Citation: Walker Corporation Pty Limited v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210
Court: NSW Court of Criminal Appeal
Date: 26 September 2012
Judges: McClellan CJ at CL; Hidden J; Garling J
Background
The appellant, a property developer, was convicted by a judge of the Land and Environment Court of unlawfully clearing native vegetation at a site near Wilton, NSW, in contravention of s 12 of the Native Vegetation Act 2003 (NSW). The clearing occurred over approximately 23 hectares and involved mulching trees and shrubs in situ or pushing them over and mulching them. A fine of $200,000 was imposed, against a statutory maximum of $1,100,000 (10,000 penalty units).
The physical clearing work was not carried out by the appellant directly. Instead, a contractor, Environmental Land Clearing Pty Ltd, performed the work at the appellant's request. The prosecution relied on the landholder presumption in s 44 of the Act, which deems a landholder to have carried out clearing on its land unless it establishes that another person was responsible and that the landholder did not cause or permit the clearing.
The appellant challenged both its conviction and the sentence on multiple grounds before the Court of Criminal Appeal.
Legal Issues
- Whether the summons adequately particularised the charge under s 12 of the Act
- Whether the offence was proven beyond reasonable doubt
- Whether "native vegetation" under the Act includes dead plant matter
- Whether the appellant caused the clearing, given the work was done by a contractor
- Whether the primary judge's conclusions about the environmental impact of the offence were erroneous, rendering the sentence excessive
Decision
On particulars: The Court found that the summons, together with its annexure listing the species cleared, sufficiently particularised the charge. The appellant had been given adequate notice of the case it needed to meet.
On the definition of native vegetation: The Court of Criminal Appeal held that "native vegetation" under the Act does not include dead plant matter. The statutory definition in s 6 refers to living indigenous vegetation, and the definitions of clearing in s 7 (such as cutting down, killing, destroying, or burning) are directed at living plants. This was a notable clarification, as the primary judge had taken a broader view.
On causation and the appellant's liability: Despite the finding on dead plant matter, the Court upheld the conviction. Sufficient living native vegetation was established to have been cleared, and the appellant, as landholder, had engaged the contractor to carry out the work. The Court found the appellant had authorised and caused the clearing within the meaning of s 12(2), and the s 44 presumption had not been displaced.
On sentence: The Court found no error in the primary judge's sentencing approach. The judge had correctly applied the instinctive synthesis methodology, weighing multiple factors including the appellant's reckless conduct, its failure to plead guilty, its absence of contrition or cooperation, and the absence of evidence of limited financial means. The appeal against sentence was also dismissed.
Orders Made
- The appeal is dismissed.
Key Takeaways
- Under the Native Vegetation Act 2003 (NSW), "native vegetation" does not include dead plant matter. The Court of Criminal Appeal resolved a point on which the primary judge had erred, though this did not alter the outcome because sufficient living vegetation had been cleared.
- A landholder who engages a contractor to clear land can be found to have "caused" that clearing under s 12(2) of the Act. The s 44 presumption places a meaningful evidentiary burden on landholders who seek to distance themselves from clearing carried out on their land.
- In dismissing the conviction appeal, the Court confirmed that the summons, supported by a species annexure, was sufficient particularisation for a charge under s 12, even where not all listed species were ultimately proven to have been cleared.
- Sentencing for native vegetation offences requires instinctive synthesis of multiple factors. The quantity of vegetation cleared is important, but so too are moral culpability, cooperation, contrition, financial capacity, and the need for general and specific deterrence.
- Reckless commission of the offence, combined with no guilty plea, no remorse, and no cooperation with authorities, will weigh significantly against a more lenient outcome at sentencing.
Legislation and Cases Referenced
Legislation:
- Native Vegetation Act 2003 (NSW), ss 6, 7, 12, 19, 44
- Environmental Planning and Assessment Act 1979 (NSW), s 126
- Criminal Appeal Act 1912 (NSW), s 5AB
- Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Key Cases:
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Alphacell Limited v Woodward [1972] AC 824
- Environment Agency v Empress Car Co (Abertillery) Limited [1999] 2 AC 22
- Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569
- Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15; (2010) 173 LGERA 366
- Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
- Department of Environment and Climate Change (NSW) v Calman Australia Pty Ltd [2009] NSWLEC 182
- Director-General, Department of Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102