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Rutter v Penrith City Council [2026] NSWLEC 1060 | Case summary | Zoe

NSWNSWLEC

Rutter v Penrith City Council

[2026] NSWLEC 1060

Land and Environment Court (NSW)|2026-02-13|Before: Porter C

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2026-02-13

Before

Porter C

Catchwords

DEVELOPMENT APPEAL – subdivision – lot size variation –
urban heat - inadequate information – accuracy of
information –
objections to expert evidence

Source

Original judgment source is linked above.

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Catchwords

DEVELOPMENT APPEAL – subdivision – lot size variation –urban heat - inadequate information – accuracy ofinformation –objections to expert evidence

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Rutter v Penrith City Council [2026] NSWLEC 1060

Hearing dates: 2-3 December 2025

Date of orders: 13 February 2026

Decision date: 13 February 2026

Jurisdiction: Class 1

Before: Porter C

Decision: The Court orders that:
(1) The appeal is dismissed.
(2) Development application No DA25/0024 for tree removal and subdivision of one lot into two lots at 75 Sydney Street, St Marys is determined by refusal of consent.
(3) The exhibits are returned except for 1, B, C, D, E, F, G, H, J, K.

Catchwords: DEVELOPMENT APPEAL – subdivision – lot size variation – urban heat - inadequate information – accuracy of information – objections to expert evidence

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 1.5, 8.7
Land and Environmental Court Act 1979 (NSW), s 34AA
Penrith Local Environmental Plan 2010, cll 4.1, 4.6, 7.30
Uniform Civil Procedure Rules 2005 (NSW), r 31.23

Cases Cited: Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641
Wehbe v Pittwater Council [2007] NSWLEC 827

The Court granted leave for expert evidence to be adduced for the town planning, arboricultural and contamination contentions.
Expert Arboricultural evidence was submitted in a joint expert report (Arboricultural JER) prepared by Danny Draper for Ms Rutter and Donna Montgomery for Council (Ex 3).
Expert contamination evidence was submitted in a joint expert report (Contamination JER) prepared by Con Kariotoglou for Ms Rutter and Kirk Ryan for Council (Ex 2).
Expert town planning evidence was initially granted in a joint expert report and was ordered to be filed in accordance with the Court’s usual practice for residential development appeals. Due to an irreconcilable breakdown between the experts, on 27 November 2025 I revoked this order and granted leave for Ms Shephard and Ms McCusker to prepare individual expert reports. Ms Shephard’s report is Ex 4 and Ms McCusker’s report is Ex A. Oral evidence from Ms McCusker was adduced at the hearing.
At the hearing, Council objected to the evidence of Ms McCusker on the following grounds:
Ms McCusker is not a suitably qualified expert in town planning to address town planning related contentions.
The Individual Expert Report prepared by Ms McCusker (McCusker Report) does not include any acknowledgment by Ms McCusker that she had read and had agreed to be bound by the expert witness code of conduct under r 31.23(3) of the Uniform Civil Procedure Rules 2005 (NSW) (Uniform Civil Procedure Rules).
Ordinarily, I agree that contentions 1-5, 8, 9 and parts of 10 fall within the expertise of town planning. The type of development is primarily for a two lot subdivision. In the CV attached to the McCusker Report, Ms McCusker has extensive experience in engineering and land subdivisions, and tertiary qualifications in Civil Engineering. Due to the nature and small scale of the proposed development, I allowed Ms McCusker to give evidence for these contentions.
Council rightly objected to the lack of any acknowledgement by Ms McCusker that she had read and agreed to be bound by the expert witness code of conduct under r 31.23(3) of the Uniform Civil Procedure Rules. This was despite the Court making orders confirming this requirement on 21 October 2025 and Council also emailing the Uniform Civil Procedure Rules and Expert Witness Code of Conduct to Ms Rutter on 27 October 2025. After submissions from Ms Rutter that Ms McCusker did read the code of conduct and agrees to be bound by them, and that this affirmation was an oversight from the McCusker Report, I allowed Ms McCusker to confirm this in oral evidence. Under oath, Ms McCusker confirmed that she had read and agreed to be bound by the expert witness code of conduct in her evidence. I therefore allowed the McCusker Report to be tendered.
In the McCusker Report, Ms McCusker also addressed other contentions that were to be addressed by the other experts for trees and contamination. Ms McCusker also included a social impacts assessment. It was unclear to me why Ms McCusker addressed these contentions that were beyond expertise, being addressed by other experts, and why a social impact assessment was included. As these contentions and a social impacts assessment are beyond Ms McCusker’s expertise as an engineer, I have given this commentary no more weight than I would give to lay evidence.

