CASE TABLES Vol 2

Research monograph 40 CASES TABLE 3 15 NATIVE VEGETATION ACT 2003 (from December 2005; current regime as at date of publication*): s 12 Maximum penalty (under s 126 of the Environmental Planning and Assessment Act 1979, until 30 July 2015): $1,100,000 plus $110,000 per day for a continuing offence. Both persons and incorporated bodies subject to the same maximum penalties * The NV Act is to be repealed on the commencement of s 3 of the Local Land Services Amendment Act 2016 which is cognate with the Biodiversity Conservation Act 2016 N Category count Citation Class of offender^ Reason Objective seriousness Environmental harm Fine amount Prosecutor’s costs # Remediation order (s 38) Fine plus costs “Total” Prosecutor’s costs as % of “Total” costs Case details 16 5 Director General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100 [sentencing hearing] Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15 [Class 5 hearing] Corporation Financially motivated. Commercial gain/ development/ rezoning [61]–[62] Medium Medium $100,000 As assessed Yes (no $) N/A N/A One s 12 offence against corporate landowner. Olmwood Pty Ltd found vicariously liable for a contractor’s acts of clearing native vegetation [371]–[372] on a property in Old Bar (Greater Taree region). 10 hectares were cleared [2]. From Olwood (No 2) : arranging for clearing work was reckless at best, deliberate at worst and premeditated [50]. “Clearing was part of a process of fencing and tidying up that had started in 2005. That process was undertaken as part of the intention to develop the property” [62]. Defendant did not plead guilty and the level of contrition and remorse expressed and the extent of assistance to authorities was questioned by the prosecutor [71]–[72]. Defendant fined $100,000 plus costs; also agreed to (uncosted) remediation order “which will require it to revegetate and keep 2 ha on the eastern boundary, part of which it can otherwise clear under exemptions in the NV Act ... [this was] taken into account in the Defendant’s favour” [73]. 17 6 Director-General, Department of Environment and Climate Change v Mura [2009] NSWLEC 233 (also see Case No 19 below) Special liability offender Financially motivated. Commercial gain [78] Low Medium $5,000 As assessed Yes (no $) N/A N/A Also see Case No 19. One s 12 offence on a farming property in Cessnock by director of the company that owned the property, with 12 hectares cleared. “The defendant was a two man company and Mr Mura was the directing mind of the corporation so far as the offence was concerned. It was he who caused and permitted the contractor to carry out the clearing works” [77]. “The intention of the defendant in clearing the land was to increase its grazing yield, which should thereby have improved its value” [78]. Mr Mura entered a late guilty plea [83], demonstrated contrition [82] but his cooperation with the prosecuting authority was less than complete [84]. Mr Mura was bankrupt with very limited capacity to pay a substantial penalty [87]–[93]. Fined $5,000 and ordered to pay prosecutor’s costs. Remediation direction made on the company landowner and its “silent” co-director (see Case No 19). 18 7 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 “Ordinary Joe” Financially motivated. Commercial gain [44], [49] Medium Serious $160,000 As assessed Yes (no $) N/A N/A One s 12 offence by the landowner. Affected property in Coonamble Shire (Orana region, Northern NSW). Partial or complete clearing of an area of approximately 215 hectares [2]. Some 155 hectares were cleared of trees to an extent of over 95% [2]. The defendant admitted that he had knocked down trees on the property; he knew that he needed consent before clearing the trees, but decided to go ahead without seeking consent in case he was not successful in obtaining consent and would be prevented from clearing in the future; and that he cleared the trees to improve the property to make it more viable and increase its capital value [6]. Defendant pleaded guilty but with reduced utilitarian value [64]. Defendant was found remorseful for his actions, accepted responsibility for his actions, acknowledged the environmental harm caused by his actions and agreed to carry out remedial work [66]. Court recognised “a material cost” associated with carrying out the remedial work and having land excluded from agricultural production [65]. Fined $160,000 plus ordered to pay the prosecutor’s costs. Mean $115,857 Median $100,000 Single offence, s 10 only, costs not specified 19 1 Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 6) [2010] NSWLEC 43 [sentencing hearing] Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232 [Class 5 hearing] (also see Case No 17 above) Corporation Financially motivated. Commercial gain [23] Low Medium Conviction without further penalty recorded against corporation, of which defendant was a “silent” director (passive investor). As assessed Yes (no $) N/A N/A Also see Case No 17. One s 12 offence by corporate landowner. Mr Issa