal the basis of his opinions in the manner required of expert opinion evidence. As the basis for the opinions could not be understood and tested, his opinions should not be accepted. In his report, Mr Watts was submitted to use highly repetitive and formulaic language to describe the clearing that he said he could observe which indicated a lack of attention to the particularities of the different images relating to the different locations. Accordingly, the Court could not have confidence in the accuracy of such undifferentiated descriptions.

580. As was submitted by the defendants in the first and second trials, in the third trial Phillip Harris and Sue Harris submitted that there were deficiencies in Dr Hammill’s site inspections, her use of the 2009-2010 imagery and her use of the OEH (2015) vegetation mapping, and that her evidence did not establish beyond reasonable doubt that cleared vegetation was native vegetation, either throughout the charge polygons in which Dr Hammill's sites were located or in polygons in which no site was located. Phillip Harris and Sue Harris submitted that Dr Hammill did not have inspection sites on Waverley South or Wondahree. The nearest site to Waverley South was site 17 on Corombie which was between approximately 2km and 4km away from the charge polygons on Waverley South. The nearest site to Wondahree was site 9 on Woolondoon which was more than 2km from the northern boundary of Lot 2/753914 on Wondahree and was approximately 4km from polygon 49 on that property. These distances were submitted to cast further doubt on Dr Hammill's attempt to extrapolate “on already unsound bases” from her sites to the very small areas of vegetation on Wondahree and Waverley South that were the subject of the charges.

Charges 1 and 2 (North Marlow) – offence against s 12 of the NV Act

581. In relation to charges 1 and 2 (North Marlow), Phillip Harris and Sue Harris relied respectively on their submissions in relation to the evidentiary (or deeming) provision in s 44 of the NV Act and the evidence of Mr Watts and Dr Hammill.

Charges 3 and 4 (Glenidyle) – offence against s 12 of the NV Act

582. In relation to charges 3 and 4 (Glenidyle), Phillip Harris and Sue Harris relied respectively on their submissions in relation to the evidentiary (or deeming) provision in s 44 of the NV Act and the evidence of Mr Watts and Dr Hammill.

Charges 5 and 6 (Waverley South) – offence against s 12 of the NV Act

583. In relation to charges 5 and 6 (Waverley South), Phillip Harris and Sue Harris relied respectively on their submissions in relation to the evidentiary (or deeming) provision in s 44 of the NV Act and the evidence of Mr Watts and Dr Hammill.

Charges 7 and 8 (Wondahree) – offence against s 12 of the NV Act

584. In relation to charges 7 and 8, Phillip Harris and Sue Harris relied respectively on their submissions in relation to the evidentiary (or deeming) provision in s 44 of the NV Act and the evidence of Mr Watts and Dr Hammill.

585. In relation to element 1 of charges 7 and 8, the defendants further submitted that “the clearing could have occurred outside the charge period [at Wondahree], either before 29 July 2017 or after 16 August 2017”. The charge period for clearing on Wondahree was from about 29 July 2017 to 16 August 2017. The evidence of Mr Watts in his 2024 report (Trial 3) was that clearing took place on Wondahree during a period commencing on 1 July 2017 and ending on 25 August 2017. Mr Watts depended on a RapidEye mosaic image for July 2017; that is, the imagery for July 2017 could derive from any day in July 2017. For his end date, Mr Watts depended on a Planetscope image dated 25 August 2017, the end date of 25 August 2017 being referred to in various subparagraphs of his report and in the labelling of the accompanying images. It followed, the defendants submitted, that the clearing could have occurred outside the charge period, either before 29 July 2017 or after 16 August 2017.

586. The defendants submitted that as there was doubt as to whether the alleged clearing occurred during the charge period and indeed as to whether it ought to have been the subject of prosecutions under a different Act, the summonses in relation to charges 7 and 8 (Wondahree) should be dismissed and the defendants acquitted.

587. Further, the information in the footnotes to Mr Watts' Appendix 72 regarding a later date for observation of the presence of vegetation in polygons 45 to 50 and earlier dates for observation of the clearing of vegetation in those polygons was submitted to be an inadequate basis for departing from Mr Watts' evidence in the body of his report. The details of what may have been observed in other images and the reasoning from such observations had not been disclosed by Mr Watts, and the Court could not safely proceed on the basis of “those important but unsubstantiated alterations to Mr Watts' evidence” in the body of his report.

Prosecutor’s submissions in reply

588. At the hearing of closing submissions in the third trial, the prosecutor sought to rely on a document titled Prosecutor’s Submissions in R**eply to Defendant’s Closing Submissions (Trial 3). The defendants Phillip Harris and Sue Harris did not object to that document being filed in court.

Evidentiary (or deeming) provision in s 13.29 of the BC Act

589. In reply to the defendants’ submission that the prosecutor could not rely on the evidentiary (or deeming) provision in s 13.29 of the BC Act because the prosecutor must aver one or more of the activities listed as a "clearing" activity in s 60C of the LLS Act before attribution of legal responsibility can follow under s 13.29, the prosecutor repeated its submissions in the first trial and second trial concerning the evidentiary or deeming provisions in s 44 of the NV Act and s 13.29 of the BC Act. The defendants had not put forward any authority in support of this proposition and it ought be rejected.

Evidence of Mr Watts and Dr Hammill and the rule in Browne v Dunn

590. Insofar as the defendants Phillip Harris and Sue Harris made the same submissions as the defendants in the first and second trials in relation to the evidence and methodology of Mr Watts and Dr Hammill, the prosecutor repeated the submissions it made in reply to those submissions in those trials. This included that the approach of the defendants to the evidence of Mr Watts and Dr Hammill generally was in breach of the rule in Browne v Dunn.

591. In reply to the further submissions made by the defendants in the third trial in relation to the evidence of Mr Watts, the prosecutor made the following submissions. What Mr Watts described in evidence was a dynamic process of examination that included the superimposing of images onto each other to allow for "toggling" (sliding) back and forth to allow for better comparison than side by side. This allowed him to "clearly see the changes" in the landscape. All his images were produced in his report, and he could not present in his report every image at all magnifications at which they were displayed using his software and equipment. The submission (above at [579]) that the basis of Mr Watts technique was not adequately revealed ought, the prosecutor submitted, be rejected. Mr Watts provided “a full explanation” of his technique and was able “competently” to answer questions put to him in cross-examination about his methodology. It was open to the defence in the four years since the proceedings commenced to test Mr Watts’ opinions by reference to the images he used which were disclosed and contained in his report and/or to obtain expert evidence to seek to undermine Mr Watts' technique. The defendants chose not to do so, and did not put many of the criticisms made in closing to him during cross-examination.

