Sutherland Council v Holt

The Defendant Robson is the owner of the said land, the Defendant Newman is the director and manager of the company Newman Quarrying Pty Limited which is the third Defendant and the Second and Third Defendants being the persons who carried out the land clearing as contractors of the First Defendant Robson. Each Defendant has entered a plea of guilty to the charge which involves a failure to obtain the requisite development consent of the Director General of the Department of Land and Water Conservation to clearing of native vegetation as required by clause 6 of State Environmental Planning No. 46 - Protection and Management of Native Vegetation. Although that Policy was repealed at the commencement of this year upon the commencement on 1 January 1988 of the Native Vegetation Conservation Act 1997 the repeal of the State Policy does not affect the liability created by the EP&A Act and the State Policy operating together, that was incurred, as was the liability in the present cases, prior to that repeal.

The Court has had the benefit of a considerable body of affidavit evidence read by the Prosecutor which establishes the essential facts of the case and proves the offences as charged although of course the entry of the plea of guilty has that same effect but nonetheless the evidence has delineated the circumstances of the commission of the offence and in large measure has explained the environmental consequences of it.

The subject land was purchased by Mr and Mrs Robson shortly before they arranged with Mr Newman to have the land cleared for the purpose of developing the land with a new dwelling house for the Robsons and their family in a typical rural/residential type development. At the time of purchase some sections of the land which comprises the site of some nine hectares were overrun with lantana. The most northern third portion of the site that is nearest the road frontage obviously had been cleared many years ago and had been maintained in that condition and contained the remnants of a dilapidated cottage at the time of purchase by the Robsons. The remaining two thirds of the site comprising an area of some seven hectares was extensively and heavily vegetated with native vegetation.

The land clearing undertaken has substantially removed that native vegetation from the site leaving only isolated stands of more mature trees. The ecological evidence leaves me in no doubt that, in common with neighbouring lands in the immediate and more distant environs of the subject land, the subject land was significant ecologically both in terms of floristics and in terms of native fauna.

The Prosecution evidence indicates the investigations undertaken on behalf of the Director General following complaint, I suspect from a neighbour of the land clearing activity. Unfortunately the investigations were carried out after the land clearing activity had been completed in the space of the week or so referred to in the charge, that is the end of September last year to the first week of October.

Investigations involved a number of interviews with the Defendants Mr Robson and Mr Newman and with other persons engaged in the land clearing activity either as employees of the Newman quarrying company or as a sub-contractor to that company. It is to be noted that the Defendants and the Defendants employees or sub-contractors were entirely co-operative with the investigating officers in their enquiries and candid in their confessions of what they had done.

It appears that the Defendant Mr Robson who is a local self employed builder working in the area is well familiar with dealings with the Richmond River Shire Council, the responsible council for this part of the state wherein the subject land is situate. I am satisfied that Mr Robson arranged for the land to be cleared for the purpose of preparing the land for its prospective development ie. the rural residential purposes I have earlier mentioned only after he had spoken by telephone to an employee of the Richmond River Shire Council enquiring of that servant as to the zoning of the land, as to the ability to build the prospective home on it, and more particularly after enquiry had been made of the Council following advice from Mr Newman. The latter had advised that it would be necessary to obtain the Council's permission to the proposed land clearing after Mr Newman had been approached by Mr Robson to do the job. According to Mr Robson's affidavit (and I should interpose that there was no cross-examination of any of the deponents of the affidavits) he spoke with a town planner Mr O'Loughlin in the employ of the Richmond River Shire Council introducing himself and describing the land and asking whether he needed permission to clear the land to put a house on it. He was told (and I am quoting from his affidavit, paragraph 13) by Mr O'Loughlin, "you do not need a permit to clear for a house site there is no tree preservation order applying to the land". I accept Mr Robson's evidence that it was following that conversation that he commissioned Mr Newman to undertake the work of clearing the land and the land was cleared in the manner that I have earlier mentioned soon thereafter.

I should note at this stage that Mr Newman the second Defendant and his company Newman Quarrying Pty Limited the Third Defendant is not involved in the business of earth moving and clearing of land. Rather he and his company operate a quarry.

The circumstances in which he and the company came to be involved in the land clearing activity are set out in his affidavit. It seems that he undertook to do the job for Mr Robson on a one-off basis because he owned the bulldozer and Mr Robson a local builder was currently engaged by Mr Newman on building a house for Mr Newman.

It is true as Counsel for the Prosecutor pointed out in the course of his helpful address that there may be some conflict in the evidence as to what communications occurred between Mr Robson and servants of the Richmond River Council. Mr Barlow's affidavit extensively canvasses not only his many conversations with the Defendants and their servants and agents but also with Council staff but I am prepared to accept the account of the matter given by the Defendant Robson. In the result the work was authorised by Mr Robson and carried out by Mr Newman and his company on his behalf in ignorance of the obligation to obtain the necessary development consent (not from the Local Council but from the Director General of the Department of Land and Water Conservation as required by State Policy No. 46).

If, as I have accepted the Council's servant contacted by Mr Robson omitted to refer to the obligations to obtain consent under State Policy No. 46 either through ignorance or oversight, it is indeed an unfortunate reflection on the state of knowledge held by officers and servants of the Council. Of course ignorance of the law is never an excuse, however, it is unfortunate that Mr Robson proceeded with his land clearing proposal through the agency of Mr Newman and his company in the mistaken belief that what they were doing did not require any Council approval and in the greater ignorance that it required the consent of the Director General under State Policy No. 46.

