Stewart v Inner West Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stewart v Inner West Council [2023] NSWLEC 136

Hearing dates:

16 November 2023

Date of orders:

16 November 2023

Decision date:

16 November 2023

Jurisdiction:

Class 1

Before:

Preston CJ

Decision:

The Court orders:

(1) The appeal is dismissed.

Catchwords:

APPEAL – appeal on questions of law – Commissioner’s decision to refuse permit for tree removal – tree in heritage conservation area – development consent required to remove tree – tree of a listed species in development control plan – permit required to remove tree – whether development consent or permit required in circumstances – whether misconstruction of development control plan – application of incorrect development control plan – whether error material

Legislation Cited:

Environment and Planning Assessment Act 1979 (NSW) ss 1.5(1)(f), 3.43(5), 4.3, 4.12, 4.16(1), 8.2

Inner West Local Environmental Plan cl 1.8A

Land and Environment Court Act1979(NSW) s 56A(1)

Leichhardt Local Environmental Plan 2013 cll 5.9(3), 5.10(2), 5.10(2)(a)(iii),5.10(3)

Standard Instrument (Local Environmental Plan) Amendment (Vegetation) Order 2017 cl 2

State Environmental Planning Policy (Biodiversity and Conservation) 2021 ss 2.2(1), 2.6, 2.7, 2.9, 2.10, 2.11

Trees (Disputes Between Neighbours) Act2006 (NSW)

Cases Cited:

Hinkler Ave 1 Pty Ltd v Sutherland Shire Council [2023] NSWCA 264

Owners Strata Plan 40546 v McRae [2023] NSWLEC 1203

Stewart v Inner West Council [2023] NSWLEC 1240

Category:

Principal judgment

Parties:

Mr Robert Stewart (First Appellant)
Ms Shuiping Zhou (Second Appellant)
Inner West Council (Respondent)

Representation:

Counsel:
Mr Robert Stewart (self-represented) (First Appellant)
Ms Shuiping Zhou (self-represented) (Second Appellant)
Mr R White (Respondent)

Solicitors:
Inner West Council (Respondent)

File Number(s):

2023/191039

 Decision under appeal 

Court or tribunal:

Land and Environment Court of NSW

Jurisdiction:

Class 1

Citation:

[2023] NSWLEC 1240

Date of Decision:

19 May 2023

Before:

Sheridan AC

File Number(s):

2022/284452

JUDGMENT

Nature of appeal and outcome

1. Mr Stewart and Ms Zhou (the appellants) have appealed against the decision and order of a Commissioner of the Court to dismiss their appeal concerning an application for a permit to remove a tree.

2. The appellants are the owners of land at 32 Kentville Ave, Annandale.  They lodged with Inner West Council (the Council) on 24 June 2022 an application to remove a tree, a Fiddlewood (Citharexylum spinosum), growing in the rear yard of their property. The tree is about 12 metres in height, with a canopy spread of 15 metres. The application was made using the form required by the Council, under s 2.11(1)(a) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), to apply for a permit to prune or remove trees on private land. The appellants identified in their application that they were making a Tree Minor Works Request as the tree was of a species listed in Control C7 of the Inner West Council Tree Management Development Control Plan, adopted on 11 February 2020 (the Tree DCP).

3. The Council responded to the appellants’ application on 27 June 2022, three days after their application…