Director-General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232

Land and Environment Court New South Wales

Medium Neutral Citation: Director-General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232 Hearing dates: 11 November 2011 Decision date: 11 November 2011 Jurisdiction: Class 4 Before: Preston CJ Decision: Orders as set out at [39]. Catchwords: CIVIL ENFORCEMENT - picking of plants of endangered ecological communities in breach of statute - orders to remedy and restrain breach of statute - variation of order for fencing - further remediation and rehabilitation orders - process for hearing and determining further orders to be made - costs of proceedings - applicant largely successful - apportionment for partial success - whether any disentitling conduct of successful applicant. Legislation Cited: Civil Procedure Act 2005 s 98 National Parks and Wildlife Act 1974 s 118A(2), s 156A(1)(b) Uniform Civil Procedure Rules 2005 r 42.1 Cases Cited: Director-General Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 Category: Costs Parties: Director-General of the Department of Environment, Climate Change and Water (Applicant) Mr Anthony De Lisle Venn (Respondent) Representation: Mr D K Jordan, Barrister (Applicant) Ms C Kardell, Solicitor (Respondent) NSW Office of Environment & Heritage (Applicant) Ms C Kardell, sole practitioner (Respondent) File Number(s): 40826 of 2010

Judgment

Issues to be determined 1On 8 July 2011, I found that Mr Venn had breached s 118A(2) of the National Parks and Wildlife Act 1974 ("the Parks Act") by directing the clearing and filling of land on which there were two endangered ecological communities. I made a declaration to that effect. I made various orders to restrain Mr Venn from continuing the breach and to remedy the breach. 2The orders included an order that Mr Venn cause a qualified fencing contractor to erect a fence along the length of the common boundary between Mr Venn's property (Lot 2) and the adjoining property (Lot 1) on which the clearing and filling occurred (Orders 6 and 7); an order that Mr Venn cause an appropriately qualified and experienced rehabilitation practitioner to undertake a contamination assessment and prepare a remediation action plan (Order 9); an order that the proceedings be adjourned for further hearing to determine the further orders for remediation and rehabilitation of Lot 1 (Order 12); and orders granting liberty to the parties to apply for further or different orders (Orders 13 and 14). I reserved the question of costs of the proceedings (Order 15): see Director-General Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118. 3As a consequence of these orders, three matters now need to be resolved. First, pursuant to the liberty granted to the parties, Mr Venn has applied to vary Order 6 so as to allow him to erect the required fence rather than employing a fencing contractor. Secondly, the applicant seeks an order for its costs of the proceedings until the date of judgment (being the costs reserved in Order 15 as well as costs reserved on the applicant's notice of motion filed 10 May 2011) and the costs of Mr Venn's application to vary Order 6. Thirdly, the further orders for remediation and rehabilitation of Lot 1 need to be determined. I will deal with each.