Ms McCusker repeats that the DA requests two trees to be removed under contention 4 in the same report.
Accordingly, I accept that tree removal forms part of the proposed development as sought by the DA.
In relation to the demolition works, I accept Ms Rutter’s explanation that the reference to demolition of the dwelling was in error and was meant to confirm that the house was to be demolished separately under a complying development certificate.
Having found that the DA is for subdivision and tree removal, I find that the DA is absent adequate information to grant consent. There is conflicting and inadequate information about both aspects of the proposed development, but in particular the proposed tree removal. The DA form, waste management plan, Ms McCusker’s opinions and Ms Rutter’s submissions are in conflict about the number of trees to be removed, which range between ten and two trees. There was no information through an arborist report or landscape plan providing information to support the removal of any trees, as agreed by the Arboricultural Experts in the Arboricultural JER. The Aboricultural JER only included a Notional Root Zones plan of trees remaining on site, which on its own, does not allow for an understanding of the impacts of the development.
For completeness, the proposed vegetation sketch referred to in the McCusker Report and diagram under contention 3 is not part of the DA. The vegetation sketch only appears in the McCusker Report, is mostly unreadable and has only been considered by Ms McCusker, who is not a qualified arboriculturist or landscape architect. The vegetation sketch was not considered by the Arboricultural experts in their joint expert report.
There seemed to be some confusion in submissions that the information provided to Council during the assessment process would be in front of the Court. The Court can only consider the information before it, not what might be on Council’s file. Council’s SOFAC and contentions were clear that the Applicant’s DA as filed to the Court had not provided details about the proposed tree removal, building envelopes or the extent of impacts on trees from future building works that may interfere with the TPZs (and ultimately, the health of the tree). The SOFAC adequately put the Applicant on notice that their DA as filed to the Court was absent this information and the Applicant could have rectified any omission. The Applicant chose to not provide this information.
In addition, as raised in contention 5, Chapter C11 Subdivision control 11.1(2)(a) of the Penrith Development Control Plan 2014 (PDCP) requires any proposed subdivision to consider C1 site planning and design of the PDCP. Amongst other detailed requirements, this includes a site analysis and response to the site context considering an environmental assessment of the subdivision and integration with the natural and physical features of the site. There has been no site analysis undertaken in a plan or adequately described in the SEE. Further, 11.1(2)(g) of the PDCP requires that subdivision applications need to demonstrate each proposed allotment can support future development through a ‘potential development area plan’ that is based on a survey and the PDCP’s setbacks. A potential development area plan does not form part of the DA as filed to the Court. The diagram in the McCusker Report under contention 4 purporting to demonstrate building envelopes does not form part of the DA and is unreadable.
His Honour, Preston CJ stated in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2] that:

