Smith v Inner West Council

[2024] NSWLEC 1655

Land and Environment Court

New South Wales

Medium Neutral Citation:

Smith v Inner West Council [2024] NSWLEC 1655

Hearing dates:

Conciliation conferences on 28 August 2024 and 18 September 2024

Date of orders:

17 October 2024

Decision date:

17 October 2024

Jurisdiction:

Class 3

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The tree permit for tree works TREE/2024/0095 to remove a Corymbia citriodora (lemon scented gum) located within the rear setback of 86 Church Street Croydon is determined by the grant of consent subject to the conditions set out in Annexure A.

Catchwords:

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

Legislation Cited:

Land and Environment Court Act 1979, ss 17, 19, 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.6, 2.9, 2.10, 2.11, 2.12

Category:

Principal judgment

Parties:

Annette Helen Smith (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
Self represented (Applicant)
R Dunstan (Solicitor) (Respondent)

Solicitors:
Self represented (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/268677

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 3 Miscellaneous Appeal pursuant to s 2.12 of State Environmental Planning Policy (Biodiversity and Conservation) (SEPP BC) being an appeal against tree permit application TREE/2024/0095 (tree permit) to remove a Corymbia citriodora (lemon scented gum) located within the rear setback at 86 Church Street, Croydon (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 August 2024 and 18 September 2024. I presided over the conciliation conference.

3. As part of the conciliation conference process, 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 tree permit subject to conditions of consent.

4. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

5. 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.

6. The parties’ decision involves the Court exercising the function under s 2.10 of SEPP BC to grant consent to the tree permit.

Jurisdictional Prerequisites

7. 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 and explained how the jurisdictional prerequisites have been satisfied. 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 set out below.

8. There are two matters to address regarding the Court’s jurisdiction. Firstly, the appeal as filed sought to appeal the conditions of consent of a granted tree permit. Section 2.12 of SEPP BC allows an applicant to appeal to the Court against the refusal to grant a permit. Leaving aside if the tree permit consent was a constructive refusal, s 2.11(6) of SEPP BC provides that a tree permit application is taken to have been refused after 28 days from lodgement. The tree permit application was not determined within 28 days and consequently, accrued an appeal right that the tree permit was taken to be refused. On this basis, I accept the parties’ agreement as set out in the jurisdiction statement from paragraphs 16-18 that the Court has jurisdiction.

9. Secondly, the appeal was initially filed as a Class 3 appeal and was changed by the Court to Class 1. I accept the parties’ agreement as set out in the jurisdictional statement that the appeal does not appear to fall within one of the criterions of a Class 1 appeal under s 17 of the LEC Act. The Court’s ability to hear the appeal is through s 2.12 of SEPP BC. As originally filed, the appeal therefore has jurisdiction as a Class 3 appeal under s 19(h), being:

19   Class 3—land tenure, valuation, rating and compensation matters

The Court has jurisdiction (referred to in this Act as “Class 3” of its jurisdiction) to hear and dispose of the following –

…

(h) any other appeals, references or other matters which an Act provides may be heard and disposed of by the Court, being appeals, references or other matters that are not referred to in any other section of this Part.

10. In relation to the relevant provisions of SEPP BC, I accept that the following is satisfied:

1. Chapter 2 applies, as s 2.3(1) lists Inner West Council as an applicable Council and the site is zoned R2 Low Density Residential.

2. Sections 2.6 and 2.9 require a tree permit for the sought after tree removal.

3. Section 2.10(2) is not relevant as the removal of a single tree would not exceed the biodiversity offsets scheme threshold.

4. Subsections 2.10(3)(a) and (b) are met, as the subject site is not a heritage item, heritage conservation area or known Aboriginal place or object.

5. Subsection 2.10(3)(c) is met as the permit is of a minor nature.

6. Section 2.11(1) is met, as the tree permit was made in the required manner and accompanied by owners consent.

Conclusion

11. 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.

12. 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.

13. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

14. The Court notes that the parties agree to pay their own costs.

Orders

15. The Court orders:

1. The appeal is upheld.

2. The tree permit for tree works TREE/2024/0095 to remove a Corymbia citriodora (lemon scented gum) located within the rear setback of 86 Church Street Croydon is determined by the grant of consent subject to the conditions set out in Annexure A.

S Porter

Commissioner of the Court

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Annexure A

Decision last updated: 17 October 2024