Stewart v Inner West Council

Land and Environment Court (NSW)|2023-11-16|Before: Preston CJ

Solicitors: Inner West Council (Respondent) File Number(s): 2023/191039 Decision under appeal Court or tribunal: Land and Environment Court of NSW Jurisdiction: Class 1 Citation: [2023] NSWLEC 1240 Date of Decision: 19 May 2023 Before: Sheridan AC File Number(s): 2022/284452

Nature of appeal and outcome

Mr Stewart and Ms Zhou (the appellants) have appealed against the decision and order of a Commissioner of the Court to dismiss their appeal concerning an application for a permit to remove a tree.
The appellants are the owners of land at 32 Kentville Ave, Annandale. They lodged with Inner West Council (the Council) on 24 June 2022 an application to remove a tree, a Fiddlewood (Citharexylum spinosum), growing in the rear yard of their property. The tree is about 12 metres in height, with a canopy spread of 15 metres. The application was made using the form required by the Council, under s 2.11(1)(a) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), to apply for a permit to prune or remove trees on private land. The appellants identified in their application that they were making a Tree Minor Works Request as the tree was of a species listed in Control C7 of the Inner West Council Tree Management Development Control Plan, adopted on 11 February 2020 (the Tree DCP).

Need for development consent grounds

This category of grounds of appeal concerns the type of approval that the appellants needed to apply for and obtain in order to be able to remove the tree on their property. This requires an analysis of the statutory scheme under the EPA Act for the carrying out of development involving the removal of a tree.
The action of "development" is defined in s 1.5(1)(f) of the EPA Act to include: "any other act, matter or thing that may be controlled by an environmental planning instrument."
Two environmental planning instruments of relevance in this case control the clearing of vegetation, including trees. The first environmental planning instrument of relevance is the applicable local environmental plan. At the time the appellants made their application, on 24 June 2022, the LLEP was in force. On 12 August 2022, the LLEP was replaced by the Inner West Local Environmental Plan (the IWLEP). Clause 1.8A of the IWLEP saved a development application that had been made but not finally determined before the commencement of the IWLEP. This savings provision was not engaged in this case as the appellants did not make a development application under s 4.12 of the EPA Act seeking development consent to remove the tree, but rather they made an application under s 2.11 of the Biodiversity SEPP seeking a permit to clear vegetation (the tree). But nothing turns on this non‑application of the savings provision as the provisions of the IWLEP requiring development consent for the removal of a tree in a heritage conservation area, which is relevant in this case, are the same as the provisions of the LLEP in relation to that matter. Both provisions are contained in cl 5.10. For this reason, I will refer only to the LLEP in my explanation of the statutory scheme.
The LLEP requires development consent for the removal of a tree in a number of circumstances, one of which is relevant. This is where the tree is within a heritage conservation area. Clause 5.10(2)(a)(iii) of the LLEP provides that development consent is required for "demolishing or moving" a "tree within a heritage conservation area".
I note that it was common ground in this case that the appellants' property is within a heritage conservation area, known as Annandale Heritage Conservation Area, under the LLEP. However, cl 5.10(3) of the LLEP provides that development consent is not required in four circumstances: "(3) However, development consent under this clause is not required if: (a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development‑ (i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and (ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site, or heritage conservation area, or (b) the development is in a cemetery or burial ground and the proposed development‑ (i) is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and (ii) would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or (c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or (d) the development is exempt development."
It was common ground that the circumstances in paragraphs (b) and (d) were not applicable. The circumstances in paragraphs (a) and (c), however, were potentially applicable and were considered by the Commissioner. I will return to her consideration shortly. Only if the consent authority, or the Court exercising the functions of the consent authority on the appeal, is satisfied of the circumstances in paragraphs (a) or (c) would development consent not be required for the removal of a tree in a heritage conservation area.
