Ashworth v McSweeney [2020] NSWLEC 50

Ashworth v McSweeney [2020] NSWLEC 50

The Court was satisfied that there was a serious question to be tried because the Permit expressly relied on Council being satisfied that removal of a substantial Hackberry tree was minor or maintenance within a heritage conservation area, and the photographic evidence supported an arguable case that this state of satisfaction was unreasonable. Because the tree removal was being undertaken during the hearing and irreparable injury favoured preservation of the tree, the balance of convenience favoured granting short ex parte interlocutory relief, subject to the applicant giving the usual undertaking as to damages.

Jurisdiction
Australia
Judgment Date
07 May 2020
Procedural Posture
Class 4 Proceedings / Ex Parte Application for Urgent Interlocutory Relief
Outcome
Ex parte interlocutory relief granted.
Legal Topics
['ex Parte Injunction' 'urgent Interlocutory Relief' 'tree Removal' 'heritage Conservation Area' 'balance of Convenience' 'serious Question to Be Tried']
['civil Procedure' 'environmental and Planning Law' 'equity'] ['ex Parte Injunction' 'urgent Interlocutory Relief' 'tree Removal' 'heritage Conservation Area' 'balance of Convenience' 'serious Question to Be Tried']

Case Brief

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Procedural Posture

Class 4 Proceedings / Ex Parte Application for Urgent Interlocutory Relief

Legal Issues

  1. 1 ['Whether there was a serious question to be tried as to whether the Permit for removal of the Celtis sinensis (Hackberry) tree was legally unreasonable or void under cl 5.10 of the Sydney Local Environmental Plan 2012 (NSW).' 'Whether the balance of convenience favoured urgent ex parte interlocutory relief restraining removal of the tree while removal work was already in progress.' 'Whether the applicant should be required to give the usual undertaking as to damages.']

Ratio Decidendi

The Court was satisfied that there was a serious question to be tried because the Permit expressly relied on Council being satisfied that removal of a substantial Hackberry tree was minor or maintenance within a heritage conservation area, and the photographic evidence supported an arguable case that this state of satisfaction was unreasonable. Because the tree removal was being undertaken during the hearing and irreparable injury favoured preservation of the tree, the balance of convenience favoured granting short ex parte interlocutory relief, subject to the applicant giving the usual undertaking as to damages.

Court Disposition

Ex parte interlocutory relief granted.

Orders

  • ["Upon the applicant giving the usual undertaking as to damages, order that the first respondent is restrained from whether by himself or his servants or agents, demolishing (or cutting or taking other steps for the purposes of demolishing) any Celtis sinensis (Hackberry) tree from the first respondent's property...