Haralambis Constructions Pty Ltd v City of Parramatta Council

[2025] NSWLEC 1165

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Haralambis Constructions Pty Ltd v City of Parramatta Council [2025] NSWLEC 1165

Hearing dates:

Conciliation conference on 14 March 2025

Date of orders:

14 March 2025

Decision date:

14 March 2025

Jurisdiction:

Class 3

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Tree Permit Application No. TA/2/2025 for the removal of forty-eight (48) trees at 2 Shaft Street, Silverwater NSW 2128 is determined by the issue of a permit to clear vegetation subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – tree permit application - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 3.14

Land and Environment Court Act 1979, ss 19, 34

Roads Act 1993, s 138

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.3, 2.6, 2.9, 2.10, 2.12

Texts Cited:

Parramatta Development Control Plan 2023

Category:

Principal judgment

Parties:

Haralambis Constructions Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
G Shapiro (Solicitor)(Applicant)
J Palmer (Solicitor)(Respondent)

Solicitors:
Hones Lawyers (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2025/42729

Publication restriction:

No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: A Tree Permit Application No. TA/2/2025 (TPA), lodged with the City of Parramatta Council (Council) pursuant to s 2.3 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) was partially refused by the Council and that determination was Appealed to this Court pursuant to s 2.12 of the Biodiversity and Conservation SEPP.

2. The TPA sought permission to remove 48 trees from 2 Shaft Street, Silverwater NSW 2128 legally described as Lot 1 in Deposited Plan 541631 (the Site). On 28 January 2025, Council determined the TPA by permitting the removal of 44 trees, and refusing the removal of the following four trees:

1. Tree 1 – Melaleuca Bracteata (Black Teatree)

2. Tree 6 – Eucalyptus Scoparia (Wallangarra White Gum)

3. Tree 7 – Melaleuca Bracteata (Black Teatree)

4. Tree 87 – Callistemon Viminalis (Weeping Bottlebrush)

3. On 3 February 2025, the Applicant filed an Application Class 3 against the Council’s refusal of part of the TPA.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 14 March 2025. I presided over the conciliation conference.

5. The parties agree that the proceedings can be resolved by the issuing of a tree permit subject to agreed Conditions, which, put briefly, provide for replacement planting on the Site and tie the removal of certain trees to proposed complying development intended to be carried out on the Site.

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved Court upholding the appeal and issuing a permit to clear vegetation subject to conditions.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

8. The parties’ decision involves the Court exercising the function under s 2.10 of the Biodiversity and Conservation SEPP to issue a permit to clear vegetation to a landholder in a non-rural area of the State.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms contained in Chapter 2 of the Biodiversity and Conservation SEPP to clear vegetation in non-rural areas. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the court.

10. The Site is owned by 5 legal entities which together are known as Aurora Property Partnerships, the details of which are set out in the letter dated 29 January 2024, which I accept contains a typographical error and the year should read 2025. The owners provide consent to the Applicant to lodge the TPA and any appeal of the determination by the Council to the Court.

11. Chapter 2 of the Biodiversity and Conservation SEPP applies to the local government area of the City of Parramatta pursuant to s 2.3(1)(a) of the Biodiversity and Conservation SEPP.

12. The Biodiversity and Conservation SEPP makes provision for and with respect to protecting or preserving trees or other vegetation in Chapter 2, and, pursuant to s 3.14(4)(c) of the Environmental Planning and Assessment Act 1979 (EPA Act), makes provision at s 2.12 of the Biodiversity and Conservation SEPP for an appeal to the Court against a refusal to grant any permit, approval or other authorisation to remove or otherwise affect trees or other vegetation.

13. The court has jurisdiction to hear and dispose of the appeal as a Class 3 matter pursuant to s 19(h) of the LEC Act.

14. The Applicant seeks permission to remove 48 trees which are declared by Part 5.3.4 of the Parramatta Development Control Plan 2023 (PDCP) to be vegetation to which Part 2.3 of the Biodiversity and Conservation SEPP applies (s 2.9 of the Biodiversity and Conservation SEPP) and as required by s 2.6 of the Biodiversity and Conservation SEPP.

15. Any permit or approval to clear vegetation must be carried out in accordance with that permit or approval: s 2.6(6), Biodiversity and Conservation Act.

16. The TPA was made in the form and manner prescribed by Council pursuant to s 2.11(1) of the Biodiversity and Conservation SEPP. A copy of the TPA was filed with the Court on 3 February 2025.

17. The TPA does not propose the clearing of native vegetation that exceeds the biodiversity offset scheme threshold: s 2.10(2), Biodiversity and Conservation SEPP.

18. The TPA is not prohibited pursuant to s 2.10(3) of the Biodiversity and Conservation SEPP because the Site, including the trees sought to be removed, does not form:

1. a heritage item and is not within a heritage conservation area; or

2. part of an Aboriginal object and is not within an Aboriginal place of heritage significance.

19. The parties have agreed on appropriate conditions of the TPA pursuant to s 2.10(4) of the Biodiversity and Conservation SEPP, including conditions which require replacement planting, and conditions which prevent the removal of certain trees unless that removal is carried out in conjunction with and for the purposes of specified proposed complying development (for which a separate complying development certificate is required). The parties are agreed that potential future development of land is a relevant consideration with respect to a TPA. The parties are further agreed that there is no basis for removal of the particular trees other than in connection with the specified proposed complying development. The parties are accordingly agreed that the imposition of the conditions is appropriate in the circumstances of the case.

20. The proposed conditions of the TPA including a requirement to plant replacement trees in accordance with the Offset Program at C.03 of Part 5.3.4 – Tree and Vegetation Preservation of the PDCP. In that regard, the Weeping Bottlebrush (Tree 87) is located within the road reserve of Holker St (adjoining the Site to the north) and to the extent necessary, the Council, as the roads authority responsible for Holker St, consents to the making of the TPA. The parties note, and the conditions of the TPA specify that any tree permit is not an approval under s 138 of the Roads Act 1993, and a further approval under that section will be required for any work or tree removal in the road reserve.

21. Accordingly, 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 because all statutory procedural steps have been complied with and there are no prohibitions or other limitation on the power to issue the TPA as a result of the nature and location of the trees sought to be removed and the nature and location of the Site as detailed at [17] and [18].

22. As the parties’ decision is a decision 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.

Orders:

23. The Court orders:

1. The appeal is upheld.

2. Tree Permit Application No. TA/2/2025 for the removal of forty-eight (48) trees at 2 Shaft Street, Silverwater NSW 2128 is determined by the issue of a permit to clear vegetation subject to the conditions set out in Annexure A.

E Espinosa

Commissioner of the Court 

Annexure A 

Arboricultural Report 

CDC Plans

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Amendments

18 March 2025 - File Number corrected

Decision last updated: 18 March 2025