Background
Penrith City Council issued Langway Pty Ltd with a Restore Works Order in October 2025 after clearing at land in Badgerys Creek. The order required Langway to prepare and implement a Restoration Vegetation Management Plan for the cleared land.
In an earlier decision, the Court held that the order should be modified because Langway’s development consent authorised clearing on part, but not all, of the affected area. The parties could not agree on the consequential order. Langway sought further changes, including allowing restoration elsewhere on the site, longer compliance periods, less prescriptive performance requirements, removal of the stated cleared area, and reduced monitoring.
The Court’s Holding
Commissioner Gray upheld the appeal and modified the development control order under s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW), adopting the version filed by the Council. The modification reduced the land covered by the order to the area where clearing was not authorised by the development consent and adjusted compliance timeframes.
The Court rejected all of Langway’s additional proposed changes. A Restore Works Order could require restoration only of premises affected by unlawful works, not restoration elsewhere on the site. Langway had provided no evidence justifying a further month to prepare the management plan, a fixed one-year extension if restoration was incomplete after five years, removal of Council’s satisfaction role, deletion of the accepted 7,419.41 square metre figure, or removal of 18-month monitoring.
Key Takeaways
- Consequential orders are not an opportunity to introduce issues that were not raised at the hearing.
- A Restore Works Order must address the area affected by unlawful works; it cannot require restoration at a different site area.
- A party that does not challenge evidence at hearing may be bound by that forensic choice in later orders.
Why It Matters
The decision reinforces finality in Land and Environment Court proceedings: once the merits hearing has concluded, parties cannot use the settling of final orders to reopen unraised disputes about the terms of an enforcement order.
It also confirms the statutory limits of restoration orders under the NSW planning regime. Flexibility may exist in how restoration is carried out, but not in shifting the obligation away from the land affected by unlawful clearing.