The Arboricultural experts agreed on the following:
The plans before the Court do not demonstrate that cl 7.30 urban heat of the PLEP has been considered or resolved. Loss of trees on the site will result in adverse impacts relating to urban heat and it has not been demonstrated whether existing trees can be retained to achieve the desired yield.
A plan demonstrating the notional root zones (NRZs) of trees and extent of tree protection zones was attached to the Arboricultural JER (NRZ plan) and considered by the arboricultural experts. Some encroachment into these NRZs may be possible, subject to an assessment.
The experts agreed that the proposed subdivision plan prepared by CitiSurv Pty Ltd dated 11 December 2024 (subdivision plan) did not show trees and that the Detail and Level Survey prepared by CitiSurv Pty Ltd dated 2 December 2024 (survey plan) showed the trees but were very faint to almost illegible.
A landscape plan, arborist report and future building envelope plan have not been provided as part of the DA. A site analysis and subdivision application should consider a site’s constraints and lot size capacity for tree retention.
In the absence of detailed plans and reports, there was no certainty that the existing trees can be retained or that there was sufficient space for canopy tree planting. The proposed subdivision yield may not be achieved within removal of or excessive encroachment on the existing trees.
Chapter 11, section 11.3.6, (Objective a) of the PDCP seeks to preserve mature trees and significant landscape elements. As a landscape plan has not been provided, the experts cannot determine if the site design or landscape concept will preserve trees as part of the subdivision application. No further tree removal should be allowed as part of the subdivision application.
The capacity for any new tree planting cannot be assessed as building envelopes have not been provided.
The experts disagreed on the extent of the information that should be required as part of this DA. Mr Draper’s evidence is that adequate tree protection measures could be provided in accordance with the NRZ plan and be considered in a future application. Ms Montgomery’s evidence is that the information should be provided at the subdivision stage, as the proposed lot configuration of a dual occupancy and single dwelling sets an expectation of a certain yield, that may not be achievable when the building and environmental constraints have been considered. An arborist report has not been provided to identify trees or impacts. Consideration of cl 7.30 urban heat could not be undertaken on the current information and the loss of trees increases the impacts of urban heat.

The DA is for subdivision and tree removal and involves aspects of ‘development’ as defined under s 1.5 of the EPA Act. I accept that the DA triggers cl 7.30 of the PLEP. Clause 7.30 is a precondition to the grant of consent, in that development consent must not be granted if subcll 7.30(3)(a)-(e) are not satisfactorily addressed.
None of the information in the DA within the plans or SEE addresses cl 7.30 of the PLEP. The DA seeks to remove trees, which would likely have an impact the urban heat island effect and remove green infrastructure as defined under the clause.
I accept Ms Montgomery’s evidence that the information identified in Council’s SOFAC and discussed in the Arboricultural JER should be provided as part of the subdivision application in order to properly understand the impacts of the proposal. I accept the agreed evidence of both experts, that cl 7.30 of the PLEP has not been addressed and that there is no evidence that existing trees can be retained as a result of the proposed subdivision. There is also a lack of detail in the DA about which trees are to be removed, which was clarified in submissions by Ms Rutter. I find that Chapter 11, section 11.3.6 has not been addressed in sufficient detail to consider the impacts (or potentially the lack of impacts) by the proposal, and I accept that the objectives have not been met. This includes uncertainty about the retention and enhancement of existing trees (where possible) of control 11.1(2)(c) and lack of concept landscaping as required by 11.1(2)(h) of the PDCP.
To the extent that Ms McCusker seeks to deal with these issues in her report, as I have previously found, Ms McCusker is not a relevantly qualified or experienced expert to address cl 7.30 and tree removal or retention. The response to offset two trees by sixteen trees along the northern boundary and street verge is unsupported by evidence. The type, size or any details of replacement trees is not known. On my count, the vegetation sketch under contention 3 appears to show 14 trees (if these are the replacement trees, I am unable to read any details on the sketch). Whilst Ms McCusker states that subdivisions do not contribute to urban heat, I find that a future built form has the potential to contribute to urban heat (particularly when their impacts on existing trees are unknown) and more relevantly, that the proposed tree removal will contribute to urban heat, as agreed by the experts.
Ultimately, there is no plan, report or evidence that specifically addresses the provisions set out in cl 7.30(3) of the PLEP, which is the agreed position of the Arboricultural experts.
Clause 7.30(3) of the PLEP is a jurisdictional precondition, in that development consent must not be granted to development that the clause applies to, unless the consent authority is satisfied that planning and design measures are incorporated to reduce the urban heat island effect as set out in subcll 7.30(3)(a)-(e). To the extent that these provisions are relevant to the proposal, in particular (a), I am not satisfied that adequate measures have been incorporated to reduce the urban heat island effect as sought by the control. There is no part of the proposal that seeks to replace trees or evidence to demonstrate that the remainder of trees can be retained as a result of the subdivision. The DA must be refused on this basis alone.

