Posted on January 14, 2025 by Nathan Sloan and Megan Hawley
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Land and Environment Court imposes record penalty for unlawful clearing of native vegetation
Late in 2024, the Land and Environment Court imposed record fines for the unlawful clearing of native vegetation in Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd [2024] NSWLEC 131. Clearing of native vegetation is a serious offence that can have devastating impacts on the environment. This decision sends a strong message to those who would seek to commit similar crimes.
In 2022, Ronald Greentree and Auen Grain Pty Ltd (the Defendants) were each found guilty of offences relating to the unlawful clearing of vegetation on a property known as “Boolcarrol” north-west of Narrabri in NSW. The Defendants were each charged with 8 separate clearing offences on Boolcarrol. Due to the timing of the offences, some of the charges were brought under the Native Vegetation Act 2003 (NV Act) (repealed on 25 August 2017) and some were brought under the Local Land Services Act 2013 (LLS Act). The total area cleared across the entire property amounted to 1262 ha, or approximately 10% of the area of the property.
Following findings of guilt in 2022, the Defendants were sentenced as detailed in the judgment referred to above. In determining an appropriate penalty, the Court took into account a number of different sentencing considerations.
Objective circumstances
Generally, objective considerations include factors such as the nature of the offence, maximum penalty, environmental harm, foreseeability of the risk of harm, any practical measures to prevent environmental harm, the Defendant’s control over the causes giving rise to the offences and intention in committing the offence, and any financial gain from the commission of the offence.
In weighing these objective factors, the Court found that:
- Each of the offences committed by the Defendants undermined the integrity of the regulatory framework for environmental protection and the objects of the NV Act and the LLS Act
- In relation to the offences under the LLS Act, the higher maximum penalty for offences committed intentionally and that caused, or were likely to cause, significant harm to the environment, applied because the offences were found to have been committed intentionally and were pleaded in the summonses to have caused, or been likely to cause, significant environmental harm
- Each of the offences caused, or were likely to cause, significant harm to the environment having regard to loss of areas of native vegetation, the clearing of endangered ecological communities, and impacts to habitat
- The Defendants’ own foresight of the harm that could be caused by their clearing of large sections of the property containing native vegetation was manifest and reasonably foreseeable
- The Defendants were aware of the requirement to obtain approvals to clear under both of the legislative regimes but did not do so, and this was a practical measure that could have been taken to prevent, control or mitigate harm to the environment
- Mr Greentree personally carried out, or directed employees to carry out, all of the clearing. Mr Greentree and Auen Grain had total control over the causes of harm to the environment occasioned by the commission of each offence
- The clearing was carried out intentionally, repeatedly and systematically over many months by Mr Greentree and his conduct and state of mind were attributable to Auen Grain
- Each of the offences were committed for financial gain
Subjective circumstances
The Court also took into account subjective factors personal to the Defendants. Generally, these include matters such as prior convictions, previous good character, contrition and remorse and whether there has been a plea of guilty or assistance offered to authorities.
In this case, despite the Defendants having previous convictions for other matters, they received some mitigation on the basis that neither had previous convictions for offences under the NV Act or the LLS Act. Some evidence was provided to the Court as to Mr Greentree’s previous good character, and this was taken into account. However, the Court found that there was no remorse shown by either of the Defendants, so this factor did not apply. Similarly, no plea of guilty was entered and there was no assistance offered to authorities, so these factors did not apply.
General and specific deterrence
General and specific deterrence are important sentencing considerations that a court will take into account.
In this judgment, the Court emphasised the importance of imposing penalties providing for general deterrence in these mattes, noting that ” …the penalties imposed by the Court must serve as a general deterrent and the principle of general deterrence is of central importance in the sentencing for environmental offences… persons will not be deterred from committing environmental offences by nominal fines and, deterrence is needed to uphold the integrity of the system of protecting and preserving native vegetation and endangered ecological communities, and there is a need to send a warning to others who may be minded to breach the law in a similar way that such actions will be visited with significant consequence.”
Overall, the Court imposed penalties of $1,015,200 against Mr Greentree and $1,072,800 in relation Auen Grain. These record fines reflected the scale of clearing, the deliberate nature of the clearing, the significant environmental harm and the financial gain obtained by the Defendants. The judgment demonstrates the seriousness with which the courts view native vegetation clearing offences and will act as a precedent in similar, future cases.
The full judgment can be found here.
If you have any questions or would like to discuss this judgment, please contact Nathan Sloan on 8235 9732 or Megan Hawley on 8235 9703.
Did the landholder receive a criminal conviction, or any gaol time? I am disappointed that even though it seems like a steep penalty, the $1,015,200 is likely much cheaper than if he had gone through the Biodiversity Offset Scheme, where credits are in the millions for even 1 – 10 ha. It is much cheaper to apologise than do it properly and pay through the BOS.
Hi Lesley,
Mr Greentree was the sole director of the company, and was convicted as well as convictions being recorded against the company. No gaol time or orders for remedial action.
See the judgment in full (there is a link in the article) for details of legal costs required to be paid, w2hich were also significant.
Regards
Megan
I wonder what the legal costs against the landholder were? Sometimes they’re more substantial than the fine(s), but not likely in this case. Even with ~$2M in fines, plus costs, unless the landowner is required to revegetate or allow revegetation of the illegally cleared land, my guess is that he still probably profited if that land is used for cropping or even for grazing over a few seasons. Given that a company was convicted, it’s disappointing that one or more of the Directors wasn’t given a gaol term. I don’t think we’ve seen any corporate land clearing offender gaoled. In any case, penalties need to be effective deterrents, and the recurrence of illegal clearing shows that penalties providing that function. Some just see them a risk-tax. If you get convicted, you pay the tax, but a lot of clearing goes undetected, unprosecuted, or is subject to trivial wrist-slap fines. Instead, we need to see bigger penalties and a clear direction to the Court that it should impose penalties that more than nullify any economic or other gain that the offender made or may reasonably have made through the illegal act. The message needs to get out there that you won’t just risk a fine, but a fine far larger than whatever you’re seeking to make through illegal clearing. This should extend to gaol time, but for some offenders who are motivated by a ‘my land, my right’ ideology, gaol time wouldn’t be much of a deterrent as it makes them a martyr for their cause. Financial penalties that cause them to lose the land would be more effective, especially if the Court also imposes a binding remediation order. That way, when the land is sold, it comes with the remediation cost burden on a future owner, therefore diminishing its value substantially.
I agree with Lesley Peden that fines could also be based on what it would have cost the offender to purchase a BDAR and the required credits to offset the illegal clearing.
Hi Steve,
If you clink on the link to the3 judgment you can see the legal costs which were ordered to be paid.
Regards
Megan
Hi Megan,
Why did the Court not require remedial action? I assume the 1262ha area will likely be used for agriculture in the future without any requirement for remediation. The profits made are likely to exceed these fines.
Regards
Nick.