Australia, July 9 -- New South Wales Land and Environment Court issued text of the following judgement:

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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1974289ea6b25a7955e669bd)

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