Background
Allyson James and Steve McDonald owned a home at Jamberoo beside Liam and Michelle Sheridan’s property. Twenty-six Leyland cypresses on the Sheridans’ land formed a 4.0–4.5 metre boundary hedge. The applicants sought orders under Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) requiring the hedge to be cut to 3.5–4 metres and kept at that height, alleging it obstructed their westward valley and mountain views.
The Sheridans’ property was in the RU1 Primary Production zone under the Kiama Local Environmental Plan 2011. They had recently pruned the hedge and said they would continue to maintain it voluntarily. At the on-site hearing, the hedge no longer severely obstructed the applicants’ view.
The Court’s Holding
Acting Commissioner Galwey refused the application. The Court held first that the Trees Act did not apply because the RU1 Primary Production zone did not have the substantial character of a residential, rural-residential, village, township, industrial or business zone for the purposes of s 4(1)(a).
The statutory purpose and permitted uses of RU1 were directed to primary production and protection of agricultural land, and were markedly different from the closest comparable designated zone, R5 Large Lot Residential. The Court held that the written purpose of the applicable planning zone was the principal inquiry; the dwelling use, surrounding allotment pattern and local residential development did not alter RU1’s character.
In any event, the Court found that although the hedge had previously severely obstructed the view, its recent pruning removed the current obstruction. The Sheridans had shown a genuine willingness to maintain it, making a future severe obstruction unlikely and court orders unnecessary.
Key Takeaways
- Pt 2A hedge-view remedies are unavailable where the relevant land falls outside the Trees Act’s zoning scope.
- The purpose and planning controls of the zone are central to deciding whether an undesignated zone has the substantial character of a listed zone.
- A past severe view obstruction can support preventive relief, but relief may be refused where voluntary pruning makes a recurrence unlikely.
Why It Matters
The decision underscores that a neighbour-tree claim can fail at the threshold zoning issue even where the hedge previously caused a serious loss of view. Rural landowners and neighbours should examine the applicable environmental planning instrument before pursuing Pt 2A relief.
It also illustrates the Court’s practical assessment of whether orders are needed: recent remedial work and credible evidence of future maintenance can defeat a request for mandatory pruning orders.