Case judgements

Company fined for clearing habitat

On 17 July 2009 the Federal Court declared by consent that Rocky Lamattina & Sons Pty Ltd took an action likely to have a significant impact on the South-eastern Red-tailed Black Cockatoo in contravention of section 18(3) of the EPBC Act and imposed a pecuniary penalty of $220,000 and costs of $22,500. Justice Mansfield held that this was the minimum penalty having regard to the deliberate nature of the conduct, the indifference to its potential consequences, and the need for the court to fix a penalty that will operate as a deterrent to those who might otherwise be minded to clear native vegetation contrary to section 18(3) of the EPBC Act.

The Judge commented that, but for the respondent's early co-operation with the investigation, he would have reached a considerably higher penalty.

V/Line pays out $188,000 after protected species destroyed - Victoria

An enforceable undertaking, under which V/Line will pay more than $188,000 after undertaking clearing works that affected the population of a listed critically endangered species was accepted by the department on 16 July 2009. V/Line Passenger Pty Ltd is responsible for operating Victoria's regional rail network. The undertaking requires V/Line to contribute $25,000 to the national recovery team for the affected species as well as providing for fencing, rehabilitation and monitoring of the affected site.

Enforceable undertaking in Victoria

Between 1 March 2007 and 17 April 2007 Hardies Hill took an action, through engaging, instructing and contracting the clearance of rocks and native vegetation in an area of approximately 8 hectares on the property known as Chatham's Paddock, at 680 Cressy Shelford Road, Barunah Plains, Victoria. The land contained habitat for an important population of the Striped Legless Lizard (Delma impar), a list of threatened species under the Environment Protection and Biodiversity Conservation Act 1999.

At the time of the clearing, Hardies Hill was not aware that the land contained important habitat for the Striped Legless Lizard and did not hold an approval pursuant to Part 9 of the EPBC Act.

This clearing has had and will continue to have significant impact on the Striped Legless Lizard, in that it destroyed the habitat for an important population.

Record penalty for illegal clearing of wetland

Gwydir Ramsar Wetlands - Penalty decision - 14 October 2004

In 2004 the Federal Court of Australia imposed a record $450,000 penalty on a NSW farmer and his company for illegally clearing and ploughing a wetland of international importance. This is the heaviest penalty yet to be imposed on an Australian landholder for damage to the environment and is the first civil prosecution against a party in relation to a matter of national environmental significance under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The penalty followed a Federal Court decision of 11 June 2004, which found that Mr Ronald Greentree and AUEN Grain Pty Ltd had contravened the EPBC Act as a result of clearing, ploughing and wheat-cropping activities conducted within the Gwydir Ramsar Wetlands, near Moree, in New South Wales.

The court fined Mr Greentree $150,000 and his company, AUEN Grain Pty Ltd, $300,000 for significant impacts caused to the wetlands and awarded costs to the Australian Government.

The court issued an injunction preventing Mr Greentree from taking any further agricultural activity on the land, and also from running livestock on the site until at least 2007. Mr Greentree was also ordered to rehabilitate the site.

Windella Ramsar wetland before clearing

Windella Ramsar wetland after clearing

The EPBC Act

The EPBC Act was introduced in July 2000. Under the Act, actions that have or are likely to have a significant impact on the matters of national environmental significance are prohibited unless prior approval is granted by the Minister for the Environment, Water, Heritage and the Arts.

The Gwydir Wetlands are one of Australia's wetlands of international importance, listed under the Ramsar Convention. Ramsar listed sites are representative, rare or unique wetlands, and are important for conserving biological diversity. They provide seasonal breeding and feeding grounds for close to 500,000 colonial water birds, including rare and migratory birds, such as magpie geese, glossy ibis and brolgas.

Summary of reasons for the Federal Court's decision

In making his decision, Justice Sackville found that Mr Greentree instructed the farming operations manager of Greentree Farming to clear and plough land on the Windella property in preparation for a seed bed. By 30 July 2003, virtually the whole of the Ramsar site on Windella had been cleared and ploughed. By 16 August 2003, approximately 30 percent had been sown with wheat.

