Gordon Plath of the Department of Environment and Climate Change v Fish; Gordon Plath of the Department of Environment and Climate Change v Orogen Pty Ltd.

This New South Wales case is the first instance of a consultant (rather than a developer) being prosecuted for offences arising from the development process which were committed because of advice received from the consultant. The case demonstrates that consultants should be aware that accepting an obligation to “ensure legal compliance” as part of a development approval imposes a very high standard which may require legal input. If this obligation is accepted then a failure to provide advice that an offence may be committed may be taken to be the direct cause of an offence. The defendants pleaded guilty to offences pursuant to the National Parks and Wildlife Act 1974 (NSW)(NPW Act), Native Vegetation Act 2003 (NSW)(NVA Act), and Threatened Species Conservation Act 1995 (NSW)(TSC Act) which occurred as a result of unlicensed clearing of native vegetation on the subject site which was the habitat of koalas, a threatened species. Orogen Pty Ltd’s fee proposal contained an acceptance of responsibility for ensuring ‘legislative compliance’ in respect of the vegetation clearing works involved. At the time the relevant clearing occurred, Orogen Pty Ltd, along with the developer and clearing contractors, was party to a contract to provide advice on legislative requirements related to the clearing of vegetation and to check for threatened species prior to commencement of works. The defendants advised the developer that no consent was required to clear vegetation on the 4(a) Industrial land. This advice was either incorrect or only limited to the issue of development consent (as no consent or permission was required under the LEP). The clearing works were not undertaken by the defendants, but by contractors engaged by the developer. The decision to clear the vegetation was not the decision of the defendants but the decision of the developer. The judge considered the overall culpability of the defendants to be of low to medium significance because while the defendants were responsible for ensuring legislative compliance, the defendants did not make the decision to clear the vegetation nor carry out the clearing. Similarly, the degree of environmental harm caused was on the lower end of the spectrum, as the illegal clearing caused a loss of habitat sufficient to support up to a pair of adult koalas and a narrowing of a significant movement corridor. The defendants were required to: pay $15,000 in fines; undertake an environmental service order being the preparation of part of a koala mapping project (the value of this project is estimated to be more than $160,000); publish a notice of their offence in the Sydney Morning Herald and the Newsletter of the Ecological Consultants Association of NSW; and pay the prosecutor’s costs of $105,000.