Kenny v White

Texts Cited: Ballina Combined Development Control Plan 2009
Ballina Development Control Plan 2023

Category: Principal judgment

Parties: Martin Kenny (Applicant)
Joanne White (Respondent)

Representation: Counsel:
M Ryan (Agent) (Applicant)
J White (Self-represented) (Respondent)

File Number(s): 2025/439714

Publication restriction: Nil

JUDGMENT

Background

1. COMMISSIONER: Since 2000, Mr Kenny, the applicant, has owned and occupied a property in Newrybar in the hinterland of the NSW north coast with views over local Lowland Rainforest towards the Tasman Sea. The property slopes down towards the south-east from the eastern side of Old Byron Bay Road, which runs roughly north-south along a ridgeline. The applicant’s dwelling, which was constructed in 2003, was designed to optimise ocean and landscape views.

2. Ms White, the respondent, has owned and occupied a considerably larger property south and south-east of Mr Kenny's land since 2016. In 2018, Ms White planted clumps of bamboo, of two varieties, close to and along the parties’ common side boundary with the intention of rapidly establishing a privacy screen for her family.

3. Unsurprisingly, in the region’s warm, moist environment and fertile soils, the bamboo flourished and grew rapidly. Photographs showed the bamboo had established to form a dense screen by 2021 but had insufficient height to obstruct the applicant's view. By 2025, however, as most of the bamboo had reached a height of 10-15 metres (m) and emergent culms (stems) exceeded 20 m, the bamboo became a conspicuous element of the applicant's view and obstructed the ocean beyond. Views from the applicant’s main living area, kitchen, and deck, and two bedrooms lower down the slope, were all allegedly impacted.

4. Mr Kenny claimed to have initially requested the bamboo’s removal in 2019, and again in 2021. In 2025, he sent a series of unfulfilled requests to Ms White for bamboo removal and pruning of four “rainforest trees” overhanging his dwelling.

5. Consequently, Mr Kenny made an application, pursuant to s 7 of Pt 2, and s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), proposing the Court make orders for pruning of the trees and removal of the bamboo.

6. An initial application of 7 November 2025 was amended on 16 February 2026, pursuant to an inspection of the respondent’s property by the parties and the applicant's AQF level 5 arborist, Mr Nowell, on 26 January 2026. The amendment narrowed the scope of a complex application to the most relevant issues.

The onsite hearing:

7. The onsite hearing on 16 March 2026 commenced with an inspection of the bamboo and rainforest trees near the common side boundary and the Strelitzia, which was further from the common boundary and obscured by the bamboo.

8. Mr Kenny was accompanied and represented by his husband, Mr Ryan, as Agent, and the required agency documentation was included in the case file. Mr Nowell also attended the hearing. Ms White was self-represented and accompanied by her husband, Mr White.

9. In evidence are: Mr Kenny’s application form (Exhibit A), Tree dispute claim details - damage and injury (Exhibit B), Tree dispute claim details - high hedges (Exhibit C), Expert arboricultural report of Mr Nowell (the report) (Exhibit D), Applicant’s Bundle of Documents (Exhibit E), affidavit of Mr Kenny dated 5 February 2026 (Exhibit F), and affidavit of Mr Kenny dated 10 March 2026 (Exhibit G).

10. Ms White submitted two affidavits, dated 19 February 2026 (Exhibit 1) and 13 March 2026, respectively. Various caselaw was tendered or cited by both parties, and cases I consider relevant shall be addressed below. I also rely on arboricultural expertise I bring to the matter.

The applicant’s proposed orders

11. Mr Kenny proposed the following orders for Pt 2 of the Trees Act:

12. The respondent is to provide access for the applicant's arborist for tree works with regard to the four rainforest trees with branches overhanging the building near our common boundary. As part of this Order, the applicant is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to prune the overhanging branches. In some instances, the tree works by the applicant’s arborist will require works beyond the common boundary and within the respondent’s property

13. The applicant is to take any steps necessary to prevent regrowth of the Wattle tree that was overhanging the applicant’s rainwater tank. These steps to prevent regrowth may require works within the respondent’s property (By the hearing, this issue had been resolved and the proposed order withdrawn).

