Showing posts with label Forestry Corporation of NSW. Show all posts
Showing posts with label Forestry Corporation of NSW. Show all posts

Monday, 5 August 2024

How a rogue state-owned corporation played the NSW Land & Environment Court - by a last minute admission of guilt but at the same time insisting it was an accidental error & offering a half-hearted apology - in order to reduce a potential four million dollar penalty to a mere $360,000


On 24 March 2020 and between 6 April and 6 July 2020 the state government owned Forestry Corporation of New South Wales (FCNSW) committed breaches of Forestry Act 2012 within the boundaries of Yambulla State Forest on the far south coast of the state.


NOTE: As Forestry NSW is a state-owned entity, it is the NSW Treasury (on behalf the people of NSW) which will eventually pay any monetary penalties imposed by a court or government authority if FNSW is cash poor. It should also be noted that, based on past history, there appears to be a reluctance to individually hold to account any private logging company (contracted by Forestry NSW to work in state forests) which wilfully or negligently acts in breach of the law. This may go a long way to explaining the arrogance of the logging industry generally and repeat offender Forestry NSW in particular.


In the Land and Environment Court New South Wales on 31 July 2024 in Environment Protection Authority v Forestry Corporation of New South Wales [2024] NSWLEC 78 Peppers J handed down a judgment with the following orders:


Orders

In conformity with the reasons given above, the Court makes the following orders:


In proceedings 2022/171640


(1) the defendant is convicted of the offence contrary to s 69SA(1) of the Forestry Act 2012 as charged;


(2) the defendant must pay a monetary penalty in the sum of $225,000;


In proceedings 2022/171639


(3) the defendant is convicted of the offence contrary to s 69SA(1) of the Forestry Act 2012 as charged;


(4) the defendant must pay a monetary penalty in the sum of $135,000;


In proceedings 2022/171639 and 2022/171640


(5) pursuant to s 122 of the Fines Act 1996, 50% of each of the monetary penalties imposed on the defendant is to be paid to the prosecutor as a moiety;


(6) pursuant to s 257B of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor’s professional costs of the proceedings as agreed or assessed under s 257G of that Act;


(7) within 28 days of the date of this order, pursuant to s 13.25(1)(a) and (b) of the Biodiversity Conservation Act 2016, the defendant must, at its own expense, cause a notice in the form of annexure ‘A’ to these orders to be published within the first 12 pages of the following publications, at a minimum size as near as practicable to 180 cm2:


(a) The Sydney Morning Herald;

(b) The Daily Telegraph; and

(c) the Bega District News.


(8) within 42 days of the date of this order, the defendant must provide the prosecutor with a complete copy of the notices as published pursuant to order 7; and


(9) the exhibits are to be returned.


Annexure A

[Forestry Corporation of New South Wales logo to be inserted]


Forestry Corporation of New South Wales Convicted of Offences in Relation To Harvesting Operations In Yambulla State Forest in 2020


On 31 July 2024, Forestry Corporation of New South Wales (“FCNSW”) was convicted in the Land and Environment Court of NSW (“the Court”) for offences under the Forestry Act 2012 for breaching two conditions of its integrated forestry operations approval (“the approval”).


FCNSW breached the approval by failing to show two known Environmentally Significant Areas on an operational map prepared for harvesting operations within compartment 299A of the Yambulla State Forest and by carrying out forestry operations between April and July 2020 in one of the two Environmentally Significant Areas. As a result, 53 eucalypt trees were felled and harvested. The harvesting operation caused actual harm to the felled trees and impacted the refuge of various native flora and fauna species following the Black Summer bushfires. It also led to the compaction and disturbance of groundcover elements. The harvesting operations also potentially harmed the Dusky Woodswallow, Scarlet Robin and the Varied Sitella, being threatened bird species known to inhabit the Yambulla State Forest.


The prosecution was brought by the NSW Environment Protection Authority (“EPA”). FCNSW has been fined a total of $360,000 and has agreed to pay the EPA’s professional costs as agreed or assessed. This notice was placed by order of the Court and was paid for by FCNSW.


