Waterhouse v Department of Climate Change, Energy, the Environment and Water

[2025] NSWLEC 1584

Land and Environment Court

New South Wales

Medium Neutral Citation:

Waterhouse v Department of Climate Change, Energy, the Environment and Water [2025] NSWLEC 1584

Hearing dates:

Conciliation conference on 19-20 June and 31 July 2025

Date of orders:

19 August 2025

Decision date:

19 August 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1)   The Appeal is upheld.

(2) The Respondent’s Remediation Order No. 202102856 dated 14 November 2024 is varied in accordance with s 11.15(4) of the Biodiversity Conservation Act 2016 (NSW). The order, as varied, is set out in the order at Annexure A.

(3)   Each party is to pay their own agreed costs of the proceedings.

Catchwords:

DEVELOPMENT APPLICATION – remediation order – unauthorised clearing of native vegetation – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW), ss 11.15, 11.16 11.23

Environmental Planning and Assessment Act 1979 (NSW), s 8.7

Environmental Protection and Biodiversity Conservation Act 1999 (Cth)

Land and Environmental Court Act 1979 (NSW), ss 34, 39

Local Land Services Act 2013 (NSW), Pt 5A

Category:

Principal judgment

Parties:

John Scott Ian Waterhouse (Applicant)
Department of Climate Change, Energy, the Environment and Water (Respondent)

Representation:

Counsel:
C Ireland (Applicant)
M Thompson (Respondent)

Solicitors:
Bell & Johnson Solicitors Pty Ltd (Applicant)
Department of Climate Change, Energy, the Environment and Water (Respondent)

File Number(s):

2024/462940

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the issuing of Remediation Order 202102856 (the Order) dated 14 November 2024, in respect of property known as ‘Kalkadoon’ at 330 Trinkey Forest Road, Tambar Springs NSW, legally known as, in part, Lots 1 and 2 DP 1278026, Lot 1 DP 867809 and Lot 90 DP 755522.

2. These proceedings have been brought to the Court pursuant to s 11.23 of the Biodiversity Conservation Act 2016 (NSW) (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 damage has occurred to native vegetation on category 2 regulated land.

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 Part 5A of the Local Land Services Act2013 (NSW). Specifically, this includes damage to vegetation categorised as PCT 433: White Box grassy woodland to open woodland on basalt flats and rises in the Liverpool Plain sub-region, BBS Bioregion. This is a critically endangered community under both the BC Act and the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The damage caused to this vegetation type comprised clearing by use of machinery including a bulldozer and stick rake.

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 19-20 June 2025 and subsequently on 31 July 2025, over which I presided.

6. After the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. 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.

7. 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.

8. The requirements of the Order, as modified, broadly comprise:

1. Remediation to five individual sections of land on the property;

2. Refraining from unauthorised soil disturbance within the remediation areas;

3. Weed and pest management;

4. Removal of stock from the remediation areas, except as allowed through the Remediation Plan;

5. Erection of fencing and signage;

6. Refraining from the broad use of insecticides, herbicides and soil ameliorants, and the storage of waste within the remediation areas;

7. Inspection, monitoring and reporting.

9. These requirements are authorised under s 11.16 of the BC Act, as they 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. 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.

Orders

11. The Court orders:

1. The Appeal is upheld.

2. The Respondent’s Remediation Order No. 202102856 dated 14 November 2024 is varied in accordance with s 11.15(4) of the Biodiversity Conservation Act 2016 (NSW). The order, as varied, is set out in the order at Annexure A.

3. Each party is to pay their own agreed costs of the proceedings.

……………………….

E Washington

Commissioner of the Court

Annexure A (1.16 MB, pdf)

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Decision last updated: 19 August 2025