14. The respondent is to allow any access required for the works in Order 1 during reasonable hours of the day.

15. The applicant proposed the following orders for Pt 2A of the Trees Act:

16. Within 30 days of the date of these orders the respondent is to engage and pay for a suitably qualified and experienced arborist to remove all trees in the bamboo hedge planted along the common boundary. The tree works are to be done to minimise disturbance to the endemic tree species. As part of this Order, the respondent is to engage and pay for a suitably qualified and experienced stump grinder (minimum AQF Level 3), with all appropriate insurances, to remove all the bamboo rhizomes to prevent rapid regrowth.

17. Within 30 days of the date of these orders, the respondent is to engage and pay a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to remove all the trees in the Strelitzia hedge planted close to the common boundary. The tree works are to be done to minimise disturbance to the endemic tree species.

18. The respondent is to take any steps necessary to prevent regrowth of any of the trees referred to in Orders 1 and 2.

19. Should the respondent replant a hedge in the areas where the trees are removed, the hedge must be of a species that reaches no more than 2.0 m at maturity, or they must be maintained at a height no greater than 1.8 m.

The respondent’s alternative orders:

13. Ms White consented to the proposed orders of the Pt 2 application provided the works were financed by the applicant.

14. For the Pt 2A application, Ms White opposed the removal of the bamboo and the S**trelitzia. Should the Court find the bamboo is causing a severe obstruction of the applicant's view, Ms White proposed pruning and maintenance at a height of 5 m to maintain privacy. She claimed the Strelitzia would not obstruct the applicant's view, even in the absence of the bamboo.

Jurisdictional requirements

Whether the Trees Act applies to the trees

15. In Exhibit 1, the respondent’s affidavit of 19 February 2026, Ms White contended that the jurisdiction was not satisfied at s 4 of the Trees Act, where the application of both Pt 2 and Pt 2A is restricted to “trees on certain land”. Ms White claimed the designated zones which applied to the Trees Act, at s 4(1)(a), did not include or match the zoning of her property of about 36 hectares.

16. The lower, flatter, clearer section of the respondent’s land to the south-east, comprising about 10 hectares, was zoned RU1 Primary Production under the Ballina Local Environment Plan 2012 (BLEP 2012). However, the upper section constituting the majority of the property, including the subject trees adjoining the applicant's land, is identified as a ‘Deferred Matter’ under the BLEP 2012. Therefore, it is subject to the Ballina Local Environmental Plan 1987 (Ballina LEP), where it is zoned 7(d1) Environmental Protection (Newrybar Scenic/ Escarpment).

17. As none of her land is prescribed in the Trees (Disputes Between Neighbours) Regulation 2024 for the purpose of s 4(1)(b), Ms White contended the only possible basis for jurisdiction is the second limb at s 4(1)(a), which applies where land, “having regard to the purpose of the zone, has [sic] the substantial character of a zone so designated”.

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) For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land.

(4) Without limiting subsection (3), a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on land for the purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred.

18. Given that this jurisdictional hurdle was not raised by Ms White at the Registrar's preliminary hearing of 16 February 2026, Mr Kenny sought leave of the Court to provide an affidavit in response (Exhibit G, dated 11 March 2026). Ms White’s filed Exhibit 2 in response to Exhibit G on 13 March 2026.

19. Zone No 7(d1) Environmental Protection (Newrybar Scenic/Escarpment) was established in 2003 pursuant to Amendment 82 (from 7(d) to 7(d1)) of the Ballina LEP. The primary objectives of Zone 7(d1) are:

(a) to protect and enhance areas of particular scenic value to the local government area of Ballina, and

(b) to encourage the productive use of land within the zone and enable development ancillary to agricultural land uses, particularly dwelling houses, rural workers dwellings and industries, and

(c) to ensure development within the zone maintains the rural character of the locality and minimises any detrimental scenic impact, and

(d) to ensure development within the zone is of a scale and nature that will not adversely impact on the existing amenity of the area.

