EPBC Act

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Case judgements

Marloelle Pty Ltd commits to pay after vegetation cleared

An enforceable undertaking was accepted on 31 October 2012 from Marloelle Pty Ltd following clearing between late 2008 and mid 2011 where work at the company's Windmill Hill residential estate cleared 4.5 hectares of the critically endangered ecological community ‘White Box – Yellow Box – Blakely’s Red Gum and derived native grasslands’.

An amount of $184,000 will be spent on the management of weeds in the affected ecological community remaining on site, research into threats affecting the ecological community, rehabilitation of a portion of the ecological community on site and signage and fencing to identify and protect the community during rehabilitation actions.

Goodman Property Services commits to pay after vegetation cleared

An enforceable undertaking was accepted on 31 October 2012 from Goodman Property Services following an incident in early 2011 where work at the company's Bungarribee Industrial Estate cleared 3.4 hectares of the critically endangered ecological community ‘Cumberland Plain Shale Woodlands and Shale-Gravel Transition Forest’, with a further 2.6 hectares yet to be cleared.

An amount of $200,000 will be spent on research into threats affecting the ecological community.

Coppercats Pty Ltd and Gallivantour Super Pty Ltd pledge $80,400 after vegetation cleared

An enforceable undertaking has been agreed to by the Department of Sustainability, Environment, Water, Population and Communities to the sum of $80,400 after Coppercats Pty Ltd and Gallivantour Super Pty Ltd were found to have wrongfully cleared vegetation for an industrial site at Picton East, WA. The department was made aware of the unauthorised clearing of approximately 6.7 ha of vegetation in 2010. The vegetation would have provided key habitat for species listed as threatened under national environment law, including the Western ringtail possum which is vulnerable and the endangered Carnaby's black cockatoo. The company has cooperated with departmental officers throughout the investigation and has made an undertaking to pay money towards rehabilitation of vegetation for the affected threatened species.

Hancock Victorian Plantations Pty Ltd pledges $305,000 after grasslands cleared

The Australian Government secured a legally enforceable $305,000 pledge from plantation timber company Hancock Victorian Plantations Pty Ltd to repair damage done to a critically endangered grassland in south western Victoria and to better protect what remains. Between March and May last year, a contractor employed by Hancock Victorian Plantations cleared an area about the size of a soccer field (0.7ha) of a protected ecological community, known as Natural Temperate Grassland of the Victorian Volcanic Plain, near Mannibadar. The company agreed to spend $305,000 towards the recovery and rehabilitation of grasslands in the region.

Centennial Coal to fund a $1.45 million research program

The department's investigation found that Centennial Coal's long wall coal mining operations on the Newnes Plateau, near Lithgow, New South Wales, had caused a significant impact on the endangered Temperate highland peat swamps on sandstone ecological community.

The mining activities caused a loss of ecosystem function shown by loss of peat, erosion, vegetation dieback and weed invasion in three swamps. They also caused the formation of a large slump hole, several metres wide and more than one metre deep, at the East Wolgan swamp.

Centennial Coal will pay $1.45 million towards a research program to be administered by the Fenner School of Environment and Society at the Australian National University. This research program will be of great conservation benefit for these protected swamps and inform better understanding of the impacts of land use change.

Landowner to repair environmental damage

A departmental investigation found that Douglas Edward Rutledge had allowed the clearing of an endangered ecological community protected under national environment law at Warren in the NSW Central West.

About 30 hectares of the endangered ecological community, known as Weeping Myall Woodlands, was disturbed. Trees were pushed over and stacked into piles, removing the tree canopy and potentially spreading weeds through the site.

In a cooperative effort between the federal and New South Wales environment departments, the clearing was halted before the ecological community was damaged beyond repair. The department took this circumstance into account in recommending that the landowner be responsible for repairing the damage caused to the ecological community.

The Remediation Determination issued by the department requires Mr Rutledge to manage the area and help natural regeneration of the ecological community. Management actions include excluding domestic stock from the area, controlling weeds and feral animals at the site, and conducting ongoing monitoring and reporting.

The NSW Office of Environment and Heritage have also issued penalty notices of $3300 each to Mr Rutledge and the contractor who undertook the clearing.

Singleton Council to repair environmental damage

A departmental investigation found that Singleton Council had allowed the clearing of part of a critically endangered ecological community, protected under national environment law—the Weeping Myall – Coobah – Scrub Wilga shrubland of the Hunter Valley at Jerrys Plains Cemetery in the Hunter Valley.

Less than three hectares of this ecological community remains—all of it near the cemetery. Trees were cut down, and a rip line made through a weed infestation, potentially spreading weeds through the site and diminishing previous weed control efforts from the state government.

The Remediation Determination requires Singleton Council to spend $100,000 over five years on managing weeds at the site, and to prepare a management plan outlining how the cemetery’s native vegetation will be protected, including through ongoing monitoring and weed control activities.

Geelong Council pledges improvements, repairs in response to grassland clearing

The City of Greater Geelong Council approved the construction of a pipeline from the Barwon Prison to Elcho Park. These works resulted in the removal and disturbance of approximately 0.8 hectares of Natural Temperate Grasslands of the Volcanic Plain (NTGVVP) listed as critically endangered under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

On 26 November 2010 the City of Greater Geelong Council entered into an Enforceable Undertaking with SEWPaC agreeing to pay $131,000+.

In accepting this undertaking, SEWPaC took into account City of Greater Geelong Council's commitment to satisfy requirements of the Victorian Native Vegetation Management Framework, and in consultation with the Department of Sustainability and the Environment, valued at $100,000.

Company pays out for grassland clearing

An investment company will pay $62,000 towards conservation research and protect up to 13 hectares of threatened species habitat after breaching national environment law.

Cromwell Property Securities entered into an enforceable undertaking with the Commonwealth in reparation for earthworks which damaged protected native grasslands in Melbourne.

Holcim Australia pays out more than $280,000 after damaging rock art on Burrup Peninsula

An enforceable undertaking was accepted on 8 February 2010 from Holcim Australia-formerly Cemex Australia-following an incident in late 2008 where work at the company's quarry damaged part of the National Heritage place.

A minimum of $280,000 will be spent to improve the company's management practices and understanding of National Heritage values. The company must also enter into cultural heritage agreements with three Aboriginal groups in the area, which will lead to significant financial and other benefits to those communities over the life of the quarry.

Bridge and Marine Australia Pty Ltd pays out $200,000 after protected ecological community and associated species destroyed — Victoria

Bridge and Marine must pay $200,000 towards the remediation of grasslands, purchase of offsets and recovery actions for a nationally protected species after it cleared an important grassland site for storage of heavy materials.

The payment is part of an enforceable undertaking negotiated by the department under the national environment law as an alternative to taking the matter through the courts.

As part of the undertaking, Bridge and Marine must pay a $30,000 to the Victorian Department of Sustainability and Environment for the recovery of the Striped Legless Lizard. The undertaking also included an amount mediated through the Victorian Civil and Administrative Tribunal requiring Bridge and Marine to pay $170,000 to Brimbank City Council for the remediation and purchase of offsets of native grassland sites within the Brimbank municipality.

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 before clearing

Windella Ramsar wetland after 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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