Pine Creek Choir
https://www.youtube.com/watch?v=xuo7ZZ5NZ9A
Showing posts with label environmental vandalism. Show all posts
Showing posts with label environmental vandalism. Show all posts
Saturday, 9 November 2024
STOP state or private contract logging within and around the proposed boundaries of the NSW Great Koala National Park
Monday, 7 October 2024
So how would the proud new homeowners in Clarence Property Corporation Limited’s Wallum ‘Enviro Development’ residential estate feel if before the house mortgage is even paid off the ground is turning to swamp beneath their feet?
Lot 13 DP 1251383 15 Torakina Road and environs, Brunswick Heads NSW. IMAGE: Clarence Property Corporation Limited
Readers will catch a glimpse through dense tree cover of Simpsons Creek, which connects with the Brunswick River not far from the river's mouth.
On this mapping presented to Byron Shire Council on 8 February 2024, the reader can see that coastal wetlands and Simpons Creek adjoin the approximately 30.5ha development site and at times the creek comes within est. 200 meters of the proposed residential lot grid.
a.PNG)
Vegetation mapping with residential lot grid
In August this year the NSW Government agency AdaptNSW released the NSW and Australian Regional Climate Modelling (NARCliM 2.0) which contain regional snapshots outlining climate projections for different NSW regions. These provide a summary of plausible future climate change in NSW relative to a baseline of average climate from 1990–2009. The projections for 2050 represent averaged data for 2040–2059 and projections for 2090 represent averaged data for 2080–2099.
The North Coast Climate Change Snapshot at
clearly states volume ranges for sea level rise across the next 26 years (2024-2050) and across the following 40 years (2051-2090). The report expects seawater inundation heights of between 0.23m (2050) and 0.59m (2090) above the current mean sea level.
Climate Central, Coastal Risk Screening Tool, Simpsons Creek at a 0.5m sea level rise
In this mapping the projected sea level rise has already brought the ocean nearer the development site and the Simpson's Creek overflow to an est. 230m of the northern boundary of the residential lot grid by 2050. While saline creek water has entered the full length of the development site between 2051-2090 and is within less than est. 200m of the lower eastern boundary of the residential lot grid.
It doesn't take much imagination to realise that high rainfall events and storm surges will in future have a greater impact on Wallum ‘EnviroDevelopment’ Estate and with land, incapable of natural drainage likely to continue with poor drainage issues with or without climate change impacts, also likely to have the natural water table raised by persistent saltwater incursion into the Wallum wetlands, the outlook is not the rosy, bright 'sea change' life many prospective Wallum land purchasers believe they are buying.
Echo, 2 October 2024:
What’s under the hood of the environmental certification that the Wallum Brunswick Heads greenfield development relies on for its environmental credentials?
Like many developments across the nation, developer Clarence Property’s Wallum urban estate has been certified as an ‘EnviroDevelopment’.
It is clearly marked on www.wallumbrunswick.com.au, and it has been awarded accreditation across all six of its categories – water, energy, waste, materials, community and ecosystems.
A leaf is awarded for each category that has passed the technical standards.
Paid-for accreditation
This paid-for accreditation is awarded by the Sustainability and Research division of the Urban Development Institute of Australia (UDIA), based in Queensland.
UDIA describes EnviroDevelopment certification (www.envirodevelopment.com.au) as ‘a scientifically-based branding system designed to make it easier for purchasers to recognise and, thereby, select more environmentally sustainable homes and lifestyles’.
To be accredited with an EnviroDevelopment certification, developers need to, ‘demonstrate that an ecological net gain will be achieved for the project in relation to local native vegetation communities and fauna habitat resources.’
Yet throughout the Save Wallum campaign, ecologists, councillors, MPs and residents have raised issue with the claims that the development will produce an ecological net gain, and say instead that threatened ecological communities (TEC) are in danger.
