Spencer v Department of Climate Change, Energy, the Environment and Water [2026] NSWLEC 1101 | Case summary | Zoe

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Spencer v Department of Climate Change, Energy, the Environment and Water [2026] NSWLEC 1101 | Case summary | Zoe

COMMISSIONER: These proceedings are an appeal against a licensing decision, being a decision described in s 2.16(1) of the Biodiversity Conservation Act 2016 (NSW) (BC Act). The licence is the Biodiversity Conservation Licence No SL 103004 dated 5 June 2025 (Varied Licence) granted to the Applicant pursuant to s 2.13(3) of the BC Act by authorising the trade and release of as Myuchelys Bellii subadults, hatched from turtle MBEL01T1 (Notch 2 right) on 06/03/2022 from Licence No SL 102877 (Original Licence).
The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(ea) of the Land and Environment Court Act 1979 (NSW) (LEC Act).
The statutory power or function to be exercised in determining the proceedings is ss 34(3)(a) and 39(3) and (4) of the LEC Act, and s 2.13(3) of the BC Act.
The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 7 November 2025, 11 December 2025, 29 January 2026 and 18 February 2026. I presided over the conciliation conference.
The parties agree that the contentions raised in the Statement of Facts and Contentions in Reply filed by the Respondent on 10 October 2025 will be resolved by the granting of amendments to the Varied Licence as agreed.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal and approving the amendment of the Varied Licence.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under ss 34(3)(a) and 39(3) and (4) of the LEC Act, and s 2.13(3) of the BC Act to uphold the appeal and issued the Varied Licence as agreed by the parties.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be as set out below, and together with background information have explained how the jurisdictional prerequisites have been satisfied.
On 8 December 2024, the Applicant made a licence application seeking approval for the translocation of the Myuchels bellii (known at the Bell’s Turtle), Myuchelys purvisi (known as the Manning River Turtle) and Emydura macquarii gunabarra (known as the Hunter River Turtle) with the aim of determining the optimal age of release (Licence Application).
The Licence Application was given a scientific licence application number APP-0013924734 (Licence Application).
On 5 June 2025, the Respondent granted the Applicant a Scientific Licence SL 103004 (Varied Licence) which authorised:

The Varied Licence also authorised the release of 35 Myuchelys purvisi and 35 Emdura macquarii gunabarra*.*
The Varied Licence did not authorise the trade or release of the 35 Myuchelys bellii*.*
On 27 June 2025, the Applicant appealed the Respondent’s decision pursuant to s 2.16(4) of the BC Act, and in accordance with the time provisions in s 2.30(1) of the Biodiversity Conservation Regulation 2017.
On 7 November 2025 during the s 34(1) conciliation conference under the LEC Act, the Applicant further offered to vary the Varied Licence conditions to effect:
The trade, by means of gifting 12 Myuchelys Bellii by Aussie Ark; and
The release of 12 Myuchelys Bellii instead of the 35 Myuchelys Bellii originally proposed.
The 12 Myuchelys Bellii are the progeny of a female turtle captured on 14 December 2021 from Shaw’s Road and was gravid on collection. That is, the 12 Myuchelys Bellii are not the product of breeding after capture.
The amendments were negotiated to address the Respondent’s contentions that the translocation of cross bred Myuchelys Bellii was likely to have an adverse impact on the natural population of Myuchelys Bellii.
Section 2.16(3) of the BC Act provides that an applicant for, or the holder of, a biodiversity conservation licence may appeal to the Court against a licensing decision. The Applicant is the holder of Biodiversity Conservation Licence No SL 103004 dated 5 June 2025 and is entitled to appeal.
The Court may dispose of these proceedings pursuant to ss 17(ea) and 34(3) of the LEC Act, noting that s 39(3) and (4) gives the Court the functions and discretions of the consent authority.
Section 2.11 of the BC Act provides that the Minister may grant licences to do acts that would otherwise constitute an offence. The parties agree that the Licence Application and the Varied Licence to be amended as agreed by the parties authorises the Applicant to release three species of turtles (as identified above), an act that would otherwise constitute an offence.
The parties agree that the Licence Application has been made in accordance with s 2.12 of the BC Act.
Pursuant to s 2.13 of the BC Act, the Court may vary the Licence.
Section 2.14(1) of the BC Act provides that a biodiversity conservation licence may be granted unconditionally or subject to such conditions as are specified or referred to in the licence or as are prescribed by the regulations.
Section 2.26 of the Biodiversity Regulation provides that the Environment Agency Head may take certain matters into consideration in determining an application for a licence:

The parties agree to the following propositions regarding the activity of trading and releasing the 12 Myuchels bellii pursuant to the Varied Licence:
The activity is likely to contribute to the conservation of Myuchels bellii which is an endangered species;
The activity is likely to have no adverse impact on any protected plants, plants that are of a threatened species, any animals or plants that are part of a threatened ecological community or the habitat of any such animals or plants given the small cohort size of the turtles proposed for release;
The project focuses on translocating 12 Myuchels bellii into the wild and there is a chance that some of them will not survive, like any animal in the wild. In addition, the licence authorises scute notching. Accordingly, the proposal will cause some form of harm to protected animals that are part of a threatened species (the 12 Myuchels bellii), however, considering the small cohort size (12 turtles) as well as the potential benefits to the conversation of the species through this research the impacts to protected and threatened animals are deemed acceptable;
The activity will not have any impact on national park estate and other conservation areas and is not relevant to the Varied Licence;
The activity is not directed at preventing or minimising a threat or potential threat to human health, safety or well-being, such that the criterion is not relevant to the Varied Licence;
The activity is directed to preventing or minimising damage or loss to property that is being or likely to be caused by an animal, such that the criterion is not relevant;
This is not an activity for which there is a management plan under Div 2.4 of the BC Regulation. The activity is covered by the NSW Government’s ‘Saving our Species” threatened species conservation program for the Myuchels bellii. This is a Biodiversity Conservation Program made under the BC Act and is likely to contribute to the conservation of Bell’s Turtles which is an endangered species; and
The activity is in the public interest because it will contribute to research and learning to assist in determining the optimal age for releasing captive-bred Myuchels bellii hatchlings into the world.
The parties agree that the conditions of the amended Varied Licence are lawful having regard to the provisions of s 2.16 of the BC Act.
The parties consider that the issuing of the amended Varied Licence does not result in any contravention of the BC Act or BC Regulation. As such, the Court may exercise its function under s 2.3 of the BC Act and grant the Varied Licence.
Having regard to the above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I shall uphold the appeal and approve the Varied Licence as amended in accordance with s 2.13(3) of the BC Act and s 34(3)(a) of the LEC Act.
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)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court orders:
The appeal is upheld.
Pursuant to s 2.13(3) of the Biodiversity Conservation Act 2016 (NSW), Biodiversity Conservation Licence No SL 103004 dated 5 June 2025 granted to the Applicant is varied: