Brennan & anor v Leichhardt Council [2013] NSWLEC 1172

Land and Environment Court New South Wales

Medium Neutral Citation: Brennan & anor v Leichhardt Council [2013] NSWLEC 1172 Hearing dates: 3 September 2013 Decision date: 18 September 2013 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to a condition requiring the planting of a replacement tree Catchwords: APPEAL: Tree Preservation Order; removal of a tree; jurisdictional validity and merits of the imposition of a condition requiring the planting of a replacement tree Legislation Cited: Environmental Planning & Assessment Act 1979 Environmental Planning and Assessment Model Provisions 1980 Interpretation Act 1987 Leichhardt Local Environmental Plan 2000 Cases Cited: Botany Bay City Council v Saab Corporation Pty Limited [2011] NSWCA 308 Category: Principal judgment Parties: Sean Brennan (First Applicant) Deborah Soden (Second Applicant) Leichhardt Council (Respondent) Representation: Applicants: Mr S Brennan (Litigant in person) Respondent: Ms R McCulloch (Solicitor) Respondent: Pikes & Verekers Lawyers File Number(s): 10388 of 2013

Judgment 1COMMISSIONER: In March 2013 the applicants lodged a Tree Application with Leichhardt Council seeking permission to remove a large Jacaranda from their rear garden. The basis of the application appears to have been the failure of a large branch onto the applicants' garage. 2The application to remove the tree was refused in May 2013. Permission was given for pruning in accordance with the Complying Works section of the Leichhardt Council Tree Preservation Order (TPO). 3The applicants have appealed under s 97 of the Environmental Planning & Assessment Act 1979 (EPA Act) seeking orders for the removal of the tree without the imposition of any unreasonable or irrelevant conditions such as the requirement to plant a replacement tree. 4For reasons given later in this judgment, council no longer opposes the removal of the tree but requires its replacement in accordance with the provisions of the TPO and the general objectives of the Leichhardt Local Environmental Plan 2000 (LLEP). 5Council's draft condition of consent is: 1. A replacement tree of one of the following species shall be planted in the front yard of the premises within 28 days of the removal of the Jacaranda from the premises: Acer buergeranum (Trident Maple) Lagerstroemia indica (Crepe Myrtle) Acer palmatum (Japanese Maple) 6The applicants oppose the condition and question the jurisdictional validity of its imposition.