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Hudson v Director-General, Department of Environment Climate Change and Water (2012) 187 LGERA 207

Type of court
National - higher court
Feb 11, 2009
Court name
NSW Land and Environment Court
Seat of court
Lloyd J.
Reference number
(2009) 165 LGERA 256
Wild species & ecosystems, Agricultural & rural development
Offences/penalties Agriculture and environment

Mr Hudson owned a 2126 hectare grazing property West of Moree. Between 9 November 2006 and 5 March 2007, he cleared some 486 hectares of native vegetation, which included  Eucalyptus coolabah (“coolibah”), Casuarina cristata (“belah”) and Acacia stenophylla (“river cooba”).

Mr Hudson was charged with two offences under the Native Vegetation Act 2003 (NSW) (the Act). The first charge related to the clearing of the vegetation otherwise than in accordance with a development consent or property vegetation plan, in contravention of s 12 of the Act. The second charge was regarding Mr Hudson’s failure to comply with a notice issued under s 36(4) of the Act.

At first instance, in the NSW Land and Environment Court, Mr Hudson was found guilty of both charges and Justice Lloyd ordered that he be fined $400,000 for the first charge and $8,000 for the second charge.

Mr Hudson raised some unusual defences, including a question of the constitutional validity of the Act. He was unsuccessful on all six defences.

From [70]-[90] of Justice Lloyd’s initial decision, he outlines the key principles used in Australia regarding sentencing for environmental law cases. These include considering the objective gravity or seriousness of the offence; the extent to which the offence may have been done deliberately; whether the offence was for commercial gain; the need for personal and general deterrence; and the necessity for having regard to the sentencing of similar cases.

The decision at fist instance was successfully appealed, regarding the sentencing and the matter was remitted to the Land and Environment Court. Mr Hudson’s application for leave to appeal the conviction was rejected by both the NSW Court of Criminal Appeals and the High Court, respectively.

This case is important because the Act upon which the litigation was based reflects the legal response in Australia to the Convention on Biological Diversity 1992., which seeks to conserve the habitat of threatened species and ecosystem function.

(Summary provided by Chloe Foyster from the Queensland University of Technology)

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