A cl 4.6 written request has been prepared by DA Angels (written request) to support the variation. Ms Rutter submitted during the hearing that she prepared the written request, as a qualified town planner. The variation to one of the proposed lots is 0.4m2 or 0.1%. The reasons for the variation are set out below, which seeks to address several of the established pathways Preston CJ identified in Wehbe v Pittwater Council [2007] NSWLEC 827.
In summary, the written request details that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case as:
The objectives of the development standard have been achieved notwithstanding the non-compliance, as there is an ability to accommodate housing on the block of land that is undersized as demonstrated in the plans with a building footprint.
The underlying objectives or purpose of the development standard are not relevant to the development as the 0.1% variation will have no effect on the final use of the land for residential purposes.
In response to if the underlying objective or purpose be defeated or thwarted if compliance was required and the objectives of the zone, the written request details that if the minimum variation is not allowed, it would limit the supply of housing and would not provide a variety of housing in close proximity to services and infrastructure.
Examples of smaller lots sized 388m2 and 344m2 were provided to demonstrate that Council had virtually abandoning its control in the street. There were many townhouse developments where each unit was on less than 400m2. Other examples were submitted during the hearing.
The written request states that there are sufficient environmental planning grounds to justify contravening the development standard as the proposal retains the lot pattern and the residential density of the area.
The written request details that overall, the variation is for a minimal area that will allow homes for future families to live and fulfills all the other planning controls.
Ms McCusker’s evidence is that the shortfall is not significant, that the lot is well shaped and flat for an easy build and that the trees can be retained.
Council’s evidence through Ms Shephard is that the development standard has been consistently applied and has not been abandoned. The Applicant has not demonstrated that there are sufficient environmental grounds. The evidence of the Arboricultural experts is that the environmental impacts of the subdivision includes the loss of existing trees and an inadequate area to provide the required TPZs to support retention of the trees.

The parties disagreed on the physical size of the variation, being the equivalent of either an A4 or A3 sized piece of paper. Taking the variation at its worst, a variation on this sized site equivalent to an A3 sized paper should be achievable.
However, I am not satisfied that the Applicant has adequately addressed cl 4.6(3) of the PLEP for the following reasons.
The focus of the information to support a variation under cl 4.6(3) of the PLEP is on the variation and not the development or its benefits as a whole. With consideration of the written request and evidence of Ms McCusker, I am not satisfied that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a)) as:
The objectives of cl 4.1 are stated to be achieved, however the evidence of the Arboricultural experts is that the impacts of the subdivision on existing trees were unknown, likely to extend into TPZs, and that further tree removal was not supported. Objective 4.1(1)(c) is therefore not achieved. There is no evidence that the lot sizes and dimensions are able to accommodate development consistent with the relevant development controls, as building envelopes were not provided or to the extent included in the McCusker report, are unreadable. There is no evidence to support that the variation achieves objective 4.1(1)(e).
I do not accept that the underlying objectives of the development standard are not relevant for the reasons provided in the written request, as the reasons relate to the future use and development as a whole.
I do not accept that not allowing the variation would defeat the purpose of the control through limiting the supply of housing, which is not specific to the variation sought but focuses on the overall benefits of the development.
Whilst there are smaller lots in the street and local area, and acknowledging that several were submitted during the hearing, the number of variations for a range of development types are not so many in order to find that Council has abandoned or destroyed the development standard in this street or local area.
I am not satisfied that there are sufficient environmental planning grounds put forward by the Applicant (cl 4.6(3)(b)). The grounds relied on are that the proposal retains the lot pattern and residential density of the area, as well as location of the site to services and increased homes for families. These grounds would be generally true of most redevelopment of the site for a similar purpose. I do not accept these as sufficient environmental grounds that justify the variation of the proposed development. Whilst environmental planning impacts and environmental grounds may be different, I accept Ms Shephard’s evidence that the proposal has unknown environmental impacts as a result of the undersized subdivision lot, as the impacts on existing trees are unknown in accordance with the agreed Arboricultural evidence and lack of building envelope plan.
I am therefore not satisfied that cl 4.6(3)(a) or (b) of the PLEP have been adequately addressed and therefore, the variation is not supportable in its current form.