Done v Shelly Beach Golf Club
[2019] NSWLEC 1502
•17 October 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Done v Shelly Beach Golf Club [2019] NSWLEC 1502 Hearing dates: 17 October 2019 Date of orders: 17 October 2019 Decision date: 17 October 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is refused.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – the trees are on land zoned Public Recreation (RE1) – the trees are on land vested in or managed by Council – the Trees Act does not apply to these trees Legislation Cited: Ballina Local Environmental Plan 2012
Trees (Disputes Between Neighbours Act) 2006 (NSW)
Wyong Local Environmental Plan 2013Cases Cited: Chambers v Hall [2019] NSWLEC 1461 Category: Principal judgment Parties: Vicki Done (Applicant)
Shelly Beach Golf Club (Respondent)Representation: Counsel:
Solicitors:
M Shumsky (Solicitor) (Applicant)
M Aitken (Solicitor) (Respondent)
Stacks Collins Thompson (Applicant)
Aubrey Brown Lawyers (Respondent)
File Number(s): 2019/240617 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
The application
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Vicki Done (‘the applicant’) owns a residential property in Shelly Beach, on the New South Wales Central Coast, next to Shelly Beach Golf Club (‘the respondent’). Three mature Norfolk Island Pines (Araucaria heterophylla) (‘the trees’) grow on the golf course adjacent to her property. Concerned about the trees’ roots damaging her concrete paths and other parts of her property, she asked Shelly Beach Golf Club to remove the trees, but they have been unwilling to do so. The respondent told the applicant that the trees protect her house from golf balls.
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In July of this year, Ms Done applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for removal of the trees, repairs to her property and reimbursement of expenses for repairs. An onsite hearing was set down for today.
The Trees Act only applies to trees on certain land
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Various sections of the Trees Act limit its jurisdiction: only certain people can make an application to the Court (at s 7, for example); tests regarding damage and injury must be met for each tree before orders can be made (at s 10(2)); and only certain types of land are covered by the Trees Act (s 4). Relevant here is s 4 of the Trees Act:
4 Act applies to trees on certain land
(1) This Act applies only to trees situated on the following land:
(a) any land within a zone designated “residential”, “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,
(b) any land of a kind prescribed by the regulations for the purposes of this section.
(2) This Act does not apply to trees situated on:
(a) any land that is vested in, or managed by, a council, or
(b) any land of a kind prescribed by the regulations.
(3) …
(4) …
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The front page of the Tree Dispute Application form includes a section for identifying the local council and, importantly considering s 4, a section for identifying the zoning of the property on which the trees are located. The applicant usually completes these sections along with other details of the applicant and respondent. Ms Done has not completed either of these two sections.
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At the outset of the hearing, Ms Aitken, solicitor for the respondent, raised two issues:
The land on which the trees grow is zoned Public Recreation (RE1) in the Wyong Local Environmental Plan 2013.
The land on which the trees grow is Crown land, vested in and managed by Central Coast Council (Ms Aitken provided documentation identifying the former Wyong Shire).
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Mr Shumsky, solicitor for the applicant, pointed out that the land is leased to Shelly Beach Golf Club, but conceded that Central Coast Council is ultimately responsible for the land. Ms Done has, at times, dealt with representatives from Central Coast Council during her negotiations with the respondent.
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Regarding the zoning of the land, s 4 allows for some exceptions to be made where land is zoned other than the prescribed zones but “… having regard to the purpose of the zone, [has] the substantial character of a zone so designated…”. Recently, I found in Chambers v Hall [2019] NSWLEC 1461 that although the respondents’ land was zoned RU1 Primary Production (Ballina Local Environmental Plan 2012), its character was similar to surrounding properties, including the applicant’s, that were zoned R2 Low Density Residential. In the matter before me, however, the respondent’s land is a golf course and does not have the substantial character of the adjacent residential zone.
Conclusion
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The golf course next to Ms Done’s property is zoned other than the zones prescribed in s 4, and it is on land vested in and managed by a council. I find that the trees are on land to which the Trees Act does not apply.
Orders
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As a result of the foregoing, the Court orders:
The application is refused.
……………………………….
D Galwey
Acting Commissioner of the Court
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Decision last updated: 18 October 2019
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