592. In relation to the generalised submission (above at [579]) that Mr Watts used formulaic and repetitive language in his report "indicat[ing] a lack of attention to the particularities of the different images relating to the different locations", the prosecutor submitted that no adverse inference flowed from the fact that parts of the Watts 2024 report (Trial 3) uses similar language to describe similar changes seen on different imagery; indeed, consistent language can be of assistance to denote the use of a consistent methodology. Mr Watts' report was submitted to be meticulous, and the care with which he approached his oral evidence should also give the Court confidence that he conducted a careful and thorough analysis in the process of forming his opinions about the images he examined.

Charges 7 and 8 (Wondahree) – offence against s 12 of the NV Act

593. In relation to element 1 of charges 7 and 8 (Wondahree), the prosecutor referred to the defendants’ assertions that the footnotes to Appendix 72 to the Watts 2024 report (Trial 3) providing a later date for observation of the presence of vegetation in polygons 45 to 50 and earlier dates for observation of the clearing of vegetation in those polygons was an inadequate basis for departing from Mr Watts' evidence in the body of his report, and that some or all of the clearing could have occurred on 25 August 2017. The prosecutor submitted that those assertions should be rejected. The colour coding and footnotes were an integral part of Appendix 72 that set out the clearing dates. The fact that Mr Watts obtained and reviewed more imagery, being imagery dated 29 July 2017, 4 August 2017 and 16 August 2017 (Appendices 32 to 34) was disclosed in his report, as was the imagery. That this enabled Mr Watts to provide more specificity around the dates by narrowing them was disclosed in his report by the colour coding which he applied to his table.

594. In the prosecutor's submission, none of this should gave rise to any doubt that Mr Watts held the opinion that the changes in vegetation he observed took place during the charge period. There was an irresistible inference that the changes which Mr Watts observed in the imagery referred to in his report were the same changes which he observed in the imagery that permitted him to narrow the date range. That was because Mr Watts viewed changes in vegetation on imagery dated very proximate to the charge period dates. In circumstances where he had indicated that he was able to narrow the date range for the observed changes by the use of additional imagery, it followed that what Mr Watts observed on the additional imagery was the same as what he observed on the original imagery. The resolution of the imagery in the three additional images (29 July 2017, 4 August 2017 and 16 August 2017) was the same as the 25 August 2017 imagery. Given the high level of detail provided in his report, the Court would have confidence that had the additional imagery disclosed any different observations, Mr Watts would have noted this in his Table or report.

595. Further, the prosecutor submitted, although the defendants were critical of Mr Watts' method of explaining the narrowing of the dates, they did not cross-examine him to test whether "the clearing could have occurred outside the charge period, either before 29 July 2017 or after 16 August 2017". In his 2024 report (Trial 3), Mr Watts expressed the opinion that the clearing took place between 29 July 2017 and 16 August 2017, and that opinion was not challenged. No asserted error or possible error was put to him in circumstances where the images used by him were disclosed in the report and available to the defendants. In the prosecutor's submission, the Court has no good reason to reject Mr Watts' opinion as to the period during which clearing took place for the purpose of element 1 of charges 7 and 8.

Consideration of whether the prosecutor has discharged its onus in relation to the elements of the offences charged in the third trial

The application of the rule in Browne v Dunn and general findings in relation to the evidence of Mr Watts and Dr Hammill in the third trial

596. The authorities set out above at [292] to [296] in relation to the application of the rule in Browne v Dunn to the evidence of Mr Watts and Dr Hammill in the first trial are also relevant to an assessment of the evidence of Mr Watts and Dr Hammill in the third trial.

597. As in the first and second trials, in the third trial Phillip Harris and Sue Harris respectively made many criticisms of Mr Watts’ evidence and methodology which were not put him in cross-examination. It was not put to him that there were general difficulties in his use of 10m resolution images, or that the deficiencies identified by Pain J in Namoi were applicable to his evidence in the present case. Mr Watts was not given an opportunity to respond to these criticisms, and the defendants did not seek to have him recalled. Insofar as these criticisms were not put to Mr Watts, I do not give the opinions proffered by Mr Watts the limited weight urged upon me by the defendants.

598. As to the criticisms that the asserted absence of dark dots said by Mr Watts to indicate clearing of trees and the observations of asserted changes of texture, tone and colour said to indicate thinning or removal of groundcover could not be perceived in the “after” images relied on by Mr Watts in his 2024 report (Trial 3), I am satisfied that such criticisms were sufficiently put to Mr Watts insofar as they relate to charges 3 and 4 (Glenidyle). During cross-examination, Mr Watts was asked multiple questions about the lack of clarity of the “after” images relied on in relation to charges 3 and 4 (Glenidyle). In relation to the absence of trees, it was directly put to him that “you can’t tell whether there were any trees there at all on the page, can you?” Mr Watts agreed, for example, that “they may look very blurry to the casual observer”, but explained that “under my examination, interpretation within my software, it was definitely clear to me that there were no trees”. In relation to groundcover, it was directly put to him that his observations of areas with “far smoother texture” and which were “more uniform in tone and colour and in contrast to their previous appearance and the adjoining undisturbed land” were “not themselves apparent from the images on the page”. Mr Watts answered that his observations were apparent, and then proceeded to explain his observations with reference to the images.

599. I am not satisfied, however, that such criticisms were sufficiently put to Mr Watts insofar as they relate to charges 1 and 2 (North Marlow), 5 and 6 (Waverley South), and 7 and 8 (Wondahree). Mr Watts was not asked specifically about the images he relied on in relation to those charges, and was not given the opportunity to respond to the criticisms of his evidence in relation to those charges.

600. In relation to the criticism that Mr Watts used “highly repetitive and formulaic language” which “indicated a lack of attention to particularities of different images relating to the different locations”, I am satisfied that this criticism was sufficiently put to Mr Watts. Counsel for the defendants Phillip Harris and Sue Harris put to Mr Watts that multiple expressions were “a cut and paste”, and that he “didn’t draft those particular passages … with any special reference to the images under comparison”. Mr Watts answered that it was not “a cut and paste”, but a reflection that the observations he made were similar.