Frog habitat claims. According to www.envirodevelopment.com.au/projects/wallum, ‘2.6ha of high-quality endangered wallum froglet habitat will be created as part of the early site works, which is monitored and protected during subdivision construction works to ensure success’.
Yet ecologist and Save Wallum campaigner, James Barrie, says, ‘The expectation that the threatened species of “Wallum” tolerate the contentious offset arrangements such as the machine-dug ponds (that are well known to fail for these rare acid frogs), poses a very real risk of local extinction of these species’.
‘There has been considerable outcry from several notable ecologists since, with detailed reports about why this is misleading, and does not constitute a ‘ecological net gain’ in practice by any standards.’
Stormwater design
The EnviroDevelopment website also claims of Wallum: ‘The site is also subject to an innovative stormwater design outcome which utilises the drainage characteristics of the existing sandy material on the site to treat stormwater without the need for extensive networks of underground concrete pipes and pits.’
Former Byron Shire Councillor, Duncan Dey, who is also a civil engineer specialising in flood hydrology and stormwater design told The Echo, ‘Clarence Property are relying on an “innovative” concept of recharge (my term for it). This is usually just to save money, but in this case, it is because the site is too flat to drain’.
‘The lack of hydraulic gradient is bizarrely even noted in the DA Consent Conditions of May 2023, just beneath Condition 11b).
‘The site simply doesn’t offer sufficient fall to drain correctly. Hydraulic gradients of less of one per cent are generally unacceptable. This project proposes a channel way flatter than that.
‘Several eminent local ecologists have developed outstanding knowledge of the Wallum site over recent decades’, says Mr Dey.
‘They have watched this development progress down the conveyor belt of NSW Planning, and found issues with most of the ecological reports.
‘The developer’s consultants omitted entire species, as well as coming up with proposals to recreate unique habitat to replace that which will be destroyed.
The Echo asked NSW Fair Trading if they ‘had any interest in ensuring the EnviroDevelopment certification is fit-for-purpose, or if not, can you please direct The Echo to who can?’
A NSW Fair Trading spokesperson replied, ‘Unfortunately, I haven’t been able to track down and confirm a NSW agency who may be able to provide you with commentary on your request’.
ACF comment
When presented with the draft story, Australian Conservation Foundation (ACF) investigator, Martine Lappan, told The Echo, ‘It is difficult to assess the integrity of an accreditation system when the application documents property developers submit are not made publicly available’.
‘A grand claim about protecting the environment may serve as a marketing tool, but that doesn’t make it scientifically accurate or even something that can be held to account under the law’, Ms Lappan added.
CP replies
Clarence Property was offered an opportunity to comment on this story.
Its CEO, Simon Kennedy, replied, ‘there are numerous factual errors in the story provided, and we dispute the ecological assessments made by Save Wallum Inc through its ecological interpreter both publicly, and those recently made under oath at the NSW parliamentary inquiry into the environment’.
‘We have followed all required environmental and bio-diversity requirements under the statutory approvals given to us to proceed with this project that will provide much needed housing for the Byron Shire’.
This story was provided to UDIA in draft form for comment numerous times, but no comment was forthcoming. [my yellow highlighting throughout this news article]
Friday, 13 September 2024
Talking 'zombie developments' with the NSW Government & Parliament in 2024
Excerpt from Tweed Shire Council's 17-page submission to the NSW Parliament, Legislative Assembly Committee on Environment and Planning, Inquiry into Historical development consents in NSW , dated 16 May 2024:
"(a) The current legal framework for development consents, including the physical commencement test.
The current legal framework requires an impact assessment in accordance with the objects and requirements of the Environmental Planning and Assessment Act 1979 (the "Act") prior to granting a consent.
Consents do not expire if they are commenced and for developments approved before 15 May 2020 it is too easy to prove commencement under the Act. This allows a consent approved decades ago and therefore assessed against decades old conditions to remain valid today.
