Wang v Blacktown City Council

File Number(s): 2024/265008

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: A large eucalyptus tree that is proposed for removal stands on a suburban site in Blacktown. The owners of the site, Hongkuan Wang and Lijia Yu (together, the Applicants), initially sought its removal due to structural damage to a dwelling at 15 Meela Street, Blacktown NSW 2148.

2. To this end, the Applicants lodged an application with Blacktown City Council (the Council) under s 2.10 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). Section 2.10 of the Biodiversity SEPP deals with the issue by a Council for a permit for clearing of vegetation.

3. It is relevant to note that the right to appeal against a refusal of a permit by Council is found in s 2.12(1) of the Biodiversity SEPP.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 March 2025. I presided at the conciliation conference.

5. Prior to the conciliation conference, the parties reached agreement as to the terms of decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal.

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 21 March 2025 (the Agreement).

7. The parties ask me to approve their decision as set out in the s 34 agreement before the Court which involves upholding the appeal and granting the permit subject to conditions agreed between the parties.

8. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicants, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

10. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

11. I note that while the appeal was initially filed as a Class 3 appeal, it was changed by the Court to Class 1 at the first directions hearing. However, I accept the parties’ agreement that the appeal does not fall within one of the criterions of a Class 1 appeal under s 17 of the LEC Act. Instead, the appeal was correctly filed in Class 3, with the relevant power found at s 19(h), which is in the following terms:

19 Class 3—land tenure, valuation, rating and compensation matters

The Court has jurisdiction (referred to in this Act as “Class 3” of its jurisdiction) to hear and dispose of the following –

…

(h) any other appeals, references or other matters which an Act provides may be heard and disposed of by the Court, being appeals, references or other matters that are not referred to in any other section of this Part.

12. Next, as shown in Stewart v Inner West Council [2023] NSWLEC 136 (Stewart), at [26]-[28], an application for a permit of a kind sought in this matter is distinct regime to that where development consent is sought.

13. As the appeal deals with an application for a permit, and not for development consent of a kind described in Stewart at [50], a permit may be issued, subject to the Court’s consideration of the following relevant provisions of Biodiversity SEPP:

14. Chapter 2 applies, as s 2.3(1) identifies Blacktown City Council local government area as land to which the Biodiversity SEPP applies, and in which the site is zoned R2 Low Density Residential.

15. Sections 2.6 and 2.9 require a tree permit for tree removal.

16. Section 2.10(2) is not relevant as the removal of a single tree would not exceed the biodiversity offsets scheme threshold.

17. Those matters at subs (3) that would preclude the grant of a permit do not apply in the circumstances of this case, while subs(3)(c) is met as the permit is of a minor nature.

18. The parties agree that a permit of a kind appended to the Agreement may be issued, subject to conditions in accordance with s 2.10(4) of the Biodiversity SEPP.

Conclusion

15. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

16. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

17. The Court notes that Blacktown City Council, as the relevant consent authority, has approved the amendment of the Tree Removal Application No. TR-24-00320 pursuant to s 2.10(1) of State Environmental Planning Policy (Biodiversity and Conservation) 2019.

Orders

18. The Court orders that:

19. The Applicants are granted leave to rely upon the amended development application.

20. The appeal is upheld.

21. Tree Removal Application No. TR-24-00320, as amended, for the pruning of the Eucalyptus saligna located at the rear of the subject site at 15 Meela Street Blacktown NSW 2148, is determined by the grant of consent subject to conditions of consent in Annexure A.

T Horton

Commissioner of the Court

Annexure A

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