Chief Executive of the Office of Environment and Heritage v Turnbull (No 4) [2016] NSWLEC 66

Land and Environment Court New South Wales

Medium Neutral Citation: Chief Executive of the Office of Environment and Heritage v Turnbull (No 4) [2016] NSWLEC 66 Hearing dates: 3 - 6 March 2015, 30 - 31 March 2015 Date of orders: 03 June 2016 Decision date: 03 June 2016 Jurisdiction: Class 4 Before: Craig J Decision: 1. Order pursuant to s 41(5) of the Native Vegetation Act 2003 that the respondent, by himself, his servants and agents, be restrained from clearing, or causing or permitting the clearing, of native vegetation on land comprising Lots 1 and 17 in DP 755998, known as 'Colorado', at or near Croppa Creek in New South Wales (the Land) in contravention of that Act.

2. Order that the respondent carry out the remedial works on the Land that are set out in Annexure 'B' to these orders.

3. Order that the respondent carry out the work identified in the remedial direction given by this Court pursuant to s 38 of the Native Vegetation Act 2003 on 31 July 2014.

4. Order that the respondent pay the applicant's costs of these proceedings unless within 21 days from the date of this order he applies by motion for a different order.

5. Reserve liberty to apply on 5 days' notice for the variation of the remedial works that are the subject of Order 2.

6. Otherwise reserve liberty to apply on 5 days' notice.

7. Exhibits may be returned. Catchwords: CIVIL ENFORCEMENT - unlawful clearing of native vegetation – declaration of contravention of statute – whether declaration appropriate – order to restrain unlawful clearing – whether restraining order necessary and appropriate – order to remedy unlawful clearing – order to comply with court direction requiring remedial work – whether orders reasonable and proportionate – extent and seriousness of environmental harm – Native Vegetation Act 2003, ss 12 38,41 Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Environment Protection and Biodiversity Conservation Act 1999 (Cth) National Parks and Wildlife Act 1974 (NSW) Native Vegetation Act 2003 (NSW) Native Vegetation Regulation 2013 Uniform Civil Procedure Rules 2005 Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Chief Executive of the Office of Environment and Heritage v Turnbull [2014] NSWLEC 153 Chief Executive of the Office of Environment and Heritage v Turnbull (No 2) [2014] NSWLEC 155 Commercial and Industrial Property Pty Ltd v Holroyd City Council [2013] NSWLEC 1000 Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118; 210 LGERA 300 Great Lakes Council v Lani [2007] NSWLEC 681; 158 LGERA 1 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 Terranora Group Management Pty Ltd v Director-General, Office of Environment and Heritage [2013] NSWLEC 198; 200 LGERA 1 Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84; 212 LGERA 163 Turnbull v Director-General, Office of Environment and Heritage (No 2) [2014] NSWLEC 112 Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; 82 NSWLR 12 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508 Texts Cited: National Committee on Soil and Terrain, Australian Soil and Land Survey Field Handbook (3rd Ed 2009, CSIRO Publishing) Category: Principal judgment Parties: Chief Executive of the Office of Environment and Heritage (Applicant) Grant Wesley Turnbull (Respondent) Representation: Counsel: T Howard SC with DK Jordan (Applicant) T Alexis SC with H Irish (Respondent)