Charges 1 and 2 (North Marlow) – offence against s 12 of the NV Act

Element 1: that clearing was carried out on the relevant property between the charged dates

603. In relation to element 1 of charges 1 and 2 (North Marlow), I find established beyond reasonable doubt that from about 25 October 2012 to 30 December 2013 the defendants Phillip Harris and Sue Harris cleared vegetation on North Marlow, in particular on Lots 9 and 10 in DP 752245. In Mr Watts’ opinion, which I accept, clearing was carried out between 25 October 2012 to 30 December 2013. I am satisfied that the aerial imagery interpretation provided by Mr Watts establishes that clearing was carried out on Lots 9 and 10 in DP 752245 during the charge period.

604. Mr Watts gave evidence that clearing took place on a long rectangular area on Lot 10 which he labelled Area A and a larger rectangular area on Lot 9 DP which he labelled Area B, and numbered the polygons 42 and 43 respectively. He also gave evidence that groundcover between the trees was observable in the 25 October 2012 image, having a finer, smoother and variable grey textured appearance, but by December 2013 the appearance was far smoother and more uniform in tone, with a darker colour contrasting with adjoining land, causing him to opine that it had been thinned.

605. As in relation to charges 1, 2, 3 and 6 in the first trial, and charge 1 in the second trial, I do not accept the defendants’ submission that there were “difficulties” in Mr Watts’ use of 10m resolution images in relation to charges 1 and 2 in the third trial. The vast majority of differences between the images reproduced at [529] observed by Mr Watts are obvious to the lay eye, unlike in Namoi. I find that the close-up view comparing the areas identified as having been cleared between 25 October 2012 and 30 December 2013 shows a noticeable change in appearance as described by Mr Watts, with most of the trees present in the 25 October 2012 image no longer present in the 30 December 2013 image, and the area between the remaining trees in the 30 December 2013 being darker in colour than the adjoining land, indicating the thinning of groundcover. Insofar as minor areas of difference are not obvious, this does not give rise to a reasonable doubt that clearing was carried out on Lots 9 and 10 in DP 752245. In any event, as set out above at [599], Mr Watts was not given an opportunity to respond to the criticism that his observations in respect of polygons 42 and 43 were not apparent. I find that Mr Watts was able to apply his specialised knowledge in opining that those areas were cleared.

606. Mr Watts opined that the changes in vegetation involved the clearing or removal of trees plus the thinning of groundcover, and that all of the existing light to medium tree coverage on Lot 10 and most of the existing low-density tree coverage was removed, with a few clumps retained on Lot 9. The two areas contained dark grey/black dots in a particular pattern and geographical position on the earlier image, but these were no longer visible by 30 December 2013. I find that the removal of trees and the thinning of groundcover falls within the definition of clearing of native vegetation in s 7 of the NV Act, and that as calculated by Mr Watts the surface area of the two polygons cleared was approximately 7.6ha (polygon 42) and approximately 32ha (polygon 43), resulting in a total area of approximately 39.6ha cleared within Lots 9 and 10 in DP 752245.

Element 2: that the clearing was of native vegetation

608. In relation to element 2 of charges 1 and 2 (North Marlow), I accept the evidence of Dr Hammill and Mr Jobson concerning the type of vegetation cleared from polygon 42 and 43 at North Marlow during the charge period.

609. During her visit to North Marlow on 17 June 2020, Dr Hammill attended a location she called site 13. Site 13 was located adjacent to polygons 42 and 43. She produced images of the site and a plot of her route captured by GPS during her inspection. She took photos of cleared land within polygon 43. She assessed extant native vegetation adjacent to polygons 42 and 43 to use as a “reference site” for the vegetation that was cleared in polygons 42 and 43. She identified native vegetation and examples of the component native vegetation that had resprouted amongst the cropped paddock in polygon 43 from a woody rootstock. She took measurements of three large trees within polygon 43. She provided photographs of the native plant species she observed, including Acacia pendula (Weeping Myall) and Alectryon oleifolius, native shrubs such as Atriplex muelleri and Chenopodium nitrariaceum, and native groundcover species such as Enteropogon acicularis, and listed them in her report. She concluded that PCT 27 (Weeping Myall open woodland of the Darling Riverine Plains Bioregion and Brigalow Belt South Bioregion) existed in the area of alleged clearing before it was cleared. She observed that polygon 43 had become a cropped paddock, and opined that Weeping Myall open woodland had been present at that location prior to clearing. She considered this to be consistent with the OEH (2015) vegetation mapping in this location. Dr Hammill was not cross-examined about her conclusions in relation to North Marlow.

610. The species listed by Dr Hammill were provided to Peter Jobson at the National Herbarium of NSW who confirmed that the native vegetation identified by Dr Hammill were plants and (with 2 possible exceptions) were established pre-settlement, and accordingly were native vegetation within the meaning of s 6 of the NV Act. Mr Jobson opined that the species identified by Dr Hammill were trees, shrubs or groundcover, wetland plants or understorey and were native to New South Wales (as having been established in New South Wales at the time of European settlement).

611. I find that the defendants Phillip Harris and Sue Harris have failed to cast any reasonable doubt on the evidence of Dr Hammill. In light of the evidence of Dr Hammill and Mr Jobson, I find established beyond reasonable doubt that the vegetation that was cleared at North Marlow during the charge period from about 25 October 2012 to 30 December 2013 was native vegetation as defined in s 6 of the NV Act.

Element 3: that the clearing was not in accordance with a development consent or property vegetation plan

612. In relation to element 3 of charges 1 and 2 (North Marlow), I am satisfied beyond reasonable doubt in light of the evidence set out above at [536] that no property vegetation plan or development consent existed in relation to North Marlow.

613. I find established beyond reasonable doubt that there was no development consent or property vegetation plan in place relevant to clearing on North Marlow during the charge period from about 25 October 2012 to 30 December 2013.

Element 4: that Phillip Harris and Sue Harris were legally responsible for the carrying out of the clearing

614. In relation to element 4 of charges 1 and 2 (North Marlow), the prosecutor relied on s 44 of the NV Act which attributes liability to the landholder for unlawful clearing unless it is established that (a) the clearing was carried out by another person, and (b) the landholder did not cause or permit the other person to carry it out.

615. In relation to the defendants’ submission that the evidentiary (or deeming) provision in s 44 is only available where, as part of the prosecution case, the prosecutor proves beyond reasonable doubt in what manner the alleged "clearing" has taken place (in the case of the NV Act), I repeat my findings at to [333] to [335] above in relation to element 4 of charge 1 in the first trial. Although Walker (No 2) was concerned with attribution of liability to a corporate defendant, there is no reason in principle that the principles enunciated in those cases do not also apply, where relevant, to individual defendants, in this trial, Phillip Harris and Sue Harris.

