The Owners - Strata Plan 21804 v Inner West Council

[2021] NSWLEC 1632

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan 21804 v Inner West Council [2021] NSWLEC 1632

Hearing dates:

20 July 2021; 1 October 2021

Date of orders:

22 October 2021

Decision date:

22 October 2021

Jurisdiction:

Class 1

Before:

Galwey AC

Decision:

The Court orders that:

(1)   The appeal is dismissed.

(2)   Application TREE/2020/0724 to remove two trees at 16 Vincent Street, Balmain is determined by way of refusal of consent to remove Tree 1 and granting of consent to remove Tree 2.

(3)   The exhibits are returned except for A and 1.

Catchwords:

TREE REMOVAL APPLICATION – appeal against Council’s determination – proximity of tree to building – whether reasons for refusal were reasonable – development consent required to remove a tree – applicant did not apply for development consent – applicant acted on advice from Council

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.2, 8.7, 8.14

Land and Environment Court Act 1979, s 39

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cll 9, 10, 11, 12

Leichhardt Local Environmental Plan 2013, cl 5.10

Texts Cited:

Leichhardt Development Control Plan 2013

Leichhardt Council Tree Management Technical Manual – Trees on Private Property

Category:

Principal judgment

Parties:

The Owners – Strata Plan 21804 (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M McNamara (Agent) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Inner West Council (Respondent)

File Number(s):

2021/60688

Publication restriction:

No

Judgment

1. COMMISSIONER: In September 2020, The Owners – Strata Plan 21804 (‘the applicant’) applied to Inner West Council (‘Council’, or ‘the respondent’) for consent to remove two trees on their Balmain property, which is within the Balmain East Heritage Conservation Area. In December 2020, Council determined Tree Application TREE/2020/0724, refusing removal of one tree (‘Tree 1’) but granting consent to prune it, and approving removal of the other tree (‘Tree 2’).

2. Pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (‘the EPA Act’), the applicant has appealed Council’s determination, seeking consent to remove Tree 1, which is a mature Melaleuca quinquenervia (broad-leaved paperbark).

3. The Court heard the matter via MS Teams. The appeal is dismissed. Reasons are set out below.

The planning framework for this decision

4. The Court’s powers in such an appeal are established at s 8.14 of the EPA Act and at s 39 of the Land and Environment Court Act 1979 (‘the LEC Act’). The Court has all the relevant functions and discretions of the consent authority (Council) whose original decision is being appealed. Fresh or additional evidence may be given on the appeal (s 39(3) of the LEC Act). The Court is required to consider “…any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest” (s 39(4) of the LEC Act).

5. The EPA Act, at s 4.2, requires a person to obtain consent for development if an environmental planning instrument provides that the development may not be carried out except with development consent. The principal environmental planning instrument is the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (‘the Vegetation SEPP’), Pt 3 (cll 9–12) of which establishes the vegetation requiring permission to clear, Council’s powers to issue a permit, and the Land and Environment Court as the jurisdiction in which to appeal a determination.

9 Vegetation to which Part applies

(1) This Part applies to vegetation in any non-rural area of the State that is declared by a development control plan to be vegetation to which this Part applies.

(2) A development control plan may make the declaration in any manner, including by reference to any of the following—

(a) the species of vegetation,

(b) the size of vegetation,

(c) the location of vegetation (including by reference to any vegetation in an area shown on a map or in any specified zone),

(d) the presence of vegetation in an ecological community or in the habitat of a threatened species.

10 Council may issue permit for clearing of vegetation

(1) A council may issue a permit to a landholder to clear vegetation to which this Part applies in any non-rural area of the State.

(2) A permit cannot be granted to clear native vegetation in any non-rural area of the State that exceeds the biodiversity offsets scheme threshold.

(3) A permit under this Part cannot allow the clearing of vegetation—

(a) that is or forms part of a heritage item or that is within a heritage conservation area, or

(b) that is or forms part of an Aboriginal object or that is within an Aboriginal place of heritage significance,

unless the council is satisfied that the proposed activity—

(c) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area, and

(d) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area.

(4) A permit may be granted under this Part subject to any conditions specified in the permit.

11 Miscellaneous provisions relating to permits

(1) An application for a permit—

(a) is to be made in the form and manner required by the council, and

(b) is to be accompanied by the application fee (if any) determined by the council.

(2) The council may request an applicant for a permit to provide the council with such further information about the proposed clearing as the council considers necessary for its proper consideration of the application (including information about previous clearing of vegetation in the area or surrounding area).

