Australia: The long arm of environmental law - longer than environmental contractors and consultants might know

Environment and Planning Insights
Last Updated: 4 January 2011

Article by Nick Thomas and Kim Glassborow.

Key Points:

There are more successful prosecutions of contractors and consultants for breaches of environment or planning law. Contractors and consultants should check there are environment and planning approvals, and review their agreements

Some decisions from the NSW Land and Environment Court in the second half of 2010 demonstrate that contractors and consultants can be criminally liable for advisory services they provide, and cannot escape criminal liability by relying on the principal's word about whether their scope of work is properly authorised under environment and planning laws.

We have highlighted three examples in this article, two of which relate to prosecutions under biodiversity laws.

Contractor liable for carrying out clearing without approval

In October, the Court made it clear that a contractor who undertakes an activity such as the clearing of native vegetation without the requisite approval cannot safely rely on the word of its principal that the work is lawful.

In the decision of Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Limited [2010] NSWLEC 200, the Court held a tree clearing contractor was liable for the unauthorised clearing of native vegetation under the Native Vegetation Act 2003.

What did the contractor do?

The contractor (Vin Heffernan) had been engaged by a landowner/developer to clear areas of the land for a multi-lot subdivision development. The actual work involved undertaking clearing, stacking and burning of cleared vegetation, site preparation and earthworks at the request of the developer.

The developer had obtained an approval from the local council to clear the land, but it did not authorise the clearing of vegetation within a prescribed 22 hectare area on the land. On the instructions of the developer, a Vin Heffernan employee cleared some vegetation in that 22 hectare area. The developer told Vin Heffernan that the clearing was authorised, and Vin Heffernan took the developer at his word, given the longstanding relationship between them.

What did the Court say?

The Court rejected the prosecutor's submission that Vin Heffernan had shown reckless indifference to the law, but did find that it had been negligent in not making its own inquiries about the scope of the relevant approval. Here, the Court drew a distinction between an independent contractor and an employee. It said the contractor was better able to challenge and question the principal, and to refuse to carry out the clearing work if necessary, while an employee was not, because he/she might face dismissal for doing so.

The penalty for the breach

The Court convicted Vin Heffernan of the offence and fined it $30,000, and ordered to pay the Department's costs to the amount of $30,000.

This decision highlights the risks for engaged contractors who undertake works without first checking that the appropriate approvals are in place.

Consultants liable for providing incorrect advice

Earlier this year, we reported on Plath v Fish and Orogen [2010] NSWLEC 144, in which the Court made it clear that a consultant can be criminally liable under environmental laws if its advice leads to unlawful clearing of vegetation by others.

The decision in that case was affirmed in a decision last month involving a breach of heritage controls - Willoughby City Council v Finlay (No. 2) [2010] NSWLEC 233.

What did the consultant do?

A building and interior designer was engaged to advise, design, engage contractors for, and certify, a significant renovation of a house in a heritage conservation area. In many respects, the defendant acted as a contracted "project manager".

The council development consent for the renovation authorised the demolition and rebuilding of parts of the house, while conserving others. Ultimately, however, the whole house was demolished and rebuilt, but the defendant did not advise the builder to stop or inform the council of the additional demolition.

The evidence was unclear about whether the defendant actively misled the builder about whether the demolition was lawful. The defendant said she had told the builder that the relevant demolition work was not authorised and it would be necessary to modify the development consent after the works had been carried out, "to tidy things up".

It's worth noting that the builder was also successfully prosecuted. In a decision pre-dating the Vin Heffernan decision we discussed above, but reminiscent of that decision, the Court held that the builder had been misled by the defendant designer/project manager (ie. the defendant in the Finlay case) into thinking that the additional demolition was authorised, but was found guilty for not checking the approvals itself. Those factual findings were not accepted in the Finlay case, as noted above.

The prosecutor and defendant agreed that there was no environmental harm as a result of the offence.

What did the Court say?

The Court rejected the defendant's submission that her actions (eg. preparing plans) did not actually constitute the offence. Justice Sheahan cited the earlier decision of Plath v Fish and Orogen in finding that a "causal link between the expert's role and the charged environmental harm" need not be "direct" for an offence to be committed.

In comments again reminiscent of the decision of Plath v Fish and Orogen, the Court in this case stated that "a message needs to be sent to the industry and wider community that strict compliance with the planning regime is required".

The penalty for the breach

The Court decided that the defendant in this case and the builder were equally culpable, and so imposed on the defendant in this case the same fine as had been imposed on the builder in the earlier case – $30,000, plus the prosecutor's costs.

What the decisions mean

These decisions reveal a trend towards stricter enforcement of environment and planning laws, and an expansion of the reach of those laws to contractors and consultants. In the same way as legislative amendments are removing the "no knowledge" defence for directors and managers of corporations which commit offences, so the courts are making it clear that contractors and consultants are responsible for ensuring that what they do is lawful, despite what those engaging them might lead them to believe, and irrespective of whether their role is at the coalface of environmental compliance.

As a consequence contractors and consultants should:

  • check whether the necessary environment and planning approvals for a project on which they are working are in place, and check the scope of those approvals, before carrying out works or advising others to carry out works on the project; and
  • review their agreements, to ensure that the scope of their work is clear and unambiguous and that there is an appropriate allocation of responsibility for their work.

You might also be interested in ...

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.