**********


A brief look at aspects of the Court's reasons by way of judgment excerpts:


Maximum Penalty

81 The maximum penalty provided for an offence indicates the seriousness with which Parliament views the commission of the offence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359 and Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).


82 FCNSW is charged with two breaches of s 69SA(1)(b)(i) of the Forestry Act, each of which carry a maximum penalty of $2,000,000 in the case of a corporation.


104 I am satisfied beyond reasonable doubt that the commission of the harvesting offence caused actual and potential harm in the manner set out in Dr Wall’s report. I am further satisfied that the harm caused was substantial because the felling of the 53 trees not only had individual environmental value, but collectively, the trees represented a significant ecological cohort, the felling of which, together with the compaction and disturbance to ground cover, disrupted the refugial status of polygon 2 in a forest that had been severely impacted by bushfire (s 21A(2)(g) of the CSPA).


110 The mapping offence arose due to Clark incorrectly inputting the spatial data into the operational map and failing to adequately review her work. Clark’s supervisor, Clohesy, also failed to properly check her work despite being required to sign off on the operational map. The harvesting offence occurred due to the mapping offence. As stated above, both mistakes were inadvertent.


118 I do not accept that the circumstances giving rise to the error in spatial mapping were unique because they required manual data entry. Rather, the error occurred due to a failure to implement adequate systems to properly transition to a new process as necessitated by the SSOCs. It is entirely conceivable, if not likely given the impact of climate change on native vegetation, that FCNSW will have the need for SSOCs again.


119 I find that FCNSW failed to take the preventative measure of implementing a robust process for reviewing the operational map to ensure that all of the ESAs were properly identified on it. In addition, I find that Chaudhary’s evidence of the steps that FCNSW has taken to prevent future similar incidents was unhelpful given its highly generalised content.


123 A sentencing judge is not required to nominate a point on a scale of seriousness when assessing the objective seriousness of an offence. While occasionally useful, such an exercise adds little substance to the task of instinctive synthesis and determination of a proportionate sentence. As was observed by the Court of Criminal Appeal in DH v R [2022] NSWCCA 200 (at [60]):


60. The assessment of objective seriousness of an offence is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence: Zreika v R [2012] NSWCCA 44 at [46]; R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118. A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point. The use of descriptors such as “low end of the middle of the range”, “upper end of the middle of the range” or, “just below or above the midpoint” add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence.


124. Nevertheless, on any view, the environmental crimes committed by FCNSW were objectively serious, causing, as they did, substantial actual and potential ecological harm.


Contrition and Remorse

125 Pursuant to s 21A(3)(i) of the CSPA, remorse is only a mitigating factor if:


(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and


(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),


In Waste Recycling Preston J suggested at least four ways by which an offender may demonstrate genuine contrition and remorse, which are relied upon without repetition (at [204], [210], [212] and [214]). I respectfully adopt and apply his Honour’s analysis in the present proceedings.


In his affidavit, Chaudhary expressed contrition as follows:


10 On my behalf and that of FCNSW, I express sincere regret and remorse that FCNSW employees failed to properly prepare maps recording the ESA areas required for retention and that harvesting occurred within one of those areas.


11 I have read the report of Dr Julian Wall, date 9 November 2024. While I am aware that the precise nature of harm to Yambulla State Forest is still in dispute, I accept that the harvesting resulted in the harvesting of 53 trees that should have been retained, the loss of biomass and impacts on habitat after the fires. I also acknowledge that the failure to map the ESAs resulted in machinery entering one of the polygons in circumstances where this was not permitted. I regret to have caused any harm to the environment.


Chaudhary and Linda Broekman, FCNSW’s Senior Compliance Manager, were present for the sentencing hearing on behalf of FCNSW (T1:18). However, Chaudhary was required to be present for cross-examination and left as soon as it was concluded.


