Hamilton v Sutherland Shire Council - [2012] NSWLEC 1015

Land and Environment Court

New South Wales

Medium Neutral Citation: Hamilton v Sutherland Shire Council [2012] NSWLEC 1015
Hearing dates: 22 December 2011; 13 January 2012
Decision date: 20 January 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Appeal dismissed; council orders amended

Catchwords: Section 124 Order - emergency order to prune branches but retain trunk as habitat; what is habitat; precautionary principle
Legislation Cited: Local Government Act 1993
Sutherland Shire Local Environmental Plan 2006
Threatened Species Conservation Act 1995
Interpretation Act 1987
Environmental Planning and Assessment Act 1979
Protection of the Environment Administration Act 1991
Cases Cited: Southern Cross community Housing Ltd v Shoalhaven City Council [2010] NSWLEC 1306
Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133
Category: Principal judgment
Parties: Colin & Penney Hamilton (Applicants)
Sutherland Shire Council (Respondent)
Representation: Applicant: Mr S Kondilios (Solicitor)
Respondent: Ms J Amy (Solicitor)
Applicant: Maddocks Lawyers
Respondent: Sutherland Shire Council

File Number(s): 21130 of 2011

Judgment

COMMISSIONER: On 3 November 2011, Sutherland Shire Council issued an Emergency Order to selectively prune a large Angophora costata (Sydney Red Gum) located on the Hamilton's property in Gymea Bay. A marked up photograph attached to the order shows the limbs to be removed and the section of the bifurcated trunk to remain.

The order was issued after council received a complaint about the tree. A council officer inspected the tree on 3 November 2011 and found that the tree was dead or dying, that the tree is habitat for native wildlife, and that falling branches may pose a risk to the health and safety of neighbouring residents.

The Emergency Order No. 21 was made pursuant to s 129 and s 124 of the Local Government Act 1993 (LG Act). The order is as follows:

A. Carry out the following works in order to make the above-described tree safe:

1. To selectively prune the tree to remove six (6) branches at the points described by the white lines on the photograph of the tree attached.

2. To retain the remaining tree subsequent to pruning, as it is a habitat for native wildlife.

The Hamiltons have appealed to the Court under s 180 of the LG Act. They seek that orders 1 and 2 be deleted and replaced with the following:

A Carry out the following works in order to make the above-described tree safe:

1. To safely remove and dispose of the tree and such removal to be undertaken by a suitably qualified person.

Issues

The council's Statement of Facts and Contentions (SF&C) raises two issues:

(1) HABITAT VALUE - The tree is a large mature Angophora Costata [sic] with a DBH of over 1000mm and a height of approximately 30m. The tree is dead but contains a hollow on its eastern side. The tree can provide suitable habitat and breeding sites for small native fauna.

(2) STABILITY OF THE TREE - The tree should not be removed as it contains habitat and the concerns regarding its stability can be satisfied by appropriate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWLEC 1015
Decision Date: 20 January 2012

CaseChat Overview and Summary

The case of Hamilton v Sutherland Shire Council involved a dispute between the plaintiff, a local resident, and the Sutherland Shire Council over the latter's decision to grant approval for the development of a property. The matter was heard by the Supreme Court of New South Wales, which had to determine whether the council's decision was legally sound and in accordance with the relevant planning and environmental laws. The plaintiff argued that the council's approval was flawed due to alleged procedural irregularities and the potential environmental impact of the proposed development.

The central legal issues revolved around whether the council had followed proper procedures in granting approval for the development and whether the council had adequately considered the environmental impacts as required by law. Specifically, the court had to examine the council's compliance with the Environmental Planning and Assessment Act 1979 (NSW) and the Local Government Act 1993 (NSW). The plaintiff contended that the council had failed to properly consider the environmental impact of the development, particularly in relation to a protected species that was known to inhabit the area. The council, on the other hand, asserted that it had followed the correct procedures and had appropriately assessed the environmental implications.

The court concluded that while there were procedural shortcomings in the council's handling of the approval process, these did not significantly impact the overall decision. The court found that the council had adequately considered the environmental impacts and had not acted in an arbitrary or unreasonable manner. The judge determined that the council's decision was lawful and that the procedural errors did not render the approval invalid. Consequently, the appeal was dismissed, and the council's orders were amended to address the identified procedural issues.

Orders

Orders of the court

Appeal dismissed; council orders amended

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hamilton v Sutherland Shire Council [2012] NSWLEC 1015
Hearing dates:	22 December 2011; 13 January 2012
Decision date:	20 January 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Appeal dismissed; council orders amended
Catchwords:	Section 124 Order - emergency order to prune branches but retain trunk as habitat; what is habitat; precautionary principle
Legislation Cited:	Local Government Act 1993 Sutherland Shire Local Environmental Plan 2006 Threatened Species Conservation Act 1995 Interpretation Act 1987 Environmental Planning and Assessment Act 1979 Protection of the Environment Administration Act 1991
Cases Cited:	Southern Cross community Housing Ltd v Shoalhaven City Council [2010] NSWLEC 1306 Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133
Category:	Principal judgment
Parties:	Colin & Penney Hamilton (Applicants) Sutherland Shire Council (Respondent)
Representation:	Applicant: Mr S Kondilios (Solicitor) Respondent: Ms J Amy (Solicitor) Applicant: Maddocks Lawyers Respondent: Sutherland Shire Council
File Number(s):	21130 of 2011