NATIVE VEGETATION COUNCIL v OVERLAND CORNER STATION PTY LTD & ANOR [2010] SAERDC 70 (20 December 2010)

Last Updated: 22 December 2010

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

NATIVE VEGETATION COUNCIL v OVERLAND CORNER STATION PTY LTD & ANOR

[2010] SAERDC 70

Judgment of Her Honour Judge Cole

20 December 2010

ENVIRONMENT AND PLANNING - TREES AND VEGETATION - NATIVE VEGETATION

Applicant seeks orders against respondent in relation to unlawful clearance of native vegetation - respondents agree to orders being made with the exception of advertising details of the breach in various publications and a costs order against them. Order made requiring respondents to place an advertisement in the publications in the terms sought by the Council. Further order made re costs.

Native Vegetation Act 1991; Environment, Resources & Development Court Act 1993, referred to.

EPA v Pannowitz [2005] NSWLEC 175; EPA v Baiada Poultry Pty Ltd [2008] NSWLEC 280; EPA v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299, considered.

NATIVE VEGETATION COUNCIL v OVERLAND CORNER STATION PTY LTD & ANOR
[2010] SAERDC 70

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter concerns proceedings brought by the Native Vegetation Council (“the Council”) against Overland Corner Station Pty Ltd (“Overland Corner”) and Mr Mitolo pursuant to s 31A of the Native Vegetation Act 1991 (“the Act”). At the hearing, the Council was represented by Ms Cattonar, and Overland Corner and Mr Mitolo were represented by Mr Minicozzi.
2. In 2008, both Overland Corner and Mr Mitolo were charged on complaint with offences against s 26(1) of the Native Vegetation Act relating to the clearance of native vegetation from portions of land in Section 74, and Allotment 33, Hundred of Parcoola, in 2006 and 2007, without the consent of the Council. The Hundred of Parcoola is near Berri. The matter proceeded in the Magistrates’ Court. Overland Corner was convicted on four counts of unlawful clearance. Mr Mitolo was also convicted on four counts, on the basis that he was the sole director and therefore a member of the governing body of Overland Corner when it undertook the unlawful clearance (see s 39 of the Act).
3. The Act provides, in s 26(2a):

If a court convicts a person –
(a) of an offence against subsection (1); or
(b) of an offence against subsection (2) where the effect of the contravention of or failure to comply with the condition that constitutes the offence is that native vegetation has been cleared without the consent of the Council,
the Council must, within the prescribed period, initiate civil proceedings under Division 2 in order to require the offender to make good the breach of this Act unless such proceedings have already been commenced, or an order has already been made, under that Division in relation to the matter, or the conviction is overturned on appeal.

4. The Council initiated these proceedings in compliance with s 26(2a).
5. The parties have participated in a conference pursuant to s 16 of the Environment, Resources and Development Court Act 1993. The parties have arrived at a settlement in relation to a number of elements of the proceedings. Two matters, however, remain outstanding;

1. The order sought in paragraph 2 of the summons, which seeks:

An Order pursuant to s 31A(6)(h) of the Native Vegetation Act 1991 that, within 1 month of the date of this Order you pay for and cause to be published, in a form approved by the Applicant, an advertisement in both a regional newspaper, and a daily newspaper published throughout the State, such advertisement to include the details of the breach of the Act, the environmental and other consequences flowing from the breach and the terms of the Orders made against you.

2. The order sought in paragraph 6 of the summons that Overland Corner and Mr Mitolo pay the Council’s costs of the action.
   
6. Overland Corner and Mr Mitolo are resisting the making of the orders in paragraphs 2 and 6 of the summons, and the Council is seeking those orders. All of the parties wished to proceed with the orders which had been agreed, together with whatever orders the Court considers appropriate in relation to the three outstanding issues.

Advertisement

7. The Act provides, in s 31A(6)(h), that the Court may, if satisfied, on the balance of probabilities, that the respondent to the application has breached the Act, by order:

require the respondent to take specified action to publicise-
(i) the breach of this Act; and
(ii) the environmental and other consequences flowing from the breach; and
(iii) the other requirements of the order made against the respondent;

8. Mr Minicozzi argued that an order compelling publication of an advertisement would be unnecessary and punitive and would not serve any public interest. Mr Minicozzi said that penalties for the breaches of the Act had already been imposed by the Magistrates’ Court. He argued that publication of an advertisement would amount to a further penalty. Mr Minicozzi said that the press had already informed the public of the matter in sufficient detail. Mr Minicozzi tendered a copy of the following articles:
   • an article in the Riverland Weekly of 3 December 2009, which reported the outcome of the prosecution and mentioned that the Council would now seek an order requiring Overland Corner “to reinstate the removed vegetation”,
     
   • an article in the Advertiser of 28 November 2009, which reported the outcome of the prosecution and said that the Council would be taking further action to seek an order “forcing Overland Corner...to re-grow the vegetation”.
     
   • an article in Greenlaw, a publication of the Environmental Defenders Office (SA) Inc, reporting the outcome of an appeal in relation to the prosecution.
     
