Australia: Check Before You Chop – Recent Prosecutions Under the Native Vegetation Act 2003 (NSW)

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The Native Vegetation Act 2003 (NSW) (NV Act) is the main piece of legislation that regulates the clearing of native vegetation land in NSW outside of urban (as defined) areas.

Section 12(1) states that subject to certain exemptions, native vegetation must not be cleared, except in accordance with:

  • a development consent granted in accordance with the NV Act
  • a Property Vegetation Plan (PVP).

Section 12(2) of the NV Act provides that a person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence. The maximum penalty prescribed for this offence, which reflects the seriousness with which Parliament views the offence, is $1,100,000 and a further daily penalty of $110,000.

Three recent Department of Environment, Climate Change and Water prosecutions have seen tough penalties imposed by the Land and Environment Court (the Court) for the contravention of this section and illustrate the Court's attitude to non-compliance.

Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137

In this case, the defendant, Mr John Rae pleaded guilty to clearing native vegetation contrary to s12(1) of the NV Act and on 18 August of this year, was found guilty of this offence. Mr Rae was fined $160,000 (plus prosecutor's costs) for clearing an area of approximately 215 hectares. Of these 215 hectares, approximately 155 hectares were cleared to an extent of over 95 per cent. The clearing included mature native flora species, caused impacts upon eleven species of threatened fauna and was done for the purposes of increasing the economic viability of the land for agricultural purposes.

The defendant admitted to the regulatory authority and to the Court that he was aware a development consent or property vegetation plan was required, yet decided to clear land on his property without consent as he was concerned it would be refused and thereby limit his ability to clear land in the future.

The Court clearly articulated that a sentence is a "public denunciation of the conduct of the offender" and reinforced the need for both general and specific deterrence, specifically when imposing a sentence for offences of clearing native vegetation.

Additionally, Preston CJ spoke of the need to uphold the regulatory system through compliance with the NV Act. This depends upon persons, first, taking steps to ascertain when consent is required to clear native vegetation, secondly, making applications in the appropriate form (including environmental impact assessments) and obtaining any consent so required before undertaking the clearing and, thirdly, complying with the terms and conditions of the consent in undertaking the clearing.

After finding that the offence was of medium objective gravity, Preston CJ had regard to the subjective circumstances of the defendant including the fact he had no prior convictions for environmental offences, was otherwise of good character and entered a plea of guilty at a stage to warrant a 20 per cent reduction in penalty. The defendant was found to be remorseful of his actions and accepted the obligation to carry out remedial works on the property, the subject of a direction under s38 of the NV Act. The works required eight areas of the property to be rehabilitated and excluded from agricultural production at a material cost to Mr Rae.

Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4

A similar story is told in the case of Mr Hudson, though told to the tune of $408,000.

In this case the defendant was prosecuted for two breaches of the NV Act on his 2,126 hectare grazing property, known as "Yarrol" situated approximately 60 kilometres west of Moree in northern NSW.

In the first instance, Mr Hudson authorised the clearing of some 486 hectares of native vegetation contrary to section 12(1) of the NV Act. The native vegetation included Eucalyptus, Casuarina crisata and Acacia stenophylla and undisputed evidence was presented that Mr Hudson "personally authorised" earthmoving contractors which used bulldozers and chains to fell or uproot the trees.

Mr Hudson was also charged with failing to comply with notice requiring him to produce evidence relating to the commission of the offence (contrary to section 36(4) of the NV Act).

Mr Hudson brought an array of defences external to the NV Act, central to which was his belief that "the trees were [his] trees" which therefore entitled him to do with them as he wished. In relation to this, Lloyd J stated clearly that:

"Although Mr and Mrs Hudson hold the land in fee simple and they regarded the trees as theirs, they nevertheless remain subject to laws passed by the State parliament and which apply to all citizens within the State, including the Native Vegetation Act, which secures the sustainable management and conservation of native vegetation."

In sentencing Mr Hudson, Lloyd J considered both s3A of the Crimes (Sentencing Procedure) Act 1999 and the objectives of the NV Act as expressed in s3 of this Act to conclude that Mr Hudson's actions are to be regarded as "falling within the upper range of seriousness" within an already serious offences.

The Court also considered the very large area of native vegetation that was cleared, the deliberate nature of the offence motivated by commercial gain, the absence of any contrition or remorse in Mr Hudson's failure to assist the Court (that is, provide, and the need for a penalty to act as both a deterrent and a specific deterrent in concluding that penalties in the amount of $408,000 plus prosecutor's costs would appropriately befit the offence.

Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd & Ors [2009] NSWLEC 182

This case is the most recent illustration of the Court's approach to offences against s12(1) of the NV Act, brought down as recently as 30 October of this year and in fact, heavily references the above mentioned judgments.

Each of the three defendants, Calman Pty Ltd, Iroch Pty Ltd and GD & JA Williams Pty Ltd t/as Jerilderie Earthmoving, pleaded guilty to clearing 21 hectares of native vegetation of River Red Gum Eucalyptus Camaldulensis open forest and the understorey associated with Red Gum across four separate areas. The land was cleared to diversify the use of the Property to include dry land for grazing.

All three defendants conveyed remorse for their actions and uniformly expressed that they were unaware that permission was needed by an authority, each for differing reasons. To this, Pain J stated:

"While [it] is true that ignorance of the law is no excuse, asserting that fact alone does not give rise to a finding that the Defendants acted negligently. They acted ignorantly and are guilty of a strict liability offence."

As such, despite the low culpability of the Defendants, due to the substantial harm caused to the environment, the Court found that a penalty of $22 000 for each Defendant was appropriate. The Court noted that this figure was applied pursuant to the sentencing principle of parity and not totality. A remediation order was also agreed to by two of the three defendants (the two landowners) which included setting aside 47 hectares of land, enclosed by an electric fence, to be preserved and enhanced as native vegetation and that the landowners submit to reporting and monitoring requirements for ten years.

Lessons learned

It is clear that the Court's current approach to offences involving the clearing native vegetation is to impose significant monetary penalties on offenders. This is particularly the case for offences of a more serious nature as penalties are viewed as a deterrent against the commission of similar, future offences. These cases strongly illustrate the importance of complying with legal requirements prior to the clearing of vegetation and the Court's attitude to non-compliance.

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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Liz Allnutt
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