T a P P Pty Ltd v Penrith City Council

[2025] NSWLEC 1698

Land and Environment Court

New South Wales

Medium Neutral Citation:

T A P P Pty Ltd v Penrith City Council [2025] NSWLEC 1698

Hearing dates:

Conciliation conference on 22 August 2025

Date of orders:

30 September 2025

Decision date:

30 September 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Control Order (Restore Works Order) dated 24 February 2025 issued by the Respondent to the Applicant pursuant to Division 9.3 and Schedule 5, Part 1 of the Environmental Planning and Assessment Act 1979 (NSW) in respect of premises identified as Lot 962 DP 712220 and known as 97-107 Samuel Marsden Road, Orchard Hills NSW 2748 is revoked.

Catchwords:

DEVELOPMENT CONTROL ORDER — restore works order issued — conciliation — restoration works agreed — agreement between the parties — orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 8.18, 9.34, 9.35, Sch 5, Pts 1, 6

Land and Environment Court Act 1979 (NSW), s 34

Category:

Principal judgment

Parties:

T A P P Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Minter Ellison (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2025/110831

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: In these proceedings, T A P P Pty Ltd (the Applicant), appeals pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) the issue of a development control order (DCO) by Penrith City Council (the Respondent) over the land at 97-107 Samuel Marsden Road, Orchard Hills (the land). The DCO is a Restore Works Order issued under s 9.34 of the EPA Act and, in summary, requires the Applicant to prepare a restoration vegetation management plan (RVMP) for a specified area of the land, submit the RVMP for approval of Council and implement the RVMP within 30 days of receipt of approval. Further, the DCO requires the Applicant to demonstrate the RVMP has met its objectives at the end of a five year period.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 22 August 2025. I presided over the conciliation conference. At the conciliation conference the parties reached agreement in principle, and the conciliation was adjourned to allow the parties to prepare the relevant documentation and amendments to give effect to their agreement. The parties have continued discussions and have reached an agreement as to the resolution of the proceedings. The parties’ agreement is for the appeal to be upheld and the DCO to be revoked.

3. The parties advise the Court that they agree that the DCO lawfully issued by the Respondent to the Applicant:

1. Was issued pursuant to s 9.34 and Pt 1 of Sch 5 of the EPA Act.

2. The Respondent is the relevant enforcement authority within the meaning of s 9.35 of the EPA Act and was entitled to issue the DCO.

3. A notice of intention to serve the DCO was issued by the Respondent on 21 February 2024 in compliance with the procedural fairness requirements of Pt 6 of Sch 5 of the EPA Act.

4. The DCO is a ‘Restore Works Order’ which may be given to the owner of the premises where unauthorised works have been carried out. The Applicant is the owner of the premises and the unlawful works are said to be the removal of trees which would otherwise have required development consent for removal.

5. The DCO was appealed under s 8.18(1) of the EPA Act within the time limit prescribed.

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

(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.

5. It is clear that the Court has power to revoke a DCO pursuant to s 8.18(4)(b) of the EPA Act.

6. 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. I make those orders.

Notes 

7. The Court notes that the parties have agreed:

1. The DCO should be revoked on a no admissions basis.

2. The Applicant will carry out the works as set out in Annexure A.

Orders:

8. The Court orders that:

1. The appeal is upheld.

2. Development Control Order (Restore Works Order) dated 24 February 2025 issued by the Respondent to the Applicant pursuant to Division 9.3 and Schedule 5, Part 1 of the Environmental Planning and Assessment Act 1979 (NSW) in respect of premises identified as Lot 962 DP 712220 and known as 97-107 Samuel Marsden Road, Orchard Hills NSW 2748 is revoked.

D Dickson

Commissioner of the Court

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Annexure A (359 KB, pdf)