Director General Land & Water Conservation v Tony Rial [1998] NSWLEC 72 (29 April 1998) [1998] NSWLEC 66

Land and Environment Court of New South Wales

CITATION : Director General Land & Water Conservation v Tony Rial [1998] NSWLEC 72 (29 April 1998) [1998] NSWLEC 66 PARTIES : Director General Land & Water Conservation v Tony Rial FILE NUMBER(S) : 50043, 50044,50045, 50046 of 1996 CORAM: Talbot J KEY ISSUES: :- Penalty LEGISLATION CITED: SEPP 46 CASES CITED: DATES OF HEARING: 15, 16 April 1998 DATE OF JUDGMENT: 04/24/1998

Mr I S Lloyd QC With Mr M H Baird (Barrister) LEGAL REPRESENTATIVES: Mr D P Wilson (Barrister)

JUDGMENT: In a judgment delivered on 3 April 1997, I found that each of the defendants was liable to be convicted for the offence of clearing native vegetation growing on the property known as Windouran, near Moulamein in southern New South Wales, in January 1996, without development consent required pursuant to cl 6 of SEPP 46 contrary to the provisions of s 76 of the EPA Act.

The defence in each case relied on establishing that vegetation cleared in early 1996 was native grasslands, the clearing of which did not require development consent under SEPP 46 between 1 January 1996 and 16 February 1996. Each defendant also claimed exculpation on the basis that they honestly and reasonably believed that the land being cleared was native grassland.

I described the definitions in SEPP 46 as convoluted, obscure and difficult to construe, and said that the task of understanding what the definition of "specified native grasslands" means is a daunting one which no party found easy to resolve. However, in the end the Court found that Mr Crawford, who carried the main executive role in the management of the property, saw a window of opportunity and throwing caution to the wind decided to proceed without seeking further outside advice.