Emery v Secretary, Department of Climate Change, Energy, the Environment and Water

File Number(s): 2025/83093

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal in response to Remediation Order DOC25/128503 (Remediation Order) issued to the Applicant by the Respondent on 20 February 2025 in accordance with s 11.15(3) of the Biodiversity Conservation Act 2016 (NSW) (BC Act).

2. The Remediation Order relates to the Applicant's property at 96 Maulbrooks Road, Jeremadra NSW 2536, legally known as Lot 462 in DP 1176284 (Property).

3. Specifically, the property:

4. Is subject to the Eurobodalla Local Environmental Plan 2012 (ELEP). The Property is zoned as C2 Environmental Conservation, W1 Natural Waterways and C4 Environmental Conservation.

5. The Applicant was at all times the registered proprietor of the property to which the Remediation Order applies.

6. The Remediation Order states that the Department is satisfied that the following has been damaged:

(a) a plant that is of, or is part of a threatened ecological community on the Property, namely:

(i) Swamp Oak Floodplain Forest (Endangered, NSW*);* (ii) Freshwater Wetland of Coastal Floodplains (Endangered, NSW); and (iii) River flat Eucalypt Forest on Coastal Floodplains (Endangered, NSW).

(b) habitat of a threatened species on the Property, namely, that of Yellow-bellied Glider (Petaurus australis) and Swift Parrot (Lathamus discolor);

in or as a result of the commission of an offence against ss 2.2(1)(b) and 2.4(1) of the BC Act.

5. On 3 March 2025, the Applicant commenced Class 1 – Miscellaneous Appeal Biodiversity Conservation Act 2016 – s 11.23(1) appeal against a remediation order in response to the Remediation Order within the time period stipulated in s 11.23(1).

6. The Court may dispose of these proceedings under Class 1 of its jurisdiction pursuant to s 17(ea) of the L**and and E**nvironment C**ourt Act 1979 (NSW) (LEC Act), assuming the role of the of the body whose decision is the subject of the appeal and has all the functions and discretions as that body in respect of the decision (s 39(2) LEC Act).

7. On appeal, the Court may, in accordance with s 11.15(4) of the BC Act, vary or revoke the Remediation Order in the same manner in which it was issued.

8. The parties participated in a conciliation conference convened in the proceedings as required by s 34(3) of the LEC Act on 29 July 2025. I presided over that conference.

9. At that conciliation conference the parties commenced working towards agreement as to the variation of the Remediation Order. Subsequently, through exchange of materials and discussion between the experts it was agreed to update the Vegetation Management Plan (VMP) to note the current regeneration of the site since 2022, benchmarks agreed to assess the natural regeneration to 2028, and the actions to be taken if those benchmarks are not achieved. The parties agreed to prepare and exchange the VMP and revise the Remediation Order accordingly.

10. Subsequently, the Applicant has provided ecological evidence and prepared an revised VMP which responds to the Respondent's Remediation Order. The parties agree that this VMP addresses the concerns of the Respondent and that the management actions of the VMP on the Property satisfy the objectives of the Remediation Order.

11. Accordingly, the parties reached agreement on the matters in contention, and a signed agreement was submitted to the Court on 31 October 2025, in accordance with s 34(3) of the LEC Act.

12. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting consent to the Remediation Order in respect of the land at 96 Maulbrooks Road, Jeremadra NSW 2536, being varied as set out in Annexure A the Remediation Order, and Annexure B the updated Vegetation Management Plan.

13. The Court must be satisfied that it can exercise its functions can exercise its functions under s 34(3) of the LEC Act to dispose of these proceedings and make the orders sought. There are jurisdictional pre-requisites that must be satisfied as per the decision in HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135. In this matter being with respect to the BC Act:

14. s 11.15 Orders for remediation work relating to damage to land, habitat and plants and animals

15. s 11.16 Remediation work required by order

16. 11.17 Persons to whom remediation orders may be given

17. From the site inspection and through the documentation and materials provided by the parties, I am satisfied that:

18. In or as a result of the commission of an offence against the BC Act damage has been caused to land, habitat plants or animals listed in 11.15(1)(a-f) being:

(a) s 2.2(1)(b) a plant that is of, or is part of a threatened ecological community on the Property, being

(i) Swamp Oak Floodplain Forest (Endangered, NSW); (ii) Freshwater Wetland on Coastal Floodplains (Endangered, NSW); and (iii) River flat Eucalypt Forest on Coastal Floodplains (Endangered, NSW); and

(b) s 2.4(1) habitat of a threatened species on the Property, being that of Yellow-bellied Glider (Petaurus australis) and Swift Parrot (Lathamus discolor).

2. The remediation order was served in writing to the current landowner who has been the landowner throughout (ss 11.15(3), 11.17(a) and specifies the works and actions (s 11.16) and a remediation outcome (s 11.15(2)).

Conclusion

15. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

16. The parties have reached an agreement pursuant to s 34(3) of the Land and Environment Court Act 1979 (NSW) (LEC Act) as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision the Court could have made in the proper exercise of its functions).

17. The s 34 Agreement including Annexure A the revised Remediation Order, and Annexure B the revised Vegetation Management Plan were filed with the Court on 31 October 2025.

Orders

18. The orders of the Court are:

19. The appeal is upheld.

20. The Remediation Order DOC25/128503 pursuant to s 11.15(4) of the Biodiversity Conservation Act 2016 (NSW) is varied in accordance with the amendments set out in Annexure A and Annexure B.

P Moore

Acting Commissioner of the Court

Annexure A (255 KB, pdf)

Annexure B Part 1 (1.47 MB, pdf)

Annexure B Part 2 (1.38 MB, pdf)

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