The Chaudhary affidavit was filed late in breach of the Court’s timetable. Leaving aside delay, the affidavit constitutes no more than a bare expression of contrition and remorse, the kind of which was cautioned against in Waste Recycling (at [203]). Moreover, FCNSW has not taken any steps to remediate the harm caused by the commission of the offences (Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51; (2013) 199 LGERA 1 at [80]). In addition, it has not wholly accepted responsibility for the environmental harm caused by the commission of the offences insofar as it rejects the refugial status of polygon 2.


I therefore give only limited weight to FCNSW’s expression of contrition through Chaudhary.


Early Pleas of Guilty

131 A guilty plea entered at the earliest available opportunity entitles a defendant to the full 25% discount for the utilitarian value of that plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]).


132 The EPA submitted, and FCNSW accepted, that guilty pleas were not entered at the earliest opportunity. FCNSW entered guilty pleas on the morning of a contested liability hearing that was listed for four days. Having said this, the guilty pleas demonstrate some acceptance of culpability and some weight must be given to FCNSW’s entry of the pleas and the resultant savings in time and resources as a consequence. I therefore find that FCNSW is entitled to a 10% discount for its guilty pleas.


Prior Convictions of FCNSW

134 FCNSW has a lengthy record of prior convictions for environmental offences (s 21A(2)(d) and (3)(e) of the CSPA):


(a) on 12 June 2004 the Court convicted FCNSW (formally the Forestry Commission of New South Wales) of one offence against s 120(1) of the Protection of the Environment Operations Act 1997 (“the POEOA”) for causing the construction of a dirt road in the Chichester State Forest in such a manner that parts of it collapsed and resulted in pollutants entering the waters of the forest. The Court ordered FCNSW to pay a monetary penalty of $30,000 and awarded costs to the EPA (Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751 (“Chichester State Forest”));


(b) on 8 June 2011 the Court convicted FCNSW of one offence against s 175(1)(a) of the NPWA insofar as it breached a condition of a threatened species licence contrary to s 133(4) of that Act by conducting bushfire hazard reduction burning in the Smokey Mouse exclusion zone of the Nullica State Forest. The commission of the offence was caused by the inadequate shading of the exclusion zone on the relevant map. The Court ordered FCNSW to pay $5,600 to a project to improve the Smoky Mouse monitoring sites in the South East Forests National Park and awarded costs in the agreed sum of $19,000 (Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102 (“Nullica State Forest”));


(c) on 10 July 2013 the Court convicted FCNSW of one offence against s 120(1) of the POEOA for polluting waters and one offence against s 133(4) of the NPWA for breach of its threatened species licence arising from hazard reduction burns in the Mogo State Forest. The cause of the commission of the offences was inadequate training of persons involved in the preparation of a burn plan which resulted in an inaccurate plan. The Court ordered FCNSW to pay a total monetary penalty of $35,000 to be directed towards a project in the affected area. Legal and investigation costs were awarded to the EPA (Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101 (“Forestry Commission”));


(d) on 5 October 2017 the Court convicted FCNSW of one offence against s 133(4) of the NPWA for breach of its threatened species licence arising from its failure to conduct a thorough search for rocky outcrops in the Glenbog State Forest, which were consequently not identified on the harvest plan. The Court fined FCNSW $8,000, ordered it to publish a notice in the Bega District News in relation to its commission of the offences, and awarded costs to the EPA (Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2017] NSWLEC 132 (“Glenbog State Forest”));


(e) the Batemans Bay Local Court convicted FCNSW of one offence against s 69SA(1) of the Forestry Act for carrying out unlawful harvesting operations which resulted in the removal of four hollow bearing trees in Mogo State Forest. That Court fined FCNSW a total of $20,000 with 50% payable to the EPA as moiety, awarded the EPA costs in the amount of $84,340, and made a publication order (Environment Protection Authority v Forestry Corporation of NSW (Mogo State Forest prosecution) (Local Court (NSW), Dick LCM, 15 November 2023, unrep));


