Land and Environment Court New South Wales

• Medium Neutral Citation: Cooke v State of NSW [2014] NSWLEC 82
• Hearing dates: 20 June 2014
• Decision date: 20 June 2014
• Jurisdiction: Class 4
• Before: Biscoe J

Decision

Orders as per [13]

• Catchwords: INJUNCTIONS - whether interlocutory injunction should be granted to restrain cutting down or pruning of fig trees
• Legislation Cited: Ballina Local Environmental Plan; Land and Environment Court Rules 2007 cl 4.2(3); State Environmental Planning Policy (Infrastructure) 2007 cl 31
• Cases Cited: Makita (Aust) Pty Ltd v Sproules [2001] NSWCA 305, [2001] 52 NSWLR 705
• Category: Interlocutory applications
• Parties: Ian George Cooke (Applicant); State of NSW (Respondent)
• Representation: COUNSEL: A Hunt, solicitor (Applicant); G Ross, solicitor (Respondent); SOLICITORS: Crane Paskins Law (Applicant); Eakin McCaffery Cox (Respondent)
• File Number(s): 40938/14

EXTEMPORE Judgment

1 In Class 4 proceedings filed this morning, the applicant Mr Ian Cooke seeks an injunction against the respondent, the State of NSW, restraining it from removing or pruning nine fig trees located at Alstonville Primary School at Alstonville NSW, being trees 1 to 9 referred to on page 10 of the report of Northern Tree Care dated 14 March 2014.

2 The applicant now moves urgently for an interlocutory injunction restraining their removal or pruning until further order. The urgency arises from the fact that the trees are to be removed shortly. The respondent has clarified at the hearing this morning that their removal is anticipated in a week, and in the meantime the respondent intends to carry out preparatory work which does not involve removal or pruning. The applicant does not seek to restrain such preparatory work.

3 The applicant's case is that the removal of the trees requires the consent of the local Council, the Ballina Shire Council, pursuant to the Ballina Local Environmental Plan (LEP) and that consent has not been obtained. The reason for the lack of consent is because the Council appears to accept that the removal of the trees is exempt development pursuant to State Environmental Planning Policy (Infrastructure) 2007 cl 31(b) because the trees pose "a risk to human health or safety". Clause 31 relevantly provides:

31 Exempt development

(1) Development for any of the following purposes is exempt development if it is in connection with an existing educational establishment and complies with clause 20:

...,

(b) the removal or lopping of a tree because the tree poses a risk to human health or safety...

4 The applicant disputes that the trees pose such a risk and further says that no proper consideration has been given to the question. The applicant says that this is supported by consideration of the tree reports available to the respondent. Clause 20(2)(g) provides that to be exempt development the development must not involve the removal or pruning of a tree that requires consent for removal or pruning.

5 It appears that the applicant has the support of the Alstonville Public School Parents and Citizens Association Inc and some support of the Council to the extent indicated in correspondence.

6 On 24 February 2014 a branch from one of the trees fell into the neighbouring school (St Josephs); nobody was hurt.

7 The trees are the subject of two arborist's reports. Both were prepared by Mr Peter Gray of Northern Tree Care. The first is dated 8 March 2013 and the second 14 March 2014. The applicant criticises the latter.

8 The 2013 report at page 8 concludes that there is a risk of harm in relation to the nine trees in question of one in 1,200,000. It recommended that the trees not be removed. The 2014 report at page 3 sets out that the benchmark acceptable risk is one in one million for imposed risk. The only benchmark referred to in the 2013 report was of an acceptable risk of one in 10,000. The probability of risk occurring, according to the second report, is one in 62,000. Therefore, the applicant submits, the report writer, who was the same for each report, is now saying the risk of harm is 20 times more likely in 2014 than it was in 2013. The 2014 report says that the trees are inappropriate species for such a confined space in the school. There was no suggestion of that in the 2013 report.

9 Work has been done between the time of the 2013 and 2014 reports to the roots of some of the trees by way of excavation and possibly also some pruning of limbs. The 2014 report states "it is considered likely that this work has caused the trees to decline and become prone to failure of branches and potentially whole tree failure". However, the applicant points out that the table on page 8 nevertheless records the condition of each of the trees in question to be good.

10 The applicant submits that there is no reasoning in the 2014 report as to why the work has caused the trees to decline and cites Makita (Aust) Pty Ltd v Sproules [2001] NSWCA 305, [2001] 52 NSWLR 705. However, I observe that neither of the tree reports was prepared for the purpose of legal proceedings.

11 The respondent, which has had to contend with this motion on very short notice, expresses concern about safety considerations if the injunction is to be granted. That is a cogent consideration. However, the school vacation commences in a week and the respondent proposes in the interim to set about preparatory work including, fencing off the trees which I understand will mitigate the safety risk. Further, the respondent has had the 2014 report since March without apparently considering that removal of the trees was so urgent that it should have been done before now.

12 I consider that sufficient has been shown to conclude that there is a serious question to be tried and that the balance of convenience favours the grant of an interlocutory injunction intended to be in place for a relatively short period until final judgment. After discussion with the parties, I propose to direct them to file and serve their evidence for final hearing within the next week with a view to then fixing a final hearing date. As this is an extraordinarily tight timetable, I will grant liberty to apply to allow (among other things) for the possibility of either party requiring an extension of time.

13 In the circumstances, the respondent does not oppose an order that it allow an arborist nominated by the applicant to have access to the trees for the purpose of preparing a report.

14 The respondent submits that if an interlocutory injunction is to be granted, it should be on the basis that the applicant gives the usual undertaking as to damages, particularly in view of the safety issue. The applicant is prepared to give that undertaking but submits that the Court should not require it because the proceedings have been brought in the public interest such that the Court should exercise its power not to require the undertaking pursuant to cl 4.2(3) of the Land and Environment Court Rules 2007. In the circumstances, particularly having regard to the safety issue, I consider that the applicant should be required to give the usual undertaking as to damages.

15 The orders of the Court are as follows:

(1) The applicant's notice of motion filed on 20 June 2014 be heard instanter.

(2) Upon the applicant by his solicitor giving to the Court the usual undertaking as to damages, the respondent is restrained until further order from removing or pruning the nine fig trees located at Alstonville Primary School at Alstonville New South Wales being trees 1 to 9 referred to in the table at page 10 of the Tree Risk Assessment Report compiled by Northern Tree Care dated 14 March 2014.

(3) The applicant is to file and serve any further evidence for the final hearing by 10am on Tuesday 24 June 2014.

(4) The respondent is to permit the applicant's nominated arborist to have access to the trees for the purpose of preparing a report to be tendered in the proceedings.

(5) The respondent is to file and serve its evidence for a final hearing by 5pm on Thursday 26 June 2014.

(6) The matter is to be listed for directions before the List Judge on Friday 22 June 2014 with a view to obtaining a final hearing date as soon as practicable.

(7) Liberty to apply on short notice.

Decision last updated: 24 June 2014