Billionaire developer Bob Ell’s company Leda has been fined $32,500 by the Land and Environment Court after admitting to the controversial illegal clearing of vegetation along a 320-metre stretch of creek in the Cudgen Nature Reserve next to the company’s Kings Forest township development.
Leda, the Tweed’s biggest developer, has also been ordered to carry out rehabilitation works at a cost of up to $150,000 and pay legal costs of $38,000 for the damage to the creek’s plants, bed and banks in March 2011.
The company was subject to a scathing attack in parliament several months after the clearing in which the damage was described as a ‘shocking case’ of illegal clearing ‘in flagrant defiance’ of the reserve’s status as a habitat for threatened species.
The company had admitted it had ‘accidentally’ cleared the huge swathe of protected bushland next to its subdivision for 4,500 homes on the Tweed Coast.
Leda Management Services Pty Ltd pleaded guilty before Justice Nicola Pain to breaching the National Parks and Wildlife Act in an offence which carried a maximum fine of $1.1 million.
The charge, brought against Leda by the NSW Office of Environment and Heritage, involved the illegal clearing by excavator operated by a Leda employee of around 3,200 square metres of vegetation and damage of the bed and banks of Blacks Creek in the nature reserve.
At the sentencing hearing earlier this week, the court was told there were no consents, approvals, permits or licences in place in relation to the works that took place in the reserve which had significantly damaged the vegetation, soil and the creek.
As part of the sentence, Justice Pain also ordered the company at its expense to place a quarter-page sized advertisement within 28 days in several local newspapers, including the now defunct former sister publication to Echonetdaily, the Tweed Echo, outlining the conviction and details of the offence and penalties imposed.
In her judgement, Justice Pain said that in the period leading up to the offence, Leda’s general manager for development Greg Campbell had instructed company contractor Dennis Hughes to ‘attend to the Kings Forest drains’, “meaning Blacks Creek”‘.
She said Mr Hughes was also responsible for managing the resources of another Leda group company, mainly in property management and earthworks at Kings Forest.
He was also ‘responsible for keeping plant and equipment economically operative and maintaining the various Leda properties that require maintenance including other Leda properties (such as Cobaki and other properties in Queensland).
‘From time to time he would use equipment to carry out work that he envisages is necessary,’ she said.
She said Mr Hughes had then arranged for Scott Dawson, who was employed by Leda, to carry out clearing works using his excavator in the area of the site where it borders with the nature reserve.
She said Mr Campbell ‘did not recall any specific discussion with Mr Hughes regarding the Kings Forest site property boundary with the nature reserve; however he thought Mr Hughes was aware of the boundary given the length of time Mr Hughes had been involved with the Kings Forest site’.
Justice Pain said Mr Hughes had directed Mr Dawson to clear from the timber bridge, being the boundary between the Kings Forest site and the nature reserve, and the east into the nature reserve.
‘It appears that Mr Hughes misunderstood the extent of the Kings Forest site and the location of the nature reserve when Mr Campbell instructed him about the works.
‘Mr Hughes stated he was not aware that the Kings Forest site shared a boundary with the Cudgen Nature Reserve.’
Justice Pain said the prosecutor had submitted that the company was aware that the boundary between the subdivision site and nature reserve at the time was not marked or signposted, but that they could have have ‘established the boundary’ to all its employees and contractors before carrying out the works.
Since the offence, the company has implemented actions to prevent a recurrence, including using clear signage of the boundary and an induction program for employees and contractors.
The company had also been advised on many occasions that any work on the nature reserve would require approval from a government authority or the environment minister.
‘That is they were on notice to be careful with any works that might affect the nature reserve,’ she said.
Justice Pain said log jams and overhanging logs were removed ‘leaving the Blacks Creek channel a uniform depth and width.
‘From this point vegetation had been removed for a further distance of eight metres in width for about 320 metres. Almost all trees were removed within this strip and and sand taken from the creek channel was placed on the bank, levelled and sown with grass’.
In her summary of the extent of the damage, Justice Pain said ‘the clearing activities would have resulted in a loss of tree hollows which are an important habitat resource for many species of native fauna and identified as a key threatening process under the Threatened Species Conservation Act’.
But she said Leda submitted that likely harm was not proven beyond reasonable doubt as there was no evidence that tree hollows had existed there.
She said also that ‘it has been accepted that the excavated Blacks Creeek bed will remain in its altered state’.
‘There is clearly significant harm to vegetation, soil and the creek through alteration of its structure caused in the short term by the actions giving rise to the offence’.
But given that rehabilitation efforts agreed to by Leda ‘have a high likelihood of success does ameliorate my finding on the seriousness of the extent of the harm caused in the long term as that is likely to be much reduced’.
National Parks and Wildlife Service (NPWS) head Ann King said a rehabilitation plan has been prepared by the NSW Soil Conservation Service for Leda to undertake.
‘The rehabilitation works aim to restore the vegetation composition along Blacks Creek and will include restoring the northern bank elevation,’ Ms King said.
‘This will include re-snagging Blacks Creek with large woody debris which will assist in restoration of in-stream and fish habitat.’
In the attack on the developer in parliament late in 2011, Greens MP Cate Faehrmann, who inspected the site after the clearing, said the billionaire property mogul Mr Ell and his Leda group had a past history of illegal clearing and used intimidation and bullying tactics against people to get their way.
She said that if guilty, Leda should be hit with ‘the most severe penalty available’ to act as a serious deterrent.