(f) on 9 June 2022 the Court convicted FCNSW of four offences contrary to s 2.14(4) of the BCA. The offences related to the carrying out of harvesting activities in koala and rainforest exclusion zones in the Wild Cattle Creek State Forest. The Court fined FCNSW a total of $135,600 with 50% payable to the EPA as a moiety, awarded costs in the sum of $150,000 to the EPA, and ordered FCNSW to publish notices in The Sydney Morning Herald and the Coffs Coast News of the Area in relation to its commission of the offences (Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 70 (“Wild Cattle Creek”)); and


(g) on 22 June 2022 FCNSW was convicted of three offences contrary to s 69SA(1) of the Forestry Act in that it failed to mark the boundary of an ESA in breach of its threatened species licence and consequently carried out harvesting operations in bat roosting exclusion zones in the Dampier State Forest. The Court fined FCNSW a total of $225,000, with $45,000 to be paid to the Australasian Bat Society Inc and 50% to be paid to the EPA as a moiety. The Court ordered FCNSW to pay the EPA’s legal and investigation costs, and made publication orders (Dampier State Forest).


135 The EPA submitted that the two most comparable cases to the present proceedings were Dampier State Forest and Wild Cattle Creek.


136 FCNSW submitted that less weight ought to be attributed to its history of offending because it has not previously committed an offence similar to the harvesting and mapping offences.


137 FCNSW’s submission must be rejected. It has a significant history of unlawfully carrying out forestry operations, which is exactly what the mapping and harvesting offences are (Wild Cattle Creek and Dampier State Forest). In addition, it has previously been convicted for failing to mark the boundary of ESAs and exclusion zones in breach of environmental approvals (Dampier State Forest and Wild Cattle Creek). I therefore take into account its extensive antecedents.


156 The EPA submitted that the quantum of any monetary penalty should not be reduced to take account of the award of costs merely because FCNSW has agreed to pay the EPA’s costs voluntarily (Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50] and Secretary, Department of Planning and Environment v Khouzame [2024] NSWLEC 54 at [125]-[126]).


157 An award of costs does not result in a commensurate reduction in any monetary penalty imposed. Rather, I have taken the fact of the payment of costs by FCNSW, which both the EPA and FCNSW agreed will be substantial, into account as a factor in mitigation.


Appropriate Sentence

162 Having regard to the objective seriousness of the offences and the mitigating subjective factors of FCNSW, together with the penalties imposed in the comparable cases, I find that the imposition of a monetary penalty is warranted for each offence as follows:


(a) for the harvesting offence a monetary penalty of $250,000; and


(b) for the mapping offence a monetary penalty of $150,000.


163 After the application of the 10% discount for the utilitarian value of the early guilty pleas, the penalty for the commission of each offence is reduced to:


(a) for the harvesting offence a monetary penalty of $225,000; and


(b) for the mapping offence a monetary penalty of $135,000.


164 This brings the total monetary penalty to be imposed on FCNSW to $360,000.


167 In the context of sentencing, a publication order serves the functions of general deterrence, denunciation, and a recognition of the harm caused by the offending conduct (Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 at [105] and Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [76]). FCNSW’s offending conduct was not trivial and occasioned substantial actual and potential environmental harm. FCNSW will continue to undertake forestry harvesting activities and has not sufficiently demonstrated genuine contrition and remorse for its commission of the offences. These factors weigh heavily in favour of making a publication order in the terms sought by the prosecutor. 


Friday, 16 February 2024

Less than a year into its first term in office is the NSW Minns Labor Government shaping up to be just another environmental vandal?


In late December 2023 two matters were obvious. Firstly, even a cursory look at Forestry Corporation of NSW's collection of penalty notices, warnings and secondly adverse judgments indicated the list was growing longer [see Background] and secondly, its corporate business losses remained a drain on the NSW state treasury with annual financial statement showing est. $15 million loss on native hardwood timber operations in 2022-23, following est. $9 million loss in 2021-22 and est. &19.1 million loss in 2020-21 [based on Forestry NSW annual reports].


