Citizens' Group Prevents State From Removing Healthy Fig Trees From School Grounds

A citizens' organisation, "Save the Trees Group" has successfully sued the State of NSW in the Land and Environment Court to prevent the removal of 9 fig trees located on the grounds of the Alstonville Primary School in Ballina Shire Council.  The judgments of the Court in the case, Cooke v State of New South Wales (2014) NSWLEC 82 and Cooke v State of New South Wales (No.2) NSWLEC 148 can be found on the Court's Website at the following links: 

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172280  and

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174049

The history of the case was that the trees had been present on the school grounds in 1945, when the president of Save the Trees, Mr Ian Cooke, was a student. At that time, the trees were all taller than 6 metres, and were large enough for children to climb. 

Many years later, in February 2014, a branch from one of the trees fell onto the grounds of a neighbouring school, without hurting anyone. Although an arborist's report that was commissioned by the State concluded that each of the trees was in good health, it nonetheless found that there was a 1:62,000 risk that the trees could cause injury, and therefore concluded that they were inappropriate for retention on the school grounds.  
The State thus sought to remove the trees without consent from the Council, under the authority of clause 31 of the State Environmental Planning Policy (Infrastructure) 2007.  This clause of the SEPP provides that removal or lopping of a tree is exempt from the requirement for development consent if the tree poses a risk to human health or safety at a school.

After the report by the State's arborist was released, the members of Save the Trees wrote to the State opposing the removal of the trees and seeking permission for an independent arborist to enter the school grounds to assess the trees. The State did not respond to this letter, nor did it respond to a subsequent letter which asked the State to give an undertaking that it would not remove the trees until the independent arborist had completed an inspection. After these letters were sent, the president of Save the Trees, Mr Cooke, attended the school and observed that contractors were making preparations to cut the trees down. Save the Trees then approached the Court on an urgent basis and obtained a temporary injunction to restrain the State from proceeding with the removal of the trees.

Following the grant of the temporary injunction, an arborist engaged by Save the Trees carried out an inspection of the trees and concluded that the fig trees on the school grounds did not in fact pose a risk to either human health or safety. The State accepted the conclusions of Save the Trees' arborist, and thus conceded that removal of the trees would not constitute exempt development under the SEPP and that it did not otherwise have a required development consent or permit from the council to go forward with the removal of the trees.

Accordingly, the State essentially conceded that Save the Trees was entitled to an injunction preventing it from removing any of the trees unless and until it had received the necessary consent from the council. Save the Trees was also successful in recovering a portion of the legal costs that it had incurred in the proceedings.

The result in this case demonstrates that "David" can sometimes "beat Goliath" and that a vigilant citizens' organisation can effectively use the legal process to save a valuable and irreplaceable environmental resource.  The case also indicates that statistical "guesstimates" concerning the level of risk posed by trees can be "trumped" by careful, first-hand observations concerning the health and condition of the trees in question.