Buttonwood removal case ‘complex’ and ‘unusual’

(CNS): Local attorney Ben Tonner KC told a court on Wednesday morning that he was still engaged in discussions with the crown relating to the case against his client, Bon Crepe Ltd, and its owner, James Bergstrom, who has been charged with taking a protective species in relation to buttonwood trees removed from land in East End.

Tonner asked for and secured an adjournment until the end of this month to continue talking with prosecutors about the case due to a “quite complex set of facts” in “an unusual case with lots of different stakeholders”.

Bergstrom, a prominent local corporate attorney and a partner with Ogier, was charged after he cleared several acres of pristine habitat in East End for a road without planning permission.

According to documents submitted to planning in relation to an application by Bergstrom for after-the-fact permission for this land clearing in early 2023, the Department of Environment had issued a cease and desist order to Bergstrom over work that had gone on at the site on and off over a period of four years.

Shortly after that work stopped, the DoE secured a warrant under the National Conservation Act to conduct a site visit and found evidence that four protected species had been removed, including buttonwood (Conocarpus erectus), a species of mangrove shrub protected under the conservation law and with an adopted Species Conservation Plan. Following consultation with the director of public prosecutions, charges were laid.

In March 2023, the Department of Planning contacted Bon Crepe and directed that the road and land clearance required planning permission. Previously, the planning department, despite advice from the Attorney General’s Chambers to the contrary, had said the clearance did not need planning permission because the road was a right of way over other private land, which had been agreed between all of the relevant parties.

As a result of the planning direction, Bon Crepe made the after-the-fact application as directed, and the matter came before the Central Planning Authority in February of this year, when after-the-fact permission was granted. The DoE had asked the CPA not to do that, given the sensitivity of the land in question, which is a blue iguana habitat situated between the Salina and Colliers reserves, as reported on CNS this week.

In public documents posted on the planning website, the DoE described the road, which is more than two miles long, as “unlawful, and should have been subject to enforcement action by the Department of Planning in 2019 following the advice from the Attorney General’s Chambers”.

The DoE said that granting after-the-fact approval of this road would show that planning condoned such unlawful acts while the DoE was seeking some form of remedy and replanting of the endangered trees. “Having the CPA permit the road and the extension ahead of the pending court case being determined reduces the options available to the Court to pursue,” the DoE stated.

However, the CPA went ahead and granted that permission, although it directed that no further work could proceed until after Bergstrom’s application to Cabinet to lift an interim protection order placed on the land in question has been heard and the court proceedings have concluded.

During the February meeting, at which after-the-fact planning permission was granted, Bergstrom said that the DoE had “instigated a criminal charge against me for destroying less than 0.9 of an acre of Buttonwood”, according to the minutes. He noted that he was due to appear in court in April.

Bergstrom said, “The criminal charge is not possible where planning permission has been granted.” He also said that DoE had not contacted him about the clearance work until last year even though they had been aware of it since 2019.

However, the DoE contacted planning and warned them about the work going on without planning permission and asked that department to issue an enforcement notice. But at that time, the planning department said that they did not think planning permission was required. The DoE then contacted the attorney general and passed on the AG’s advice to planning to enable that department to issue an enforcement notice, which it did not do. To date, it has not said why it chose not to do that.

During the course of the discussions at the time, as documented in the minutes, Bergstrom stated that he had not been aware that the “very small amount of buttonwoods” removed during construction of the road were “a sub-species of mangroves”, though the species is listed in the conservation law.

The CPA raised the matter again at the 10 April meeting in the presence of Bergstrom’s agent, Greg Abernathy. According to the minutes, Abernathy told the CPA that Bon Crepe had received a letter from the law firm Nelsons, representing the National Conservation Council. The minutes show that the firm had sent a letter before action asking the CPA to revoke the planning permission over the land clearance and that it was considering a judicial review.

See the relevant minutes of CPA meetings in the CNS Library.