Evidence, Property, Wetlands, Wildlife, Permits
Local residents, officers of Taree City Council and Hunter-Central Rivers Catchment Management Authority, and officers of the Department of Environment and Climate Change (DECC) gave evidence of serial clearing of the subject site over a number of years. Expert evidence on the date of European settlement and botanical pre-existence was called by the prosecutor. Part of the subject site had previously been occupied for sand mining under a mining lease held by earlier proprietors. Stereoscopic (3-D) viewing of aerial photography and SPOT5 satellite imagery showed signs of vegetation removal and soil disturbance, however regrowth activity could have masked the full extent of clearing. The defendant did not dispute any evidence in relation to aerial photography or SPOT5 imagery, however did dispute the extent of clearing alleged to have occurred in late 2006. In December 2006 the company planned to develop the land into a golf course but had no approval to undertake the clearing. It now wants to build a manufactured home ‘village’ on part of the landThe parties disputed the evidentiary onus for establishing whether re-growth had been cleared. Olmwood Pty Limited pleaded not guilty to a charge of clearing native vegetation contrary to s 12(1) of the Issues: (1) whether the prosecution was able to establish the elements of the offence; and (2) who bears the evidentiary onus for establishing whether the vegetation that has been cleared was “regrowth” as defined in s 9 of the NV Act. Justice Pain convicted and fined the company $100,000 and ordered it to pay the prosecutor’s legal costs. The Judge said she considered Olmwood acted recklessly in relation to the clearing by not making sufficient inquires as to whether or not it needed approval to clear the vegetation. In imposing such a large fine, she said that the illegal clearing of native vegetation for profit or to save the cost of obtaining approvals, increases the seriousness of the crime.