Submissions

20. Both parties acknowledged the Zone No 7(d1) Environmental zone of the Ballina LEP did not match 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 (NSW)) from the first limb of s 4(1)(a) of the Trees Act. Thus, the second leg of s 4(1)(a) is applied; “having regard to the purpose of the zone, having the substantial character of a zone so designated”.

21. Mr Kenny argued that the Zone No 7(d1) Environmental Protection zone should be considered equivalent to “rural-residential”, “having regard to the purpose of the zone, having the substantial character of a zone so designated for the purpose of the Trees Act”. He noted that the zone objectives prioritise scenic protection, and dwellings, and claimed most nearby dwellings blended in with the landscape, typical of rural-residential areas.

22. Ms White claimed that the Zone 7(d1) Environmental Protection zone did not “have the substantial character of a zone so designated for the purpose of the Trees Act”. She relied on Wilson v Clean Investments Pty Ltd [2026] NSWLEC 1035 (Wilson) where Galwey AC adopted the interpretation preferred by Beasley J in The Owners – Strata Plan No. 58036 v The Estate of William Hutchinson [2025] NSWLEC 76. In Wilson, at [35]-[36], Acting Commissioner Galwey said:

“35 I prefer the interpretation of the second arm of s 4(1)(a) of the Trees Act, as taken by Beasley J in SP 58036 No. 1, and in the majority of caselaw considering this issue, whereby the subject zone must have the substantial character of a zone designated within the first arm of s 4(1)(a). This aligns with the interpretation preferred by Counsel for each party in the current proceedings.

36 The trees are on land within WLEP’s Zone C3. The second arm of s 4(1)(a) of the Trees Act requires the Court to have regard to the purpose of the zone. ‘Purpose’ and ‘objective’ are synonyms (see Roget’s Thesaurus, for instance). Therefore, the zone’s objectives, as set out in the WLEP, should be the primary informers of its purpose. As put forward by both Mr Koikas and Ms Nurpuri, permitted uses can further inform the zone’s purpose. I accept Ms Nurpuri’s submission that the requirement for the zone to have the substantial character of a designated zone sets a reasonably high bar when comparing the relevant zones.”

23. Mr Kenny disputed the relevance of Wilson*.* He contended the facts in his application are dissimilar to the facts in the decision of Wilson*.*

24. Applying a procedure adopted in Wilson, Ms White compared the objectives of the Zone No 7(d1) Environmental Protection zone from Ballina LEP with the objectives of RU2 Rural Landscape from BLEP 2012, which she described as rural residential.

25. Mr Kenny contended that Ms White’s comparison was unreasonable if not impossible, given the absence of any rural residential zoning in the Ballina LEP (or the BLEP 2012) and due to the disconnect between the requirements and context of the two LEP’s. Ms White acknowledged the absence of the R5 Rural Residential zoning (which was compared with zone C3 in Wilson) or any rural residential zone in either Ballina LEP.

The applicant’s submissions

26. The applicant claimed his interpretation of the purpose of Zone No 7(d1) being akin to rural-residential was supported by the second reading speech of the Trees Act. He submitted “Consideration of Dual Occupancy Permissibility” from an Ordinary Meeting of Ballina Shire Council on 28 August 2025. From p 8 of the minutes, the applicant emphasised that the Zone No 7(d1) “was specifically introduced to recognise scenic values associated with this area founded in extensive community engagement”.

27. In Exhibit G at p 10, Mr Kenny claimed that Zone No 7(d1) has the substantial character of a zone designated as rural residential because there is no designated zone in s 4(1)(a) of the Trees Act, equivalent to zone 7(d1) within Ballina LEP, in purpose. For example, Mr Kenny nominated four designated zones from Ballina LEP; residential, village, industrial, or business, the objectives of which were not equivalent to the objectives of Zone No 7(d1).

