Hamilton v Sutherland Shire Council [2012] NSWLEC 1015

Hamilton v Sutherland Shire Council [2012] NSWLEC 1015

The tree contains a hollow which constitutes habitat under the relevant statutory definition, and in the context of an environmentally sensitive area and the precautionary principle, the emergency order requiring pruning of limbs and retention of the trunk is valid; permission to remove the tree cannot be granted under clause 56(5) of SSLEP as the tree is required as habitat.

Parties
Applicants: Colin & Penney Hamilton; Respondent: Sutherland Shire Council
Jurisdiction
Australia
Judgment Date
20 January 2012
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed
Legal Topics
Habitat Protection, Tree Preservation Orders, Precautionary Principle, Emergency Orders, Ecologically Sustainable Development
Environmental Law Local Government Law Habitat Protection Tree Preservation Orders Precautionary Principle Emergency Orders Ecologically Sustainable Development

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Parties

Colin & Penney Hamilton

Applicants

Sutherland Shire Council

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Is the tree habitat for native fauna under clause 56(5) of the SSLEP?
  2. 2 Does the precautionary principle require retention of the tree trunk containing a hollow?
  3. 3 Is the Council's emergency order valid under the Local Government Act 1993 and relevant planning controls?

Ratio Decidendi

The tree contains a hollow which constitutes habitat under the relevant statutory definition, and in the context of an environmentally sensitive area and the precautionary principle, the emergency order requiring pruning of limbs and retention of the trunk is valid; permission to remove the tree cannot be granted under clause 56(5) of SSLEP as the tree is required as habitat.

Court Disposition

Appeal dismissed

Orders

  • Emergency order upheld; council to prepare a modified s 124 order within 7 days requiring biodiversity survey by qualified ecologist.
  • Applicants to engage ecologist for survey; findings to be forwarded to Council.