616. In this third trial, the defendants’ ownership of North Marlow was uncontroversial. It was established by land title records, as well as the evidentiary dated 20 March 2024 issued pursuant to s 50 of the NV Act certifying that the defendants were the landholder during the charge period. There was no dispute that Phillip Harris and Sue Harris bought Lot 10 in DP 752245 on 11 March 1988 and Lot 9 in DP 752245 on 11 January 2002, or that they were the owners of Corombie at the time of the clearing. There was no evidence capable of establishing on the balance of probabilities that another person carried out the clearing in circumstances and that the landholder, the defendants Phillip Harris and Sue Harris, did not cause or permit the other person to carry out.

617. The evidence establishes beyond reasonable doubt that there was unlawful clearing of native vegetation between 25 October 2012 to 30 December 2013 within Lots 9 and 10 DP 752245 for which the defendants Phillip Harris and Sue Harris are liable.

Charges 3 and 4 (Glenidyle) – offence against s 12 of the NV Act

Element 1: that clearing was carried out on the relevant property between the charged dates – not established beyond reasonable doubt

618. In relation to element 1 of charges 3 and 4 (Glenidyle), I am not satisfied beyond reasonable doubt that from about 1 October 2014 to 6 October 2015 the defendants Phillip Harris and Sue Harris cleared vegetation on Glenidyle, in particular on Lot 23 in DP 753953. Mr Watts’ evidence does not establish beyond reasonable doubt that clearing was carried out between 1 October 2014 to 6 October 2015. The aerial imagery interpretation evidence of Mr Watts does not establish to the requisite standard that clearing was carried out on Lot 23 in DP 753953 during the charge period.

619. Mr Watts analysed images relating to two consecutive time periods and gave evidence that there were two periods of clearing on Glenidyle on Lot 23 in DP 753953: first, from 1 October 2014 to 12 June 2015 clearing of vegetation was in progress on Lot 23 in DP 753953 (the first period of clearing); and second, from 1 October 2014 to 6 October 2015 an area of 45.2ha of vegetation was cleared on Lot 23 in DP 753953 (the second period of clearing).

620. In relation to the first period of clearing, Mr Watts observed the "commencement of some thinning and clearing of vegetation" involving the clearing of some of the scattered trees and the thinning of groundcover between 1 October 2014 and 12 June 2015 which he said was shown in the before and after images reproduced above at [541]. In relation to the second period of clearing, Mr Watts observed that there had been the clearing of most of the remaining scattered trees plus the thinning of groundcover which he said was shown in the before and after image reproduced above at [542]. This was a continuation of what he said was the clearing up to 12 June 2015. Mr Watts identified the clearing that occurred over the two periods as within polygon 44, showed the area cleared in Appendix 73 to his 2024 report (Trial 3), and identified in Appendix 72 the area on Lot 23 that was cleared as 45.2ha.

621. As set out above at [598], in cross-examination in relation to the second period of clearing at Glenidyle from 1 October 2014 to 6 October 2015, Mr Watts was asked multiple questions with respect to the clarity of the image dated 6 October 2015 and his observations about the presence or absence of trees and groundcover. In relation to the presence or absence of trees, the following exchange took place between counsel for the defendants and Mr Watts:

Q. You’ll agree with me that what you can see in area A in the top image, on the page here, doesn’t present any reasonable basis for comparison?

A. It doesn’t have the same clarity - the top image doesn’t have the same clarity at the image to the bottom, but I was still very confident that I could use that top image to make my comparison and the - to reach the - the conclusions that I did.

…

Q. The area of the polygon that you’ve created, which is marked A--

A. Yes.

Q. --looks like clouds - you can’t even see the ground in it, can you?

A. Yes. Under magnification, yes.

Q. But we can’t see it on the page, can we? That’s my point?

A. On this page? Yeah - look, it’s - to - at this particular scale of magnification, it’s not as clear as to the - to the bottom image, but under my examination, interpretation within my software, it was definitely clear to me that there were no trees in that - in that area A compared to area - to the area A on the image below.

Q. You agree with me, don’t you, that you can’t make the judgment that you have expressed as to the comparison on these two images by looking at those two images on the page, you agree with that, don’t--

A. Well, when they’re side by side like that, it’s not as easy as having them superimposed one on top of each other. See, my technique of interpretation is, if I - regardless of the resolution, they are spatially referenced and superimposed, and when I toggle, slide - there’s a few different terms - back and forth, I can actually see that there are - where changes have occurred and where changes haven’t occurred. Two images side by side, I can - I can appreciate that and observe - and look at that and say, well, they might find it difficult to - to see it, but using the techniques that I use, I could - I could clearly see the changes.

…

Q. My question is in the 2014 image below, there are dark dots which one can see on the page?

A. Yes.

Q. And those are presumably trees, are they?

A. They are. That’s correct.

Q. But when one goes up to the top image and looks at the same area, there are no dark dots visible on the page, are there?

A. I can see there are shapes that are dark dots that are the trees. I know it’s - it - looking at the image on the page at this magnification, it’s not abundantly clear, but there are

Q. So it’s not that it’s not abundantly clear. It’s just it’s not observable at all in that particular aspect. That’s right, isn’t it?

A. No. I can see because I’ve undertaken the review of these images. I can actually see that the shapes they are - they may look very blurry to the casual observer, but I can actually see the, the positions and the shapes, particularly the spatial locations of these trees which I relate between one image and the other.

…

Q. … because you’ve done the work on this comparison, and only you have done that particular work on this comparison--

A. Correct, yes.

Q. --and because that work allows you to make the statements you’ve made in the witness box--

A. Yes.

Q. --which is outside simply observations of images on the page, it’s necessary, considering what you’re saying by way of opinion, it’s a necessary problem, I’m suggesting, that the person who simply observes what’s on the page doesn’t have the advantage of your other work, you would agree with that, wouldn’t you?

A. They don’t have the advantage of my, of looking at the imagery that I do on the systems under, under the magnification, that’s correct.

