AGM Holdings Pty Ltd v Secretary, Department of Climate Change, Energy, the Environment and Water

File Number(s): 2025/118144

Publication restriction: Nil

Judgment

1. COMMISSIONER: This appeal concerns a remediation order issued by the Secretary of the Department of Climate Change, Energy, the Environment and Water (the Secretary) pursuant to section s 11.15 of the Biodiversity Conservation Act 2016 (NSW) (BC Act). The remediation order was issued on 11 March 2025, and requires the remediation and restoration of an area of land within the site at 8 Woodbury Court, Bowral. The applicant appeals against the issue of the remediation order, pursuant to s 11.23 of the BC Act. In exercising the functions of the Secretary on the appeal, the Court has the power to determine whether or not to issue a remediation order pursuant to s 11.15(1) of the BC Act, or whether to vary the remediation order pursuant to s 11.15(4). The final orders in this appeal, outlined in [12] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 30 March 2026. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which is contained in a written signed agreement filed on 25 March 2026. The decision agreed upon is for the appeal to be upheld, and the remediation order to be varied in accordance with the agreement of the parties.

4. To make orders in accordance with the agreement, I must be satisfied that the decision to make orders to vary the remediation order in the agreed terms is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). The agreement is supported by a Jurisdictional Statement that outlines the reasons why the parties agree that there are no jurisdictional pre-requisites that would prevent the Court from exercising its functions under s 34(3) of the LEC Act.

5. On the appeal, s 39(2) of the LEC Act operates to give the Court all the functions and discretions of the Environment Agency Head, that is, the Secretary, under Pt 11 Div 4 of the BC Act.

6. Section 11.15 of the BC Act allows a remediation order to be issued where a threatened ecological community has been damaged as a result of an offence under the BC Act. Pursuant to s 2.2 of the BC Act, it is an offence to pick a plant that is part of a threatened ecological community. Section 11.17(a) allows a remediation order to be given to the landowner, regardless of who committed the offence.

7. The applicant is the owner of the site, which contains the threatened ecological community Southern Highlands Shale Woodland of the Sydney Basin Bioregion (SHSW). SHSW is an endangered ecological community, and the vegetation on the site meets the criteria in the Final Determination for SHSW. The parties agree that there is damage to the SHSW, caused by the removal of vegetation in contravention of s 2.2 of the BC Act. This vegetation removal occurred through the clearing of native vegetation, including groundcover, by mechanical and other means. For those reasons, there is power to issue the remediation order, pursuant to s 11.15(1).

8. Further, s 11.15(4) of the BC Act provides that a remediation order may be varied (or revoked) “in the same manner in which a remediation order may be given”. Therefore, the Court has the power to vary the remediation order in the manner sought by the parties.

9. The varied remediation order species the remediation work to be carried out in a specified manner and within a specified term, consistent with s 11.15(1) of the BC Act. It also includes a range of requirements that may be included in a remediation order, pursuant to s 11.16 of the BC Act. It does so by, inter alia, requiring the applicant to carry out works in accordance with an agreed Vegetation Management Plan dated 20 March 2026, in an agreed remediation area, with appropriate timeframes, reporting requirements and agreed monitoring points.

10. Having reached the state of satisfaction that the decision agreed upon is a decision that the Court could make in the exercise of its functions in each of the appeal proceedings, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

11. In making order to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the issues that were originally in dispute between the parties.

Orders

12. The Court orders that:

13. The appeal is upheld.

14. The Remediation Order DOC24/472963 pursuant to s 11.15(4) of the Biodiversity Conservation Act 2016 (NSW) in respect to the land at 8 Woodbury Ct, Bowral NSW 2576 being Lot 4 in DP1002499 is varied in accordance with the amended remediation order in Annexure A.

15. The Court notes the parties’ agreement that:

16. Each party is to pay their own costs of the proceedings.

J Gray

Commissioner of the Court

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Annexure A and Vegetation Managmement Plan