As site conditions change and scientific knowledge advances, the impact assessments for these consents fall further apart from reality. As long as consents can continue to sit on land without expiration, the Act's objects are impossible to meet.
(b) Impacts to the planning system, development industry and property ownership as a result of the uncertain status of lawfully commenced development consents.
In failing to meet the Act's objects, historical development consents fail to achieve ecological sustainable development or consider climate change. The current legal framework requires authorities to explain to the community how such developments are
legally allowed to proceed (subject to procedural requirements) even while causing environmental damage that would be highly unlikely to be approved today. The balance between protecting private interests against confidence in the public planning system
and protection of the environment falls squarely in favour of the former.
Our understanding of disaster risk has improved through experience and is now considered with each assessment. Lacking this assessment in the past, historical development consents can place people and property at risk.
The extent of historic development consents that exist is unknown. Even recent development consents may become historical development consents in the future as site conditions and scientific knowledge change.
Local councils and communities are often unaware of a historical development consent in their backyard until a developer seeks to recommence that consent. Current register searches and prescribed documents for the conveyance of land do not allow for communities to factor potential developments into their purchase. In addition, whether a consent is a danger of recommencing is often beyond the knowledge of even the local council.
Approvals-based reporting faces the same concerns. The ability to effectively landbank and delay indefinitely results in reporting mechanisms being unable to adequately predict or rely on housing and development delivery by virtue of existing approvals
(c) Any barriers to addressing historical development consents using current legal provisions, and the benefits and costs to taxpayers of taking action of historical development concerns.
The barriers to addressing historical development consents and preventing new historical development consents lie primarily with a lack of funding, a lack of legal mechanisms that exist in other jurisdictions and a lack of certainty in the effect of existing legal provisions.
The Act contains a power to revoke a development consent in return for compensation.
No funding exists for this power and having never been tested, the extent of compensation owed is uncertain. Local councils can also acquire land. A similar lack of funding applies here by way of opportunity loss.
It may be possible to challenge a consent on grounds that it was not commenced.
However, before 15 May 2020, works as minor as inserting survey pegs into the ground were sufficient to show commencement. Accordingly, it is unlikely such a challenge would be successful.
Local councils can require developers comply with existing conditions of consent.
Conditions framed to the effect of "to Council's satisfaction" may be of assistance in barring consents from proceeding. Similarly, local councils can notify relevant authorities of developments that require additional approvals subject to savings provisions.
Local councils may be able to utilise the power under the Act to impose conditions on new consents to limit the period that consent may be carried out. This power's reach has not been tested in Court and may not extend to effectively imposing a quasicompletion date for construction and subdivision consents.
The Federal Government has the ability to require an approval for developments if they would harm certain threatened species. It does so by imposing an offence for proceeding without an approval. This requires action on behalf of the Federal Government and only applies to a selection of species set out in the Environment Protection and Biodivers;ty Act 1999 (Cth) (the "EPBC Act").
Zoning of land can be reviewed to ensure land is correctly zoned for development.
Insufficient resources are available to regularly undertake such reviews with sufficient depth and frequency. ......"
[my yellow highlighting]
Tweed Shire Council's full submission can be read at:
It is noted that Clarence Valley Council did not make a submission to this parliamentary inquiry. Even though, like many other local government areas having a extensive coastline, it has also been under sustained pressure to continue an historic practice of inappropriately developing floodplain land.
ECHO, 12 September 2024:
‘The 2022 floods in South-East Queensland and NSW are the costliest natural disaster for insurance costs in Australian history. As of June 2023, the ICA (Insurance Council of Australia) estimates the February-March 2022 floods in South-East Queensland and NSW have caused $5.87 billion in insured damages,’ according to the Australian Treasury. And that doesn’t include all those who were uninsured or the $5 billion that modelling showed the 2022 floods cost the economy.
So why are we continuing to allow developers to build on floodplains using development applications (DAs) that are ten or twenty years old and we know will cause significant future costs to our communities and governments – costs that will be in the billions of dollars and that ultimately we are paying for via our taxes and rates?
This was the question under discussion in Brunswick Heads on September 5 as concerned residents and community groups, CLAI Wallum, Friends of the Koala Inc, MPs and committee members of the NSW Parliamentary Inquiry into Historical Development Consents in NSW – aka ‘zombie’ developments met.
Zombie developments
A key part of the discussion is how to deal with legacy, or ‘zombie’ developments and their future impacts on flooding, fire and the environment. These are DAs that have been approved and have sat idle for years with only minimal work done in the first five years that then allows the DA to remain active indefinitely into the future. That is, they can be activated and developed under the original DA that does not have to take into account current legislation and learning, like the heights of the 2022 floods, and in the cases of Gales Holding in Kingscliff and Iron Gates in Evans Head they can fill floodplains and build on them with no reference to the impact these developments will have on existing and future housing, businesses and infrastructure.
‘This scourge on coastal communities along the entire NSW coast, has been very well documented in the report “Concreting our Coast: The developer onslaught destroying our coastal villages and environment” by Greens MP Cate Faehrmann,’ Kingscliff Ratepayers and Progress Association (KRPA) explained in a submission to the inquiry.
Following the meeting KRPA President Peter Newton told The Echo that: ‘Kingscliff and other areas of the Tweed Shire remain under threat from these historic approvals on the floodplain and in ecologically sensitive areas. The association welcomed the opportunity for a full and frank dialogue on the risks we are facing and the potential for planning reforms.’
Some recommendations from those attending the roundtable included potential buybacks or land swaps for these historically-approved DAs.
‘The financial cost of recovery to communities and governments is eye-watering,’ said KRPA in their submission.
‘We need to shift the emphasis from spending on flood recovery to spending on flood prevention and mitigation. This may require billions in, for example, compensation/land swaps to acquire such historically approved land from developers, but we need to start somewhere. Governments are spending billions on each flood event – this at least would be a one-off cost. This cost cannot be met by councils (and therefore ratepayers) and needs to be addressed at the state and federal government levels.’
Don’t use it, lose it
Stricter regulations around how long a DA can remain active were also put forward with president of the Evans Head Residents for Sustainable Development Incorporated (EHRSDI), Richard Gates, saying that ‘fixed use-by dates for commencement and completion of DAs’ need to be implemented....
Read the full article at:
https://www.echo.net.au/2024/09/what-can-be-done-about-dangerous-zombie-das/
Friday, 6 September 2024
The battle continues to save Wallum Wetlands from further encroachment by developers
Clarence Property Corporation Limited - issuer of the PDS for Clarence Property Diversified Investment Trust (formerly Westlawn Property Trust) & Epig Lennox Property Trust - through its subsidiaries Clare Property Corporation Limited and Bayside Brunswick Pty Ltd continues to insist it has a right to swing its wrecking ball through what remains of natural landscapes in coastal areas of the NSW Northern Rivers region.
Currently it has eight largescale development projects in northern New South Wales listed on its website.
The Wallum development at Brunswick Heads is one of these sites and Lot 13 DP 1251383 and environs on Torakina Road, Brunswick Heads NSW, has been a bone of contention for years as the local community continues to resist this 'zombieDA'.
 |
| Wallum Land IMAGE: Mac Maderski at savewallum.com |
.PNG) |
| Vegetation mapping of Lot 13 DP 1251383 and environs |
Echo, 29 August 2024:
 |
Both opposing parties regarding the 126-housing Wallum development in Bayside, Brunswick Heads, are claiming a victory after the latest court decision, handed down on August 23 by Justice Bromwich.
In a statement, Save Wallum Inc, say the Federal Court upheld the stop-work injunction.
Spokesperson Svea Pitman said, ‘The main contest before the court at the further hearing of Save Wallum Inc’s interlocutory injunction application was the controversial construction of nine artificial frog ponds, which are proposed as part of the early development works’.