622. In relation to the presence or absence of groundcover, Mr Watts’ was asked about his observation that in the 6 October 2015 image “these same locations appeared as areas with a far smoother texture, more uniform tone and colour and in contrast to their previous appearance and the adjoining undisturbed land”. It was put to him that “those observations are not themselves apparent from the images on the page, and they depend on the work you’ve told us you did before you wrote your report?” The following exchange took place between counsel for the defendants Phillip Harris and Sue Harris and Mr Watts:

A. Well, I think there is some, no, I believe there, that there, well, there is to be, they were apparent, like, in regards to, so paragraph (f) is talking about groundcover disturbance, thinning, removal, so on the top image on page 65 within area A, I can see that the, the, the colour of the, the general colour of the ground, so I’m not talking about trees, I’m talking about the, sort of, the groundcover in area A on the top image in 2015 has a different appearance to the groundcover to the east of area A where I have, particularly, I have two arrows where I say “undisturbed trees and groundcover in adjacent areas.” In that area where I say, “undisturbed trees and groundcover in adjacent areas”, so to the east of area A and inside the western boundary of the property, that area to me is--

Q. Sorry, is it the western boundary or the eastern boundary?

A. Sorry, inside, to the west of the eastern boundary, yep. In that, as an example, in that area A, in that location of the property, as of October 2015, I observed that the groundcover was not, was undisturbed similar to the groundcover in that same area in October 2014 in the image below. So because I could see--

Q. Sorry, is that the area indicated by the arrows that you’ve put on there?

A. The, well, it’s the general area indicated where the, where the, where the two, those two arrows are and also where the text is. It’s the, it’s the, I guess, the entire location of the property to the east of area A and to the western boundary of the, of that eastern property boundary. So it’s a, it’s, it’s a larger, you know, it’s, it’s quite a, it’s quite a large area that I’m referring to where I see it as a, a distinct difference in the, the appearance of the groundcover of that area to the groundcover that I observed as being cleared within area A as at, as at, as of, as at October 2015

623. I accept the defendants’ submission that the presence or absence of trees in the 12 June 2015 image (for the first period) and the 6 October 2015 image (for the second period) images included in the Watts 2024 report (Trial 3) is not obvious. In relation to the 12 June 2015 image, it appears that the vast majority of “dark dots” present in the 1 October 2014 image remain present. The 12 June 2015 image is of considerably poorer resolution than the 1 October 2014 image, and is in colour whereas the 1 October 2014 image is in greyscale. This is such as to make it difficult to compare the two images. The resolution of the 6 October 2015 image is even poorer than that of the 12 June 2015 image. Again, the 12 June 2015 image is in colour, whereas the 1 October 2014 image is in greyscale. It is not possible to discern with any degree of confidence whether the vast majority of black dots which Mr Watts said were absent or present are absent or present. In the bottom right of Area A in the 6 October 2015 image which Mr Watts said was cleared, for example, it is possible to discern faint black dots which look similar to the faint black dots in the area which Mr Watts said was not cleared, and which correspond to black dots in the 1 October 2014 image which was taken before clearing was alleged to have commenced. In the exchange with counsel set out above at [621], Mr Watts did not explain such anomalies other than by saying that he could use his software to more confidently observe the differences. Mr Watts also accepted in that passage that it might be difficult to see the changes in the images reproduced in his report.

624. I likewise accept the defendants’ submission that the presence or absence of groundcover in both the 12 June 2015 image and the 6 October 2015 image was not obvious. In relation to the 12 June 2015 image, Mr Watts said that there were areas “with a different texture and relative colour in the same locations when compared to its appearance in the 1 October 2014 image” and which “appeared with a different texture and colour to surrounding undisturbed areas as at this date”. Given that the 1 October 2014 image is in greyscale, whereas the 12 June 2015 image in colour, it is difficult to discern whether the asserted differences in colour in the 12 June 2015 image are present or absent in the 1 October 2014 image other than by drawing inferences from lighter or darker tones. In any event, the presence of lighter and darker tones in the 1 October 2014 image appears to roughly correspond with the yellow and green colours respectively in the 12 June 2015 image. Further, in the area to the south of area A in the 12 June 2015 image which Mr Watts describes as undisturbed groundcover, it is possible to discern the same variations in colour between green and yellow that are discernible in area A where Mr Watts said that groundcover had been cleared. In relation to the 6 October 2015 image, the lower resolution of the image which is in greyscale makes it difficult to be satisfied with any degree of confidence as to the reliability of Mr Watts’ observations that parts of area A appeared with a “far smoother texture, more uniform tone and colour and in contrast to their previous appearance and the adjoining undisturbed land”. It is evident from the answers that are in the passage set out above at [622] that Mr Watts had difficulty explaining and was not confident about those observations.

Charges 5 and 6 (Waverley South) – offence against s 12 of the NV Act

Element 1: that clearing was carried out on the relevant property between the charged dates

627. In relation to element 1 of charges 5 and 6 (Waverley South), I find established beyond reasonable doubt that from about 29 December 2016 to 28 February 2017 the defendants Phillip Harris and Sue Harris cleared vegetation on Waverley South, in particular on Lots 9, 10 and 24 in DP 752247. In Mr Watts’ opinion, which I accept, clearing was carried out between 29 December 2016 and 28 February 2017. The aerial imagery interpretation evidence of Mr Watts establishes that clearing was carried out on Lots 9, 10 and 24 in DP 752247 during the charge period.

628. Mr Watts analysed images of Waverley South, and identified the clearing of numerous trees which he identified by depicting numerous small polygons containing areas of cleared vegetation totalling 7.8ha on Lots 9, 10 and 24 in DP 752247. It was accepted by the parties that the total amount of area cleared in the charge period was 7ha. In his 2024 report (Trial 3), Mr Watts provided a detailed analysis of the changes visible on the images, and opined that clearing involved the removal of in excess of 100 existing single trees or large clumps of low-density trees, plus the thinning of groundcover since 29 December 2016. Mr Watts provided a close-up view of the polygons of clearing comparing changes between 29 December 2016 and 28 February 2017. He gave the areas he identified polygon numbers 1 to 16 and 20 to 41, marked the areas on the map in Appendix 73 to his 2024 report, and listed the areas in Appendix 72 to his 2024 report as being of a total area of 66.6ha within Lot 24 in DP 752247. This number was clarified in the re-examination of Mr Watts, and the parties were agreed that the total amount of area cleared in the charge period was 7ha within Lots 9, 10 and 24 in DP 752247.