Something had to give and the NSW Government has obviously decided it wasn't going to be the logging practices of Forestry NSW.


I rather suspect (bearing in mind Coastal IFOA conditions can only be amended jointly by the Minister for the Environment and the Minister for Agriculture) that both the Premier and the timber industry may have decided that the current Minister for Agriculture, Minister for Regional NSW and Minister for Western NSW was the politician to target - 2023 being her first time in any ministerial position and her previous five shadow portfolios since May 2019 having nothing to do with either agriculture or forestry and little to do with regional NSW.


In the second half of 2023 this minister was directly involved in nine meeting concerning "forestry matters".


MEETING NUMBER ONE 20.07.23: Minister Moriaty & Australian Climate and Biodiversity Foundation, University of Melbourne Business School, Australian Workers’ Union, CFMEU Manufacturing Division, Treasurer Mookhey, [Environment] Minister Sharpe re "Forestry matters".


After that in no particular occurrence order, meeting parties were:

Minister Moriaty & CFMEU;

Minister Moriaty & ForestWorks;

Minister Moriaty & Australian Forest Products Association;

Minister Moriaty & M&M Timbers, Greensill Bros, Mark Banasiak MLC [Shooters, Fishers and Farmers Party];

Minister Moriaty & Australian Forest Products Association, The Pentarch Group;

Minister Moriaty & E Fitzpatrick & T Lions, Fitzpatrick and Co, Client – Timber NSW;

Minister Moriaty & Pentarch Group, Dr Michael Holland MP [ALP]

Minister Moriaty & South Coast Timbers, Dr Michael Holland MP [ALP].


Whereas the Minister for Climate Change, Minister for Energy, Minister for Environment and Minister for Heritage's meeting schedule for the same period shows a more limited interest in forestry issues and one suspects that she may have passed the buck after that 20 July 2023 meeting.


  • MEETING NUMBER ONE 20.07.2023: Joint meeting Minister Sharpe & Moriarty, Mookhey with Australian Climate & Biodiversity Foundation, Uni Melb Business School, AWU, CFMEU re "Forestry industry reform".
  • Minister Sharpe & North East Forest Alliance re Forestry & GKNP;
  • Minister Sharpe & Hurford Group - re Private Forestry.


This ministerial sharing arrangement appears to indicate the city-centric Minns Labor Government is holding fast to the fallacies surrounding its native timber industry as Forestry Corporation NSW losses mount and the timber industry lobby groups become a persistent earworm.


It is noted that Environmental Protection Agency (EPA), as part of the NSW Government Planning and Environment Cluster sitting in the portfolio of the Minister for Environment and Heritage, did not have a seat at the table during any of these meetings and yet it appears to have been the vehicle used to introduce further reductions in levels of protection for native wildlife in state forests.


Sadly, the following media releases demonstrate why and how, what native hardwood forests remain within state forests are about to become the government-endorsed playground of an out-of-control Forestry Corporation NSW.


NSW EPA, media release, 2 February 2024:


New protections for endangered southern greater gliders

02 February 2024


Endangered Southern Greater Gliders across the east coast of NSW will be better protected under NSW Environment Protection Authority (EPA) amendments to forestry rules that will protect more hollow-bearing trees in operations where gliders are present.


From 9 February, changes to the Coastal Integrated Forestry Operations Approval (CIFOA) protocols will come into effect, requiring Forestry Corporation of NSW (FCNSW) to meet new protection requirements for southern greater gliders.


EPA Chief Executive Officer, Tony Chappel said the change was a significant step-forward in the long-term protection of gliders as well as other native animals reliant on hollow-bearing trees such as possums, owls and parrots.


This change means that instead of depending on unreliable point in time surveys to find the habitat of the gliders, we will assume the species is present and conserve their habitat,” Mr Chappel said.


“This ensures the critical habitats of some of our most endangered and much-loved native animals are protected.


We have reviewed extensive research, sought expert views and believe this change strikes the right balance, resulting in significant ecological and regulatory improvement to the current arrangements.


