Torrero Holdings Pty Ltd v Inner West Council - [2023] NSWLEC 1008

Land and Environment Court

New South Wales

Case Name:	Torrero Holdings Pty Ltd v Inner West Council
Medium Neutral Citation:	[2023] NSWLEC 1008
Hearing Date(s):	22 November 2022
Date of Orders:	11 January 2023
Decision Date:	11 January 2023
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: (1) the appeal is upheld; (2) the Applicant’s application TREE-2022_0050 for the removal of one (1) tree identified as tree T1 at 2 West Street Lewisham is approved, subject to the conditions at Annexure ‘A’ and the tree location plan at Annexure ‘B’; (3) the exhibits are returned, except Exhibits B and 1.
Catchwords:	TREE PERMIT APPLICATION – application to remove trees – whether removal of trees is justified – consideration of damage to property – consideration of conditions of consent.
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Marrickville Local Environmental Plan 2011, cll 1.2, 6.4 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.6
Cases Cited:	Timbs v Shoalhaven City Council [2004] NSWCA 81
Texts Cited:	Marrickville Development Control Plan 2011
Category:	Principal judgment
Parties:	Torrero Holdings Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: P Rigg (Solicitor) (Applicant) S Turner (Solicitor)(Respondent) Solicitors: Peter R Rigg Solicitors (Applicant) Inner West Council (Respondent)
File Number(s):	2022/171452
Publication Restriction:	Nil

JUDGMENT

COMMISSIONER: Torrero Holdings Pty Ltd (the Applicant) has appealed the refusal by Inner West Council (the Respondent) of its tree permit application TREE-2022-0050 seeking approval for the removal of trees (the Application) on land described 2 West Street, Lewisham (the Subject Site).
The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction.
The Subject Site is located on a prominent corner at the intersection of West Street and Railway Terrace, opposite the West Street railway bridge as per following figure which illustrates the location from Google Maps.
A site inspection was undertaken at the commencement of the hearing and the balance of the hearing was undertaken at Court.

The Application

The frontage of the Subject Site to West Street and Railway Terrace is occupied by three large specimens of Cook Pines (Araucaria columnaris) a species endemic to New Caledonia. The trees are identified in this judgment as trees T1, T2 and T3.
The Parties’ expert arborists (see below at [13(1)]) had agreed that each of the trees would continue to grow but were approaching their maximum height, noting that in 2021 Mr Jackson had reported that the heights of the trees were 24.3m for T1, 22.6m for T2 and 25.8m for T3.
Applicant’s tree permit application TREE-2022-0050 originally sought approval for the removal of trees T2 and T3, which are ‘circled’ in red pen in the following figure taken from the Respondent’s filed Statement of Facts and Contentions in the proceedings, with tree T1 to the left and outside the red ‘circle’.
By notice of motion on 23 September 2022, the Applicant was granted leave to…

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.

Continue reading Torrero Holdings Pty Ltd v Inner West Council

Details

AGLC: Torrero Holdings Pty Ltd v Inner West Council [2023] NSWLEC 1008
Case: [2023] NSWLEC 1008
Decision Date: 11 January 2023

CaseChat Overview and Summary

Torrero Holdings Pty Ltd sought to have a tree removed from their property, which was located at 2 West Street Lewisham. The Inner West Council opposed the removal, citing the tree's significance under the Local Environment Plan. The matter was heard by the Land and Environment Court of New South Wales. The primary legal issue revolved around the interpretation and application of the Local Environment Plan and the relevant statutory provisions governing tree preservation and removal. The court had to determine whether the tree in question was subject to the preservation provisions and if the applicant had satisfied the necessary criteria for removal.

The court considered the statutory framework and the Local Environment Plan, focusing on the specific provisions related to tree removal and preservation. It examined the evidence provided by both parties, including the assessment of the tree’s significance and the impact of its removal on the local environment. The court concluded that the tree, identified as T1, did not fall under the preservation provisions of the Local Environment Plan. It found that the applicant had demonstrated sufficient grounds for removal, including the potential risk to public safety and the property. The court also noted that adequate measures were proposed to mitigate any environmental impact. Based on these findings, the court upheld the appeal and approved the tree removal application.

Orders

Orders of the court

The Court orders:

(1) the appeal is upheld;

(2) the Applicant’s application TREE-2022_0050 for the removal of one (1) tree identified as tree T1 at 2 West Street Lewisham is approved, subject to the conditions at Annexure ‘A’ and the tree location plan at Annexure ‘B’;

(3) the exhibits are returned, except Exhibits B and 1.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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