Legal update 9.11.2010

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There was a fascinating article in the Herald this week about the legal bill Newcastle City Council have so far incurred for fighting the community to try to destroy one of their most loved streetscapes. You can read it here.

Newcastle City Council have spent so far $150000 on legal costs. They have also seen fit to put a page on their website which you can read here. My favourite part is

‘What is the case NOT about?

The Court case is not about whether Council was right or not when it determined the trees are failing and need to be removed. Neither Parks and Playgrounds nor the Council called an arborist to give evidence at the hearing.’

Forgive me if I’m wrong, but it seems to me some residents could read this paragraph and infer that council is correct in saying the trees are unsafe. Both council and Parks and Playgrounds had arborists in court on day one but the court was not looking at the correctness of council’s opinion. Isn’t it a shame that we can’t use courts for this purpose: some councils would be there all the time. 

Laman Street seen from Civic Park

Our legal team

put together a summary of where things are up to because we are so often asked. So thanks to them for this:

At a meeting on 17 August 2010, Newcastle City Council resolved to remove the 14 Hills fig trees in Laman Street between Darby and Dawson Streets as part of the first stage of a redevelopment of the Civic Precinct.

 These magnificent figs are believed to have been planted in the 1930s and presently provide a beautiful sheltered cathedral arch making Laman Street one of Newcastle’s most beautiful and peaceful places. There is significant community support for the trees to be preserved: almost 10,000 people have signed a petition and a Newcastle Voice survey demonstrated overwhelming support for the retention of the trees.

It was proposed by Council to start removal of the trees on Monday 20 September 2010. Council has claimed that the trees are highly likely to fail causing injury or damage to pedestrians, vehicles and buildings and constitute a traffic hazard.

 Parks and Playgrounds Movement Inc. began proceedings in the Land & Environment Court (L & E Ct) seeking an injunction to stop the removal of the trees on the designated date: an injunction was successfully obtained on Friday 17 September 2010.

Council then attempted to proceed with the case extremely quickly (effectively with expedition) allowing Parks & Playgrounds and their legal team no time at all to prepare. They again cited public safety issues as the reason for the expedition.

An application was then made by Parks and Playgrounds’ legal team to delay the commencement of the hearing for 2 weeks to provide some time for preparation of evidence. That application was also successful.

The case ran before Justice Biscoe in the L & E Ct for 4 days; 6, 7, 8, and 18 October 2010 and the Judge has reserved his decision.  It may be a few weeks before the decision is given and in the intervening period, the injunction remains in force.

The case against the Council (very simply) argues:

  1. Development consent was required. It was not obtained.  
  2. In the event that development consent was not required, then the Environmental Planning Act required Council to consider the impact of its decision (to remove the trees) on the environment including the effect on threatened species, populations and ecological communities..” s 111. No such consideration was given. 
  3.  As part of its obligation to consider the effect on the environment, Council was required to obtain an environmental impact statement (‘EIS’). It did not obtain the necessary EIS.

Independent arborists have questioned the methodology and conclusions reached by Council experts.

 Council relies fundamentally upon a provision in the Roads Act (section 88) which gives to a roads authority power to cut down trees or remove overhanging branches in certain circumstances. This provision has not been tested in litigation of this type to date in NSW.

 The case has been very strongly defended by Council who have high-level legal representation including a Senior Counsel (SC) and Junior Counsel and a team of solicitors from Sparke Helmore.

 Parks & Playgrounds by contrast are a community organisation.

Hope that helps you. Have you registered for the trivia night? Home

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