Lawrence Reed v Inner West Council [2017] NSWLEC 1038

Lawrence Reed v Inner West Council [2017] NSWLEC 1038

The appeal was dismissed because the English Oak was a healthy prescribed tree within a Heritage Conservation Area and Distinctive Neighbourhood, the arboricultural experts agreed it made a significant and immediate contribution to the surrounding landscape, the evidence did not establish imminent major structural damage or sufficient nexus for all alleged damage, and there had been inadequate analysis of feasible alternatives to removal. There was no evidentiary material supporting removal of the Bangalow Palm beyond ordinary shedding of fronds and fruit, which did not justify removal.

Jurisdiction
Australia
Judgment Date
07 February 2017
Procedural Posture
Class 1 Appeal Against Refusal of Development Application and Subsequent S82 a Review Concerning Removal of Trees / Final Hearing After Mandatory Conciliation Under S34 AA of the Land and Environment Court Act 1979 Was Terminated
Outcome
The appeal is dismissed.
Legal Topics
['development Consent for Removal of Prescribed Trees' 'trees in Heritage Conservation Area' 'landscape Significance of Trees on Private Land' 'alleged Tree Damage to Structures' 'alternatives to Tree Removal']
['planning and Environment' 'tree Preservation' 'heritage Conservation' 'local Government'] ['development Consent for Removal of Prescribed Trees' 'trees in Heritage Conservation Area' 'landscape Significance of Trees on Private Land' 'alleged Tree Damage to Structures' 'alternatives to Tree Removal']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application and Subsequent S82 a Review Concerning Removal of Trees / Final Hearing After Mandatory Conciliation Under S34 AA of the Land and Environment Court Act 1979 Was Terminated

Legal Issues

  1. 1 ["Whether development consent should be granted for removal of the English Oak on the applicants' property." 'Whether there was sufficient basis to approve removal of the Bangalow Palm.' 'Whether the English Oak, as a prescribed tree within a Heritage Conservation Area, was unsuitable for site conditions or posed a threat to human life or property.' 'Whether the evidence established that the English Oak caused or was likely to cause sufficient damage to structures to justify removal.' 'Whether feasible alternatives to removal had been adequately considered.']

Ratio Decidendi

The appeal was dismissed because the English Oak was a healthy prescribed tree within a Heritage Conservation Area and Distinctive Neighbourhood, the arboricultural experts agreed it made a significant and immediate contribution to the surrounding landscape, the evidence did not establish imminent major structural damage or sufficient nexus for all alleged damage, and there had been inadequate analysis of feasible alternatives to removal. There was no evidentiary material supporting removal of the Bangalow Palm beyond ordinary shedding of fronds and fruit, which did not justify removal.

Court Disposition

The appeal is dismissed.

Orders

  • ['The appeal is dismissed' 'Exhibits, except for A, B, 1 and 2, to be returned']