629. As in relation to charges 1 and 2, I do not accept the defendants’ submission in relation to charges 5 and 6 that there were “difficulties” in Mr Watts’ use of 10m resolution images. The majority of the differences between the images reproduced at [556] observed by Mr Watts are obvious to the lay eye, unlike in Namoi. The close-up view comparing the areas identified as having been cleared between 29 December 2016 and February 2017 demonstrates that the majority of the individual trees or clumps of low-density trees present in the 29 December 2016 image are no longer present in the February 2017 image, and that the areas between the remaining trees in the February 2017 image have become part of surrounding cultivated paddocks, indicating the thinning of groundcover. Insofar as minor areas of difference are not obvious, this does not give rise to a reasonable doubt that clearing was carried out on Lots 9, 10 and 24 in DP 752247. In any event, as set out above at [599], Mr Watts was not given an opportunity to respond to the criticism that his observations in respect of charges 5 and 6 were not apparent. I find that Mr Watts was able to apply his specialised knowledge in opining that such areas were cleared.

630. I find that element 1 of charges 5 and 6 has been proved beyond reasonable doubt. It has been established beyond reasonable doubt that from about 29 December 2016 to 28 February 2017 the defendants cleared approximately 7ha of vegetation at Waverley South on Lots 9,10 and 24 in DP 752247.

Element 2: that the clearing was of native vegetation

631. In relation to element 2 of charges 5 and 6 (Waverley South), I accept the evidence of Dr Hammill and Mr Jobson concerning the type of vegetation cleared from polygons 1 to 16 and 20 to 41 at Waverley South during the charge period. While Dr Hammill was unable to physically attend Waverley South, she relied on observations from the adjacent property Corombie and patterns on the satellite imagery. She opined that the native species forming part of PCT 40 were cleared at Waverley South. She drove through Waverley South (see figure 16-6 at [25] above).

632. I repeat my findings at [308] to [311] above in relation to Dr Hammill’s methodology. By using her observations at Corombie, having reference to the OEH (2015) vegetation mapping and the 2009-2010 satellite imagery, and applying her ecological expertise, Dr Hammill was able to conclude that the clearing was of Eucalyptus coolabah trees and small isolated patches of PCT 40 Coolabah woodland with limited native groundcover. In Table 13-1 in her 2024 report, Dr Hammill categorised polygons 1 to 16 and 20 to 41 as PCT 40. Dr Hammill was not cross-examined about her conclusions in relation to Waverley South. She listed the species that she considered to have been cleared in her report. That list was provided to Mr Jobson who confirmed the plant forms and that these species were established in NSW at the time of settlement. I repeat my findings above at [610] in relation to the evidence of Mr Jobson.

633. The evidence establishes beyond reasonable doubt that native vegetation was cleared from about 29 December 2016 to 28 February 2017 at Waverley South on Lots 9, 10 and 24 in DP 752247, being species within the list of species forming part of PCT 40. Accordingly, element 2 of charges 5 and 6 has been proved beyond reasonable doubt.

Element 3: that the clearing was not in accordance with a development consent or property vegetation plan

634. In relation to element 3 of charges 5 and 6 (Waverley South), I repeat my findings at [536] above in relation to the absence of development consent or a property vegetation plan. Those findings apply also to Waverley South.

635. I find established beyond reasonable doubt that the clearing the subject of charges 5 and 6 was not in accordance with a development consent or property vegetation plan during the charge period, from about 29 December 2016 to 28 February 2017. Accordingly, element 3 of charges 5 and 6 has been proved beyond reasonable doubt.

Element 4: that Phillip Harris and Sue Harris were legally responsible for the carrying out of the clearing

636. In relation to element 4 of charges 5 and 6 (Waverley South), the prosecutor relied on s 44 of the NV Act which attributes liability to the landholder for unlawful clearing unless it is established that (a) the clearing was carried out by another person, and (b) the landholder did not cause or permit the other person to carry it out. I repeat my findings at [333] to [335] above in relation to element 4 of charge 1 in the first trial, and at [615] in relation to element 4 of charges 1 and 2 in the third trial.

637. It was not in dispute that the defendants Phillip Harris and Sue Harris were the owners of Lots 9,10 and 24 in DP 752247 between 29 December 2016 to 28 February 2017. The evidence included an evidentiary certificate dated 20 March 2024 issued pursuant to s 50 of the NV Act certifying that the defendants were the landholders during the charge period, from about 29 December 2016 to 28 February 2017. There was no evidence that any other person carried out the clearing of native vegetation on Waverley South from about 29 December 2016 to 28 February 2017 in circumstances where the defendants did not cause or permit the other person to carry out the clearing.

638. I find established beyond reasonable doubt that from about 29 December 2016 to 28 February 2017 there was clearing of native vegetation on Waverley South, specifically within Lots 9, 10 and 24 in DP 752247, for which the defendants are liable. Accordingly, element 4 of charges 5 and 6 has been proved beyond reasonable doubt.

Charges 7 and 8 (Wondahree) – offence against s 12 of the NV Act

Element 1: that clearing was carried out on the relevant property between the charged dates – not established beyond reasonable doubt

639. In relation to element 1 of charges 7 and 8 (Wondahree), I do not find established beyond reasonable doubt that from about 29 July 2017 to 16 August 2017 the defendants Phillip Harris and Sue Harris cleared vegetation on Wondahree, in particular on Lot 2 DP in 753914. I do not accept Mr Watts’ opinion that clearing was carried out between 29 July 2017 and 16 August 2017. I am not satisfied that the aerial imagery interpretation evidence of Mr Watts establishes that clearing was carried out on Lot 2 DP in 753914 during the charge period.

640. Mr Watts identified a period of clearing between 29 July 2017 and 16 August 2017 in the form of 6 small polygons totalling an area of approximately 8.82ha. Mr Watts provided a detailed analysis of the changes visible on the images, identifying five small areas of clearing in the north of Wondahree. He referred to these as Area A in the north and Area B in the centre of the property. In Area A, he observed the removal of several single trees and one clump of scattered trees plus the thinning of groundcover since July 2017. In Area B, he observed the removal of all low-density trees plus the thinning of groundcover in two larger areas.

641. In his 2024 report (Trial 3), Mr Watts provided a close-up view of the polygons of clearing comparing the changes between 29 July 2017 and 16 August 2017. He identified the areas in Area A as polygons 45 to 48, and the areas in Area B as polygons 49 and 50, marked these on the map in Appendix 73, and listed the area cleared in Appendix 72 as 8.82ha in total within Lot 2 DP in 753914. In the table in Appendix 72 to his 2024 report (Trial 3), Mr Watts used colour-coding to indicate a refinement of the dates of clearing following a review of further satellite imagery. In relation to polygons 45 to 48, the green colour indicated that the most recent date on which he observed vegetation to be present was 29 July 2017, and the blue colour indicated that the earliest date on which he observed vegetation to be cleared was 4 August 2017. In relation to polygons 49 and 50, the green colour indicated that the most recent date on which he observed vegetation to be present was 29 July 2017, and the orange colour indicated that the earliest date on which he observed vegetation to be cleared was 19 August 2017, although Mr Watts noted that this should have stated 16 August 2017, a matter disclosed to the defendants. He explained those refinements in his report.

