In a first for NSW, an environmental consulting firm, Orogen Pty
Ltd, and its director have been found guilty of an offence under
the National Parks and Wildlife Act. Although neither Orogen or the
director actually committed the acts which led to the damage to the
habitat of a threatened species (koalas), they were liable for
giving incorrect advice (Gordon Plath of the NSW DECC v Fish;
Gordon Plath of the DECC v Orogen Pty Ltd  NSWLEC
The decision will affect the way that environmental consultants
and their clients do business, particularly when it comes to
knowing your areas of expertise, scoping the consultancy work,
limiting liability and assessing insurance.
What did the environmental consultant do?
Developers engaged Anthony Fish and his company, Orogen, to
provide expert planning and environmental advice in relation to a
proposed industrial subdivision.
The scope of the work included advice on the approvals required
for the project to proceed. Their fee proposal accepted
responsibility for ensuring "legislative compliance" for
the proposed clearing work.
Clearing occurred on the site, which was later found to have
caused a cumulative loss of about 3.7 hectares of high quality
koala habitat and the narrowing of a significant koala habitat
Orogen and Fish accepted responsibility for the offence on the
basis that, through an oversight, they had failed to advise the
developer that under section 118D of the National Parks and
Wildlife Act, the clearing of koala habitat could not occur without
a licence under the Threatened Species Conservation Act.
Through previous environmental assessments Orogen and Fish were
aware of koala habitat and koala movement corridors on site.
A number of factors were considered by Justice Pain in imposing
The extent of the harm caused was judged to be of low to medium
The advice had not been given in order to remove an impediment
Justice Pain also found that Orogen's advice was not
criminally negligent, as the DECC's own fact sheets, which had
been referred to by Orogen in forming its advice, did not identify
the necessary links between the relevant pieces of legislation, and
consequently it would be unfair to decide that the defendant
"could reasonably have concluded that this habitat could not
be legally removed without approval".
Justice Pain went on to note that the "legislation for the
protection of vegetation comprising threatened species habitat is
not logical. The prohibition on causing damage to threatened
species habitat is not located in the Threatened Species
Conservation Act but in the National Parks and Wildlife Act which
deals with national parks and wildlife."
She concluded that the defendant's culpability for the
offence was low.
The penalty for the breach
Justice Pain ordered that Fish and Orogen pay a total of $15,000
in fines and prosecution costs ($105,000). In addition, under the
newly inserted section 205(1)(c) of the National Parks and Wildlife
Act, she also ordered that Orogen and Fish undertake koala habitat
mapping as part of a Port Stephens koala habitat mapping project, a
task valued at more than $150,000. Public advertisements about the
decision in the Sydney Morning Herald and the Newsletter of the
Ecological Consultants Association of NSW Inc were also
What this decision means
Justice Pain stated "the offences underscore the importance
of consultants... advising those engaged in the property
development process to ensure they undertake work only within their
area of competence. I surmise that these prosecutions will provide
an important signal to those engaged in similar activities of the
need to ensure that correct advice is given."
It would be prudent for environmental consultants to review
their consultancy agreements and insurance arrangements in light of
the decision. People who are engaging environmental consultants
should also be reviewing consultancy agreements carefully, to
ensure the scope of work is clear and there is an appropriate
allocation of responsibility in delivering environmental
Although the developer in this case was not separately
prosecuted, developers should not see the decision as an
opportunity to use their consultants' advice as a shield from
enforcement action. On the contrary, the decision follows what we
see as a trend of increasing focus from the regulators on
compliance with all biodiversity laws.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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