Barnes v Wollondilly Shire Council

Land and Environment Court New South Wales Medium Neutral Citation: Barnes v Wollondilly Shire Council [2026] NSWLEC 1630 Hearing dates: Conciliation conference on 11 August, 3 and 10 September 2026 Date of orders: 25 September 2026 Decision date: 25 September 2026 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders: (1) The appeal is upheld. (2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW), the development control order (Restore Works Order No. 10) issued by Wollondilly Shire Council on 30 March 2026 to the Applicant pursuant to ss 9.34 and 9.35 of the Environmental Planning and Assessment Act 1979 (NSW) in respect of the Premises at 2 Jarvisfield Road, Picton (Lot 4 DP 873571) is modified in accordance with the order annexed and marked “Annexure A”. Catchwords: DEVELOPMENT CONTROL ORDER – earthworks – restore works order – conciliation conference – amended order – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 8.18, 9.34, Sch 5, Pt 1 Land and Environment Court Act 1979 (NSW), s 34 Category: Principal judgment Parties: Amanda Barnes (Applicant) Wollondilly Shire Council (Respondent) Representation: Counsel: C Barnes (Solicitor) (Applicant) J McCullan (Solicitor) (Respondent) Solicitors: Barnes Law Group Pty Ltd (Applicant) Wollondilly Shire Council

(Respondent) File Number(s): 2026/168708 Publication restriction: Nil Judgment COMMISSIONER: These proceedings arise as a result of a Development Control Order, No. 10 (the Order), issued by the respondent Wollondilly Shire Council to the applicant, Amanda Barnes on 30 March 2026. The Order is a Restore Work Order pertaining to earthworks that were undertaken without development consent on the property at Lot 4 DP 873571, 2 Jarvisfield Road, Picton. Broadly speaking, the Order requires the owner of the land to restore the land to its previous state, prior to the earthworks having been carried out. These Class 1 proceedings have been brought to the Court pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The powers set out in s 8.18(4) are as follows: (4) On hearing an appeal, the Court may: (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit. The Court arranged a conciliation

conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 11 August, 3 and 10 September 2026. I presided over the conciliation conference. After the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and amending the Order in accordance with the parties’ agreed terms (the amended Order). The amended Order modifies the required restoration works to the spreading of topsoil and installation of seeded grass, tree replacement of one tree, and post-construction survey and certification, in accordance with the terms in Annexure A. I note that this agreement was reached without admission by Ms Barnes as to the matters alleged by the Council. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 8.18 of the EPA Act to modify the development control order. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in a written statement. From this I note the following: The EPA Act Sch 5 Pt 1 Item 10 allows a

Restore Works Order to be issued to the owner of the premises when unauthorised works have been carried out, to restore premises to the condition in which they were before the unlawful works occurred. The earthworks, between the dwelling and the road, were undertaken without development consent and are therefore considered unauthorised. The Order was therefore lawfully made under s 9.34 of the EPA Act. The Order was served and received by the applicant on 30 March 2026 and proceedings commenced on 24 April 2026, satisfying the requirements of s 8.18(3) of the EPA Act. EPA Act s 8.18(4)(b) provides that, on hearing this appeal, the Court has the power to modify the development control order in accordance with the parties’ decision. For these reasons I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. As the parties’ decision is one that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. The Court orders: The appeal is upheld. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW), the development control order (Restore Works Order No. 10) issued by Wollondilly Shire Council on 30 March 2026 to the Applicant

pursuant to ss 9.34 and 9.35 of the Environmental Planning and Assessment Act 1979 (NSW) in respect of the Premises at 2 Jarvisfield Road, Picton (Lot 4 DP 873571) is modified in accordance with the order annexed and marked “Annexure A”. E Washington Commissioner of the Court ** Annexure A.391.KB.pdf DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2026