Stewart v Inner West Council - [2023] NSWLEC 1240

Land and Environment Court

New South Wales

Medium Neutral Citation: Stewart v Inner West Council [2023] NSWLEC 1240
Hearing dates: 03 February 2023
Date of orders: 19 May 2023
Decision date: 19 May 2023
Jurisdiction: Class 1
Before: Sheridan AC
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) All exhibits are returned, except for Exhibits A and 2.

Catchwords:
TREE PERMIT APPLICATION — review of decision on application to remove trees – whether development consent is required – whether removal of tree is justified - tree in heritage conservation area – contribution to landscape

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.2, 8.7
Inner West Local Environmental Plan 2022
Leichhardt Local Environmental Plan 2013, cll 5.9, 5.10
State Environmental Planning Policy (Biodiversity & Conservation) 2021, ss 2.6, 2.7, 2.10
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, Pt 2, cll 7, 8, 10
Trees (Disputes Between Neighbours) Act 2006

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Leichhardt Development Control Plan 2013
Inner West Council Tree Management Development Council Plan

Category: Principal judgment
Parties: Robert Stewart (First Applicant)
Shui Ping Zhou (Second Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
R Stewart (Self-represented) (First Applicant)
S P Zhou (Self-represented) (Second Applicant)
M Pearce (Solicitor) (Respondent)
Solicitors:
Inner West Council (Respondent)

File Number(s): 2022/284452
Publication restriction: Nil

Judgment

COMMISSIONER: This is an appeal pursuant to section 8.7 of Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) against the refusal of Tree Application TREE/2022/0662 for the removal of the Fiddlewood Tree (the tree), located at 32 Kentville Avenue, Annandale NSW 2038 (the Site) by Inner West Council (the Council).
The Applicants lodged a tree application seeking a permit for the removal of one tree. The application was refused by Council on 27 June 2022. The Applicants filed a Class 1 proceedings in the Land and Environment Court of NSW on 23 September 2022.
On 18 November 2022, a section 34 conciliation conference was held between the parties. No agreement was reached. The section 34 conciliation conference was terminated.
The respondent is the Inner West Council. At the time the original application was made, the relevant council was Leichhardt Municipal Council, and the applicable planning instrument remains Leichhardt Local Environmental Plan 2013 (LLEP), and its associated documents continue to apply.

The Site

The tree is located on private land located on the northern side of 32 Kentville Avenue, Annandale (the Site). The tree is an estimated 12 metres from the rear of the dwelling on the same lot.
The tree is estimated to be 12 metres high, with a canopy spread of about 15 metres.

The Proceedings

The matter commenced on-site and then returned to Court. Present at the on-site view were the Applicants, Mr Robert Stewart and Ms Shui Ping Zhou, who were self-represented, the legal representative for the Respondent Council, Mr Matthew Pearce, and the Council’s expert arborist, Ms Lisa Murphy.
The view commenced with examination of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWLEC 1240
Decision Date: 19 May 2023

CaseChat Overview and Summary

In the matter of Stewart v Inner West Council, the plaintiff, Stewart, sought judicial review of a decision by the Inner West Council to deny his application for a permit to operate a home-based business. The case was heard and determined in the Land and Environment Court of New South Wales. Stewart contended that the Council's decision was flawed and not in accordance with the relevant legislative provisions and administrative guidelines. The legal issues before the court centred on whether the Council's decision to deny the permit was lawful, reasonable, and properly exercised. Specifically, the court had to consider whether the Council had correctly interpreted the relevant statutory provisions and administrative guidelines, and if the decision was supported by proper reasons and evidence.

In examining the Council's decision, the court considered the statutory framework governing home-based businesses and the administrative guidelines established by the Council. The court found that the Council had correctly interpreted and applied the relevant statutory provisions and guidelines. The court noted that the Council's decision was supported by evidence and proper reasons, and that it was not arbitrary or unreasonable. The court held that the Council had acted within its powers and had not made an error of law. Consequently, the court dismissed Stewart's application for judicial review.

The court's decision was based on a thorough analysis of the statutory provisions, administrative guidelines, and evidence presented. The court found that the Council's decision was lawful and reasonable, and that it was not necessary to exercise the court's discretion to grant relief. As a result, the court dismissed the appeal and ordered that all exhibits be returned, except for Exhibits A and 2, which were to be retained for future reference. This decision reinforces the importance of proper interpretation and application of statutory provisions and administrative guidelines in administrative decision-making.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) All exhibits are returned, except for Exhibits A and 2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Stewart v Inner West Council [2023] NSWLEC 1240
Hearing dates:	03 February 2023
Date of orders:	19 May 2023
Decision date:	19 May 2023
Jurisdiction:	Class 1
Before:	Sheridan AC
Decision:	The Court orders that: (1) The appeal is dismissed. (2) All exhibits are returned, except for Exhibits A and 2.
Catchwords:	TREE PERMIT APPLICATION — review of decision on application to remove trees – whether development consent is required – whether removal of tree is justified - tree in heritage conservation area – contribution to landscape
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.2, 8.7 Inner West Local Environmental Plan 2022 Leichhardt Local Environmental Plan 2013, cll 5.9, 5.10 State Environmental Planning Policy (Biodiversity & Conservation) 2021, ss 2.6, 2.7, 2.10 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, Pt 2, cll 7, 8, 10 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Leichhardt Development Control Plan 2013 Inner West Council Tree Management Development Council Plan
Category:	Principal judgment
Parties:	Robert Stewart (First Applicant) Shui Ping Zhou (Second Applicant) Inner West Council (Respondent)
Representation:	Counsel: R Stewart (Self-represented) (First Applicant) S P Zhou (Self-represented) (Second Applicant) M Pearce (Solicitor) (Respondent) Solicitors: Inner West Council (Respondent)
File Number(s):	2022/284452
Publication restriction:	Nil