Background
Martin Kenny owned a Newrybar property with ocean and landscape views. His neighbour, Joanne White, planted bamboo along their common boundary in 2018 as a privacy screen. By 2025, the bamboo had grown to about 10–15 metres, with some culms exceeding 20 metres, and obstructed views from parts of Mr Kenny’s home.
Mr Kenny applied under Parts 2 and 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW). He sought pruning of four overhanging rainforest trees and removal of the bamboo and nearby Strelitzia. Ms White opposed the view-based relief, while accepting that any agreed Part 2 pruning should be paid for by Mr Kenny.
The Court’s Holding
Acting Commissioner Douglas refused the application because the Court lacked jurisdiction under s 4 of the Trees Act. The subject trees were on land zoned 7(d1) Environmental Protection (Newrybar Scenic/Escarpment) under the Ballina Local Environmental Plan 1987. That zone was not one expressly designated by s 4, and its substantial character was not rural-residential or another designated character.
The Court held that the zone’s objectives, read as a whole, focused on scenic protection, maintaining rural character, productive agricultural use, and development ancillary to agricultural uses. Permitted dwellings and the existing pattern of nearby residences did not convert the zone into one with a substantial rural-residential character. The Commissioner added that, if jurisdiction had existed, the bamboo hedge severely obstructed Mr Kenny’s view and removal would have been appropriate; the Strelitzia did not severely obstruct the view, and leaf debris from the rainforest trees was not actionable property damage.
Key Takeaways
- Tree-dispute jurisdiction depends on the planning purpose and substantial character of the zone where the trees stand.
- An environmental-protection zone allowing constrained dwellings may still lack substantial rural-residential character.
- The Court found the bamboo severely obstructed the applicant’s view, but could make no order once the jurisdictional requirement failed.
Why It Matters
The decision illustrates that a strong merits case under the high-hedges provisions cannot overcome the Trees Act’s threshold land-zoning limitation. Parties should address s 4 jurisdiction early, particularly where trees are on rural or environmental land.
It also confirms that actual local development patterns are not decisive: the relevant inquiry is the purpose and operative character of the applicable planning zone.