Ednie v Melman

[2019] NSWLEC 1594

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ednie v Melman [2019] NSWLEC 1594
Hearing dates:	22 November 2019; 3 December 2019
Date of orders:	03 December 2019
Decision date:	03 December 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1)   The orders made at the onsite hearing on 22 November 2019 are set aside. (2)   The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – zoning of land – Rural Landscape zone – the tree is on land to which the Trees Act does not apply – orders made at the onsite hearing set aside – the application is refused
Legislation Cited:	Lake Macquarie Local Environmental Plan 2014 Standard Instrument—Principal Local Environmental Plan Trees (Disputes Between Neighbours Act) 2006 (NSW) Uniform Civil Procedure Rules 2005
Category:	Principal judgment
Parties:	Lesley Ednie (Applicant) Anthony Melman (First Respondent) Mina Melman (Second Respondent)
Representation:	Lesley Ednie (Litigant in person) (Applicant) Anthony Melman (Litigant in person) (Respondents)
File Number(s):	2019/267967
Publication restriction:	No

Judgment

The application

1. Lesley Ednie (‘the applicant’) has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for the removal of a tree on adjoining land in Mandalong belonging to Mina Melman and Anthony Melman (‘the respondents’).

Onsite hearing

2. At the onsite hearing on 22 November 2019, I observed the tree and surrounds, heard submissions from Ms Ednie and Mr Melman, and gave an extemporaneous decision. The tree, a tall Spotted Gum, leans towards sheds on Ms Ednie’s property containing chickens, and towards her driveway. There are signs that roots have lifted or broken on one side of the tree, and the angle of lean has increased recently. Failure of the whole tree is likely in the foreseeable future. Such failure would result in damage to Ms Ednie’s property. The tree should be removed. As is usual in such proceedings, the tree owner would bear the cost of tree removal unless there is some reason to order otherwise. I made the following orders at the onsite hearing:

1. The application is granted.

2. Within 60 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the tree to no more than one metre above ground level. These works must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

3. The respondents are to give the applicant two days’ notice of the works.

4. The applicant is to allow any access required to complete the works ordered above during reasonable hours of the day.

5. Prior to the works commencing, the respondents are to provide the applicant with a copy of the arborist’s public liability insurance certificate.

The tree is on land to which the Trees Act does not apply

3. While finalising the judgment, it came to my attention that the respondents’ land is zoned RU2: Rural Landscape, pursuant to the Lake Macquarie Local Environmental Plan 2014 (LEP).

4. Section 4(1) of the Trees Act limits its jurisdiction to trees within certain land-use zones.

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.

5. According to the current Standard Instrument—Principal Local Environmental Plan (PLEP), the “rural-residential” zone listed in s 4(1)(a) of the Trees Act has been replaced by the “Large Lot Residential” zone. Therefore, land that is zoned “Rural Landscape” is not included in the zones listed at s 4(1)(a).

6. The PLEP lists the objects of the Rural Landscape zone as follows:

1   Objectives of zone

•  To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

•  To maintain the rural landscape character of the land.

•  To provide for a range of compatible land uses, including extensive agriculture.

Considering these objectives, the land does not have the substantial character of any of the zones listed at s 4(1)(a) of the Trees Act. The lots here are larger than residential lots, their principal purposes being agricultural and other land uses requiring greater areas. There are no nearby lots that are principally residential. It follows that the jurisdiction of the Trees Act does not apply to the Spotted Gum in the application, and the orders made on 22 November 2019 must be set aside. I apologise that this issue was not identified sooner.

7. According to rule 36.16(3B) of the Uniform Civil Procedure Rules 2005, “within 14 days after a judgment or order is entered, the Court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.”

Further hearing

8. The matter was re-listed for a telephone hearing on 2 December 2019 to allow the parties to make any further submissions before any final orders are made. Ms Ednie did not receive notification of that teleconference. The matter was again re-listed for 3 December 2019 and both Ms Ednie and Mr Melman attended via teleconference. I explained the jurisdictional issue. Mr Melman understands that the tree should be removed, and also that if Council permission is required for tree removal, such permission will now have to be obtained. It is hoped the parties find a quick resolution that does not require further legal action.

Orders

9. As a result of the foregoing, the Court orders:

1. The orders made at the onsite hearing on 22 November 2019 are set aside.

2. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 09 December 2019