Background
Wollondilly Shire Council issued Amanda Barnes with Restore Works Order No. 10 on 30 March 2026. The order concerned earthworks undertaken without development consent at 2 Jarvisfield Road, Picton, and broadly required the land to be restored to its condition before the works.
Barnes appealed under s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW). During a conciliation conference held under s 34 of the Land and Environment Court Act 1979 (NSW), the parties agreed to amended terms. Barnes did not admit the matters alleged by the Council.
The Court’s Holding
Commissioner Washington upheld the appeal and modified the development control order under s 8.18(4)(b) of the Environmental Planning and Assessment Act. The Court found that the parties’ agreed outcome was one it could properly make and therefore was required by s 34(3) of the Land and Environment Court Act to dispose of the proceedings in accordance with that agreement.
The Court accepted that the original order had been lawfully issued: the earthworks between the dwelling and road were unauthorised, and a restore works order could be issued to the owner under Schedule 5, Part 1, item 10. The appeal had also been commenced within time. The modified order required restoration measures including spreading topsoil, installing seeded grass, replacing one tree, and post-construction survey and certification, as specified in Annexure A.
Key Takeaways
- A Class 1 appeal may result in modification, rather than revocation, of a restore works order.
- Where parties reach an agreed decision in a conciliation conference, the Court must give effect to it if it could properly have made that decision.
- Agreement to modified restoration works does not itself require an applicant to admit the council’s allegations.
Why It Matters
The decision illustrates the practical use of conciliation in planning enforcement appeals. A landowner and council can resolve the scope of remediation through agreed terms, subject to the Court confirming its statutory power and the legal basis for the result.
It also confirms that an appeal against a lawfully issued restore works order can produce a tailored compliance outcome focused on specific landscaping, revegetation and certification measures.