Australia, April 14 -- New South Wales Land and Environment Court issued text of the following judgement on March 14:

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: A Tree Permit Application No. TA/2/2025 (TPA), lodged with the City of Parramatta Council (Council) pursuant to s 2.3 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) was partially refused by the Council and that determination was Appealed to this Court pursuant to s 2.12 of the Biodiversity and Conservation SEPP.

2 The TPA sought permission to remove 48 trees from 2 Shaft Street, Silverwater NSW 2128 legally described as Lot 1 in Deposited Plan 541631 (the Site). On 28 January 2025, Council determined the TPA by permitting the removal of 44 trees, and refusing the removal of the following four trees:

1) Tree 1 - Melaleuca Bracteata (Black Teatree)

2) Tree 6 - Eucalyptus Scoparia (Wallangarra White Gum)

3) Tree 7 - Melaleuca Bracteata (Black Teatree)

4) Tree 87 - Callistemon Viminalis (Weeping Bottlebrush)

3. On 3 February 2025, the Applicant filed an Application Class 3 against the Council's refusal of part of the TPA.

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 has been held on 14 March 2025. I presided over the conciliation conference.

5. The parties agree that the proceedings can be resolved by the issuing of a tree permit subject to agreed Conditions, which, put briefly, provide for replacement planting on the Site and tie the removal of certain trees to proposed complying development intended to be carried out on the Site.

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved Court upholding the appeal and issuing a permit to clear vegetation subject to conditions.

7. 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. 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.

8. The parties' decision involves the Court exercising the function under s 2.10 of the Biodiversity and Conservation SEPP to issue a permit to clear vegetation to a landholder in a non-rural area of the State.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms contained in Chapter 2 of the Biodiversity and Conservation SEPP to clear vegetation in non-rural areas. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the court.

10. The Site is owned by 5 legal entities which together are known as Aurora Property Partnerships, the details of which are set out in the letter dated 29 January 2024, which I accept contains a typographical error and the year should read 2025. The owners provide consent to the Applicant to lodge the TPA and any appeal of the determination by the Council to the Court.

11. Chapter 2 of the Biodiversity and Conservation SEPP applies to the local government area of the City of Parramatta pursuant to s 2.3(1)(a) of the Biodiversity and Conservation SEPP.

12. The Biodiversity and Conservation SEPP makes provision for and with respect to protecting or preserving trees or other vegetation in Chapter 2, and, pursuant to s 3.14(4)(c) of the Environmental Planning and Assessment Act 1979 (EPA Act), makes provision at s 2.12 of the Biodiversity and Conservation SEPP for an appeal to the Court against a refusal to grant any permit, approval or other authorisation to remove or otherwise affect trees or other vegetation.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/195a70114211d8378a922315)

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