Thomas v City of Parramatta Council

[2024] NSWLEC 1626

Land and Environment Court

New South Wales

Medium Neutral Citation:

Thomas v City of Parramatta Council [2024] NSWLEC 1626

Hearing dates:

Conciliation conference 27 September 2024

Date of orders:

08 October 2024

Decision date:

08 October 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Tree permit application TA/187/2024, for the removal of one (1) Jacaranda mimosfolia at 32 Sirius St, Dundas Valley NSW 2117, legally described as Lot 1482 DP 36702 is determined by way of the grant of the permit, subject to the conditions in Annexure A.

Catchwords:

TREE PERMIT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt, 2.3, ss 2.10, 2.12

Cases Cited:

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category:

Principal judgment

Parties:

Robyn Thomas (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
R Thomas (Self-represented) (Applicant)
C Campbell (Solicitor)(Respondent)

Solicitors:
City of Parramatta Council (Respondent)

File Number(s):

2024/295945

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Section 2.10 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) makes provision for a local council to issue a permit for clearing of vegetation. In the matter before me here, Robyn Thomas made an application to City of Parramatta Council (Council). Ms Thomas sought the removal of a Jacaranda tree located on Lot 1482 DP 36702 also known as 32 Sirius Street Dundas Valley (site). On 10 May 2024, Council made the determination to refuse to grant the permit. Ms Thomas has appealed this determination by Council under s 2.12 of SEPP B&C.

Conciliation and agreement between the parties

2. At the parties’ request, the Court arranged a conciliation conference between them under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 27 September 2024, and at which I presided. At the conference, the parties provided evidence of, and explained, the signed agreement behind the decision between them in regard to the outcome of the appeal proceedings. This decision involved the Court upholding the appeal and grant the permit, subject to agreed conditions.

3. 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. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties’ agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [65]).

4. On the advice of the parties, and having reviewed the provisions of Part 2.3 of SEPP B&C directly, I find the determination of tree removal permit applications of this kind raise questions relating to the consideration of merit only. That is to say, in these matters there are no requirements for positive jurisdictional findings on a consent authority that might otherwise be pre-requisite to the exercise of a decision to grant a permit.

Conclusion

5. Based on the above reasoning, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

6. In making the orders 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 proposal generally.

Orders

7. The Court orders:

1. The appeal is upheld.

2. Tree permit application TA/187/2024, for the removal of one (1) Jacaranda mimosfolia at 32 Sirius St, Dundas Valley NSW 2117, legally described as Lot 1482 DP 36702 is determined by way of the grant of the permit, subject to the conditions in Annexure A.

P Walsh

Commissioner of the Court

Annexure A

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