The recent case of Secretary, Department of Planning, Industry and Environment v Merrywinebone Pty Ltd; Harris [2023] NSWLEC 138 has reiterated the costly consequences of the deeming provisions for landholders under the Biodiversity Conservation Act 2016 (BC Act).

In that case the Defendants, Harris and Merrywinebone sought that the Secretary, Department of Planning, Industry and Environment (Prosecutor) pay their professional costs of the substantive proceedings in which they successfully defended eight criminal charges relating to clearing of native vegetation. The proceedings had been commenced against the Defendants under the deeming provision of the BC Act which provides that the “landholder” of any land on which an offence or contravention of the BC Act is alleged to have occurred (in this case the clearing of vegetation) is taken to have carried out the activity constituting the alleged offence. The liability of a landowner is rebuttable if it is established that:

  • the activity was carried out by another person; and
  • the landholder did not cause or permit the other person to carry out the activity.

Over the course of a likely very costly nine-day hearing, the Defendants established that they did not carry out the clearing of the land and that they did not cause or permit the land to be cleared and were therefore found not guilty.

Most would think they are entitled to their costs if they ‘win’ a case, however this is not so in criminal proceedings which require a specific order to be made by a Court.

In this case the Defendants sought their professional costs against the Prosecutor of the proceedings pursuant to s257C(1) of the Criminal Procedure Act 1986. Under s257C(1) the Court has the power to award professional costs to an accused person if the matter is dismissed or withdrawn. However, the Court must be satisfied of the matters in s257D(1) being:

  • that the investigation into the alleged offence was conducted in an unreasonable or improper manner;
  • that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner;
  • that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought; or
  • that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.

Justice Robson of the Land and Environment Court dismissed the application finding that none of the matters in s257D(1) applied in this case.

However, at paragraph [56] of the Judgment His Honour stated:

I accept that if evidence clearly exculpating the Harris defendants had arisen during the course of the DPIE’s investigation, the reasonableness of the prosecutor’s decision to initiate proceedings may have been impeded but I do not consider that such evidence existed in the circumstances.

The Judgment highlights the costly consequences of the deeming provisions and the importance of landowners, particularly land where farming or other rural uses are being carried by third parties, in:

  • establishing clear delineation of land management through documentary evidence including agreements, policies and procedures;
  • implementing appropriate processes and procedures to avoid unauthorised land clearing; and
  • where unauthorised land clearing does occur to ensure to the extent possible that evidence can be furnished exculpating landowners from such allegations in order to discharge their deemed liability for such offences.

The case also highlights the importance of an accused’s persons engagement during the investigation phase including responding to notices and attending interviews, and the value of obtaining legal advice early on in investigations.