Saliba v Penrith City Council

Representation: Counsel:
M Staunton (Applicant)
N Hammond (Respondent)
Solicitors:
ZBA Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2024/278145

Publication restriction: Nil

Judgment

1. COMMISSIONER**:** This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order (Order) issued by the respondent under s 9.34 and Part 1 of Schedule 5 of the EPA Act to the applicant dated 9 July 2024, requiring the applicant to relevantly restore part of the land identified as Lot 79 in Deposited Plan 29388, known as 50-54 Lansdowne Road, Orchard Hills (Premises) purportedly impacted by unauthorised works comprising tree/vegetation clearing.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Premises is approximately 2.044ha and zoned RU4 Primary Production Small Lots under the Penrith Local Environmental Plan 2010 (PLEP).

4. The applicant is one of the registered proprietors of the Premises.

5. It was generally accepted that the Premises had historically contained approximately 1.5ha of Cumberland Plain Woodland, being a critically endangered ecological community (CEEC) under the Biodiversity and Conservation Act 2016 (NSW) (BC Act) and Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). It was also generally accepted by the parties that from approximately 5 August 2020 to 26 January 2021, the majority of the CEEC located on the Premises had deteriorated and died.

6. At the time the Order was issued, it was the respondent’s contention that the applicant had cleared, or was otherwise responsible for the demise of, approximately 1.47ha of Cumberland Plain Woodland without a permit or approval. As the “clearing of vegetation” comprising a CEEC without a permit or approval is unlawful under s 2.6(1) of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP), the respondent contended that the unlawful clearing of vegetation is prohibited under s 4.3(b) of the EPA Act and enlivened the power to issue a “Restore Works Order” order under item 10 of Pt 1 of Sch 5 of the EPA Act.

7. The respondent gave the applicant a Notice of Intention to Give an Order (Notice) on 19 January 2024.

8. On 13 February 2024, the applicant provided written representations as to why an order should not be issued, including that the applicant had not cleared the CEEC and that it had died of other cumulative causes, including pathogens, affectation from Bell Minor birds and understorey maintenance.

9. On 9 July 2024, the respondent issued the Order to the applicant pursuant to s 9.34 and Item 10 “Restore Works Order” in Part 1 of Schedule 5 of the EPA Act. The Order required the applicant to relevantly undertake the following steps by specified dates:

10. Engage a suitably qualified person to prepare and submit to Council for approval a Restoration Vegetation Management Plan (VMP) for the premises in respect of the area highlighted in Attachment C – Area Impacted by tree/vegetation clearing requiring restoration (“the Site”).

11. Submit the Restoration VMP to Council for approval.

12. Submit any amended Restoration VMP to Council for approval.

13. Upon written approval of the Restoration VMP from Council, the owner is to commence implementation of the Restoration VMP for the Premises, in accordance with the conditions specified in the written approval.

14. Notify Council of implementation of the approved Restoration VMP at the Premises.

15. The Restoration VMP is to be complied with in full by the owner.

16. The applicant commenced Class 1 proceedings on 29 July 2024 in respect of the Order, being within the time period specified in s 8.18(3) of the EPA Act.

17. The matter was listed for a conciliation conference on 22 November 2024. This conciliation was unsuccessful and the conciliation conference terminated on 11 December 2024.

18. The matter was subsequently listed for hearing on 3 and 4 June 2025.

19. The Court attended a site view on the first day of the hearing accompanied by the parties. During the first day of the hearing, the parties reached agreement and requested that the matter be listed for another s 34 conciliation conference. The Court granted this request, and the matter was listed for a s 34 conciliation conference on 3 June 2025, following which the hearing was vacated. I presided over the conciliation conference.

20. The agreement reached is for the Order to be revoked.

Jurisdictional considerations

15. To make orders in accordance with the parties’ agreement, I must be satisfied that the decision to make orders revoking the Order is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

16. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, as follows:

8.18 Appeals concerning orders (cf previous s 121ZK)

…

(4) On hearing an appeal, the Court may:

(a) revoke the development control order; or

(b) Modify the development control order; or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

17. It is clear that the Court has power to revoke a development control order pursuant to s 8.18(4)(a) of the EPA Act.

18. I am satisfied the Order should be revoked on the basis that the parties have agreed, on a no admissions basis, to the applicant carrying out specified restoration works on the Premises subject to a separate agreement.

Conclusion

19. 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.

20. As set out at [18], the Court notes that the parties have agreed:

21. that the Order should be revoked on a no admissions basis; and

22. the applicant will carry out the restoration works at the Premises as set out in Annexure A.

Orders

21. The Court orders that:

22. The appeal is upheld.

23. The Development Control Order (Order 10 Restore Works Order) issued on 9 July 2024 by the respondent to the applicant under Division 9.3 and Part 1 of Schedule 5 of the Environmental Planning and Assessment Act 1979 in respect of premises identified as Lot 79 in Deposited Plan 29388, also known as 50-54 Lansdowne Road Orchard Hills NSW 2748, is revoked.

N Targett

Commissioner of the Court

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Annexure A.1.96 MB.pdf