Land and Environment Court of New South Wales CITATION : Glenbernie Orchard v Wollongong City Council [2007] NSWLEC 175 APPLICANT Glenbernie Orchard Pty Limited PARTIES : RESPONDENT Wollongong City Councill FILE NUMBER(S) : 10640 of 2006 CORAM: Brown C KEY ISSUES: Appeal :- s 121B Order - vegetation clearing LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 2/04/07 EX TEMPORE JUDGMENT DATE : 2 April 2007 APPLICANT Mr M Bonnano, solicitor SOLICITORS Turner Freeman LEGAL REPRESENTATIVES: RESPONDENT Mr M Mantei, solicitor SOLICITORS Kells The Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 2 April 2007 10640 of 2006 Glenbernie Orchard Pty Limited v Wollongong City Council JUDGMENT 1 COMMISSIONER: This is an appeal against an Order dated 23 June 2006 issued by Wollongong City Council (the council) under s121B of the Environmental Planning and Assessment Act 1979 in relation to vegetation clearing on Lot 86 in DP 752054, Darkes Forest Road, Darkes Forest (the site). 2 The proceedings were heard as an On Site Hearing on 2 April 2007 and the judgement reflects the contents of the Statement of Basic Facts and the findings given on-site. 3 Improvements on site include an amenities building and car park used in conjunction with the previous underground mining operations. This use ceased approximately 15 years ago. The applicant has owned the site for approximately three years. 4 The site is approximately 40 ha in area with approximately 4 ha affected by clearing. The vegetation on the site is variable, consisting of both woodlands and Upland swamp communities. The area surrounding the site is largely natural bushland. It is bordered by the Sydney Water Catchment to the north and east and Dharawal Nature Reserve to the south. 5 The site is zoned part 7(a) Special Environment Protection and part "Deferred" under Wollongong Local Environmental Plan 1990. Clause 10 provides that development consent is required, amongst other things, for "clearing or partial clearing of vegetation" and "filling or partial filling of land". 6 The responsibility for the vegetation clearing was not the subject of the appeal and was in dispute between the parties. Consequently, I make no findings on this matter. 7 The Order provided that the applicant undertake certain actions. In general terms this included engagement of an ecological or bush regeneration consultant with a specific qualifications and the implementation of the full schedule of works identified in the applicants Vegetation Restoration Plan, including amendments proposed by the council. 8 There was no dispute between the parties on the appointment of an ecological or bush regeneration consultant or the content of the Vegetation Restoration Plan; the applicant having already appointed a consultant and undertaken restoration of the disturbed areas. The sole issue between the parties being the method of ensuring compliance, particularly the ongoing monitoring to ensure that there is no growth of weeds in the disturbed areas. 9 The council proposed that the Order be modified to read: The owner of the land is to: 1. maintain engagement of an ecological or bush regeneration consultant with TAFE certificate II qualifications in Conservation & Land Management (Natural Area Restoration ) or Bush Regeneration; 2. ensure that the consultant: a) monitors the success of seedlings transplanted prior to 31 December 2006 and replaces all dead or dying transplanted seedlings in accordance with section 3.4.4.3 of the report titled Vegetation Restoration Plan: Version 2 Lot 86 DP 752054 Darkes Forest Road, Darkes Forest' dated January 2006 and prepared by Bushfire and Environmental Services (VRP) by 30 June 2007; b) carries out weeding and maintenance in areas A, D, E and G to J shown on Attachment 1 in accordance with specifications in the VRP, at a frequency of not less then 3 monthly, until 23 June 2011 or an earlier date if Council notifies you in writing that the site has been restored in accordance with the VRP; and c) maintains records of all VRP activities in accordance with section 4.2.2 of the VRP and submits 6 monthly reports detailing these activities to Wollongong City Council's Environment and Health Division, 3. maintain the star pickets installed along the vehicle track in Area A so as to clearly delineate that track and prevent vehicular disturbance to the regeneration in Area A shown on Attachment A. 10 The applicant opposed the modified Order and proposed that the terms of the Order be in the form of an Undertaking or Deed with the council. This was seen as having the same effect as the council's Order but not raising any issue with the potential sale of the property (through notations on a 149(5) Certificate) and not casting any inferences on the integrity of the applicant, not having accepted responsibility for the clearing of vegetation. 11 Even though the applicant has been responsive to the directions given by the council from the time that the council was alerted to the vegetation clearing, I am not satisfied that any compelling reasons were given to move away from the established practices of enforcement contained within the Environmental Planning and Assessment Act 1979. I accept the councils submission that while an Undertaking or Deed would theoretically achieve the same effect, any breach of the Undertaking or Deed would potentially involve the council in unnecessary costs compared to the existing procedures in the Environmental Planning and Assessment Act 1979. The council's Order also negates the need for renegotiation of the Undertaking or Deed in the event of the sale of the site although there was no evidence to suggest that this was to take place. 12 For these reasons, the Orders of the Court are: 1) The appeal is dismissed. 2) The Order of Wollongong City Council dated 23 June 2006 for the property at Lot 86 in DP 752054, Darkes Forest Road, Darkes Forest is modified in the following manner: a) Order 1 is deleted and placed with: 1. maintain engagement of an ecological or bush regeneration consultant with TAFE certificate II qualifications in Conservation & Land Management (Natural Area Restoration ) or Bush Regeneration; b) Order 2 is deleted and placed with: 2. ensure that the consultant: a) monitors the success of seedlings transplanted prior to 31 December 2006 and replaces all dead or dying transplanted seedlings in accordance with section 3.4.4.3 of the report titled Vegetation Restoration Plan: Version 2 Lot 86 DP 752054 Darkes Forest Road, Darkes Forest' dated January 2006 and prepared by Bushfire and Environmental Services (VRP) by 30 June 2007; b) carries out weeding and maintenance in areas A, D, E and G to J shown on Attachment 1 in accordance with specifications in the VRP, at a frequency of not less then 3 monthly, until 23 June 2011 or an earlier date if Council notifies you in writing that the site has been restored in accordance with the VRP; and c) maintains records of all VRP activities in accordance with section 4.2.2 of the VRP and submits 6 monthly reports detailing these activities to Wollongong City Council's Environment and Health Division, c) Order 3 is deleted and placed with: 3. maintain the star pickets installed along the vehicle track in Area A so as to clearly delineate that track and prevent vehicular disturbance to the regeneration in Area A shown on Attachment A. 3) The exhibits are retained. _________ G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.