The Commissioner referred in [12] of her reasons for judgment to another provision of the LLEP that she considered controlled the clearing of vegetation. This was cl 5.9. Clause 5.9(3) of the LLEP had provided: "A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by: (a) development consent, or (b) permit granted by the Council."
The Commissioner was in error in referring to cl 5.9 of the LLEP as an applicable provision controlling the clearing of vegetation. Standard Instrument (Local Environmental Plan) Amendment (Vegetation) Order 2017 omitted cl 5.9 from all local environmental plans, including the LLEP, effective from 25 August 2017: see cl 2 of the Order and [4] of Schedule 1 to the Order.
The second environmental planning instrument of relevance is the Biodiversity SEPP. That instrument repealed and replaced on 1 March 2022 the State Environmental Planning Policy (Vegetation in Non‑Rural Areas) 2017 (the Vegetation SEPP). This occurred some three months before the appellants applied for a permit to remove the tree.
Section 2.6(1) of the Biodiversity SEPP provides that: "A person must not clear vegetation in a non‑rural area of the State to which Part 2.3 applies without the authority conferred by a permit granted by the council under that Part."
The words used in this clause are defined. "Vegetation" is defined in s 2.2(1) to mean "a tree or other vegetation, whether or not it is native vegetation". "Clear" is defined in s 2.2(1) to include: "(a) cut down, fell, uproot, kill, poison, ringbark, burn or otherwise destroy the vegetation, or (b) lop or otherwise remove a substantial part of the vegetation."
The "non‑rural areas of the State" are defined in s 2.3(1) to be land within specified local government areas, one of which is Inner West, and land within specified zones under an environmental planning instrument, one of which is Zone R1 General Residential. The appellants' property is within the Inner West local government area and is zoned under the LLEP R1 General Residential.
Section 2.6(6) provides that, for the purposes of s 4.3 of the EPA Act, clearing vegetation that requires a permit or approval under Chapter 2 of the Biodiversity SEPP is development that is prohibited if the clearing is not carried out in accordance with the permit or approval.
Part 2.3 of the Biodiversity SEPP establishes the scheme for applying for and issuing a permit for clearing of vegetation in non‑rural areas of the State. This scheme for permits to clear vegetation is separate from the scheme under the EPA Act for development consent to clear vegetation. The two schemes are mutually exclusive. If development consent is required, a permit cannot be issued.
Section 2.9(1) of the Biodiversity SEPP states that Pt 2.3 applies to vegetation in any non‑rural area of the State that is declared by a development control plan to be vegetation to which the Part applies.
At the time the appellants made their application, the Council had made the Tree DCP. That DCP was stated to have been made in accordance with the Vegetation SEPP, which was then in force before being later replaced by the Biodiversity SEPP. Nevertheless, the Tree DCP's declaration continued in force. Section 2.9(3) of the Biodiversity SEPP provides that Pt 2.3 applies to vegetation in a non‑rural area of the State that immediately before the commencement of s 2.9(3) was declared by a development control plan to be vegetation to which the Vegetation SEPP applies. Section 2.9(2) of the Biodiversity SEPP provides that a development control plan may make the declaration of vegetation to which Pt 2.3 applies by reference to any of four criteria: "(a) the species of vegetation, (b) the size of vegetation, (c) the location of vegetation (including by reference to any vegetation in an area shown on a map or any specified zone), (d) the presence of vegetation in an ecological community or in the habitat of a threatened species."
The Tree DCP made its declaration by reference to the criteria in (b) and (d). In Control C3, the Tree DCP declared trees that met the following criteria to be trees to which the Vegetation SEPP applies and, by operation of s 2.9(3) of the Biodiversity SEPP, the Biodiversity SEPP applies: "C3. For the purposes of this DCP, a prescribed tree is: (i) any tree with a height equal to or greater than 6 metres above ground level (existing); or (ii) any tree that is under 6 metres in height that has a trunk diameter of more than 300 mm at ground level (existing); (iii) any tree with a canopy spread equal to or greater than 3 metres; (iv) any palm tree or tree fern with a stem length equal to or greater than 4 metres above ground level (existing); (v) any tree that is required as the habitat of native animals."
Section 2.10 of the Biodiversity SEPP is the source of the power to issue a permit to clear vegetation in any non‑rural area of the State. Section 2.10(1) provides: "A Council may issue a permit to a landholder to clear vegetation to which this Part applies in any non‑rural area of the State."