‘Justice Bromwich accepted that the construction of these ponds may pose a risk to the site’s Wallum sedge frog population, and has blocked any construction of the proposed ponds until a final determination of the matter.
‘The orders otherwise permit very limited works, including installation of bunting, regeneration of the seed bank along sandy tracks and weed maintenance – strictly without the use of weedicides’.
The trial is scheduled to begin October 14, Ms Pitman said.
Meanwhile, developer Clarence Property says it is ‘looking forward to progressing with its approved housing estate in the Byron Shire after the Federal Court injunction was amended to permit key works to continue’.
CEO Simon Kennedy repeated his comments around the ‘critical need for new housing in the shire that had been identified by Byron Shire Council’.
He said, ‘We believe the court’s ruling affirms our commitment to responsible development and environmental stewardship and we will continue to respect the legal process as we work towards the final determination of this matter in October’.
‘Our focus now is on ensuring safe access for our contractors and progressing with this essential project.’
Ms Pitman added, ‘This is another major win for our community and for the race to save this unique wallum ecosystem’.
High ecological value
Save Wallum advocates say they celebrated Friday’s outcome, ‘viewing it as a critical step toward protecting one of the last intact wallum heathland ecosystems in the Byron Shire’.
Ms Pitman added, ‘This is another major win for our community and for the race to save this unique wallum ecosystem’.
‘The high ecological value of this area is undeniable, with its floristic diversity, absence of invasive weeds, and the presence of so many threatened species’.
She continued, ‘Australia has the highest rate of mammal extinction globally, and in the Northern Rivers, we are on the frontline of the climate crisis.
‘It’s heartening to see the court’s decision ensuring that no destructive works can proceed at this stage.’
~~~~~~~~~~~~
Save Wallum Incorporated v Clarence Property Corporation Limited [2024] FCA 967 interim injunction ruling can be found at:
https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2024/967.html
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, 26 April 2024
Help get resurrected 'zombie' development applications out of the NSW planning system. Sign this petition now.
"Zombie development applications (DAs), or legacy DAs, are old approvals that are resurrected by a developer and pursued under outdated legislation....‘When a zombie DA gets resurrected, it isn’t measured against current environmental and natural disaster legislation, but instead is tragically measured against older, out of date standards, that are vastly out of step with local community values and crucial environmental regulations,’....‘zombie developments are an ecologically harmful leverage of loopholes in planning legislation, which pushes local populations of threatened species all the way to the edge of their ability to stave off extinction, and robs local communities of places they truly value....‘The accumulative impacts of zombie developments all along the coastline is a “death by a thousand cuts” effect to our threatened species and their rare and beautiful habitats.’" [Echo, 2 December 2023]
Property developers and land speculators are using zombie DAs to build large residential subdivisions on high risk floodplains along the 1,973 km length of the NSW coastal zone. Raising the level of communal risk for long-established local communities in times of natural disaster and/or climate emergency.
"GET THE ZOMBIES OUT OF THE PLANNING SYSTEM
Property developers are taking advantage of legal loopholes to force through decades-old developments which are driving the extinction crisis, filling floodplains and causing pain in local communities. These developments are against the evidence of modern science, against modern environmental protection laws and against the wishes of local communities.
They may not like it, but developers should at least follow the law of the day, even if it changes. We can’t have long-dead development proposals haunting our communities forever.
There’s been a groundswell of incredible community action in response to these zombie developments - thousands of locals signing petitions, showing up to rallies and taking direct action. A movement is building to put the planet and people before the profit of property developers.
NOW IS THE MOMENT TO CALL ON THE MINISTER FOR PLANNING PAUL SCULLY TO SHUT THESE ZOMBIE DEVELOPMENTS DOWN."
Sign the petition to NSW Minister for Planning and Public Spaces Paul Scully MLA at:
https://www.suehigginson.org/zombie_development_sepp
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