Lawrence Reed v Inner West Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lawrence Reed v Inner West Council [2017] NSWLEC 1038
Hearing dates:	18 January 2017
Date of orders:	07 February 2017
Decision date:	07 February 2017
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	The appeal is dismissed Exhibits, except for A, B, 1 and 2, to be returned
Catchwords:	Review of decision on application to remove trees – prescribed tree in Heritage Conservation Area – contribution to landscape – damage to structures.
Legislation Cited:	Environment Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environment Plan 2013 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No.2) [2007] NSWLEC 513 Robson v Leischke [2008] NSWLEC 152 Smith and Hannaford v Zhang & Zhou [2011] NSWLEC 29 Tasdemir v Fahey [2009] NSWLEC 1418 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Leichhardt Council Tree Management Technical Manual – Trees on Private Property Leichardt Development Control Plan 2013
Category:	Principal judgment
Parties:	Lawrence Reed (Applicant) Carolyn Reed (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: Tony Sattler, Sattler & Associates Pty Ltd (Applicant) Mark Bonnano, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2016/310267

JUDGMENT

1. Mr and Mrs Reed, the applicants and owners of a property in Young Street, Annandale are appealing, pursuant to s97 (1) (a) of the Environmental Planning and Assessment Act 1979, the refusal by the respondent of Development Application D/2015/445 and subsequent s82A review DAREV/ 2016/4 in respect of two trees on their property.

2. The respondent is the Inner West Council. At the time the original application was made, the relevant council was Leichhardt Municipal Council, and the applicable planning instrument remains Leichhardt Local Environmental Plan 2013, and its associated documents continue to apply.

3. In August 2015 the applicants sought approval in D/2015/455 for the removal of three trees on their property (Exhibit 3, folio 120 – 125). The application did not provide identification to species level of the trees concerned, but there is agreement that they are a Bangalow Palm and an Arizona Cypress, both in the front yard of the property, and an English Oak at the rear.

4. On 21 October 2015 the respondent wrote to the applicants refusing the application in respect of all three trees (Exhibit 3, folio 156 – 158).

5. Following the refusal, the applicant sought advice from a structural engineer regarding the tree, the English Oak, at the rear of the property and the report of Mr. Kantouros of Ross Engineers dated 10 December 2015 is included in the Class 1 application (Exhibit. A). Mr Kantouros concluded that:

”Should the tree remain, there is a high probability trunk and root growth in the near future will undermine the structural integrity of the masonry support walls resulting in major demolition and reconstruction works. In addition three roots have already caused severe damage to external concrete paths and drainage systems.

To avoid future costly building repair works, I recommend that the tree preservation application for…