Kazmouz v Department of Planning and Environment

[2024] NSWLEC 1126

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kazmouz v Department of Planning and Environment [2024] NSWLEC 1126

Hearing dates:

Conciliation conference on 9 February, 23 February and 1 March 2024

Date of orders:

19 March 2024

Decision date:

19 March 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) The Respondent’s Remediation Order No 202002372-23 dated 29 September 2023 is varied in accordance with s 11.15(4) of the Biodiversity Conservation Act 2016. The order, as varied, is set out in the order at Annexure A.

Catchwords:

REMEDIATION ORDER – conciliation conference – clearing of native vegetation and endangered ecological communities – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016 ss 11.15, 11.16, 11.23

Land and Environment Court Act 1979 ss 34, 39

Local Land Services Act 2013, Pt 5A

Category:

Principal judgment

Parties:

Tony Kazmouz (Applicant)
Department of Planning and Environment (Respondent)

Representation:

Counsel:
T Kazmouz (Self-represented) (Applicant)
O Yeatman (Solicitor) (Respondent)

Solicitors:
T Kazmouz (Self-represented) (Applicant)
Department of Planning and Environment (Respondent)

File Number(s):

2023/341970

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise from a remediation order, No 202002372-33, dated 29 September 2023 (the Order), which was issued by the Department of Planning and Environment (the Respondent) to Tony Kazmouz (the Applicant) in respect of Lot 6 DP 243079, known as 390 Wilton Park Road, Wilton, NSW (the subject site).

2. These proceedings have been brought to the Court pursuant to s 11.23 of the Biodiversity Conservation Act 2016 (BC Act).

3. The Order was issued pursuant to s 11.15 of the BC Act, under which the Environment Agency Head may order a person to carry out specified remediation works in a specified manner and within a specified time, if satisfied that any plant that is part of a threatened species, or habitat of a threatened species, has been damaged as a result of the commission of an offence against the BC Act.

4. The Order was issued in respect of damage that occurred on the subject site to native vegetation that is mapped as Category 2 vegetation, pursuant to the Local Land Services Act2013 Part 5A. This includes the following Critically Endangered Ecological Communities:

1. Shale Sandstone Transition Forest

2. Western Sydney Dry Rainforest

3. And the following native vegetation communities:

4. Sydney Hinterland Grey Gum Transition Forest

5. Sydney Hinterland Grey Myrtle Riparian Forest

5. The damage caused to these vegetation types comprised:

1. Poisoning plants by using herbicides including glyphosate, triclopyr and picloram;

2. Destroying plants using machinery including a bobcat and excavator, and stacking the plants;

3. Removing plants from the ground using machinery including a bobcat and excavator, and subsequently removing them.

6. 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 held on 9 February 2024, and subsequently on 23 February and 1 March 2024. I presided over the conciliation conference.

7. After 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 the Court upholding the appeal and modifying the Order in accordance with the agreement of the parties. Section 11.15(4) of the BC Act provides that a remediation order may be varied or revoked in the same way as the remediation order may be given.

8. Pursuant to s 39(2) of the LEC Act, the Court has all the functions and discretions of the Environment Agency Head in respect of the Order. Subsequently, the Court has the power to vary the Order in the manner sought by the Parties.

9. The requirements of the Order comprise:

1. Work to control, abate or mitigate the damage to the area, habitat, plant, animal or vegetation concerned

2. Work to maintain, remediate or restore the damaged area, habitat, plant, animal or vegetation concerned

3. Vacating the land concerned or ceasing to carry on or not commencing an activity on or use of the land

4. Erecting or displaying signage on the land

5. Refraining from disturbance of the land

6. Informing the Environment Agency Head of any change in ownership of the land.

10. These requirements are authorised under s 11.16 of the BC Act.

11. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

12. The Court notes that the parties have agreed to pay their own costs of these proceedings.

13. The Court orders:

1. The Appeal is upheld.

2. The Respondent’s Remediation Order No 202002372-23 dated 29 September 2023 is varied in accordance with s 11.15(4) of the Biodiversity Conservation Act 2016. The order, as varied, is set out in the order at Annexure A.

……………………….

E Washington

Acting Commissioner of the Court

341970.23 Annexure A

**********

Decision last updated: 19 March 2024