Gajdosik v Department of Planning Industry and Environment [2022] NSWLEC 1150

Land and Environment Court New South Wales

Medium Neutral Citation: Gajdosik v Department of Planning Industry and Environment [2022] NSWLEC 1150 Hearing dates: Conciliation conference on 4 March 2022 Date of orders: 24 March 2022 Decision date: 24 March 2022 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) leave is granted to the Applicant to amend the Class 1 Application as set out in Annexure 'A'; (2) the Appeal is upheld; (3) the Respondent's Remediation Order No. DOC21/854341 dated 15 December 2021 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 'B'. Catchwords: REMEDIATION NOTICE – conciliation conference – agreement between the parties – orders Legislation Cited: Land and Environment Court Act 1979, s 34 Biodiversity Conservation Act 2016, ss 11.15, 11.16, 11.23 Category: Principal judgment Parties: Stanislav Gajdosik (Applicant) Department of Planning Industry and Environment (Respondent) Representation: Counsel: N Hammond (Applicant) J Reid (Respondent)

Solicitors: Taperell Rutledge (Applicant) Department of Planning Industry and Environment (Respondent) File Number(s): 2021/364425 Publication restriction: No

Judgment 1. COMMISSIONER: Stanislav Gajdosik (the Applicant) has appealed the decision of the Department of Planning Industry and Environment (the Respondent) to issue a Remediation Order (the Order) dated 15 December 2021, pursuant s 11.15 of the Biodiversity Conservation Act 2016 (the BC Act) in relation to land at Lot 8 in DP854216 also known as 5 Ravenson Close, Somerby (the Subject Site). 2. Under s 11.15 of the BC Act, 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, relevantly, 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. 3. The Order was issued in respect of damage that occurred on the Subject Site to individual specimens of the Somersby mintbush and spreading guinea-flower and their habitat as a result of clearing and mulching works carried out between 13-17 December 2019. Somersby mintbush and spreading guinea-flower are threatened species listed under the BC Act. 4. The Order directs the Applicant to undertake certain remedial works in relation to the damage caused to the Somersby mintbush and spreading guinea-flower and their habitat on the Subject Site. 5. The appeal comes to the Court pursuant to s 11.23 of the BC Act and falls within Class 1 of the Court's jurisdiction. 6. The Parties have advised that s 11.15(4) of the BC Act provides that a remediation order may be varied or revoked in the same manner in which a remediation order may be given, and the Court has the power to vary the Order in the manner sought by the Parties. 7. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which has been held on 3 March 2022 by Microsoft Teams, and I have presided over the conciliation conference. 8. At 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 granting consent to the Applicant's modification application, subject to conditions. 9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the Parties' decision if the Parties' decision is a decision that the Court could have made in the proper exercise of its functions. 10. The Parties' decision involves the Court exercising the function under s 11.15(4) of the BC Act to vary the Order, and the Parties have also advised, and I am satisfied, that the requirements of the Order as varied are requirements that are authorised by s 11.16 of the BC Act in that 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. 1. There are no further jurisdictional prerequisites that must be satisfied before this function can be exercised. 2. I am satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 3. 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. 4. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties. 5. The Court orders that: 1. leave is granted to the Applicant to amend the Class 1 Application as set out in Annexure 'A'; 2. the Appeal is upheld; 3. the Respondent's Remediation Order No. DOC21/854341 dated 15 December 2021 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 'B'.