Kaizen Properties (Longueville) Pty Limited v Lane Cove Municipal Council

File Number(s): 2025/00250610

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 3 proceedings arise as a result of the refusal of Tree Permit Application SR. 12277 by Lane Cove Municipal Council lodged on 15 April 2025. This appeal concerns an application for the removal of one London Plane Tree located at 43-47 Kenneth Street, Longueville (the Site).

Conciliation and agreement between the parties

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held at the Site on 26 August 2025. I presided over the conciliation conference. In the course of the conciliation conference, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions.

Jurisdiction

4. These proceedings have been brought to the Court pursuant to s 2.12 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (B&C SEPP).

5. The Applicant, being an applicant for a permit under Ch 2 of the B&C SEPP, may appeal to the Land and Environment Court against the Council’s refusal to grant that permit if such appeal is made within 3 months after the date on which the Applicant was notified by Council of the refusal. On advice from the parties, I am satisfied the Applicant commenced these proceedings within 3 months of being notified of the refusal.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (B&C SEPP)

6. Chapter 2 of the B&C SEPP details provisions regarding the preservation and management of vegetation in non-rural areas. Pursuant to s 2.6(1), vegetation cannot be cleared on land to which this Chapter applies without the authority conferred by a permit granted by the Council. However, in accordance with s 2.7(1), a permit or approval to clear vegetation is not required if it is clearing of a kind that is authorised under s 60O or Pt 5B of the Local Land Services Act 2013 (NSW) (LLS Act).

7. The Applicant seeks consent for the removal of one (1) tree on the Site, being the kind authorised under s 60O of the LLS Act. Accordingly, a permit or approval to clear vegetation is not required under s 2.6 of the B&C SEPP.

8. I am satisfied that the tree has been appropriately assessed in accordance with the aims of Ch 2. I accept the advice of the parties that a permit or approval to clear vegetation is not required under s 2.7 of the B&C SEPP.

9. Under s 2.3 of the B&C SEPP, Ch 2 (Vegetation in non-rural areas) of the B&C SEPP applies to all land within the Lane Cove local government area, in which the Site is located.

10. Section 2.6(1) prohibits the clearing of vegetation in a non-rural area without a permit granted by the Council.

11. Section 2.9(1) provides that Pt 2.3 (Council Permits for clearing of vegetation in non-rural areas) applies to “Vegetation in any non-rural area of the State that is declared by a development control plan to be vegetation”.

12. Section 4.2(a) in Part J (Landscaping and Tree Preservation) of the Lane Cove Development Control Plan 2010 provides that the London Plane Tree is “vegetation” by reason that it has a height exceeding 4 metres or a canopy spread greater than 5 metres, a trunk diameter greater than 150 mm or roots 40mm or greater in diameter.

13. Section 2.10(1) of the B&C SEPP empowers Council to issue a permit to a landholder to clear vegetation in any non-rural area of the state to which Pt 2.3 of the B&C SEPP applies.

14. Section 2.10(2) of the B&C SEPP prohibits Council from granting a permit to clear native vegetation in any non-rural area of the State that exceeds the biodiversity offsets scheme threshold.

15. “Native vegetation” is defined in s 2.2 (Definitions) of the B&C SEPP as having “the same meaning as in Pt 5A of the Local Land Services Act 2013”.

16. Section 60B(1) in Div 1 of Pt 5A of the LLS Act defines “native vegetation” as any tree (including a sapling or shrub or scrub), which is native to New South Wales.

17. Section 60B(2) provides that a plant is native to New South Wales if it was established in New South Wales before European settlement.

18. I am satisfied with the parties’ advice that the London Plane Tree was not established in New South Wales before European settlement, so the prohibition in s 2.10(2) of the B&C SEPP does not apply to the removal of the London Plane Tree.

19. Section 2.12 of the B&C SEPP provides that the Applicant, being an applicant for a permit under Ch 2 of the B&C SEPP may appeal to the Land and Environment Court against the Council’s refusal to grant that permit, provided any such appeal is made within 3 months after the date on which the Applicant was notified by Council of the refusal. The Applicant has commenced these proceedings within 3 months of being notified of the refusal.

20. On the advice of the parties, I am satisfied that Council would, but for the refusal, have had the power and jurisdiction to issue a permit for the proposed removal under s 2.10(1) of the B&C SEPP. This is on the basis of the agreed Conditions of Consent reproduced as Annexure A to the Section 34 Agreement signed by the parties on 30 January 2026.

Conclusion

21. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders I make below have this effect.

Orders

22. The Court orders that:

23. The appeal is upheld.

24. Tree Permit Application SR. 12277 is approved subject to the conditions of consent set out in Annexure “A” in the Section 34 Agreement signed by the parties on 30 January 2026.

P Nichols

Acting Commissioner of the Court

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Annexure A.468 KB.pdf