Land and Environment Court of New South Wales CITATION : Bayley & Waller v Kiernan [2008] NSWLEC 1291 APPLICANTS Matthew Bayley & Lorralie Waller PARTIES : RESPONDENTS Gregory & Doris Kiernan INTERVENOR Gosford City Council FILE NUMBER(S) : 20417 of 2008 CORAM: Moore C - Fakes AC KEY ISSUES: Jurisdiction - Trees (Neighbours) :- Purpose of a zone LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 IDO 122 DATES OF HEARING: 16 July 2008 EX TEMPORE JUDGMENT DATE : 16 July 2008 APPLICANTS In person RESPONDENTS LEGAL REPRESENTATIVES: In person INTERVENOR Mr M Everingham, solicitor Gosford City Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C FAKES AC 16 July 2008 08/20417 Matthew Bayley & Lorralie Waller v Gregory & Doris Kiernan JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: An application has been made by Mr Bayley and Ms Waller concerning trees growing on the adjacent land on the downhill side of their property. This property is owned by the Kiernans. 2 The two allotments are zoned 7(c2) Scenic Protection - Rural Small Holdings under Gosford Council's Interim Development Order 122. The second of the objectives of the zone is "to enable development for the purposes of rural residential holdings ………….". 3 The subdivision requirements for this zone are contained in IDO 122 in cl 18(3)(b). This requires a minimum allotment size of 2 ha. This is consistent with the subdivision pattern in the location of the two properties involved in this application. 4 The provisions of the Trees (Disputes Between Neighbours) Act 2006 which govern land to which it applies are contained in section 4(1)(a) which requires that the land must be: ………. land within a zone designated "residential" (but not "rural-residential"), "village", "township", "industrial" or "business" under an environmental planning instrument (within the meaning of the Environmental Planning and Assessment Act 1979 ) or, having regard to the purpose of the zone, having the substantial character of a zone so designated 5 The applicants have being provided with the opportunity to explain why we should regard the land that is involved here as having the substantial character of a residential, village or township zone rather than "rural-residential" despite the provisions of IDO 122. 6 We have been informed that they were unaware of these restrictions at the time of their application. They accept they are unable to do so. 7 We satisfied from the examination of the allotment pattern in their immediate neighbourhood and the relevant provisions of IDO 122 that the 7(c2) Scenic Protection - Rural Small Holdings zone under IDO 122 is not land within the jurisdiction of the Act. The result, therefore, is that the application is dismissed. Tim Moore Judy Fakes Commissioner of the Court Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.