We have also consulted FCNSW to ensure any potential timber supply impacts are known and managed.


If non-compliances with these new conditions are found, the EPA will not hesitate to take appropriate regulatory action to ensure greater gliders are being protected in forestry operations.”


The changes can be found on the EPA website here


The new CIFOA requirements include:


  • A 50-metre exclusion zone around known recorded locations of greater glider dens.


  • Protection of extra greater glider trees in addition to existing hollow bearing and giant tree requirements:


*Six trees per hectare greater than 80cm in diameter in high greater glider density areas, in addition to the eight hollow bearing trees currently required to be protected.


*Four trees per hectare greater than 50cm in diameter in lower density areas, in addition to the eight hollow bearing trees currently required to be protected.


*The retention of additional hollows and future hollow-bearing trees in areas where greater gliders are less likely to occur.


  • Greater glider trees must prioritise hollows (especially ones with evidence of use) where they exist.


  • Undertaking of a monitoring program to ensure the ongoing effectiveness of these new rules for greater gliders.


A new map that shows where these different greater glider areas occur.


World Wildlife Fund Australia, news release, 2 February 2024:


Conservation groups outraged; scientists not consulted


The NSW Environment Protection Authority will no longer require Forestry Corp to search for and identify the den trees of endangered greater gliders before logging operations.


Instead Forestry Corp will be required to protect just six extra trees per hectare, greater than 80cm, in addition to the existing requirement to protect eight hollow-bearing trees.


I’m shocked, this is a huge step backwards. Decisions like this will hurtle this species much more rapidly towards extinction. The EPA executive is abdicating its responsibility to protect threatened species,” said Dr Kita Ashman, Threatened Species & Climate Adaptation Ecologist, WWF Australia.


The issue of greater glider den trees came to a head when Forestry Corp bulldozed thousands of trees in Tallaganda State Forest, one of the last greater glider strongholds.


Last August the EPA launched an investigation saying it had no confidence Forestry Corp had properly searched for den trees and protected them with 50 metre exclusion zones, as the government-owned corporation was required to do.


Now the EPA has removed the requirement that Forestry Corp search for den trees.


Eminent greater glider scientists were not consulted about these changes. We need a fundamental shift in how forests are managed if greater gliders are to survive. The EPA needs to take leadership and improve forestry rules to better protect greater gliders and all threatened species,” said Wilderness Australia Operations Manager Andrew Wong.


Known greater glider den trees will still be protected with exclusion zones. But who’s going to identify them if there’s no requirement for Forestry Corp to do it. That job will be left to citizen scientists but it’s unclear whether they’ll be legally able to access logging areas before they’re bulldozed. This is a complete mess,” said South East Forest Rescue Coordinator Scott Daines.

[my yellow highlighting]


NSW EPA, media release, 9 February 2024:

Forestry protocol

09 February 2024


The commencement of the Coastal Integrated Forestry Operations Approval (CIFOA) protocol and the site-specific biodiversity condition for greater gliders will be postponed by a week.


Last week, we announced changes to the protocol which will have an important role in protecting hollow bearing trees.


We have been consulting with stakeholders and considering their feedback to ensure we find the most appropriate way to address concerns while achieving long-term protections for this endangered species.


Existing requirements remain in force during this period and we will not hesitate to take regulatory action, including stop work orders, where we think there will be non-compliance.


Until the protocol and site-specific biodiversity conditions are finalised, we will treat all glider habitat forests as high risk.


We want to thank all stakeholders for working with us as we refine these changes.



BACKGROUND


A brief look at the history of Forestry NSW warnings, penalties.........


NSW Environmental Protection Agency (NSWEPA), media release, 22 December 2023:


Forestry Corporation ordered to pay $104,000

22 December 2023


Forestry Corporation of NSW (FCNSW) is required to pay more than $100,000 after illegally felling hollow bearing trees in Mogo State Forest on the South Coast in March 2020.


