Farrell v Hornsby Shire Council [2006] NSWLEC 195

Farrell v Hornsby Shire Council [2006] NSWLEC 195

The evidence showed that the large, healthy Blackbutt dominated a small residential allotment and neighbouring properties, had caused injury, repeated property damage and significant maintenance costs, and presented continuing risks from branch drop. Because pruning would not satisfactorily reduce those risks and removal would not endanger the locality's leafy streetscape objective, the assessment criteria concerning safety, property damage and hardship were determinative and justified consent for removal.

Jurisdiction
Australia
Judgment Date
19 April 2006
Procedural Posture
Class 1 Appeal / Appeal Under Section 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Consent to Remove a Large Blackbutt Tree
Outcome
Appeal upheld; consent granted to remove the large Blackbutt tree.
Legal Topics
['development Consent' 'tree Preservation Order' 'tree Removal' 'safety of Persons and Property' 'property Damage From Falling Branches']
['environmental Planning' 'land and Environment' 'local Government'] ['development Consent' 'tree Preservation Order' 'tree Removal' 'safety of Persons and Property' 'property Damage From Falling Branches']

Case Brief

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Procedural Posture

Class 1 Appeal / Appeal Under Section 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Consent to Remove a Large Blackbutt Tree

Legal Issues

  1. 1 ["Whether there was a sufficient basis to justify removal of the Blackbutt tree pursuant to Council's Tree Preservation Order." 'Whether the safety hazards and property damage caused or likely to be caused by the tree outweighed retention of the tree.' 'Whether pruning would provide satisfactory relief from nuisance or danger caused by the tree.' 'Whether removal would be inconsistent with the objective of retaining leafy dominance of trees to buildings in Hornsby Shire.']

Ratio Decidendi

The evidence showed that the large, healthy Blackbutt dominated a small residential allotment and neighbouring properties, had caused injury, repeated property damage and significant maintenance costs, and presented continuing risks from branch drop. Because pruning would not satisfactorily reduce those risks and removal would not endanger the locality's leafy streetscape objective, the assessment criteria concerning safety, property damage and hardship were determinative and justified consent for removal.

Court Disposition

Appeal upheld; consent granted to remove the large Blackbutt tree.

Orders

  • ['The appeal is upheld.' 'Consent is granted to the removal of the large Blackbutt tree (Eucalyptus pilularis) in the rear yard of No. 12 Knox Avenue, Epping.' 'The exhibits are returned to the parties except Exhibits 1, 2, 5, A, B and C.']