Australia, June 20 -- New South Wales Land and Environment Court issued text of the following judgement on May 19:

1. On 11 March 2021, the Secretary, Department of Planning, Industry and Environment (the prosecutor) charged JP & LR Harris Pty Ltd and Woolondoon Pty Ltd (the defendants) each with an offence under s 60N of the Local Land Services Act 2013 (NSW) alleging clearing of native vegetation without approval in relation to two properties owned by the defendants in the Walgett Local Government Area. The offence alleged against JP & LR Harris Pty Ltd is in relation to a property known as "Curly Whirl" at Lot 15 in Deposited Plan 753953 at 1 Merrywinebone, Rowena (Curly Whirl). The offence alleged against Woolondoon Pty Ltd relates to a property known as "Woolondoon" at Lot 30 in Deposited Plan 753953 at 788 Rowena Road, Rowena (Woolondoon).

2. There are also two related hearings concerning the liability of three other defendants, Balmoral Farms Pty Ltd, Phillip John Harris and Sue Ellen Harris, for fourteen other alleged offences of clearing native vegetation in breach of s 12 of the Native Vegetation Act 2003 (NSW) and s 60N of the Local Land Services Act. I have been allocated the sixteen proceedings for hearing over three consecutive trials. The first six of the proceedings were tried before me between Monday, 28 April 2025 and Thursday, 8 May 2025 (excluding Wednesday, 7 May 2025) (the first trial). I am presently midway in the hearing of the second two of the proceedings which commenced on Monday, 12 May 2025 (the second trial). The third trial in relation to the final eight of the proceedings is currently set down for hearing between Wednesday, 21 May 2025 and Tuesday, 27 May 2025 (the third trial).

3. On day three of the hearing in this second trial, Wednesday, 14 May 2025 toward the close of the prosecution case, the prosecutor sought to establish the status of the land comprising parts of each of the properties Curly Whirl and Woolondoon which it alleges were cleared in the respective charge periods as category 2-regulated for the purposes of the Local Land Services Act by tendering the certificate dated 12 October 2020, issued under s 60F(5) of the Local Land Services Act, of Jeremy Black, Director, Remote Sensing and Landscape Science, as delegate of the Environment Agency Head (the s 60F certificate).

4. In the prosecutor's outline of opening submissions, it identified as the third element of each charge under s 60N of the Local Land Services Act it must prove beyond reasonable doubt that the clearing was in a regulated rural area.

5. Mr Ireland KC for the defendants objected to the tender. Mr Ireland informed that Court that the defendants seek a voir dire at which they propose to rely on the affidavit of Dr David Robertson, ecologist and aerial image surveyor, dated 13 May 2025 and Exhibit DR-1 thereto, being Dr Robertson's expert report dated 13 May 2025 on the voir dire.

6. I raised with Mr Ireland that an objection to the s 60F certificate was the subject of consideration in the first trial as on day two of that first trial, 29 April 2025, Mr Ireland had objected to the tender of the s 60F certificate in relation to the defendant, Balmoral Farms Pty Ltd. The objection was the subject of my decision on 2 May 2025 in Secretary, Department of Planning, Industry and Environment v Balmoral Farms Pty Ltd (the Balmoral Farms certificate decision). [1] I there determined that although it was available to the defendants to bring a collateral challenge to the validity of a s 60F certificate in Class 5 proceedings, the defendants had failed to establish that the certificate was not validly issued.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196e81707302888a62a92860)

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