Posted on February 29, 2012 by
Landholder convicted for unlawful clearing of native vegetation
Walker Corporation Pty Ltd (Walker) was charged with clearing of native vegetation otherwise than in accordance with a development consent granted under the Native Vegetation Act 2003 (NV Act) or a property vegetation plan.
Preston CJ delivered a judgment in the Land and Environment Court in the matter on 30 November 2011: see Director – General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2)  NSWLEC 229.
Of particular interest was whether Walker was liable for the clearing carried out by its contractor on grounds that it was the landholder that permitted the clearing to be carried out and/or on grounds of its vicarious liability for the acts of the contractor.
Section 12 of the NV Act provides that:
(1) Native vegetation must not be cleared except in accordance with:
(a) a development consent granted in accordance with this Act, or
(b) a property vegetation plan.
(2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act.
Section 44 of the NV Act provides
In any criminal or civil proceedings, the landholder of any land on which native vegetation is cleared is taken to have carried out the clearing unless it is established that:
(a) the clearing was carried out by another person, and
(b) the landholder did not cause or permit the other person to carry out the clearing.
This section does not prevent proceedings being taken against the person who actually carried out the clearing.
Liability as the landholder?
Walker argued that it was not taken to have carried out the land clearing under s44 because it had not authorised the contractor to carry out unlawful clearing.
For the purpose of s44, however, Preston CJ held that the only question is whether Walker caused or permitted the contractor to carry out the clearing not whether the clearing was lawful or not.
Preston CJ also determined that to cause or permit the carrying out of clearing of vegetation by another there must be a positive act on the part of the landholder. ‘The landholder could expressly grant permission for the person to clear vegetation on the landholder’s land. Permission may also be inferred from the circumstances which carry with them a reasonable implication…’
Preston CJ also held that to ‘permit’ clearing, the landholder must know of the clearing. ‘A landholder cannot permit a person to clear vegetation on the landholder’s land without knowledge of that act of clearing.’
On the facts, Walker was to be taken to have carried out the clearing as landholder under s44.
Preston CJ therefore concluded that because the clearing of the vegetation was in breach of section 12(1) of the NV Act, the consequence of the evidentiary presumption in section 44 was that Walker was a person who had carried out the clearing in contravention of the NV Act for the purposes of section 12(2) of the NV Act.
As the offence against section 12 of the NV Act is one of strict liability, a person can also be vicariously liable for the unlawful acts of another person such as a contractor.
The prosecutor alleged that Walker was also vicariously liable for the clearing carried out by the vegetation contractor.
Preston CJ confirmed that Walker could be vicariously liable where it had directly authorised the act of clearing by the independent contractor. Preston CJ concluded on the evidence that the instructions given to the contractor involved the direct authorisation of the unlawful clearing of the native vegetation.
Alternatively, Walker could have been vicariously liable where the work done by the independent contractor was subject to the control and direction of Walker in the actual execution of the work. Preston CJ concluded however, on the evidence, that Walker did not do so because the evidence showed that the Walker employee, Mr Fife, did not attend the site and direct the clearing.
The case provides a useful reminder that there are mechanisms in the NV Act to hold the owner of land liable for authorising or controlling action in breach of the Act.