Bayley & Waller v Kiernan

[2008] NSWLEC 1291

Land and Environment Court

of New South Wales

CITATION:

Bayley & Waller v Kiernan [2008] NSWLEC 1291

PARTIES:

APPLICANTS
Matthew Bayley & Lorralie Waller

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

LEGAL REPRESENTATIVES:

APPLICANTS
In person

RESPONDENTS
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