Posted on November 13, 2017 by Sue Puckeridge and Katie Mortimer
The Court orders combined fines of $708,750 for the illegal clearing of native vegetation
On 24 October 2017 the Land and Environment Court convicted and fined Cory Ian Turnbull and Grant Wesley Turnbull a combined $708,750 for two offences of clearing vegetation in contravention of the now repealed Native Vegetation Act 2003 (‘NV Act‘).
These monetary penalties are a strong message that the Court views these offences seriously. In this post, we consider the new land clearing laws in light of the two convictions.
Cory Ian Turnbull was fined $393,750 for clearing at ‘Strathdoon’ at Croppa Creek near Moree in 2012, and Grant Wesley Turnbull was fined $315,000 for clearing at ‘Colorado’ at Cropps Creek near Moree between 2012 – 2013.
Both defendants were ordered to pay the Office of Environment and Heritage’s (‘OEH‘) costs of prosecuting the proceedings. Given the sentence hearing occurred over 5 days, these costs are likely to be significant.
The now repealed NV Act prohibited the clearing of native vegetation, except in accordance with a development consent granted under the NV Act, or, a property vegetation plan.
Both defendants pleaded guilty to the essential elements of the offence, however disputed a number of the offence’s factors such as the area and number of trees cleared, that native ground cover had been cleared, and the extent to which the native vegetation cleared was of high conservation value.
The Court did not accept these arguments and concluded that the commission of the offence caused a high level of actual environmental harm that involved the loss of significant areas of remnant native vegetation of high conservation value and the loss of important habitat for native fauna that would likely impact on several threatened fauna species.
The Court found the effects of the offences were similar to broadscale clearing, which was prohibited by the objects of the NV Act, and importantly that the environmental harm caused was irremediable.
At the time of their commission, the maximum penalty for the offences was $1,100,000 with a further daily penalty of $110,000 (under the now repealed s126(1) of the Environmental Planning and Assessment Act 1979).
Before these judgments, the highest penalty ordered for illegal clearing of native vegetation was $320,025 for two offences committed in 2008 (see Director-General, Department of Environment and Climate Change v Hudson (No 2)  NSWLEC 110).
The fine ordered against Cory Turnbull surpasses this previous penalty, making this fine the highest penalty imposed by the Court for an offence of this type.
When ordering the fines, the Court synthesised, amongst other factors, the medium objective seriousness of each offence, the need to impose sentences that achieve the purposes of denouncing the conduct of both defendants, ensuring the defendants were adequately punished for the offences and held accountable for their actions, and recognising the harm done to the environment by commission of the offences.
In determining the objective seriousness of the offence by Cory Turnbull, the Court noted that he had committed the offence for financial gain, and had made substantial profit by the deliberate commission of the offence. This offence contributed to an increase in his property’s value of approximately $3 million.
The Court also considered the need to deter both the defendants and other persons from committing similar offences.
The New Land Clearing Laws
Clearing of native vegetation on rural land is now regulated under Part 5A of the Local Land Services Act 2013 (‘LLS Act‘), and enforced under the Biodiversity Conservation Act 2016 (‘BC Act‘). The LLS Act prohibits the clearing of native vegetation, unless a landholder can establish a defence. Read our previous blog on the new laws.
Under s60N of the LLS Act the maximum penalty for an offence committed intentionally and that was likely to cause significant harm to the environment is $5 million for a corporation and $1 million for an individual. The maximum penalties for any other offences are $2 million for a corporation and $500,000 for an individual. If the Turnbulls were to be prosecuted under today’s laws, the Court would be considering a similar penalty to the maximum penalty under the old law.
The Chief Executive of OEH has stated the Turnbulls’ sentences are ‘a reminder that any clearing must be within the law’. Given the self assessment that is now required by landholders when determining if an approval is required to clear vegetation, landholders will need to develop a comprehensive understanding of the application of the legislation and codes, to avoid inadvertently committing an offence and exposing themselves to significant financial penalty.
If you wish to discuss the sentences, or the new land clearing laws, please contact Sue Puckeridge, Partner on 8235 9702 or by email at firstname.lastname@example.org