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 1COMMISSIONER: 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. 2The 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. 3The 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. 4The 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.