Background
Trever McCarthy is the registered proprietor of a roughly 10.83-hectare property at 270–296 Fairlight Road, Mulgoa, zoned C3 Environmental Management under the Penrith Local Environmental Plan 2010. Part of the property contains Cumberland Shale Plains Woodland (plant community type 3320), a critically endangered ecological community under both the Biodiversity and Conservation Act 2016 (NSW) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
Penrith City Council issued a Notice of Intention to Give an Order in December 2024, alleging that McCarthy had carried out unauthorised vegetation clearing and earthworks — including importing and placing fill material — on parts of the property. After correspondence between the parties, the Council formally issued a Development Control Order (Order 10 — Restore Works Order) on 21 October 2025 under s 9.34 and Schedule 5, Part 1 of the Environmental Planning and Assessment Act 1979 (NSW), requiring McCarthy to restore the affected land.
McCarthy commenced Class 1 appeal proceedings in the Land and Environment Court on 11 November 2025. The matter was listed for a conciliation conference on 9 April 2026 and was adjourned on multiple occasions before the parties reached a negotiated resolution.
The Court’s Holding
Commissioner Targett upheld the appeal and revoked the Restore Works Order by consent. During the conciliation process, the parties agreed that the Order would be revoked on a no-admissions basis and that McCarthy would instead carry out specified restoration works on the property in accordance with a Vegetation Management Plan (VMP) annexed to the judgment.
Before giving effect to the agreement, the Commissioner was required to satisfy herself that revoking the Order was a decision the Court could make in the proper exercise of its functions, as required by s 34(3) of the Land and Environment Court Act 1979 (NSW). She found that s 8.18(4)(a) of the EPA Act expressly empowers the Court to revoke a development control order on appeal, and that revocation in exchange for the applicant undertaking the agreed restoration works was a decision within the Court’s proper functions. No merit assessment of the underlying disputed issues was made.
Key Takeaways
- The Land and Environment Court may revoke a development control order by consent under s 8.18(4)(a) of the EPA Act without conducting a merit review of the underlying enforcement dispute, provided the agreed outcome falls within the Court’s proper functions.
- Where parties reach agreement through conciliation, s 34(3) of the Land and Environment Court Act 1979 (NSW) requires the Court to dispose of proceedings in accordance with that agreement if it is a decision the Court could have made.
- A landowner subject to an enforcement order over allegedly unlawful clearing of a critically endangered ecological community can resolve proceedings on a no-admissions basis by committing to carry out restoration works under an agreed Vegetation Management Plan.
Why It Matters
This decision illustrates how conciliation can resolve environmental enforcement disputes without a contested hearing or findings of liability. The no-admissions revocation preserves the landowner’s position while still securing on-ground environmental outcomes — here, a structured restoration program for a critically endangered woodland community — demonstrating the practical utility of the Land and Environment Court’s Class 1 conciliation jurisdiction.
For practitioners, the case is a useful reminder of the Court’s broad remedial powers under s 8.18(4) of the EPA Act and the obligation under s 34(3) of the LEC Act to give effect to agreed outcomes reached through conciliation, so long as the agreed result is within the Court’s proper functions. It also highlights the intersection of State and Commonwealth biodiversity protections where Cumberland Shale Plains Woodland is involved.