The sentence was handed down after FCNSW challenged one of three $15,000 penalty infringement notices issued by the NSW Environment Protection Authority (EPA), for breaching site-specific operating conditions following the damaging 2019/20 black summer bushfires.


Under these conditions, FCNSW was required to permanently retain all hollow-bearing trees to prevent the loss of habitat for hollow-dependent species.


Following the challenge, FCNSW was found guilty of the offence under the Forestry Act 2012 in Bega Local Court in November 2023. The Magistrate was satisfied all four trees had visible hollows before they were cut down.


The sentence was delivered in Batemans Bay Local Court yesterday, convicting FCNSW and ordering them to pay a fine of $20,000 and $84,340 to the EPA as legal costs.


EPA Executive Director of Regulatory Operations Jason Gordon welcomed the sentence and said the court’s decision supports the EPA’s position that the visibility of tree hollows must be assessed broadly, and requires scrutiny from several different angles.


All hollow-bearing trees, living or dead, are important because they provide vital habitat for endangered and native species,” Mr Gordon said.


They can take decades to naturally form and provide a necessary refuge for animals from the weather and predators, as well as safe sites for roosting and breeding.


Any decrease in the availability and variety of tree hollows can lead to a significant loss of species diversity and abundance.


This outcome is a great result for the EPA and signifies the care needed when conducting forestry operations to comply with conditions and ensure homes for our wildlife are protected.”


In sentencing, the Magistrate said there’s no reason for a casual approach to environmental protection and the community views environmental offences as extremely serious.


The Magistrate required FCNSW to publicise the offence and the orders made against it in the Sydney Morning Herald and the Bay Post/ Moruya Examiner which would send a clear message of deterrence.


A partial list of Forestry Corporation NSW ( FCNSW) penalty notices and prosecutions July 2018 to June 2022:


Jun 2022 — EPA fines FCNSW — $15,000 for allegedly failing to comply with post-fire conditions South Brooman State Forest.

Jun 2022 — EPA prosecutes FCNSW for alleged breaches of post-fire conditions at Yambulla State Forest, near Eden after the 2019/20 bushfires.

Jun 2022 EPA prosecutes FCNSW $135,600 + 150,000 in legal costs fines and costs totalling $285,600 have been levelled against FCNSW after the Land and Environment Court found tree felling in exclusion zones had done “actual harm” to koala habitat Wild Cattle Creek State Forest on Dorrigo Plateau.

Apr 2022EPA penalty infrigement notice to FCNSW $45,000 felling hollow bearing trees across three areas — Mogo State Forest  

Feb 2021EPA penalty infrigement notice to FCNSW — $15,000 failed to mark a riparian exclusion zone boundary, contrary to the requirements of the Integrated Forestry Operations Approval held by FCNSW — Olney State Forest 

Feb 2021EPA issued two penalty notices and one official caution to FCNSW —  $30,000 —  inspections of the area following a harvesting operation identified 10 freshly cut mature trees within the hard and soft protection zones of a second order stream; a significant amount of debris pushed into a stream bed; and evidence of machine access, and earthworks caused by harvesting machinery within a protected zone — Ballengarra State Forest  

Mar 2021EPA two penalty notices three official cautions $33,000 — notices: for allegedly not including the critically endangered Swift Parrot records in planning for operations, and cautions: an alleged failure by FCNSW to mark-up eucalypt feed trees, an essential source of food for the birds, prior to harvesting  — Boyne, Bodalla and Mogo state forests  

Apr 2020EPA penalty notice —  $31,100 —  three alleged offences —  state forests Tantawangalo (not marking an adequate number of trees for retention and not marking the boundary of an environmentally sensitive area as an exclusion zone, required to protect the habitat of the Powerful Owl) and Bago (not marking an adequate number of habitat trees that needed to be retained).

Apr 2019 — $16,500 failed to implement the required protections for the rare threatened plant despite knowing of its location — Gibberagee State Forest

July 2018 — $30,000 breaching their environment protection licence and causing water pollution Gladstone State Forest