Proyas v The Council of the City of Sydney [2016] NSWLEC 1091

Land and Environment Court New South Wales

Medium Neutral Citation: Proyas v The Council of the City of Sydney [2016] NSWLEC 1091 Hearing dates: 4 March, 2016 Date of orders: 15 March 2016 Decision date: 15 March 2016 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. D2015/1644, for the removal of the Eucalyptus salinga (Sydney Blue Gum) located at 25 Georgina Street, Newtown, is refused. 3. The exhibits, other than exhibits 2 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: removal of a tree and replacement with a new tree. Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Land and Environment Court Act (1979) Category: Principal judgment Parties: Mr Alex Proyas (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: Mr P. Vergotis solicitor (Applicant) Mr A. Singh solicitor (Respondent)

Solicitors: McCabes (Applicant) Council of the City of Sydney (Respondent) File Number(s): 11245 of 2015

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2015/1644 for the removal of the Eucalyptus salinga (Sydney Blue Gum) (the tree) located at 25 Georgina Street, Newtown (the site) by the Council of the City of Sydney (the Council). 2. The applicant lodged an application for a permit to remove a tree on private land on 3 August 2015 (TPR/2015/322) and it was refused by Council on 25 August 2015. The applicant filed Class 1 proceedings with the Land and Environment Court on 18 September 2015 (10841 of 2015) (the first appeal). In the Council's Statement of Facts and Contentions filed on 13 October 2015, it raised the issue that the application should have been a development application as the Council contended there is no right of appeal against the Council's refusal of the application for a permit to remove a tree on private land. The applicant lodged a development application for the removal of the tree on 12 November 2015 (D/2015/1644) and properties within a 25m radius of the site were notified by letter of the development application and no submissions were received. The development application was refused by Council on 22 December 2015. The applicant filed Class 1 proceedings with the Land and Environment Court on 23 December 2015 (11245 of 2015). 3. The first appeal (10841 of 2015) was subject to mandatory conciliation on 21 December 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference, it was terminated on 21 December 2015, pursuant to s 34(4) of the LEC Act. 4. A notice of discontinuance of the first appeal was filed with the Court on 9 March 2015.