Justice Sackville found that 'the contravening conduct by Mr Greentree and Auen was deliberate' and that 'Mr Greentree (and, through him Auen) was well aware that any unauthorised action on his part that had significant impact on the ecological character of Windella Ramsar site would constitute a contravention of the EPBC Act.'

'Mr Greentree was well aware of the approximate boundaries of the Windella Ramsar site when he gave instructions for the clearing and ploughing of virtually the whole site and the sowing of wheat on a substantial part of the site. When giving the instructions, Mr Greentree knew that whatever ecological character the site retained as a wetland would be largely destroyed, at least for a lengthy period, once his instructions were carried out.'

Justice Sackville also found that 'the contravening conduct took place over a period of time' and that 'the deliberate conduct was more than an isolated act of the kind that might occur as the result of an impulsive error of judgment. It was planned conduct.'

The actions of Mr Greentree and Auen caused significant ecological damage to the Windella Ramsar site. 'The native vegetation remaining on the site in February 2003 was almost entirely removed. Moreover, the capacity of the site to regenerate as a wetland refuge for native plants and as a habitat for native fauna has been severely impaired.'

In setting the pecuniary penalty, Justice Sackville noted that neither Mr Greentree nor Auen has shown contrition for their conduct. Nothing has been said on their behalf that amounts to an unqualified acknowledgment that their conduct was wrong. Nor have they expressed regret at the environmental damage that their conduct has caused. Justice Sackville rejected the contention that the conduct was the result of an honest but mistaken belief.

Working with farmers

A focus of the Australian Government since the introduction of the EPBC Act has been to work with farmers to increase understanding of the Act and help landholders meet their obligations. Most farmers are good environmental managers keen to use whatever resources are available to protect both the natural and economic value of their land. The Government will continue to help them work within the legislation.

As an example of the assistance that is provided, the government funds an officer who works with the National Farmers Federation to provide advice and assistance to farmers who think they may be impacted by the legislation.

Staff from the Department of Environment, Water, Heritage and the Arts often work with farmers who have endangered communities on their land to develop farm management strategies that allow property development while protecting important parts of the environment. The Department has negotiated a number of conservation agreements with farmers to help them with the process of protecting important habitats on their farms.

Resorting to legal action to enforce the Act is not undertaken lightly and used only in the most serious cases, and only after cooperative or alternative approaches to resolving disputes have failed. Landholders who do the right thing by the environment and the law can see that others who seek advantage by disregarding environmental regulations will be called to account.

For more information on the penalty decision see: Minister for the Environment & Heritage v Greentree (No 3) [2004] FCA 1317 (14 October 2004)

Landmark Federal Court Decision

11 June 2004

In the first case concerning impacts on a matter of National Environmental Significance under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), the Federal Court ruled in favour of the Minister for the Environment and Water Resources, Dr David Kemp, in his civil case against the manager of the Windella wheat farm, Ronald Greentree.

Dr Kemp took civil action against Mr Greentree in 2003, after a site inspection revealed that the 100 hectares of the Gwydir Wetlands located on the 1200-hectare Windella wheat farm, near Moree, had been cleared and ploughed without approval.

On 11 June 2004, the Federal Court found that Mr Greentree and his company, Auen Grain Pty Ltd, were responsible for the clearing and subsequent planting of a wheat crop within the Ramsar-listed Gwydir Wetlands on Windella, and that this activity had a significant impact on the ecological character of the wetland.

Under the EPBC Act, actions that have or are likely to have a significant impact on the ecological character of declared Ramsar wetlands are prohibited unless prior approval is granted by the Minister. The maximum penalty provided for such offences under the EPBC Act is $550 000 for an individual, or $5.5 million for a body corporate. The matter will be the subject of further hearings in the Federal Court in coming weeks, in relation to the penalty and any rehabilitation orders.

The Gwydir Wetlands are one of Australia's 64 Wetlands of International Importance, listed under the Ramsar Convention. Ramsar listed sites are representative, rare or unique wetlands, and are important for conserving biological diversity. The Gwydir Wetlands provides seasonal breeding and feeding grounds for close to 500 000 colonial water birds, including rare and migratory birds, such as magpie geese, glossy ibis and brolgas.

For more details on the judgement: Minister for the Environment & Heritage v Greentree (No 2) (with Corrigendum dated 8 September 2004) - 11 June 2004

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