Section 2.10(3), however, restricts the exercise of the power to issue a permit: "(3) A permit under this Part cannot allow the clearing of vegetation - (a) that is or forms part of a heritage item or that is within a heritage conservation area, or (b) that is or forms part of an Aboriginal object or that is within an Aboriginal place of heritage significance, unless the council is satisfied that the proposed activity - (c) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area, and (d) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area."
This provision mirrors that in cl 5.10(3) of the LLEP. The consent authority must be satisfied of the circumstances in paragraphs (c) and (d) before the prohibition on issuing a permit to clear vegetation can be relaxed. As I have noted earlier, satisfaction of these circumstances in s 2.10(3)(c) and (d), which are also specified in cl 5.10(3)(a)(i) and (ii), is necessary in order for development consent not to be required for the removal of a tree in a Heritage Conservation Area.
The provisions in cl 5.10(3) of the LLEP and s 2.10(3) of the Biodiversity SEPP therefore operate harmoniously. If the consent authority is satisfied of the circumstances in cl 5.10(3)(a)(i) and (ii) of the LLEP, development consent will not be required to remove a tree in a heritage conservation area. A permit under s 2.10(1) of the Biodiversity SEPP will, however, be required, as there would also be satisfaction of the circumstances in s 2.10(3)(c) and (d), which are the same as those in cl 5.10(3)(a)(i) and (ii) of the LLEP.
On the other hand, if the consent authority is not satisfied of the circumstances in cl 5.10(3)(a)(i) and (ii) of the LLEP, development consent will be required for the removal of the tree in a heritage conservation area. This will preclude the issuing of a permit to remove the tree under s 2.10(1) of the Biodiversity SEPP. The prohibition in s 2.10(3) on issuing a permit will remain, as the consent authority will not be able to be satisfied of the circumstances in s 2.10(3)(c) and (d) of the Biodiversity SEPP.
This is the statutory scheme governing the appellants' application to remove the tree on their property. Their property is in a heritage conservation area. Under cl 5.10(2) of the LLEP, development consent is required to remove a tree within a heritage conservation area. Development consent only would not be required if the Council at first instance or the Commissioner on the appeal was satisfied of one or more of the circumstances in cl 5.10(3)(a) to (d) of the LLEP. The Council was not satisfied of those circumstances at first instance. The Commissioner found that she also was not satisfied of those circumstances: at [37]‑[42], [46] and [48].
As I have earlier noted, the circumstances in paragraphs (b) and (d) of cl 5.10 of the LLEP were not applicable. In relation to paragraph (a), the Commissioner found that she was not satisfied that the removal of the tree was of a minor nature or would not adversely affect the heritage significance of the heritage conservation area. The Commissioner stated at [38]: "I concur with the evidence of Ms Murphy [the Council's arborist] that the removal of the tree is not minor in nature, due to its significance in the streetscape and due to its location within the Annandale Heritage Conservation Area."
The Commissioner found in [47]: "The provisions of the LLEP 2013, and the Tree DCP Controls governing tree removal clearly point to the preference that trees be retained in Heritage Conservation Areas and Distinctive Neighbourhoods where the trees make a significant contribution to the character of the urban landscape, and this argument was put by the Respondent's arborist and no contrary expert opinion was provided by the Applicants."
The Commissioner concluded at [48]: "From my observations, the tree is both mature and visually significant in the streetscape and provides a positive contribution to the Annandale Heritage Conservation Area in which it is located."
In relation to paragraph (c), the Commissioner found that she was not satisfied that the tree is a risk to human life or property. The Commissioner at [43] accepted the evidence of the Council's arborist that, "the tree is healthy and there is no predictable threat to human life or no evidence of the likelihood of the tree having an adverse effect on property that would cause damage, in the near future". Similarly, the Commissioner stated at [48]: "Further, the evidence of the expert arborist was that the tree does not pose a risk to life or property."
The Commissioner referred at [46] to her observation onsite: "From my observations, there was no evidence at the onsite view that the tree would cause damage to property or threat to human health, in the near future."