a “silent” director (passive investor) and thus not culpable [33]–[34]: “Mr Mura was the only active director and the company had put him in possession and control of the [Cessnock] land” [6]. “The intention of the company in clearing the land was to increase its grazing yield, which should thereby have improved its value” [23]. Corporate defendant did not plead guilty [29] but guilt was attributable by conduct of its company director, Mr Mura [23]. However, the conduct of the defence avoided a potentially protracted hearing — significant utilitarian value for the administration of justice — which was taken into account as a mitigating factor in sentencing [29]. Defendant was a two man company and Mr Mura has already been punished. No personal culpability attaches to Mr Issa except for not exercising tighter corporate governance as a director [33]. Corporate defendant and Mr Issa in financial difficulty — intention to sell the land [32]. “Remedial Direction directed the defendant to repair damage caused by the clearing, to rehabilitate land affected by the clearing (including the taking of steps to allow the land to regenerate) and to ensure that the cleared land would not be further damaged by the clearing. It required the defendant to perform specified remedial works on the property within the time specified, if any, for each work or where no time was specified for a period of thirteen years” [21]. Remediation direction not costed. “Mr Issa will bear a financial burden from all that has happened” [34]. Unusual circumstances of the case noted, including the financial burden of any compliance with the remedial direction or any variation of it [35]–[36]. * Note: conviction recorded against company — no fine (or other penalty) — but ordered to pay prosecutor’s costs. NATIVE VEGETATION CONSERVATION ACT 1997 (rep): s 21 Maximum penalty (under s 126 of the Environmental Planning and Assessment Act 1979): Between January 1998 and 31 January 2000, the maximum penalty was $110,000 (with a daily penalty of $11,000 for a continuing offence). From 1 February 2000 to 30 November 2005, the maximum penalty was $1.1 million (with a daily penalty of $110,000 for a continuing offence). Both persons and incorporated bodies subject to the same maximum penalties N Category count Citation Class of offender^ Reason Objective seriousness Environmental harm Fine amount Prosecutor’s costs # Remediation order (s 38) Fine plus costs “Total” Prosecutor’s costs as % of “Total” costs Case details Single offence, fine only, costs not specified 20 1 Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 “Ordinary Joe” Recklessness [33], [50] Medium Medium $82,500 $23,000 Yes (no $) $105,500 21.8% One s 21(2) offence under the NVC Act (rep) by tenant leasing the rural property located in the Wentworth Shire Council. Defendant applied and received consent to clear specified land of native vegetation. Offence involved clearing of native vegetation outside the areas authorised by the consent [7]–[9]. 166 hectares unlawfully cleared [31]. Recklessly cleared land without proper markers; defendant did not clear to make a profit or to save an expense or to avoid the costs of obtaining and implementing a development consent [51]. Remediation direction served and placed on 161 hectares which generally corresponds to area cleared without authorisation. The remediation direction operational for a period of 15 years (ending April 2025) [23]. Defendant pleaded guilty, demonstrated genuine remorse and provided “meaningful” assistance to the regulatory authority [63], [66] and [70]. Defendant ordered to pay a fine of $82,500 and the prosecutor’s costs of $23,000. 21 2 Director-General of the Department of Land and Water Conservation v Leverton Pastoral Company Pty Limited [2002] NSWLEC 212 Corporation Financially motivated. Commercial gain (plus vermin eradication) [25] Medium Low $5,000 $31,000 Yes (no $) $36,000 86.1% One s 21(2) offence under the NVC Act (rep) by landowner/small family company on grazing property in Moree region [5]. 325 hectares cleared [12]. “The original intention was to gain some benefit for production which translates into a profit making concern, the ultimate consequence of the defendant carrying out the clearing is that it will suffer, and has indeed already suffered, economic constraints and losses” [36]. Defendant pleaded guilty [27] and cooperated throughout the investigation and hearing [17]; contrition expressed [30]. Extensive remediation plan, voluntarily agreed to, with sizeable constraints on agricultural activities and future productivity [32]–[37]. Court accepted defendant’s explanation that it believed it was entitled to clearing the land without having to obtain consent [43]. “In all of the circumstances it is appropriate, as the prosecutor concedes, that the penalty should be modest” [44]. Defendant fined $5,000 plus ordered to pay costs of $31,000. Maximum penalty at the time that the offence occurred was $110,000; subsequently been increased to in excess of $1 million [39].