28. In considering the Ballina LEP, Mr Kenny claimed the 2003 amendment is entirely consistent with the rural-residential nature of the scenic protection zone for the Newrybar escarpment and the objectives for the zone. He noted that “Chapter 18-Rural Land” of the Ballina Combined Development Control Plan 2009 describes that the 2003 amendment was intended to strengthen the 7(d1) objectives and limit land uses.

29. Mr Kenny submitted that Special provisions at cll 11(2)(b), 12(3), 25, and 28(2)(c) accompanying Amendment 82 of Ballina LEP in 2003, “when read in conjunction with the zone objectives, clarify that zone 7(d1), having regard for the purpose of the zone, has the substantial character of rural residential”. Mr Kenny contended that the purpose of Zone No 7(d1) “is not to prohibit development, but rather the zone's purpose is to manage the scenic impacts of development while allowing dwelling houses on rural lots”.

30. Mr Kenny claimed, “land that is zoned environmental does not exclude it from having the substantial character of a zone so designated”. He tendered Hills v Lennon [2025] NSWLEC 1711, where; at [6], Galwey AC found, “The land is zoned E3 Environmental Management, but I am satisfied that, with regard to its purpose, the zone has the substantial character of a residential zone: s 4(1) of the Trees Act”.

31. Additionally, Mr Kenny contended strengthened planning controls and increased emphasis on scenic qualities resulting from the 2003 zoning amendment of Ballina LEP from 7(d) to 7(d1), supported his argument that the purpose of 7(d1) was akin to the purpose of rural residential. In Exhibit G, at p 16, Mr Kenny included extracts from the respondent’s Development Application (DA) Assessment Reports of 2018, 2022, and 2024, each of which referred to ‘rural residential’ properties.

32. On p 17 of Exhibit G, considering tourism, Mr Kenny noted limits on the number and density of holiday cabins on land zoned 7(d1), which he contended “reflects a policy designed to enable tourism that is low intensity within a rural landscape, consistent with a zone of rural residential character”.

33. Lastly, Mr Kenny claimed land zoned 7(d1) “is clearly supporting development that includes dwelling-houses, a characteristic of a rural residential zone”. Clause 12(3) Ballina LEP permits approval of a dwelling house on land zoned 7(d1), in certain circumstances.

The respondent’s submissions

34. Ms White contended the primary use of her land is rural cattle grazing, and that it should not be considered as rural residential, nor subject to the Trees Act. She substantiated this claim with her land tax rates and Ballina Shire Council farm rates confirmation. Mr Kenny refuted the relevance of the rates notice, claiming that rates was entirely separate to zoning.

35. The respondent reviewed cll 11, 11A, and 11B of Ballina LEP, which offered some flexibility around subdivision of land in certain zones (including Zone No 7(d1)). The clauses contained an extensive array of controls and conditions for such subdivision, however, many of which prevented change to an allotment, “that would provide in the future for the creation of additional allotments or additional dwelling entitlements” (cl 11(6)(b)(iii)).

36. Ms White submitted that s (4)(1)(a) confines the operation of the Trees Act to land within zones designated “‘residential’, ‘rural residential’, ‘village’, ‘township’, ‘industrial’, or ‘business’”, all of which allegedly share a primary planning function, “to enable habitation, commerce or industry”.

37. In Exhibit 2, from p 11, the respondent provided her Written submission in reply, which addressed the applicant’s claims in Exhibit G.

38. In response to the applicant’s claim that zone 7(d1) has the substantial character of rural residential, Ms White contended that:

“7(d1)'s organising purposes are environmental/scenic protection and rural character; dwellings are contemplated only as ancillary to rural land use and subject to strong subdivision controls, including the 40-hectare minimum and clauses expressly aimed at avoiding additional dwelling opportunities.

…

7(d1) does not have substantial rural residential character when its objectives and operative controls are read as a whole”.

39. Ms White claimed Mr Kenny argued Zone No 7(d1) is a rural residential zone, merely because there was no equivalent designated zone within Ballina LEP. Ms White claimed, “the test does not require Ballina LEP [sic] to contain an equivalent ‘rural residential zone label’ but a comparable purpose and planning structure”. She alleged the intent of Zone No 7(d1) is to limit proliferation of dwelling houses, to maintain rural character, that it is “protective and restrictive”, which is inconsistent with a settlement oriented rural residential planning outcome.

