On 11 August 2023, the County Court of Victoria handed down its decision in the matter of East Rex Road Property Pty Ltd v Hume City Council; Dimech v Hume City Council [2023] VCC 1461, in which it heard an appeal against sentences imposed by the Magistrates’ Court. Maddocks acted on behalf of Hume City Council (Council) in respect of the proceedings.

On appeal, the Court imposed significant penalties and convictions on the corporate owner of land and its director for the unlawful destruction of native vegetation and carrying out of works, without a planning permit, in contravention of the Hume Planning Scheme (Planning Scheme).

The facts

Prior to the offences, the site accommodated approximately 2.488 hectares of native vegetation, including a number of mature River Red Gums and a small area of introduced vegetation. The vegetation was described as a functioning ecosystem that provided habitat for a wide range of species.

The area corresponded to the Plains Grassy Woodland Ecological Vegetation Class (EVC) and met the description and condition thresholds of the Grassy Eucalypt Woodland of the Victorian Volcanic Plain EVC, listed as ‘critically endangered’ under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Mr Adrian Lamande, an expert ecologist and biologist, described the vegetation as ‘one of, if not the best, examples’ of this vegetation type on the Victorian Volcanic Plain and within the Port Phillip and Westernport catchment management area that he had personally seen. Council had previously refused an application lodged by the previous owner to remove native vegetation from the site.

Between November 2019 and January 2020, works were undertaken on the site, including the destruction of vegetation, the removal of topsoil and earth, and the spreading of gravel for the purposes of creating a hardstand. A planning permit was required under the Planning Scheme to carry out works and remove, destroy or lop native vegetation. Council had not issued a planning permit authorising these works.

The director did not personally contact Council to determine whether a planning permit was required to undertake the works. A contractor engaged by the director advised him that he had spoken to a planning officer at Council who told him that a planning permit was not required to undertake those works.

Although the fact that the conversation between the director and the contractor occurred was not contested by the Council on appeal, Council relied on affidavit evidence from a planning officer at the Magistrates’ Court hearing, in which she stated that she did not recall having any such conversation with the contractor.

After these works had been undertaken on the site, the company owner applied to Council for a planning permit to construct six warehouses on the site. Following Council’s refusal of that application, the company owner filed an application for review of that decision in the Victorian Civil and Administrative Tribunal (Tribunal). In April 2023, the Tribunal set aside Council’s refusal and granted a permit for that development.

Charges

Under s 126(2) of the PE Act, the owner of land which is developed in contravention of a planning scheme is guilty of an offence. Under s 128(1) of the PE Act, if a company commits an offence under s 126(2), an officer of that company also commits an offence under that provision if the officer failed to exercise due diligence in preventing the commission of that offence.

Council charged the company owner with being the owner of land upon which both native vegetation was destroyed (Charge 1) and works were carried out (Charge 2), without a permit. Additionally, Council charged the director, in a personal capacity, for failing to exercise due diligence in preventing the commission of the offences alleged against the company owner.

For the purposes of those proceedings, the company owner and director pleaded ‘not guilty’ to the two charges brought against each. In May 2022, the Magistrates’ Court found both parties ‘guilty’ and imposed significant penalties and convictions, including orders for the payment of Council’s costs in bringing those proceedings.

Following this, the company and director appealed the sentences imposed by the Magistrates’ Court. Notably, the appeal was a de novo hearing, meaning it was effectively a re-hearing of the matter before the County Court.

Decision

Ultimately, the County Court sentenced the company owner and its director as follows:

Company Owner	Director
Charge 1: Convicted and fined $85,000, and Charge 2: Convicted and fined $40,000.	Charge 1: Convicted and fined $70,000, and Charge 2: Convicted and fined $30,000.

In imposing its sentence, the County Court had regard to a number of matters, including that:

• significant native vegetation, which comprised an important and critically endangered woodland vegetation and functioning ecosystem which provided habitat for a wide range of species, was destroyed and lost

• the company owner and its director should have done more than simply ‘take the word’ of its contractor, given that the director managed a number of property-related companies and where responsibility to ensure compliance with the law ultimately lay with them

• the destruction of the native vegetation and carrying out of works on the land was a commercially based decision, given it was undertaken in preparation of the subdivision and development of the site

• the decision by the company owner and director to plead ‘guilty’ was late given both appellants pleaded ‘not guilty’ at the Magistrates’ Court hearing, and did not amount to evidence of any remorse on their part, and

• the sentences imposed manifest the Court’s denunciation of the type of conduct which occurred.

The Court rejected the submission on behalf of the company owner and director that the offences were at the lower end of culpability. The fact that the company secured a planning permit to develop the land with six factories was not a mitigating factor.

The Court also ordered that the company owner and director pay Council a total of $60,000 towards the professional fees it incurred in respect of the Magistrates’ and County Court proceedings.

Key takeaways

Given there are very few reported decisions concerning the criminal prosecution of vegetation removal offences, especially within the last ten years, the decision provides an emphatic and contemporary sentencing benchmark for offences of the type described.

The sentences imposed by the Court, reflect a general recognition that environmental destruction is a significant offence which must be adequately punished as a means of denunciation and to deter similar offences in the future.

If you wish to discuss any matters relating to planning and environmental offences, please contact our Planning & Environment team.