(3) The council may deal with the application if the applicant notifies the council that the information will not be provided or if the information has not been provided within the period specified by the council or within such further period as the council may allow.

(4) The council is to determine an application for a permit within 28 days after the date on which the application was duly made.

(5) Any period after the applicant is requested by the council to provide further information to enable the application to be dealt with and until the information is provided (or the applicant notifies the council the information will not be provided) is not to be counted in calculating that 28-day period.

(6) An application for a permit that has not been determined is taken to have been refused after the expiration of that 28-day period.

(7) The council may grant or refuse to grant a permit even if the application is taken to have been refused under this clause.

12 Appeal to Land and Environment Court

(1) An applicant for a permit may appeal to the Land and Environment Court against the refusal by a council to grant the permit.

(2) Any such appeal is to be made within 3 months after the date on which the applicant is notified of the decision or within 3 months after the council is taken to have refused the application (whichever is the later).

6. Taking only the relevant parts of cl 10(3) of the Vegetation SEPP:

“A permit under this Part cannot allow the clearing of vegetation…that is within a heritage conservation area… unless the council is satisfied that the proposed activity is of a minor nature or is for the maintenance of the… heritage conservation area, and would not adversely affect the heritage significance of the… heritage conservation area.”

7. The other relevant environmental planning instrument is the Leichhardt Local Environmental Plan 2013 (‘the LEP’). Pursuant to cl 5.10(2)(a) of the LEP, development consent is required to remove a tree in a heritage conservation area. However, under cl 5.10(3)(a), development consent is not required if the consent authority has advised the applicant that it is satisfied that the proposed development (tree removal) is of a minor nature or is for the maintenance of a building or place within the heritage conservation area, and would not adversely affect the heritage significance of the heritage conservation area. And, at cl 5.10(3)(c), development consent to remove a tree is not required if the consent authority is satisfied the tree is a risk to human life or property. I note here that Council has not advised the applicant that removing Tree 1 would be ‘works of a minor nature’ or would be works for maintaining their building. Council submitted to the Court that Tree 1 is not a risk to human life or property and that its removal would not be regarded as works of a minor nature.

8. The relevant development control plan at cl 9 of the Vegetation SEPP is the Leichhardt Development Control Plan 2013 (Amendment No. 14) (‘the Leichhardt DCP’), which sets out tree management controls at Part C1.14 (amended March 2020). As noted earlier, the applicant’s property is within the Balmain East Heritage Conservation Area.

9. Control C3 at Part C1.14 of the Leichhardt DCP defines protected (prescribed) trees. Due to its size, Tree 1 is a prescribed tree under the Leichhardt DCP.

10. As usual, there are exemptions to the requirement for consent, but control C2 defines trees to which certain exemptions do not apply:

“C2 The exemptions in C1 (a to b) and C7 do not apply to:
…
x. Any tree that is within a heritage conservation area or item where the works are:

1. Not of a minor nature; or

2. Likely to have an adverse impact on a Heritage Conservation Area or Heritage Item”

11. Exemptions in C1 are:

“a. Canopy lifting to 2.5 metres above ground level;

b. Selective pruning to a 3 metre clearance above the roof or from the face of all structures”

12. The exemption in C7 is for pruning trees of any species listed in a table. Melaleuca species are not included in that table.

13. Clause 5.2 ‘Application Assessment Criteria’ includes:

“(i) Distance

Approval will be granted for any tree located within two (2) metres of a dwelling house or garage located within the same lot as the tree, unless the tree is protected under section 4 of this part...

…

(iii) Property Damage

The likelihood of the tree having an adverse effect on property including trees renowned for having extensive root systems, which cause damage to footings of houses or, trees that cause blockages to domestic sewer and drainage lines.

…

(viii). Potential Future Damage

The potential for the tree to cause damage in the future is also considered in an assessment for removal.

…”

14. Dwelling house means a building containing only one dwelling (clause 7 ‘Definitions’). This was a focal point of the applicant’s submissions, as Mr McNamara (the applicant’s strata committee treasurer, acting as agent for the applicant) argued the Leichhardt DCP discriminates against owners of buildings containing multiple dwellings. Due to Tree 1’s proximity to their building, Council would approve this application if the applicant’s building contained only one dwelling. However, it is common for there to be different controls over these different property types, so I do not think it is discriminatory. Even if I considered it discriminatory, the Court is bound to make this decision acting with Council’s relevant functions and discretions, within the same regulatory framework.