As a consequence of none of the circumstances in cl 5.10(3) of the LLEP being satisfied, development consent was required by cl 5.10(2)(a) for the removal of the tree in the heritage conservation area. Section 4.2(1) of the EPA Act states that: "(1) If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless-- (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument."
The appellants therefore needed to make a development application seeking development consent to remove the tree from their property located in a heritage conservation area.
The appellants did not make such a development application. The Commissioner found that the application the appellants had made was a Tree Minor Works Request for a permit to clear vegetation (the tree) under s 2.10(1) of the Biodiversity SEPP, rather than a development application seeking development consent to carry out the development of the removal of a tree in a heritage conservation area. As a consequence, the Commissioner decided at [42] that the Court had no jurisdiction "to hear the appeal": "This appeal relates to a refusal of a tree minor works application, rather than a development application. The Court therefore has no jurisdiction to hear the appeal in the circumstances where the matter before the Court is that of an application seeking a tree removal permit as opposed to a development application. On this basis alone the appeal must be dismissed."
Although expressed as no jurisdiction "to hear the appeal", what the Commissioner meant was that the Court had no jurisdiction on the appeal either to grant development consent or to issue a permit for the removal of the tree.
As to the first jurisdictional bar, the Commissioner was not able to exercise the power in s 4.16(1) of the EPA Act to determine a development application by granting consent to the application in circumstances where a development application had not been made and was not the subject of the appeal before the Court. The making of a development application is necessary to engage the statutory power of a consent authority to determine a development application by granting consent to the application: Hinkler Ave 1 Pty Ltd v Sutherland Shire Council [2023] NSWCA 264 at [103].
In this case, the appellants did not make a development application but instead made a different application for a permit to clear vegetation under the Biodiversity SEPP. The latter application for a permit to clear vegetation under the Biodiversity SEPP was the application that was the subject of the appeal, but the Court was precluded by s 2.10(3)(a) of the Biodiversity SEPP from issuing a permit to clear vegetation that is within a heritage conservation area. This was the second jurisdictional bar.
In summary, the Court had no jurisdiction either to grant development consent to remove the tree in the absence of a development application seeking such consent or to issue a permit to clear vegetation (the tree) within a heritage conservation area.
The appellants contended that the Commissioner misconstrued these provisions of the LLEP and the Biodiversity SEPP. They argued that s 2.9(2)(a) of the Biodiversity SEPP gave the Council the power to make a development control plan which exempted trees from protection by reference to the species of vegetation. They argued that this is what the Council had done in making the Tree DCP. Control C7 of the Tree DCP specifies the tree species that are "exempt" from protection under the Tree DCP. The Fiddlewood, which the appellants wish to remove from their property, is one of the species listed in Control C7 of the Tree DCP.
I reject the appellants' argument. It fails to grapple with the statutory scheme that I have described above. That scheme distinguishes between development involving the removal of a tree, which requires a development consent to be granted under s 4.16 of the EPA Act, and development involving the removal of a tree, which requires a permit to be issued under s 2.10(1) of the Biodiversity SEPP. These two forms of approval are mutually exclusive. If development consent is required, a permit cannot be issued. Only if development consent is not required can a permit be issued.
In the circumstances of this case, the removal of the tree on the appellants' property, which is within a heritage conservation area, required development consent. Development consent only would not be required if the Commissioner were to be satisfied of one or more of the circumstances in cl 5.10(3) of the LLEP. The Commissioner found that she was not so satisfied. These were findings of fact, which are not challengeable on an appeal limited to errors on questions of law, and which in any event were not challenged by the appellant.
As a consequence of development consent being required, a permit could not be issued under s 2.10(1) of the Biodiversity SEPP for the removal of the tree. The Commissioner therefore did not misdirect herself on the interpretation or application of the relevant provisions of the LLEP and the Biodiversity SEPP. These grounds of appeal concerning the need for development consent are not established.

