Jolly v Inner West Council

[2020] NSWLEC 1582

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jolly v Inner West Council [2020] NSWLEC 1582

Hearing dates:

Conciliation conference on 6 November 2020

Date of orders:

25 November 2020

Decision date:

25 November 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – See [13]

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Leichhardt Local Environmental Plan 2013

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Texts Cited:

Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020)

Inner West Council Tree Management DCP 2020

Category:

Principal judgment

Parties:

Jennifer Jolly (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
G Jolly (Solicitor) (Applicant)
S Allam (Solicitor) (Respondent)

Solicitors:
Minter Ellison (Applicant)
Inner West Council (Respondent)

File Number(s):

2020/277404

Publication restriction:

No

Judgment

1. COMMISSIONER: Jennifer Jolly (the Applicant) has appealed the refusal by Inner West Council (the Respondent) of her application (TREE-2020-0325) made under the Inner West Council’s Tree Management Development Control Plan 2020 (Tree DCP) for removal of a lemon scented gum (Corymbia citriodora) tree within 2m of an approved studio (the Proposed Works) at 16 King Street, Balmain (the Subject Site).

2. The Subject Site is zoned R1 General Residential under the provisions of Leichhardt Local Environmental Plan 2013, and the Proposed Works are consistent with the objectives of, and permissible within, the zone. The application for the Proposed Works is made with owners’ consent.

3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 6 November 2020, and I presided over that conciliation conference.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy), and no site view was undertaken during the conference.

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 the Court upholding the appeal and granting consent to the Applicant’s development application, 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.

8. The Parties have advised that the application is subject to the provisions of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (VSEPP), and in relation to this:

1. clause 10 of the VSEPP provides that Council may issue a permit to a landowner to clear vegetation in certain circumstance; and

2. the Parties have confirmed, and I am satisfied, that pursuant to the provisions of cl 10(3) of the VSEPP the Proposed Works are of minor nature and would not adversely affect the heritage significance of the heritage conservation area within which the Subject Site is located.

9. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act.

10. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

11. I am further 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.

12. 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.

13. 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.

14. The Court orders that:

1. the appeal is upheld;

2. pursuant to section 8.14 of the Environmental Planning and Assessment Act 1979 (NSW):

1. the Applicant may remove the lemon scented gum tree the subject of the application, subject to the terms of the Notice of Determination contained in Annexure A; and

2. the Respondent will do all things reasonably necessary to facilitate these orders, including promptly facilitating the closure of King Lane, Balmain so as to enable the tree removal to take place in accordance with its usual processes.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (147638, pdf)

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Decision last updated: 25 November 2020