9. Mr Minicozzi also tendered a copy of seven other media reports in 2010 relating to a different prosecution in relation to unlawful land clearance involving Mr Mitolo and a company called Ariver Run Pty Ltd. Mr Minicozzi argued that any public interest in the publication of information about legal action concerning unlawful land clearance had been satisfied by the media reports which had already appeared. Mr Minicozzi further argued that any deterrence which could be anticipated from publication had already been achieved by those media reports. He also argued that the references in the articles to the intention of the Council to seek reinstatement orders was sufficient to inform the public. Mr Minicozzi said that, given the extent of media coverage of the prosecutions, an order for further publication would be unreasonable, punitive, and would not serve any purpose at all. Mr Minicozzi sought to distinguish Mr Mitolo’s role from that of Overland Corner. He argued that, if publication is to be ordered, it should be confined to Overland Corner, because Mr Mitolo is not the owner of the land, and his only involvement is as the director of Overland Corner. Mr Minicozzi said that a directorship can change at any time.
10. Ms Cattonar argued that, in an action of this nature, an order for publication of the matters set out in s 31A(6)(h) should occur as a matter of course. Ms Cattonar said that it was important for personal deterrence and general deterrence. Ms Cattonar emphasised the importance of informing the public that one of the outcomes of these proceedings is an order for the re-establishment of native vegetation in the area cleared unlawfully. Ms Cattonar referred to several cases in the Land and Environment Court of NSW in which similar orders for publication have been made (EPA v Pannowitz[1], EPA v Baiada Poultry Pty Ltd[2] and EPA v Waste Recycling and Processing Corp[3]).
11. I do not consider that an order for publication under s 31A(6)(h) should be made automatically. Every case must be considered on its merits. In this case, further publication would have a further deterrent effect, both in relation to Overland Corner and Mr Mitolo and generally, (notwithstanding the previous media reports), but the greater value of publication in this matter is the provision to the public of information about the orders for remediation which can be made where native vegetation has been cleared without consent.
12. There is no basis for excluding Mr Mitolo from the publication. As the sole director of Overland Corner, he bears responsibility for the unlawful clearance.
13. An order will be made requiring Overland Corner and Mr Mitolo to place an advertisement in the Advertiser and the Riverland Weekly in the terms sought by the Council.

Costs

14. The Council sought an order that Overland Corner and Mr Mitolo pay its costs. Mr Minicozzi argued that the purpose of an action of this kind is to bring about the rehabilitation of the land affected by the unlawful clearance. He argued that this has been achieved, with the co-operation of the respondents. He said that the cost of the works the respondents had agreed to would be considerable, and that legal costs should not be added to them. In particular, Mr Minicozzi argued that Mr Mitolo’s involvement in the matter arose from his directorship of Overland Corner, and that it would be inappropriate for an order for costs to be made against him personally.
15. The Act, in s 31A(10), provides:

The Court may make such order in relation to costs of proceedings under this section as it thinks just and reasonable.

16. Ms Cattonar submitted that the successful party is ordinarily awarded its costs in litigation, and that there was no good reason to depart from that practice in this case. Ms Cattonar pointed out that the Council was compelled by the Act to bring the proceedings.
17. I agree with Ms Cattonar. Again, I can see no rational basis for excluding Mr Mitolo from the order. The first and second respondents will be ordered to pay the costs of the Council in this action, to be agreed or taxed.

Orders

18. The parties asked me to make the final orders agreed by them, and to add any further orders I found to be appropriate. There will be orders in the following terms:
    1. The Respondents shall comply with the plan entitled “Native Vegetation Management Plan Overland Corner Station” prepared by Sunraysia Environmental Pty Ltd and dated 10 August 2010 (“the Plan”) which is attached to these orders and is marked “Attachment A”.
       
    2. The Respondents are to allow access (as and when reasonably required and with reasonable notice to the Respondents) through and across Section 74 in the Hundred of Parcoola currently described in Certificate of Title Register Book Volume 5845 Folio 905 and Allotment 33 in the Hundred of Parcoola currently described in Certificate of Title Register Book Volume 5845 Folio 903 to the clearance areas (“the Areas”) to authorised officers of the Department for Environment and Heritage and the Department for Water, Land and Biodiversity Conservation and any authorised consultants approved by the Native Vegetation Council for purposes of inspecting the Areas to monitor the satisfactory implementation and progress of the Plan and those officers and/or consultants shall provide a copy of any report to the Respondents consequent upon any inspection of the Areas.
       
    3. The First Respondent shall serve a copy of this order on the Registrar-General within 28 days of receipt of a sealed copy of this order and the Registrar-General upon being served with the order shall note the order against Certificate of Title Register Book Volume 5845 Folio 905 and Certificate of Title Register Book Volume 5845 Folio 903, and shall not remove the said note except pursuant to an order of this Court and the Native Vegetation Council shall not object to any application for removal of the said note where the Respondents have complied with the terms of the Plan.
       
    4. Within one month of receipt of a sealed copy of this order, the Respondents shall, at their expense, cause to be published in both the Riverland Weekly and the Advertiser an advertisement in the terms of the draft advertisement annexed to this order and marked “Attachment B”.
       
    5. The Respondents shall pay the costs of the Native Vegetation Council in this action, to be agreed or taxed.

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[1] [2005] NSWLEC 175

[2] [2008] NSWLEC 280

[3] [2006] NSWLEC 419; (2006) 148 LGERA 299