Misconstruction of Tree DCP grounds

The first category of grounds of appeal concerned the Commissioner's interpretation and application of the Tree DCP. As I have noted, these grounds proceeded on the erroneous assumption that the form of approval required for the removal of the tree from the appellants' property is a permit under s 2.10(1) of the Biodiversity SEPP. On that assumption, the appellants' argument was that the Tree DCP not only exempts trees specified in Control C7 of the Tree DCP from protection under the Tree DCP, but also, although inconsistently, requires a permit "automatically" to be issued for the removal of exempt trees.
The appellants noted that s 2.9(2) of the Biodiversity SEPP allows the development control plan to declare vegetation to be vegetation to which Pt 2.3 of the Biodiversity SEPP applies by reference to certain characteristics of the vegetation, including "the species of vegetation". The Tree DCP, in Control C7, lists certain species of tree. One of the listed species is Fiddlewood. The appellants argued that this listing of certain tree species in Control C7 of the Tree DCP makes them exempt from protection under the Tree DCP.
In support of their argument, the appellants referred to a decision of another Commissioner in Owners Strata Plan 40546 v McRae [2023] NSWLEC 1203, where that Commissioner referred to the tree the subject of the application for removal in that case as being "on the permission exempt list" in the Tree DCP: at [28].
The appellants' argument involves an incorrect construction of the Tree DCP. The listing of certain tree species in Control C7 does not exempt trees of these listed species from being protected under the Tree DCP. It merely identifies the type of application that needs to be made for a permit to remove a tree of a species listed in Control C7. The Tree DCP applies to and protects trees of every species that meet one or more of the criteria in Control C3. All but one of these criteria are structural or morphological criteria, such as being of a height equal to or greater than 6 metres or having a canopy spread of equal to or greater than 3 metres. Approval is needed to prune or remove a tree of any species that meets the criteria in Control C3, referred to as a protected or prescribed tree.
The Tree DCP then identifies the processes for applying for approval to prune or remove protected or prescribed trees. The box on page 2 of the Tree DCP outlines these processes.
First, certain types of tree work, such as restricted types of pruning, do not require approval. These types of tree work are specified in Control C1.
Second, the removal or pruning of trees in certain circumstances require approval in the form of development consent. Control C5 of the Tree DCP speficies two of those circumstances: "(i) Removal of trees identified on the Inner West Council heritage trees list. (ii) The tree forms part of an Aboriginal object or is located within an Aboriginal place of heritage significance."
However, that specification is not exhaustive. As I have earlier identified, cl 5.10(2) of the LLEP requires development consent for the removal of a tree in a heritage conservation area. The specification in Control C5 of the Tree DCP of circumstances which require development consent cannot limit this requirement in cl 5.10(2) of the LLEP: see s 3.43(5) of the EPA Act.
Third, the removal or pruning of a tree, which does not require approval under Control C1 or development consent under Control C5 of the Tree DCP or the LEP, requires a permit under s 2.10(1) of the Biodiversity SEPP. Application is made for a permit in the form and manner required by s 2.11(1) of the Biodiversity SEPP.
Fourth, the removal (but not pruning) of a tree of a species listed in Control C7 still requires a permit under s 2.10(1) of the Biodiversity SEPP, but the form of the application for the permit differs. Application is to be made in the form of a Tree Minor Works Request.
