Khreich & anor v Holroyd City Council [2015] NSWLEC 1360

Land and Environment Court New South Wales

Medium Neutral Citation: Khreich & anor v Holroyd City Council [2015] NSWLEC 1360 Hearing dates: 11 August 2015 Date of orders: 02 September 2015 Decision date: 02 September 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Order modified – see [46] Catchwords: SECTION 124 ORDER: Retention and habitat pruning of Cumberland Plain Woodland species; replacement planting Legislation Cited: Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Local Government Act 1993 Threatened Species Conservation Act 1995 Holroyd Local Environmental Plan 2013 Category: Principal judgment Parties: Marwan Khreich and Ayad Al-Khouy Diab (Applicants) Holroyd City Council (Respondent) Representation: Applicants: Mr G McKee (Solicitor) Respondent: Mr M Fozzard (Barrister)

Solicitors: Applicants: McKees Legal Solutions Respondent: Bilias & Associates File Number(s): 20056 of 2015

Judgment 1. COMMISSIONER: On 16 September 2014, the applicants lodged a 'General Tree Works Application' with Holroyd City Council. The works proposed were the removal of six Gum trees from their property on the basis that each tree was dangerous and dropping dead branches, giving rise to complaints from neighbours. 2. The trees in question are four large Eucalyptus fibrosa (Broad-leaved Ironbark) (Trees 1-4) growing in the rear yard of the applicants' property (the site) and two other mature specimens of E. fibrosa in the front yard (Trees 5 and 6). Tree 1 is located near the northern boundary of the site, to the east of the garage; its canopy overhangs the adjoining property to the north. Tree 2 is to the south and slightly east of Tree 1, in approximately the centre of the site. Trees 3 and 4 are to the east of Trees 1and 2 in the central portion of the backyard. The rear portion of the large backyard is mostly lawn. 3. The site is on the eastern side of Harris Street. Approximately 150m to the southwest is Gum Tree Reserve. 4. On 5 November 2014, council's Landscape Officer inspected the trees. He observed the two trees in the front garden to be in acceptable condition and free from any visible structural defects and determined that the trees should be retained. The four trees in the backyard had died and defoliated. The officer observed a total of three hollows in two of the trees and a nest in another. On the basis of the species and the hollows, the officer concluded that the trees provided habitat and should be retained. 5. Council issued its Determination of General Tree Application on 27 November 2014 which deferred the assessment of trees in the backyard (Trees 1, 2, 3, and 4) and refused the removal of trees from the front yard. 6. On 27 November 2014, the council also issued a Notice of Intention to Give an Order No. 21 pursuant to s 124 of the Local Government Act 1993 (LG Act).