Ednie v Melman [2019] NSWLEC 1594

Ednie v Melman [2019] NSWLEC 1594

Because the respondents' land was zoned RU2: Rural Landscape and neither fell within nor had the substantial character of any zone listed in s 4(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 (NSW), the Trees Act did not apply to the Spotted Gum. The Court therefore lacked jurisdiction to make the removal orders, set aside the orders made on 22 November 2019, and refused the application.

Jurisdiction
Australia
Judgment Date
03 December 2019
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) Seeking Orders for Removal of a Tree on Adjoining Land / Final Orders After Onsite Hearing and Further Telephone Hearing
Outcome
The orders made at the onsite hearing on 22 November 2019 were set aside and the application was refused.
Legal Topics
['jurisdiction Under the Trees (disputes Between Neighbours) Act 2006 (nsw)' 'land Use Zoning' 'ru2 Rural Landscape Zone' 'setting Aside Orders']
['trees Disputes Between Neighbours' 'planning and Environment'] ['jurisdiction Under the Trees (disputes Between Neighbours) Act 2006 (nsw)' 'land Use Zoning' 'ru2 Rural Landscape Zone' 'setting Aside Orders']

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) Seeking Orders for Removal of a Tree on Adjoining Land / Final Orders After Onsite Hearing and Further Telephone Hearing

Legal Issues

  1. 1 ['Whether the tree was situated on land to which the Trees (Disputes Between Neighbours) Act 2006 (NSW) applies.' 'Whether land zoned RU2: Rural Landscape under the Lake Macquarie Local Environmental Plan 2014 is within, or has the substantial character of, a zone listed in s 4(1)(a) of the Trees Act.' 'Whether the orders made at the onsite hearing on 22 November 2019 should be set aside.']

Ratio Decidendi

Because the respondents' land was zoned RU2: Rural Landscape and neither fell within nor had the substantial character of any zone listed in s 4(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 (NSW), the Trees Act did not apply to the Spotted Gum. The Court therefore lacked jurisdiction to make the removal orders, set aside the orders made on 22 November 2019, and refused the application.

Court Disposition

The orders made at the onsite hearing on 22 November 2019 were set aside and the application was refused.

Orders

  • ['The orders made at the onsite hearing on 22 November 2019 are set aside.' 'The application is refused.']