The Tree DCP specifies in s 5.2 the assessment criteria to be considered in determining an application to remove a tree. These assessment criteria need to be considered in determining an application for a permit under s 2.10(1) of the Biodiversity SEPP to remove a tree, whether that application be in the form required under Control C6 or Control C7.
It can be seen that this statutory scheme does not "exempt" trees of a species listed in Control C7 of the Tree DCP from the requirement either for a permit to remove the tree under s 2.10(1) of the Biodiversity SEPP or for development consent where there is a requirement for development consent for the removal of the tree, such as under cl 5.10(2) of the LLEP where the tree is located in a heritage conservation area.
The decision cited by the appellants of Owners Strata Plan 40546 v McRae is of no assistance. That case concerned an application for an order to remove a tree under the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act), not an application for a permit to remove a tree under s 2.10(1) of the Biodiversity SEPP. The Commissioner made passing reference to the fact that the tree was of a species listed in Control C7 of the Tree DCP as one of the considerations he took into account under s 12 of the Trees Act in exercising the power under s 9 of the Tree DCP to order the removal of a tree listed as undesirable in the Tree DCP. He was not interpreting or applying the Tree DCP.
Not only does Control C7 of the Tree DCP not exempt trees of a species listed in Control C7 from protection under the Tree DCP, it also does not require a permit to remove the tree to be automatically granted. The appellants relied in support of their argument that a permit must be automatically granted on a note in the form of the application for a permit. The third frequently asked question and answer in the form stated: "Q. I have a tree that is on the Tree Minor Works species list ‑ Can I remove it without Council approval? A. No, trees species listed require a minor works application (no fee), under section 5.1 C7, require a minor works application (no fee). [sic, repetition] Removal will be granted with a condition to replant. Please include full colour clear images of the tree: including trunk, leaves (top and underside of the leaves) and the tree as a whole."
The appellants submitted that the second sentence in that answer ensures that a permit for removal of a tree of a listed species will be automatically granted.
I reject that submission. The power to issue a permit to remove a tree of a species listed in Control C7 of the Tree DCP is in s 2.10(1) of the Biodiversity SEPP. That power is discretionary. The power can be exercised to refuse to issue a permit or to issue a permit, and, if to issue a permit, to issue it without conditions or subject to conditions: see s 2.10(4) of the Biodiversity SEPP. In exercising the power, the Council is required to take into consideration any relevant matter. These include the assessment criteria in s 5.2 of the Tree DCP.
Control C7 of the Tree DCP does not mandate that the power in s 2.10(1) of the Biodiversity SEPP is to be exercised only by issuing a permit. As I have explained, Control C7 merely specifies the type of application for a permit for removal of a tree of a species listed in Control C7. It is silent on how the power to issue a permit under s 2.10(1) of the Biodiversity SEPP is to be exercised.
The answer to the third frequently asked question in the form of application for a permit is not to be interpreted to the contrary. It does not say that the Council will always exercise the power in s 2.10(1) of the Biodiversity SEPP in only one way, namely to issue a permit to remove a tree of a species listed in Control C7.
For these reasons, the appellants have not established that the Commissioner erred in the ways claimed in the misconstruction of the Tree DCP grounds.

