Elith v Ku-ring-gai Council [2024] NSWLEC 1757

Elith v Ku-ring-gai Council [2024] NSWLEC 1757

The Leyland Cypress tree does not fall under any exemptions or prescribed removal scenarios in the KDCP's Tree Assessment Guidelines, does not exhibit poor condition or structure, is not dead, dying, dangerous, or damaging property, nor does it currently adversely impact the adjacent Turpentine tree. As the assessment criteria are finite, the application for removal must be refused.

Parties
Applicant: Michael Elith; Applicant: Lucinda Alder; Respondent: Ku-ring-gai Council
Jurisdiction
Australia
Judgment Date
22 November 2024
Procedural Posture
Appeal / Final Hearing and Judgment
Outcome
Appeal dismissed
Legal Topics
Tree Removal Application, Development Control Plan Interpretation, Vegetation Protection, Permit for Clearing Vegetation
Environmental Law Local Government Law Tree Removal Application Development Control Plan Interpretation Vegetation Protection Permit for Clearing Vegetation

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Parties

Michael Elith

Applicant

Lucinda Alder

Applicant

Ku-ring-gai Council

Respondent

Procedural Posture

Appeal / Final Hearing and Judgment

Legal Issues

  1. 1 Whether the applicants are entitled to permit for removal of the Leyland Cypress tree under Ku-ring-gai Development Control Plan and Biodiversity SEPP
  2. 2 Whether the circumstances of the tree satisfy the exemption or assessment criteria for removal under KDCP
  3. 3 Whether best arboricultural practice allows for removal of the tree to protect an adjacent Turpentine tree

Ratio Decidendi

The Leyland Cypress tree does not fall under any exemptions or prescribed removal scenarios in the KDCP's Tree Assessment Guidelines, does not exhibit poor condition or structure, is not dead, dying, dangerous, or damaging property, nor does it currently adversely impact the adjacent Turpentine tree. As the assessment criteria are finite, the application for removal must be refused.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • All exhibits retained.