642. As in relation to charge 2 of the second trial, the images from 29 July 2017, 4 August 2017, and 16 August 2017 which allowed Mr Watts to refine the period of clearing in polygons 45 to 50 to between 29 July 2017 and 16 August 2017 were not reproduced in his 2024 report (Trial 3) (although they were included in the list of imagery review in the “information considered” section of the report), and he did not include his observations in relation to those images which led him to conclude that clearing had taken place between 29 July 2017 and 16 August 2017. This is a situation, akin to , where his conclusions cannot be tested at all and in circumstances where Mr Watts had ample opportunity to include in his report the images and observations which led him to conclude that clearing occurred in polygons 45 to 50 within the charge period from about 29 July 2017 to 16 August 2017. The evidence of Mr Watts alone is not sufficient to prove beyond reasonable doubt that clearing occurred in polygons 45 to 50 within the charge period from about 29 July 2017 to 16 August 2017, as opposed to outside of that charge period.

Consideration of whether the defendant has established a defence to any of the offences in charges 1 and 2, and 5 and 6 in the third trial

644. I was not taken to any material capable of suggesting a defence available to the defendants Phillip Harris and Sue Harris to any of the offences charged in charges 1 and 2, and 5 and 6 in the third trial.

Conclusions in relation to the offences charged in the third trial

645. I am satisfied that each of the elements of the offences the subject of charges 1 and 2, and 5 and 6 in the third trial has been proved beyond reasonable doubt. I am not satisfied that the first element of charges 3 and 4, and 7 and 8 has been proved beyond reasonable doubt.

646. It has been proved beyond reasonable doubt that Phillip John Harris is liable for unlawful clearing of native vegetation contrary to s 12 of the NV Act from about 25 October 2012 to 30 December 2013 on the property North Marlow on Lots 9 and 10 in DP 752245; and from about 29 December 2016 to 28 February 2017 on the property Waverley South on Lots 9, 10 and 24 in DP 752247.

647. It has been proved beyond reasonable doubt that Sue Ellen Harris is liable for unlawful clearing of native vegetation contrary to s 12 of the NV Act from about 25 October 2012 to 30 December 2013 on the property North Marlow on Lots 9 and 10 in DP 752245; and from about 29 December 2016 to 28 February 2017 on the property Waverley South on Lots 9, 10 and 24 in DP 752247.

648. I find that neither defendant has established on the balance of probabilities an available defence to the offences in charges 1 and 2, and 5 and 6.

649. In proceedings 2021/69585 (charge 1) and 2021/69586 (charge 5), I will enter a verdict of guilty in relation to Phillip John Harris.

650. In proceedings 2021/69588 (charge 3) and 2021/69587 (charge 7), I will enter a verdict of not guilty in relation to Phillip John Harris.

651. In proceedings 2021/69598 (charge 2) and 2021/69599 (charge 6), I will enter a verdict of guilty in relation to Sue Ellen Harris.

652. In proceedings 2021/69601 (charge 4) and 2021/69600 (charge 8), I will enter a verdict of not guilty in relation to Sue Ellen Harris.

Orders

653. Shortly prior to the delivery of judgment in this matter this afternoon, the prosecutor requested that the Court not make final orders today in order to enable the prosecutor to consider the Court’s reasoning and, depending on the conclusions reached by the Court, to consider the possibility of an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

654. I have acceded to that request. Accordingly, whilst I proceed to publish my reasons, I will refrain from making final orders today. I will make an order that the prosecutor notify my chambers within 14 days of the date of this judgment of its position in relation to the final orders to be made in accordance with these reasons for judgment.

655. Had the prosecutor not raised s 5AE of the Criminal Appeal Act late this afternoon, I would have made the following orders.

Proceedings 2021/69608, 2021/69609, 2021/69610, 2021/69611, 2021/69612, and 2021/69613 (the first trial)

656. In proceedings 2021/69608, 2021/69609, 2021/69610, 2021/69611, 2021/69612, and 2021/69613, the Court would have made the following orders:

657. In proceedings 2021/69608, the defendant Balmoral Farms Pty Ltd is guilty of an offence against s 12 of the Native Vegetation Act 2003 in that it cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Native Vegetation Act or a property vegetation plan.

658. In proceedings 2021/69609, the defendant Balmoral Farms Pty Ltd is guilty of an offence against s 12 of the Native Vegetation Act 2003 in that it cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Native Vegetation Act or a property vegetation plan.

659. In proceedings 2021/69610, the defendant Balmoral Farms Pty Ltd is guilty of an offence against s 12 of the Native Vegetation Act 2003 in that it cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Native Vegetation Act or a property vegetation plan.

660. In proceedings 2021/69611, the defendant Balmoral Farms Pty Ltd is guilty of an offence against s 60N of the Local Land Services Act 2013 in that it cleared native vegetation in a regulated rural area and the clearing was not authorised under s 60N(1)(a)–(e) of the Local Land Services Act.

661. In proceedings 2021/69612, the defendant Balmoral Farms Pty Ltd is guilty of an offence against s 12 of the Native Vegetation Act 2003 in that it cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Native Vegetation Act or a property vegetation plan.

662. In proceedings 2021/69613, the defendant Balmoral Farms Pty Ltd is guilty of an offence against s 12 of the Native Vegetation Act 2003 in that it cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Native Vegetation Act or a property vegetation plan.

663. All proceedings are stood over for sentencing on a date or dates to be fixed.

Proceedings 2021/69629 and 2021/69633 (the second trial)

657. In proceedings 2021/69629 and 2021/69633, the Court would have made the following orders:

658. In proceedings 2021/69629, the defendant JP & LR Harris Pty Ltd is guilty of an offence against s 60N of the Local Land Services Act 2013 in that it cleared native vegetation in a regulated rural area and the clearing was not authorised under s 60N(1)(a)–(e) of the Local Land Services Act.

