Land and Environment Court New South Wales Medium Neutral Citation: 7 Steps Education Pty Ltd ATF The Fingal Children Trust v Tweed Shire Council [2023] NSWLEC 1762 Hearing dates: Conciliation conference on 14 and 15 November 2023 Date of orders: 13 December 2023 Decision date: 13 December 2023 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The Appeal is upheld. (2) Modification Application DA18/0478.02, as further amended, for the removal of 1 additional tree on land identified as at Lot 1 in DP 1273277 and known as 20 Lagoon Road, Fingal Head NSW 2487, is approved subject to the conditions at Annexure A. (3) As a consequence of Order 1, Development Application No. 18/0478 is now subject to the consolidated, modified conditions of development consent set out in Annexure B. Catchwords: MODIFICATION APPLICATION – conciliation conference – tree removal for bushfire compliance – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Environmental Planning and Assessment Regulation 2021, s 113 Land and Environment Court Act 1979, ss 34, 34AA State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.7, 2.8 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4 Category: Principal judgment Parties: 7 Steps Education Pty Ltd ATF The Fingal Children Trust (Applicant) Tweed Shire Council (Respondent) Representation: Counsel: T Poisel (Applicant) H Irish (Respondent) Solicitors: Minter Ellison (Applicant) Hall and Wilcox (Respondent) File Number(s): 2023/277643 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as the result of the actual refusal, by Tweed Shire Council of modification application DA18/0478.02, which seeks approval for the removal of eight additional trees on land located at 20 Lagoon Road, Fingal Head NSW 2487, legally known as Lot 1 in DP 1273277. The tree removal was to facilitate compliance with bushfire protection requirements for an approved single residential dwelling, as per the conditions of consent of the original development consent. 2. These proceedings have been brought to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 and 15 November 2023. I presided over the conciliation conference, at which the parties reached agreement as to the acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and modifying the development consent in accordance with the modification application. 4. During the conciliation conference, in response to the submissions of residents heard on site and with the agreement of the Respondent, the Applicant amended the modification application. This reduced the requested tree removal from eight trees to one tree, with the removal of this single tree being acceptable because prior to this appeal, this single tree was pruned to such an extent that only the trunk remains, rendering it unviable. The bushfire compliance issues that generated this modification application have been resolved through the extension of an external wall dousing system and the implementation of a canopy pruning zone to the southern and eastern facades of the dwelling. 5. 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. The parties' decision involves the Court exercising the function under s 4.55 of the EPA Act to modify the development application. 6. 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 and explained how they have been satisfied, and from this I note the following points. 7. Pursuant to EPA Act s 4.55(1A), I am satisfied that: 1. The removal of the remainder of tree T67 and the extension of the wall dousing system is of minimal environmental impact. 2. This application, as modified, now requests the removal of one tree and minor technical amendments to the building system of the approved residential dwelling. It will not adversely impact the form or substance of the built form, landscape, or native vegetation on the site. From this, I am satisfied that in both qualitative and quantitative terms the development, as modified, will be substantially the same as the development for which the consent was originally granted. 3. The development application was appropriately notified for 14 days between 14 June and 28 June 2023, during which time 17 submissions were received. Several of these objectors spoke at the commencement of these proceedings and all objected to the removal of any further trees to facilitate this development. As outlined at [4], the modification application was subsequently amended in the conciliation conference to reduce the tree removal to one. Based on the parties' submission and these amendments to the modification application that occurred subsequent to hearing the oral submissions of objectors, I am satisfied that both the written and oral submissions made in relation to this modification application have been considered in the assessment of this application, and adequately addressed. 1. Pursuant to EPA Act s 4.55, I have considered the matters referred to in s 4.15(1) that are of relevance to the development the subject of the application, and the reasons given by the consent authority for the grant of the consent that is sought to be modified. From this I note the following: 1. The site is identified by Tweed Shire Council as bushfire prone land and, based on the parties' submissions I accept that the conditions of consent ensure that the necessary requirements for bushfire protection are met. 2. Pursuant to the requirements of Ch 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021, the parties submit, and I am satisfied that, the development does not result in any impact to koala habitat. 3. As the modification application is not an application for development consent, ss 2.7 and 2.8 of the State Environmental Planning Policy (Resilience and Hazards) 2021 do not apply. Nonetheless, the parties submit, and I accept, that there will be no impact to the Coastal Wetlands or Littoral Rainforest, which the site is mapped as being in proximity of. 1. For these reasons, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 2. As the parties' decision is one 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. 3. The Court notes: 1. that Tweed Shire Council, as consent authority, pursuant to s 113(4) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Modification Application DA18/0478.02 made on 16 November 2023 to rely on Site Plan – Existing Tree impact Dwg.101 Rev 06 prepared by Planit Consulting dated 15 November 2023 (the further amended modification application). 1. The Court orders: 1. The Appeal is upheld. 2. Modification Application DA18/0478.02, as further amended, for the removal of one additional tree on land identified as at Lot 1 in DP 1273277 and known as 20 Lagoon Road, Fingal Head NSW 2487, is approved subject to the conditions at Annexure A. 3. As a consequence of Order 1, Development Application No. 18/0478 is now subject to the consolidated, modified conditions of development consent set out in Annexure B. ………………………. E Washington Acting Commissioner of the Court Annexure A (218569, pdf) Annexure B (310670, pdf) ********** 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: 13 December 2023