15. Clause 5.2 also lists criteria generally not considered as justification for tree removal, including:

“…

7. Damage to underground services (such as sewer lines, water services) and where there are feasible alternatives to mitigate or solve problems and retain the tree;

…”

Removing Tree 1 requires development consent

16. Depending on the situation, tree works require one of three different permits (control C4 at clause 5.1 of the Leichhardt DCP):

C4 Council consent is required before any clearing of vegetation (removal or pruning or tree/s) other than the activities referred to in Control C1 and C2. Applications for consent will be assessed and determined either through:

i. Development Application (as set out in Control C5); or

ii. Tree Works Permit Application (as set out in Control C6); or

iii. Tree Minor Works Request (as set out in Control C7).

17. Control C5 states:

“C5 Development consent is to be required for works or removal of trees only in the following circumstances:

i. Removal of trees identified on the Inner West Council heritage trees list.

ii. The tree forms part of an Aboriginal object or is located within an Aboriginal place of heritage significance or is located within a Heritage Conservation Area or Heritage Item where the works are determined to be not of a minor nature; or likely to have an adverse impact on a Heritage Conservation Area or Heritage Item.”

18. Controls ‘C6 Tree Works Permit’ and ‘C7 Tree Minor Works request’ are the other two application types for removing a tree.

19. The proposed works are tree removal; the tree is within a heritage conservation area; and the works are not of a minor nature. Pursuant to control C5, removing Tree 1 requires an application for development consent.

20. The applicant lodged an application to prune/remove trees. The form that was lodged can be used for either a ‘Tree Works Permit’ (control C6) or a ‘Tree Minor Works request’ (C7), but not for a development application. The applicant selected ‘Tree Minor Works request’ on the form. Before determining the application, Council informed the applicant “…that they were not eligible for a Tree Minor Works Permit Application” (Ex 1, p 3). The applicant submitted that Council advised them that a Tree Works Permit application was required. There is no evidence that an amended application was lodged, but that is no matter as the lodged form would otherwise be the same for both.

21. Council’s determination of 3 December 2020 was a ‘Permit for Tree Works’, refusing removal of Tree 1, but allowing it to be pruned, and approving removal of Tree 2. Because removal of Tree 1 requires development consent (control C5), Council could not grant consent in the Tree Works Permit application for removing Tree 1.

22. As the Court now takes the role of Council in determining the application, the Court must do what it appears Council was obliged to do and inform the applicant that removing Tree 1 requires an application for development consent. The Court cannot grant development consent in this appeal where there is no application for such development consent.

23. This issue was not raised in oral submissions during the hearing, so I reopened the matter, explained the issue to the parties and provided them an opportunity to make any submissions to this point. Mr Turner agreed that the applicant requires development consent to remove the tree pursuant to the Leichhardt DCP. I note here that in Council’s written submissions, Council acknowledged that development consent is required to remove Tree 1 (par 20). In the following paragraph (par 21) Council stated that the appeal relates to a tree permit application rather than a development application, but made nothing of this contradiction.

24. Mr McNamara expressed his frustration, understandably, since the applicant was advised by Council more than two months after lodging a ‘Tree Minor Works request’ that they were not eligible for this type of application. Council then proceeded to determine the application as a ‘Tree Works Permit’, although such a permit could not be considered for removing Tree 1. This history might be important should the applicant seek the costs of the application and appeal. The applicant’s costs are likely to be relatively low, given they have not engaged legal representation, but the time taken to reach such an inconclusive outcome is significant. I suggested to the parties that they could discontinue these proceedings, and the applicant could apply to Council for development consent to remove Tree 1. Mr McNamara subsequently wrote to the Court refusing to discontinue. As discontinuance requires the agreement of both parties, I have proceeded to write this judgment and finalise these proceedings.

25. Council’s granting of consent to remove Tree 2 (which was dead) was valid because control C7 of the Leichhardt DCP states that a Tree Minor Works request is required for removal of a dead tree.

26. Were the Court able to consider the application to remove Tree 1, consideration would be given to relevant criteria at clause 5.2 of the Leichhardt DCP mentioned above, and section 3.1 of the Leichhardt Council Tree Management Technical Manual – Trees on Private Property.

Orders

27. As a result of the foregoing, the Court orders that:

1. The appeal is dismissed.

2. Application TREE/2020/0724 to remove two trees at 16 Vincent Street, Balmain is determined by way of refusal of consent to remove Tree 1 and granting of consent to remove Tree 2.

3. The exhibits are returned except for A and 1.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 22 October 2021