Incorrect Tree DCP grounds

The third category of grounds of appeal concern the Commissioner's reference to an incorrect version of the Tree DCP in her judgment. Apparently, there were two versions of the Tree DCP, one which had been adopted by the Council on 11 February 2020 and was the operative DCP, and a different version which might have been a draft but had not been adopted by the Council. At the hearing before the Commissioner, the parties each tendered the correct version of the Tree DCP. For some unexplained reason, the Commissioner accessed herself the incorrect version of the Tree DCP.
One of the parts of the Tree DCP in which the two versions of the Tree DCP differed was section 4 in Control C2. The correct version specified in Control C2 that, "the exemptions in section 3" do not apply to the ten circumstances specified in Control C2. The incorrect version specified in Control C2 that exemptions that do not apply are "the exemptions in C1 a) to b) and C7", and stated that these exemptions do not apply to the ten circumstances specified in Control C2.
The exemptions in C1(a) and (b) were in section 3. In that respect, the two versions both refer to the exemptions in section 3. The reference in the incorrect version to exemptions in Control C7, however, was misguided. Control C7 in both versions of the Tree DCP are the same. Neither version of Control C7 specifies any "exemptions". Both versions of Control C7 specify the type of application that is to be made for a permit to remove a tree that is of a species listed in Control C7, namely a Tree Minor Works Request.
The ten circumstances specified in the two versions of Control C2 also differed. In the correct version, the tenth circumstance was "a tree identified on Council's significant tree register". In the incorrect version, the tenth circumstance was: "Any tree that is within a heritage area or item where the works are: 1. Not of a minor nature; 2. Likely to have an adverse impact on a Heritage Conservation Area or Heritage Item."
A second part where the two versions of the Tree DCP differed was s 5.1 in Control C5. The correct version specified the circumstances where development consent is required to be more limited that what the incorrect version specified. The incorrect version added at the end of the second circumstance (ii): "or is located within a Heritage Conservation Area or Heritage Item [sic] where the works are determined to be not of a minor nature'; or likely to have an adverse impact on a Heritage Conservation Area or Heritage Item."
A third part where the two versions of the Tree DCP differed was s 5.2. The first of the assessment criteria in s 5.2, "(i) Distance", differed between the two versions. The correct version stated that "automatic approval will be granted", while the incorrect version stated, "approval will be granted", and the correct version stated that the approval will be granted to remove a tree located within 2 metres of a dwelling house or garage, wherever located, while the incorrect version stated that the dwelling house or garage must be "located within the same lot as the tree".
The appellants contended that the Commissioner erred in law in referring to these provisions of the incorrect version of the Tree DCP. One example is where the Commissioner quoted in [20] the tenth circumstance (x) listed in Control C2 of the incorrect version. A second example is where the Commissioner referred in [37] and [38] to the expanded Control C5 in the incorrect version. A third example is where the Commissioner quoted in [30] the incorrect version of the assessment criteria in s 5.2.
Apart from identifying the fact that the Commissioner referred to certain parts of the incorrect version of the Tree DCP instead of the correct version of the Tree DCP, the appellants did not state what was the legal consequence of the Commissioner so doing. The appellants' argument seemed to be that the Commissioner's reasoning was infected by her reference to the incorrect version of the Tree DCP.
I reject this argument. Whilst unfortunate that the Commissioner accessed and relied on an incorrect version of the Tree DCP, the Commissioner's reference to certain provisions of the incorrect version was of no legal consequence. The critical steps in the Commissioner's reasoning for her decision did not depend on those provisions of the incorrect version of the Tree DCP. I have outlined the steps in her reasoning and explained why they were legally correct. These steps do not depend on which version of Control C2 or Control C5, or the assessment criteria in s 5.2 of the Tree DCP, are correct. Development consent was required by cl 5.10(2) of the LLEP to remove the tree because the tree is in a heritage conservation area, not because of Controls C2 or C5, or s 5.2 of the Tree DCP. A permit cannot be issued under s 2.10(1) of the Biodiversity SEPP to remove the tree because of s 2.10(3) of the Biodiversity SEPP, not because of controls C2 or C5, or s 5.2 of the Tree DCP. The differences in wording between the two versions of the Tree DCP were therefore immaterial to the Commissioner's decision.
In any event, the additional or different words in Controls C2 and C5 and s 5.2 of the incorrect version of the Tree DCP did not change the meaning and effect of the Tree DCP. The additional words in the tenth circumstance in Control C2 and in the second circumstance in Control C5 merely stated what was already stated in other provisions. In each case, the additional matter concerned removal of a tree that is of a minor nature or not likely to have an adverse impact on a heritage conservation area or heritage item. That matter was already required to be taken into account under cl 5.10(3) of the LLEP and s 2.10(3) of the Biodiversity SEPP. The inclusion of this matter in the Tree DCP did not add anything to the consideration already required by the statutory provision.
The difference in wording in the assessment criteria in s 5.2 of the two versions of the Tree DCP was also irrelevant to the Commissioner's primary determination that the Council had no jurisdiction either to grant development consent or to issue a permit to remove the tree. Insofar as the Commissioner in the alternative considered the assessment criteria in s 5.2 to determine whether a permit should be issued, the Commissioner's reasons declining to issue a permit did not turn on the assessment criteria of the distance of the tree from any dwelling house or garage.
For these reasons, the appellants have not established that the Commissioner erred on a question of law, or erred in a way that is material, as claimed in the incorrect Tree DCP grounds.

Conclusion and orders

The appellants have not established any ground of appeal that the Commissioner erred on questions of law. The appeal should be dismissed.
Although the usual order for costs in an appeal against a Commissioner's decision under s 56A of the Court Act is that costs follow the event, in the circumstances of this case, the Council did not seek an order that the appellants pay the Council's costs of the appeal. Accordingly, there should be no order for costs.
The Court orders: 1. The appeal is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2023

Environment and Planning Assessment Act 1979(NSW)ss 1.5(1)(f), 3.43(5), 4.3, 4.12, 4.16(1), 8.2

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