659. In proceedings 2021/69633, the defendant Woolondoon Pty Ltd is not guilty of an offence against s 60N of the Local Land Services Act 2013.

660. Proceedings 2021/69629 are stood over for sentencing on a date or dates to be fixed.

Proceedings 2021/69585, 2021/69586, 2021/69587, 2021/69588, 2021/69598, 2021/69599, 2021/69600, 2021/69601 (the third trial)

658. In proceedings 2021/69585, 2021/69586, 2021/69587, 2021/69588, 2021/69598, 2021/69599, 2021/69600, 2021/69601, the Court would have made the following orders:

659. In proceedings 2021/69585, the defendant Phillip John Harris is guilty of an offence against s 12 of the Native Vegetation Act 2003 in that he cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Native Vegetation Act or a property vegetation plan.

660. In proceedings 2021/69586, the defendant Phillip John Harris is guilty of an offence against s 12 of the Native Vegetation Act 2003 in that he cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Native Vegetation Act or a property vegetation plan.

661. In proceedings 2021/69587, the defendant Phillip John Harris is not guilty of an offence against s 12 of the Native Vegetation Act 2003.

662. In proceedings 2021/69588, the defendant Phillip John Harris is not guilty of an offence against s 12 of the Native Vegetation Act 2003.

663. In proceedings 2021/69598, the defendant Sue Ellen Harris is guilty of an offence against s 12 of the Native Vegetation Act 2003 in that she cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Native Vegetation Act or a property vegetation plan.

664. In proceedings 2021/69599, the defendant Sue Ellen Harris is guilty of an offence against s 12 of the Native Vegetation Act 2003 in that she cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Native Vegetation Act or a property vegetation plan.

665. In proceedings 2021/69600, the defendant Sue Ellen Harris is not guilty of an offence against s 12 of the Native Vegetation Act 2003.

666. In proceedings 2021/69601, the defendant Sue Ellen Harris is not guilty of an offence against s 12 of the Native Vegetation Act 2003.

667. Proceedings 2021/69585, 2021/69586, 2021/69598 and 2021/69599 are stood over for sentencing on a date or dates to be fixed.

Order

659. Accordingly, I make the following order:

660. Prosecutor to notify chambers within 14 days of the date of this judgment of its position in relation to final orders to be made in accordance with these reasons for judgment.

**********

Endnotes

Secretary, Department of Planning and Environment v Harris (2024) 259 LGERA 388; [2024] NSWCCA 88.

Note: the total area cleared in each of the polygons for charge 4 amounts to 74.5ha. However, polygons 79, 89 and 90 were made up of both category 1-exempt and category 2-regulated land within the meaning of s 60D of the LLS Act. Mr Watts determined that that the total amount of category 2-regulated land cleared in all the polygons was 70.2ha.

[2025] NSWLEC 40 at [56] (Pritchard J).

As with charge 4 in the first trial, in charge 1 in the second trial it was alleged that the total area cleared in polygons 69, 70 and 71 was 283.1ha. Polygons 70 and 71, however, were made up of both category 1-exempt and category 2-regulated land. Mr Watts calculated the total of category 1-regulated land cleared in polygons 69, 70 and 71 as 170.2ha.

The total area of the polygons in charges 5 and 6 amounted to 66.6ha. Mr Watts explained in re-examination, however, that “virtually all the clearing” on Waverley South were individual trees or clumps of trees, and so instead of detailing “100 separate small polygons”, polygons 1 to 41 depicted the “collective location of all the individual trees, small clumps of trees and larger clumps of trees”. Hence, the total area of the polygons was not representative of the areas of cleared vegetation which Mr Watts estimated to be 7ha.

Local Land Services Amendment Act 2016, Sch 1.

Local Land Services Amendment Act 2016, Sch 1.

Secretary, Department of Planning and Environment v Khouzame (2024) 261 LGERA 49; [2024] NSWLEC 54 (Khouzame) at [43] (Preston CJ of LEC); Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 7) [2022] NSWLEC 153 (Auen Grain) at [15] (Robson J).

Auen Grain at [418] (Robson J).

Robson J said in Auen Grain at [76]: “In relation to element (4), s 60ZM of the Local Land Services Act provides that s 13.29 of the Biodiversity Conservation Act (being within Pt 13, Div 1 of the Biodiversity Conservation Act which concerns criminal proceedings) applies to the Local Land Services Act.”

Those elements have been stated in a number of cases: Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141 at [15] (Preston CJ of LEC) cited in Chief Executive, Office of Environment and Heritage v Wickman [2020] NSWLEC 23 at [55] (Pepper J); Chief Executive, Office of Environment and Heritage v Geoffrey Phillip Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd (2015) 209 LGERA 280; [2015] NSWLEC 117 at [21] (Pepper J).

In Environmental Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 Leeming JA (RA Hulme and Button JJ agreeing) said at [48]: “It has long been the case that where acts formed part of the same transaction or criminal enterprise, they could be charged in a single count”.

Auen Grain at [70] (Robson J).

An allegation of clearing in polygon 125 (95.9ha) was not pressed by the prosecutor.

[2022] NSWLEC 62.

(1999) 197 CLR 414; [1999] HCA 2.

[2010] NSWLEC 73.

[2022] NSWLEC 153.

(1997) 98 LGERA 361.

[2019] NSWLEC 88.

(2005) 80 ALJR 329; [2005] HCA 74.

(2021) 27 4 CLR 351; [2021] HCA 36.

(2010) 203 A Crim R 121; [2010] NSWCCA 179.

[2012] NSWLEC 271 at [57] (Pepper J).

I note that cl 106 of the LLS Regulation now provides that for the purposes of Part 5A of the LLS Act, a species of plant may be conclusively presumed to be native to NSW if it is listed on “the official database” defined as PlantNet. For a NV Act offence, there is no presumption of indigeneity of species.

See the consideration of EPA v Sydney Water in Gregg v The Queen [2020] NSWCCA 245 by Bathurst CJ (Hoeben CJ at CL and Leeming JA agreeing) at [395] to [398], where the Chief Justice noted at [397] that EPA v Sydney Water was distinguished in Roads and Traffic Authority (NSW) v Graincorp Operations Ltd [2010] NSWCA 317.

[2009] NSWLEC 232 (Biscoe J).

[2010] NSWLEC 15 (Pain J).

[2011] NSWLEC 229.

The prosecutor’s opening submissions erroneously referred to the area cleared as 66.6ha. This was clarified by Mr Watts in re-examination.

Amendments

29 September 2026

Typographical error.