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Removal of Shrubs to Prevent Consents from Lapsing

The Court of Appeal (Court) in recent judgment of Cardo Management and Maintenance Pty Ltd v Cumberland Council [2019] has established an easier criteria to prevent a lapse of consent, assisting developers and landowners in protecting their development rights. Section 4.53 of the Environmental Planning and Assessment Act 1979 (Act) stipulates that a development consent for the erection of a building, subdivision of land or the carrying out of work will lapse if no physical commencement of the development occurs after 5 years.

Land and Environmental Court Judgment

Within the recent judgment, the Land and Environment Court (LEC) had found that the developer had failed to establish that lawful works had physically commenced before the lapsing date of the consent. The developer had removed shrubs and trees as well as erecting fences and disconnecting the water.

The LEC found that the demolition of the trees and shrubs were not completed by a certified arborist as required by the consent, and further, the work on the fence and disconnection of water hadn’t been approved by the Principal Certifying Authority as per the consent. As such, the work done did not lawfully constitute physical commencement of the development.
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What part of the Pasteurised Garden Organic Order and Exemption applies to Council and what requirements are expected from Council?

The Mulch Order 2016 applies to unpasteurised/raw mulch which by virtue of the nature and source of the plant material, poses minimal risk of the presence of physical and chemical contaminants and does not include plant material obtained from kerbside waste collection.  Whilst the need for pasteurisation may be dispensed with on the tree clippings obtained from Council’s tree maintenance operations and as such this mulch will only be subject to the provisions in the Mulch Order 2016 and Mulch Exemption 2016 [Click here to see our article:How do the new Mulch Order and Exemption 2016 impact on Councils’ tree maintenance operations?]. However, if the plant material used for mulch also contains kerbside waste collection or tree material that has a significant risk of contaminants, mulch processed from such a mixed source may pose a risk of the presence of contaminants and therefore falls outside the definition of mulch in the Mulch Order 2016. Mulch of this kind is regulated by Pasteurised Garden Organic Order 2016 (PGOO) and Pasteurised Garden Organic Exemption 2016 (PGOE).
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Trees Disputes Between Neighbours in NSW

In urban and suburban areas trees can often be the subject of a problem between neighbours. Common reasons include:

  • Roots damaging sewer pipes
  • Parts of a tree damaging the roof or building
  • Overhanging branches
  • Trees interfering with views or sunlight
  • Leaves etc overflowing or blocking gutters
  • Damage to driveways and fences from tree roots and branches

The Trees (Disputes Between Neighbours) Act 2006 (Trees Act) provides for certain tree disputes to be adjudicated by the courts, providing clear remedies and pathways for resolution of disputes.  Prior to the enactment of the Trees Act, it would be common for neighbours to have to seek permission of the owner of the tree, and council, to prune the tree or remove the offending branch or root and/or bring an action in nuisance against the neighbour.  The process has been significantly simplified under the Trees Act.


Mediation is a good starting point for neighbours involved in a tree dispute. Mediation can help to resolve disputes in a cheaper manner than litigation.  Further, if a dispute reaches the Land and Environment Court, the Court will not make an order unless the applicant has made a reasonable effort to reach agreement with the neighbour prior to going to court.
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