Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4

Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4

The Court was satisfied beyond reasonable doubt that Mr Hudson authorised the deliberate clearing of native vegetation on Yarrol without development consent or a property vegetation plan. The vegetation was indigenous native trees, most of the clearing was not permitted clearing, and the noxious weed defence failed because the clearing was not carried out as required under the weed control order and exceeded the minimum extent necessary. The asserted constitutional and fee simple ownership defences failed, and the evidence also proved that Mr Hudson failed without reasonable excuse to comply with a valid s 36 notice. The seriousness, deliberate nature and scale of the offending warranted...

Jurisdiction
Australia
Judgment Date
11 February 2009
Procedural Posture
Criminal Prosecution for Environmental Offences Under the Native Vegetation Act 2003 (nsw) / Judgment After Hearing on Pleas of Not Guilty; Conviction and Sentence
Outcome
Defendant convicted of both offences, fined, and ordered to pay the prosecutor's costs.
Legal Topics
['clearing Native Vegetation Without Development Consent or a Property Vegetation Plan' 'failure to Comply With Notice to Provide Information' 'routine Agricultural Management Activities' 'noxious Weed Control' 'constitutional Acquisition of Property and Inconsistency' 'environmental Offence Penalties' 'costs in Criminal Proceedings']
['environmental Law' 'criminal Law' 'sentencing' 'constitutional Law'] ['clearing Native Vegetation Without Development Consent or a Property Vegetation Plan' 'failure to Comply With Notice to Provide Information' 'routine Agricultural Management Activities' 'noxious Weed Control' 'constitutional Acquisition of Property and Inconsistency' 'environmental Offence Penalties' 'costs in Criminal Proceedings']

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Procedural Posture

Criminal Prosecution for Environmental Offences Under the Native Vegetation Act 2003 (nsw) / Judgment After Hearing on Pleas of Not Guilty; Conviction and Sentence

Legal Issues

  1. 1 ['Whether clearing occurred on Yarrol between about 9 November 2006 and 5 March 2007.' 'Whether the cleared vegetation was native vegetation within the meaning of the Native Vegetation Act 2003.' 'Whether the clearing was authorised by a development consent or property vegetation plan.' 'Whether Mr Hudson authorised the clearing.' 'Whether any statutory defence applied, including permitted clearing, regrowth, groundcover, routine agricultural management activities, or noxious weed removal.' 'Whether the Native Vegetation Act 2003 was void or unenforceable because of acquisition of property otherwise than on just terms or inconsistency with Commonwealth legislation.' 'Whether Mr Hudson failed without reasonable excuse to comply with a notice issued under s 36(2) of the Native Vegetation Act 2003.' 'What penalties and costs orders should be imposed.']

Ratio Decidendi

The Court was satisfied beyond reasonable doubt that Mr Hudson authorised the deliberate clearing of native vegetation on Yarrol without development consent or a property vegetation plan. The vegetation was indigenous native trees, most of the clearing was not permitted clearing, and the noxious weed defence failed because the clearing was not carried out as required under the weed control order and exceeded the minimum extent necessary. The asserted constitutional and fee simple ownership defences failed, and the evidence also proved that Mr Hudson failed without reasonable excuse to comply with a valid s 36 notice. The seriousness, deliberate nature and scale of the offending warranted...

Court Disposition

Defendant convicted of both offences, fined, and ordered to pay the prosecutor's costs.

Orders

  • ['LEC No. 50014 of 2008: The defendant is convicted of the offence against s 12 of the Native Vegetation Act 2003, as charged.' 'LEC No. 50014 of 2008: The defendant is fined the sum of $400,000.' "LEC No. 50014 of 2008: The defendant must pay the prosecutor's costs in accordance with s 257B of the Criminal...