Jolly v Inner West Council [2020] NSWLEC 1582

Jolly v Inner West Council [2020] NSWLEC 1582

The Court was satisfied that the relevant jurisdictional prerequisites were met and that the parties' agreed decision to uphold the appeal and permit removal of the tree subject to conditions was a decision the Court could have made in the proper exercise of its functions; accordingly s 34(3) of the Land and Environment Court Act 1979 required the proceedings to be disposed of in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
25 November 2020
Procedural Posture
Class 1 Appeal Against Refusal of Tree Removal Application / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Consent Orders
Outcome
Appeal upheld; the Applicant may remove the lemon scented gum tree subject to the Notice of Determination in Annexure A.
Legal Topics
['tree Removal Application' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Prerequisites' 'vegetation in Non Rural Areas' 'heritage Conservation Area']
['environmental Planning and Assessment' 'land and Environment' 'development Applications'] ['tree Removal Application' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Prerequisites' 'vegetation in Non Rural Areas' 'heritage Conservation Area']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Tree Removal Application / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Consent Orders

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the jurisdictional prerequisites were satisfied for the Court to determine the appeal under s 4.16 of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed tree removal was of minor nature and would not adversely affect the heritage significance of the heritage conservation area under cl 10(3) of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017.']

Ratio Decidendi

The Court was satisfied that the relevant jurisdictional prerequisites were met and that the parties' agreed decision to uphold the appeal and permit removal of the tree subject to conditions was a decision the Court could have made in the proper exercise of its functions; accordingly s 34(3) of the Land and Environment Court Act 1979 required the proceedings to be disposed of in accordance with that agreement.

Court Disposition

Appeal upheld; the Applicant may remove the lemon scented gum tree subject to the Notice of Determination in Annexure A.

Orders

  • ['The appeal is upheld.' 'Pursuant to section 8.14 of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant may remove the lemon scented gum tree the subject of the application, subject to the terms of the Notice of Determination contained in Annexure A.' 'The Respondent will do all things...