Mumme v Hornsby Shire Council

[2025] NSWLEC 1573

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mumme v Hornsby Shire Council [2025] NSWLEC 1573

Hearing dates:

Conciliation conference on 08 July 2025

Date of orders:

12 August 2025

Decision date:

12 August 2025

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld in part.

(2) The application to prune or remove trees on private property TA/685/2024 is granted to permit removal of Tree 1, a Eucalyptus Salinga (Sydney Blue Gum), or its conversion into a habitat tree, at 89A Hewitt Avenue, Wahroonga NSW 2076, subject to the conditions in Annexure A.

Catchwords:

APPEAL – tree permit – conciliation conference – agreement reached – orders made

Legislation Cited:

Land and Environment Court Act 1979 (NSW), s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 3, ss 2.6, 2.9, 2.10, 2.12

Texts Cited:

Hornsby Development Control Plan

Category:

Principal judgment

Parties:

James Mumme (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
J Cole (Solicitor) (Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
Messenger Cole Solicitor (Applicant)
Local Government Legal (Respondent)

File Number(s):

2025/87392

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal concerns an application for a permit for the removal of trees at 89A Hewitt Avenue, Wahroonga. In TA/685/2024, the applicant sought permits for the removal of three trees. The application was determined by the respondent on 12 December 2024, and a permit was granted only for the pruning of the three trees. The applicant lodged this appeal, pursuant to s 2.12 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), against the refusal to grant a permit for the removal of Trees 1 and 2 and/or their conversion to habitat trees. In exercising the functions of the respondent on the appeal, the Court has the power to determine the application for a permit to remove the trees pursuant to s 2.12 of the SEPP BC. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 8 July 2025. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed on 6 August 2025, and follows the applicant confining its application for a permit to Tree 1 and undertaking additional investigative work concerning the decay in Tree 1.

4. The decision agreed upon is for the appeal to be upheld, and for the grant of the permit for the removal of Tree 1 and/or its conversion to a habitat tree, subject to conditions. The signed agreement is supported by an agreed Statement of Jurisdictional Prerequisites.

The power to make orders in accordance with the agreement

5. To make orders in accordance with the agreement, I must be satisfied that the decision grant the permit is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act).

6. Chapter 3 of the SEPP BC applies to the site, as s 2.3(1)(a) lists Hornsby as a local government area to which the Chapter applies. Sections 2.6 and 2.9 of the SEPP BC operate, in conjunction with Part 1.2.6 of the Hornsby Development Control Plan, to require and allow a permit to obtained for the removal of trees that are not the subject of a biodiversity offset scheme, do not form part of a heritage item or are not exempt tree species. The Class 1 Application is accompanied by the consent of the owner of the land on which Tree 1 is located. Tree 1 is not the subject of a biodiversity scheme, the site is not heritage listed and the tree species is not exempt. In addition, none of the matters in s 2.10 of the SEPP BC apply to prevent the issue of a permit. Section 2.10(4) also allows the permit to be granted subject to conditions. I therefore conclude that the decision agreed upon, for the grant of the permit for the removal of Tree 1, is a decision that the Court could make in exercising the functions of the consent authority pursuant to Ch 3 of the SEPP BC.

7. Having reached the state of satisfaction that the decision agreed upon is a decision that the Court could make in the exercise of its functions in each of the appeal proceedings, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. In making order to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the issues that were originally in dispute between the parties.

Orders

9. The Court orders that:

1. The appeal is upheld in part.

2. Application to prune or remove trees on private property TA/685/2024 is granted to permit removal of Tree 1, a Eucalyptus Salinga (Sydney Blue Gum), or its conversion into a habitat tree, at 89A Hewitt Avenue, Wahroonga NSW 2076, subject to the conditions in Annexure A.

J Gray

Commissioner of the Court

Annexure A (240 KB, pdf)

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Decision last updated: 12 August 2025