You are currently browsing the tag archive for the ‘NSW Court of Appeal’ tag.

2 gorgeous Gums in Dulwich Hill

The story goes like this –

In the yard of a home owned by public housing was an 18 metre tall Grey Gum (Eucalyptus punctata) with a 14 metre wide canopy.  Next door lived Ms R in a home also owned by public housing. The tree’s branches overhung the driveway. The tree had dropped some branches over the years. Ms R had asked the Department of Housing to remove the tree & the tree was trimmed a couple of times. During a storm branches fell from the tree breaking a couple of windows.

In 2005 the Department of Housing applied to the local Council for permission to remove the tree because it was unstable.  The Council’s Arborist inspected the tree & did not approve removal because the tree was in a sound/stable condition & removal was inconsistent with the Council’s Tree management Plan.  The Arborist said he had no objection to pruning deadwood & to thin the crown by 15%, but without height reduction.

In December 2005 Ms R was hit by a branch or dead wood. She sued Council & the Department of Housing for negligence.  Her consultant Arborist thought the Council’s Arborist did “not consider the intrinsic nature of Eucalypts to unpredictably shed dead branches or live branches that have been damaged,” & that the tree “will provide an ongoing source of potential hazard,” & “despite any further remedial pruning, it will continue to pose an unacceptable & ongoing risk of hazard to the safety of people & damage to property.”

Another 2 lovely Gums in Smidmore Street Marrickville

The District Court did not award Ms R damages. She appealed. On 13th September 2010 the NSW Court of Appeal delivered judgement (Rhodes v Lake Macquarie City Council & another [2010] NSW Court of Appeal 235).

The Court noted Council’s evidence that this particular species drop deadwood, but did not think Council was negligent in its decision that the tree should stay.

The Court said Council’s Tree Management Policy “favours retention of native trees, including trees such as Grey Gums which produce deadwood & drop branches; and that substantial justification is required for consent to be given for removal of such trees.”

To find the authorities negligent “the risk of substantial damage to property or significant injury to a person would be required.”

The Court acknowledged the accident was unfortunate for Ms R, but concluded “the history of 2 broken windows, some broken tiles & 1 very minor injury to a person, over a period of about 6 years, was not such to suggest that this tree was any more dangerous than the general run of such trees.”

Gum trees in Enmore

The injury to Ms R is regrettable, but one must acknowledge the Council’s policy that encourages the maintenance of tall Eucalypts with wide canopy is of great social utility.   Also, the Court’s endorsement of policies that say trees should prevail despite some risks naturally present. This decision is significant in this era of climate change when having trees has become more important than ever.  I hope that Councils take courage from this judgement & not go about chopping trees down unless they present significant risks.

Tree of Heaven - a straggly plant that fills the air with the most gorgeous perfume during hot summer nights. It is a self-seeding weed & the birds continue the spread of this plant when they eat the berries

This post has nothing to do with trees, but I believe it is of interest in light of the fact that Marrickville LGA is about to undergo quite substantial high-rise development.

In 2002 Council decided to create a new rate of ‘rates’ to apply to large shopping centres like Marrickville Metro.  It charged Marrickville Metro the new ‘rate,’ higher than the rate that applies to homes & smaller businesses.

The company paid the new rate each year, but in 2008 objected & took the case to the Land & Environment Court. The court ruled in Marrickville Council’s favour.  The company appealed to the NSW Court of Appeal.  It argued the new rate should be overruled on a raft of grounds such as: Council had failed to comply with various sections of the Local Government Act, the rate was unfair, the rate was targeting only one site (Marrickville Metro), the 2002 & subsequent decisions about the new rate were manifestly unreasonable, the rate was imposed for improper purpose, the rate was discriminatory, some Councillors who voted in favour of the rate were biased.

On 24th June 2010, the 3 judges of the NSW Court of Appeal dismissed every ground of the company’s appeal. At paragraph 198 of the judgment Justice John Basten put it beautifully & succinctly, where he wrote:  In many respects the company’s submissions “were simply untenable” & its arguments “were largely misconceived.”

The General Manager’s report in 2002 that examined the rationale for the higher ‘rate’ said:

Council may wish to consider the following factors:

  • Larger shopping centres may attract additional traffic to the LGA & may concentrate traffic emanating from within the LGA placing a proportionately greater pressure on existing road & footpath infrastructure than other shopping configurations.
  • Larger shopping centres attract larger retailers who are more likely to draw from a wider employment pool than that available within the LGA. Small shops along shopping strips & local businesses may be more likely to employ local staff enhancing local employment & local economic prosperity.
  • Council may determine that the rate to be applied to shopping strips should be proportionately less than that applying to larger shopping areas to promote the survival of shopping strips. Apart from the more obvious issue of maintaining the economic vitality of local businesses, this action would support the following Council initiatives:

– Mainstreet strategies to promote local business

– Streetscape works designed to enhance the look & feel of shopping areas

– Community Safety objectives which are enhanced when people are attracted to prosperous, pleasant, well lit, local shopping areas

– Access for the elderly to shopping facilities particularly where car transport is not available.

  • Enhancing the economic viability of suburban businesses may assist in maintaining the individual character of shopping & business zones within the Marrickville LGA. This would reflect the cultural, social & economic needs of the diverse range of residents within these areas & may help promote the unique characteristics of the Marrickville Council area from a tourist perspective.”

This is a landmark decision. Well done Marrickville Council.  Businesses & developments are getting bigger & bigger, bringing increasing pressure on public infrastructure & impacts on the community that Council ultimately needs to pay for. It would be nice if the JRPP keep the above points in the General Manager’s report  at the forefront of their mind when considering applications for new large developments.

Archives

Categories

© Copyright

Using and copying text and photographs is not permitted without my permission.

Blog Stats

  • 626,055 hits
%d bloggers like this: