Director-General of the Department of Environment and Climate Change v Hudson

(2009) 165 LGERA 256; [2009] NSWLEC 4

NSW Land and Environment Court

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Interrogate

Catchwords

1. Environmental Law
2. › Native vegetation
3. › Clearing of native vegetation
4. › Clearing without development consent or property vegetation plan
5. › Whether clearing proved beyond reasonable doubt
6. › Whether statutory defences available
7. › Whether clearing was routine agricultural management activity
8. › Removal of noxious weeds
9. › Whether clearing exceeded minimum extent necessary
10. › Native Vegetation Act 2003 (NSW), ss 12, 22, 11(1)(b)
1. Environmental Law
2. › Native vegetation
3. › Penalty
4. › Deliberate clearing of 486 hectares
5. › Objective seriousness
6. › General and specific deterrence
7. › No mitigating factors except absence of prior convictions
8. › Native Vegetation Act 2003 (NSW), s 12
9. › Environmental Planning and Assessment Act 1979 (NSW), s 126
1. Constitutional Law (Cth)
2. › Inconsistency of laws
3. › Whether state environmental legislation inconsistent with Commonwealth legislation
4. › Section 109 of the Constitution
5. › Whether Native Vegetation Act 2003 (NSW) inconsistent with Criminal Code Act 1995 (Cth) or Environment Protection and Biodiversity Conservation Act 1999 (Cth)
1. Constitutional Law (Cth)
2. › Acquisition of property
3. › Whether state legislation amounts to acquisition of property on other than just terms
4. › Whether s 51(xxxi) of the Constitution applies to state legislation
5. › Native Vegetation Act 2003 (NSW)

Quick Take

A fine of $400,000 (out of a maximum of $1.1 million) was imposed for the deliberate clearing of 486 hectares of native vegetation, establishing that large-scale deliberate clearing in defiance of express warnings falls within the upper range of seriousness. The noxious weed removal defence under ss 11(1)(b) and 22 of the Native Vegetation Act 2003 requires that clearing be carried out in accordance with the applicable weed control order and must not exceed the minimum extent necessary for the activity. Section 51(xxxi) of the Commonwealth Constitution does not apply to state legislation restricting land use.