Vella v Penrith City Council

Representation: Counsel:
T Poisel (Applicants)
C Morton (Solicitor)(Respondent)
Solicitors:
Minterellison (Applicants)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2024/287976

Publication restriction: Nil

JUDGMENT

1. This is an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent’s Development Control Order No 10 given under s 9.34(1)(a) and Sch 5, Pt 1 of the EPA Act and dated 9 July 2024 (Order).

2. The Order concerns unauthorised clearing of vegetation on land at 40-48 Lansdowne Road Orchard Hills, which is legally described as Lot 80 in Deposited Plan 29388 (Site).

3. On 9 July 2024, the Order was served upon the Applicants by post and electronically with a PDF copy attached by email to ‘plumbing@allworksgroup.com.au’.

4. The terms of the Order required the Applicants to:

“1) Engage a suitably qualified person to prepare and submit to the Respondent for approval a Restoration Vegetation Management Plan (VMP) for the Site in respect of the area highlighted in Attachment C – Area impacted by tree/vegetation clearing requiring restoration (see Image 1) by no later than 5pm on Friday, 9 August 2024.

2. Submit the Restoration VMP to the Respondent for approval by no later than 5pm on Friday, 30 August 2024.

3. Submit any amended Restoration VMP to the Respondent for approval within 2 weeks of comments made by the Respondent.

4. Upon written approval of the Restoration VMP from the Respondent, the Applicant is to commence implementation of the Restoration VMP for the Premises, in accordance with the conditions specified in the written approval within 30 days of the Respondent approving the Restoration VMP.

5. Notify the Respondent of implementation of the approved Restoration VMP at the Premises within 30 days of the Respondent approving the Restoration VMP.

6. The Restoration VMP is to be complied with in full by the owner 5 years from the date of the Respondent approving the Restoration VMP.

5. Pursuant to the Order, the First Applicant was required to comply with all terms of the Order as indicated above. “

Image 1: Screenshot of aerial image taken of the Site in Nearmap GIS system, referred to as Attachment C in the Order.

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was first held on 21 February 2025 and reconvened over an extended period. I presided over the conciliation conferences.

6. The parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s 34 written agreement dated 30 April 2025 (Agreement).

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The decision involves the Court exercising the functions under s 8.18 of the EPA Act to modify and/or substitute the Order.

8. Section 8.18(4)(b) and (c) of the EPA Act gives the Court broad powers to modify and/or substitute the development control order in the manner agreed by the parties the section provides:

9. On hearing an appeal, the Court may—

…

(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

…

10. Part 4 of Sch 5(1)(a) and (b) provides that a order may specify standards and the nature of the work that will satisfy the order. Subsection 2 provides that the order may require the owner to prepare and submit to the relevant consent authority, within a specified time, particulars of the works the owner considers necessary to make the provision for such matter as may be specified.

11. The proposed substituted order is Annexure A to this judgment.

12. The pre-conditions that must be satisfied before the Court can exercise its functions are identified in a written submission filed by the parties.

13. Following a consideration of that submission I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions for the following reasons:

14. The Order was issued pursuant to s 9.34 of the EPA Act, and Pt 1 of Sch 5 of the EPA Act.

15. The Council is a relevant enforcement authority within the meaning of s 9.35 of the EPA Act and was entitled to issue the Order.

16. A notice of intention to serve the Order was issued by the Council on 25 January 2024 in compliance with the procedural fairness requirements of Pt 6 of Sch 5 of the EPA Act.

17. The Order is a Restore Works Order, which may be given to the owner of premises where unauthorised works have been carried out (Sch 5 Pt 1 of the EPA Act). The Applicants are the owners of the premises and the unlawful works that are said to have occurred were the removal of trees which would have otherwise required development consent in the RU4 zone under the Penrith Local Environmental Plan 2010 as the removal of vegetation that occurred was not “extensive agriculture”.

18. The Order was appealed within the time limit as set out in s 8.18(3)(a) of the EPA Act; and

19. The order is therefore validly issued having regard to the relevant statutory framework.

Conclusion and orders

14. As the parties’ decision is within power, I now dispose of the proceedings in accordance with that decision.

15. The Court orders that:

16. The appeal is upheld.

17. Development Control Order (Restore Works Order) dated 9 July 2024 issued by the Council to the Applicants pursuant to Division 9.3 and Schedule 5, Part 1 of the Environmental Planning and Assessment Act 1979 in respect of premises identified as Lot 80 DP 29388 and known as 40-48 Lansdowne Road, Orchard Hills NSW 2748 is modified, subject to the terms set out in Annexure A and Annexure C.

S Dixon

Senior Commissioner of the Court

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Annexure A

Annexure C