Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd [2011] NSWLEC 125

Land and Environment Court New South Wales

Medium Neutral Citation: Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd [2011] NSWLEC 125 Hearing dates: 25 July 2011 Decision date: 26 July 2011 Jurisdiction: Class 5 Before: Sheahan J Decision: The defendant is found guilty of the charge in the summons. Catchwords: PROSECUTION: clearing of native vegetation, defendant failed to appear, leave granted to proceed in absence of defendant, elements of offence found proven beyond reasonable doubt, matter stood over for sentencing hearing Legislation Cited: Criminal Procedure Act 1986 Environmental Planning and Assessment Act 1979 Evidence Act 1995 Native Vegetation Act 2003 Category: Principal judgment Parties: Director-General of the Department of Environment, Climate Change and Water (Prosecutor) Graymarshall Pty Ltd (Defendant) Representation: Mr M G Higgins, Barrister (Prosecutor) Graymarshall Pty Ltd - No appearance (Defendant) Office of Environment and Heritage (Prosecutor) File Number(s): 50040 of 2010

Judgment

Introduction 1The defendant is charged with an offence against s 12 of the Native Vegetation Ac t 2003 in respect of clearing without approval six areas totalling approximately 38ha of land on four registered lots (Lots 20, 53, 54 and 105 in DP 751368) owned by it, at or near Halfway Creek, in the Clarence Valley Council area between Coffs Harbour and Grafton, in the period between about 20 October to 20 December 2008. 2The " native vegetation " alleged to have been cleared by the defendant included, particularly, three eucalyptus species ( microcorys, acmenoides , and resinifera ), commonly known as tallow wood, white mahogany, and red mahogany, respectively. 3The prosecutor alleges that the clearing works involved the use of a bulldozer and an excavator to clear and stack cleared vegetation, which was then burned, and that these works were done by, and/or at the instruction of, the two directors of the defendant corporation, and/or under their supervision. 4Section 12 provides as follows (emphasis mine): 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. 5The evidence before the court clearly does not engage, in the circumstances of the present case, the provisions of Division 2 " Permitted Clearing ", nor of Division 4 " Excluded Clearing ". Division 3 deals with " Permitted Activities ", and s 22 relevantly permits " clearing for routine agricultural management activities " (dams, permanent fences, buildings, windmills, stockyards and farm roads - see s 11), but not the clearing of any native vegetation beyond the " minimum extent necessary for carrying out the activity ". 6Section 126 of the Environmental Planning and Assessment Act 1979 provides that the penalty for the s 12 offence, when committed by a corporation, is a fine of $1.1M. Remediation orders may also be made.