Stewart v Inner West Council [2023] NSWLEC 136

Stewart v Inner West Council [2023] NSWLEC 136

The appeal was dismissed because the removal of the tree in question, being within a heritage conservation area, required development consent under the relevant local environmental plan and the circumstances dispensing with the need for such consent were not present. The appellants had not lodged a development application, and the application for a permit under the Biodiversity SEPP could not be granted in these circumstances. The Commissioner did not err on a question of law, and any use of an incorrect DCP version was not material to the outcome.

Parties
First Appellant: Mr Robert Stewart; Second Appellant: Ms Shuiping Zhou; Respondent: Inner West Council
Jurisdiction
Australia
Judgment Date
16 November 2023
Procedural Posture
Appeal on Questions of Law / Final Judgment After Hearing
Outcome
Appeal dismissed
Legal Topics
Tree Removal Permits, Development Consent, Interpretation of Development Control Plans, Jurisdiction Under Environmental Planning and Assessment Act 1979 (nsw), Biodiversity SEPP Application
Planning and Environment Law Heritage Law Administrative Law Tree Removal Permits Development Consent Interpretation of Development Control Plans Jurisdiction Under Environmental Planning and Assessment Act 1979 (nsw) Biodiversity SEPP Application

Case Brief

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Parties

Mr Robert Stewart

First Appellant

Ms Shuiping Zhou

Second Appellant

Inner West Council

Respondent

Procedural Posture

Appeal on Questions of Law / Final Judgment After Hearing

Legal Issues

  1. 1 Whether the Commissioner erred in law by misconstruing the relevant development control plan (Tree DCP)
  2. 2 Whether development consent or a permit was required for tree removal in a heritage conservation area
  3. 3 Whether the Commissioner applied the correct version of the Tree DCP

Ratio Decidendi

The appeal was dismissed because the removal of the tree in question, being within a heritage conservation area, required development consent under the relevant local environmental plan and the circumstances dispensing with the need for such consent were not present. The appellants had not lodged a development application, and the application for a permit under the Biodiversity SEPP could not be granted in these circumstances. The Commissioner did not err on a question of law, and any use of an incorrect DCP version was not material to the outcome.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • No order as to costs.