Land and Environment Court of New South Wales CITATION : DIRECTOR-GENERAL DEPARTMENT OF LAND AND WATER CONSERVATION v RONALD LEWIS GREENTREE [1998] NSWLEC 30 (4 March 1998) [1998] NSWLEC 69 PARTIES : DIRECTOR-GENERAL DEPARTMENT OF LAND AND WATER CONSERVATION v RONALD LEWIS GREENTREE FILE NUMBER(S) : 50035, 50036 & 50037 of 1997 CORAM: Talbot J KEY ISSUES: :- LEGISLATION CITED: SEPP 46 Environmental Planning and Assessment Act s 76(2) CASES CITED: DATES OF HEARING: 16, 27 February 1998 DATE OF JUDGMENT: 03/04/1998 Mr I Lloyd QC with Respondent Mr P Neil SC LEGAL REPRESENTATIVES: Mr M Baird (Barrister) JUDGMENT: REASONS FOR JUDGMENT On 16 February 1998, before the hearing commenced, the parties agreed on orders to be made by consent. Orders were made accordingly on that day. A copy of those orders is attached to this judgment and marked "A". The company, Prime Grain Pty Ltd, was convicted of the offence particularised in summons No 50036 of 1997. The company, Limthono Pty Ltd, was convicted of the offence particularised in summons No 50037 of 1997. Summons No 50035 of 1997 against Ronald Greentree was withdrawn. The companies agreed to pay the prosecutor's costs in the sum of $52,000 within a period of twelve months. The charge against each company is identical as follows:- (T)hat the defendant …. on or about 13 October to 30 October 1996 …. cleared native vegetation on land being part of Lot 19 in DP 39989, and part of Lot 2, DP 777082 Parish of Neargo, County of Benarda, in the State of New South Wales, on the property known as "Willalee", without the development consent of the Director-General of the Department of Land and Water Conservation as required by State Environmental Planning Policy No 46 - Protection and Management of Native Vegetation, contrary to section 76(2) of the Environmental Planning and Assessment Act 1979, constituting an offence under s.125(1) of the Environmental Planning and Assessment Act 1979. Following the making of the consent orders and oral submissions, the parties requested me to adjourn and reserve final judgment on penalty until I had taken the opportunity to read the voluminous affidavits filed and upon which the parties relied. The two defendant companies are the registered proprietors of Willalee, a rural property near Moree in northern New South Wales. The property was purchased in October 1996. Clearing of part of the land commenced at or about the time of purchase. In about May 1996, the previous owners had briefed a consultant to prepare a Vegetation Management Plan (VMP). The VMP was only in draft form when actual clearing commenced. Final preparation was delayed pending change of ownership. It was not lodged with the prosecutor until clearing ceased, following intervention by Departmental officers. It is obvious from records of interview between representatives of the companies and the prosecutor that considerable confusion regarding the legal effect of SEPP 46 and its continuing operation has been reported in the local community. The activity of clearing was first detected by an officer of the Department on 24 October 1996 when she observed machinery, several bulldozers, working near the Gwydir Highway. The area cleared was subsequently calculated as approximately 650 hectares. The predominant species of trees cleared were Coolabah interspersed with River Cooba. In a majority of quadrants, more than seven trees per hectare had been dozed for non-farm use. In a record of interview Ronald Greentree explained, as a director of the companies, how he believed the clearing was carried out in a sensitive and responsible manner in accordance with the aims in SEPP 46, according to his understanding. He readily acknowledged that he was aware consent was probably required and that he had not obtained it. Expert opinion given to the Court is that continued clearing on the scale in this prosecution will lead to significant removal of Coolibah/Black Box communities with detrimental implications for the ecological integrity of the flood plain ecosystem. However, there is other opinion which questions the direct relationship between clearing on Willalee and land degradation, other than its direct impact on fauna habitation. There is no dispute that work stopped immediately the Department intervened and that the defendants cooperated with the investigation. A plea of guilty was entered once the area of the land the subject of the charge was clarified to exclude land exempt from SEPP 46. According to the defendants, they had an arguable defence in relation to all of the property except the western paddock. The total area cleared in the western paddock was 210 hectares. The native vegetation on Willalee was not pristine before the clearing. It had been heavily managed in the past. An agreement has been reached whereby the two companies, as owners of the land, will establish and maintain a wildlife corridor/refuge upon a section of the land the subject of the prosecution. They will enter into a property agreement under Pt 5 of the Native Vegetation Conservation Act 1997 in accordance with settled principles attached to the consent orders. The intention is for the property agreement to be registered in accordance with s 44 of the Native Vegetation Conservation Act or with the Land Titles Office. The effect of the agreement is to remove all relevant rights of the defendants, including grazing rights, in relation to that land. The defendants estimate the net annual income loss to the defendants to be $60,000 as a result of the inability to crop the western paddock or graze the river country the subject of the agreement. There will be ongoing costs to the defendants arising out of the obligations for maintenance of the reserved area. It has been estimated that, as a result of the unsaleability of the western paddock and the river country, the market value of the property has been reduced by at least $360,000. There is no supporting evidence for this figure, but the prosecutor does not move to question it. The defendants have agreed to pay the prosecutor's costs in the sum of $52,000. Without any evidence regarding the probability that the defendants would have received development consent, the Court can proceed only on the basis that the clearing took place without consent. The property agreement scheme will, in the fullness of time, result in the land being fully restored. It, and other land, will be maintained permanently as a wildlife refuge. The defendants have surrendered all potential for commercial gain, either from capital gain or income. On the other hand, it can be inferred, there could be a net gain to the community. There is no evidence of any record of any previous offence by the defendants. It is obvious that the object of SEPP 46 is to protect the public interest of maintaining proper ecological management of indigenous vegetation. The offence of carrying out relevant clearing without consent is therefore to be regarded as a serious one. It is appropriate to take each of the matters I have referred to into account when determining an appropriate penalty. On the basis of the estimates put to the Court, in financial terms the defendants have already assumed a liability significantly greater than the maximum fine of $100,000. Balanced against the seriousness of the offence must be the cooperation of the defendants, the plea of guilty, the significant reparation works at significant cost to the defendants and the regard paid to environmental factors by the defendants. Accordingly, having regard to the nature of the offence and a balanced appreciation of the environmental consequences, I have come to the conclusion that a penalty at the lower end of the scale is appropriate. The defendants stand convicted. The prosecutor agrees it is appropriate to treat the actions of both defendants as one offence for the purpose of assessing penalty. They are each fined the sum of $7,000. An order has been made that the defendants pay the prosecutor's costs in the sum of $52,000 as agreed between the parties. The formal orders of the Court are:- 1. In Matter No 50036 of 1997 a penalty of $7,000 is imposed. 2. In Matter No 50037 of 1997 a penalty of $7,000 is imposed. I HEREBY CERTIFY THAT THIS AND THE PRECEDING 5 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT ASSOCIATE I HEREBY CERTIFY THAT THIS AND THE PRECEDING 5 PAGES ARE A TRUE AND ACCURATE RECORD OF THE CONSENT ORDERS MADE ON 16 FEBRUARY 1998 ATTACHED TO THE JUDGMENT OF HIS HONOUR JUSTICE R N TALBOT AND MARKED "A" ASSOCIATE DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.