No evidence was given to the Court concerning the degree of knowledge or lack of knowledge reposed in the Local Council as to the operation of State Policy No. 46 but it has been in force in New South Wales since August 1995 and its existence, albeit for the brief period of three years, has been far from quiet and unnoticed. On the contrary it has provoked, especially in rural New South Wales, considerable controversy and publicity. Richmond River Council of course is in rural New South Wales and it is hard to believe that the Council would not have been aware of the operation of the Policy within its area. Again the Court was not informed, and can only speculate that this case is unusual in as much as it involves a very small site (whereas most reported cases involve clearing of large farm lands). As I said only seven hectares of native vegetation was removed of the site (that only comprises nine) and is clearly zoned for a rural/residential purpose. It may be that in the community there has been ignorance of the application of the Policy in respect of small holdings.

It is to be noted of course that the Policy by virtue of clause 3 does not apply to lands which are zoned "residential township or village" under an environmental planning instrument. It is not suggested that the subject land is so zoned although I note that before purchasing the land Mr Robson in his affidavit, deposes to being told by the Council officer, that this land was zoned residential.

Another point which tends to support the notion that very small land holdings, may through ignorance, have not hitherto attracted the operation or application of the State Policy lies in the fact that clause 11 which sets out the exemptions from the requirement to obtain development consent includes in paragraph (a) of Schedule 3 the exemption styled "minimal clearing" which is defined as the clearing of up to 2 hectares per annum. It does not take much imagination to realise that very small holdings would soon be cleared entirely simply by virtue of the successive applications of that exemption, but I do not stay upon that matter.

On behalf of the Defendants a number of submissions have been made in mitigation of sentence and penalty. Of course the Defendants are to have the benefit of their early plea of guilty entered in the proceedings. I accept that Mr Robson is truly contrite about the commission of the offence and I accept that its commission, both by him and by his agents the contractors, Mr Newman and the Newman Quarrying Company, was in ignorance of the law.

More importantly Defence Counsel has drawn attention to the agreement that his client the Defendant Robson has been prepared to enter into with the Director General for the extensive revegetation and management of that revegetated area. The agreement is set out in Exhibit A and is extensive in the obligations that the Defendant Robson has assumed. Implementation of the agreement will go a long way in mitigating the undoubted adverse environmental consequences caused by the land clearing activity in the present case.

It has been pointed out, and I accept, that the obligations assumed by the Defendant Robson go beyond revegetating areas which were cleared as a result of the commission of this offence but include other significant areas, because of their proximity to neighbouring lands containing important native vegetation, to include those areas in the revegetation program and such an approach is a commendable "walking of the second mile" by the Defendant. It reflects his true sense of contrition and repentance, and his concern to rehabilitate the damage done to the environment by his land clearing activity.

As I pointed out in the Bungle Gully decision the volunteering of a remediation agreement is a matter which is highly significant in terms of mitigation. Counsel for the Defendant goes further and submits that, conformably to my decision in Sutherland Council v Holt also referred to in the Bungle Valley case, I should apply section 126(3) of the EP&A Act to give effect to the rehabilitation agreement, in substitution for the imposition of any pecuniary penalty, upon the Defendant Mr Robson. This submission is principally founded upon the volunteering by the Defendant Robson of the obligations in the rehabilitation or revegetation agreement but is supported by other factors in mitigation that I have earlier mentioned, namely the early entry of a plea of guilty, the obvious contrition on the part of the Defendant, his co-operation with the prosecuting authorities and his willingness to pay the Prosecutor's costs in the proceedings which from the affidavit material filed, will not be inconsiderable, including the financial obligations imposed upon him in implementing the revegetation agreement. Moreover the Defendant Robson takes full responsibility for the offence to such an extent that Defence Counsel on behalf of Mr Newman and his company Newman Quarrying submits that it would be appropriate in the circumstances, and having regard to the absence of criminal culpability on their part, save for their ignorance of the requirements of State Policy No. 46 that they should not be convicted. As I have earlier mentioned they are not professional tree fellers or land clearers. If they were different considerations would apply to their ignorance of the requirements of State Policy No. 46.

I am mindful of what I said in the Bungle Gully case and what Mr Justice Lloyd has recently said in the Jones case for a similar offence, of the need for general deterrence and of the need to apply sentencing policy not unfairly (or out of proportion to the gravity of the offence in penalising the Defendant) but in furtherance of the public educative role of the criminal law. In my opinion that purpose will be adequately advanced in the present case by adopting the course outlined by the Defence Counsel. For all the foregoing reasons I propose the following orders: 1. In proceedings 50043 of 1998 the Defendant is convicted of the offence as charged. 2. In substitution for any pecuniary penalty I give a direction pursuant to section 126(3) of the Environmental Planning and Assessment Act 1979 to the Defendant to undertake the works set forth in the proposed vegetation management plan, Exhibit A. 3. The Defendant is ordered to pay the Prosecutor's costs in the sum agreed or failing agreement as assessed and in that behalf the necessary direction is given pursuant to section 52(1) of the Land and Environment Court Act 1979. 4. The exhibits to be returned.

In proceedings 50044 and 50045 of 1998, I order that: 1. Each summons be dismissed pursuant to section 556A of the Crimes Act 1900.

2. To the extent to which the Prosecutors agreed or assessed costs are not recovered pursuant to the costs order made in the proceedings 50043 of 1998 each Defendant is ordered to pay the Prosecutor's costs in the sum agreed or failing agreement as assessed and in that behalf the necessary direction is given pursuant to section 52(1) of the Land and Environment Court Act.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 9 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD.

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