40. At p 12 of Exhibit 2, Ms White contended that the 2003 zoning amendment from 7(d) to 7(d1) of the Ballina LEP “strengthened scenic controls and reduced permissible land uses”. She claimed that this supports “a protective planning purpose” but “does not establish that the zone's substantial character is rural residential; if anything, it confirms the zone's purpose is to constrain development in a scenic protection/rural landscape”.

41. In Exhibit 2, Ms White provided a concise incisive response to Mr Kenny's claims across multiple issues. Ms White claimed the applicant omitted important links in chains of reasoning. For example, in response to Mr Kenny's “rural residential character” and “special provisions” claims, Ms White said:

“The applicant lists provisions that permit constrained development in a scenic/rural landscape and then leaps to ‘therefore the zone is rural residential’. That is not the statutory test. The question under s 4(1)(a) is whether, having regard to the purpose of the zone, the zone has the substantial character of a designated ‘rural-residential’ zone”.

42. Ms White conceded that dwellings may be permitted with consent. Having been subdivided prior to the introduction of the Zone No 7(d1) Environmental Protection zone, many nearby properties were much smaller than the 40 hectare minimum requirement of the 7(d1) zone. She noted that the property was at least 10 kilometres from the nearest residential zoning in the township of Lennox Head and challenged the significance of Adam AC’s finding of an absence of cattle or signs of recent occupation by cattle during the site inspection of White v Ballina Shire Council [2021] NSWLEC 1468.

Findings

43. I concur with Mr Kenny that the objectives of Zone No 7(d1) Environmental Protection of the Ballina LEP are cumulative. However, the fact that the primary objectives include dwellings, does not of itself support the applicant's assertion that the substantial character of the zone is rural residential. In responding to Mr Kenny's claims about Special provisions, at p 12 of Exhibit 2, Ms White noted: “Permitting dwelling houses and regulating scenic impacts is consistent with many rural/environmental protection zones; it does not establish a settlement oriented rural residential purpose”.

44. Mr Kenny’s submission was comprehensive and extracts referencing “rural residential properties” in the respondent’s three Development Application (DA) Assessment Reports were compelling. Nonetheless, many of the applicant’s claims and arguments were unsubstantiated or founded on chains of logic with tenuous links.

45. An example is Mr Kenny’s contention in Exhibit G at p 10, that in the absence of a designated zone equivalent to Zone No 7(d1) within Ballina LEP, in purpose, Zone No 7(d1) was deemed equivalent to rural residential, in purpose, because “zone 7(d1) has the substantial character of a zone designated rural residential”. To me, this argument contains jumps of logic that lack foundation.

46. In a second example, Mr Kenny claimed additional planning and scenic controls resulting from the 2003 zoning amendment from 7(d) to 7(d1) of the Ballina LEP, supported his submission that the purpose of Zone No 7(d1) was akin to the purpose of rural residential. I found no reasonable basis for this claim, and I disagree.

47. Rather, I concur with Ms White, at p 12 of Exhibit 2, that the 2003 zoning amendment from 7(d) to 7(d1) of the Ballina LEP, “strengthened scenic controls and reduced permissible land uses”. Though the permissible land use reductions appear minor, such an occurrence is nonetheless consistent with respondent’s argument that one purpose of Zone No 7(d1) was restricting residential development.

48. Ms White claimed that this supports “a protective planning purpose” but “does not establish that the zone's substantial character is rural residential; if anything, it confirms the zone's purpose is to constrain development in a scenic protection/rural landscape”.

49. I agreed with Ms White that the primary objectives of the 7(d1) zone of Ballina LEP must be read and appreciated holistically so they are contextualised with appropriate emphasis. Thus, the essence of Objective (a) is, “to protect and enhance areas of particular scenic value”. The crux of Objective (b) is, “to encourage the productive use of land within the zone and enable development ancillary to agricultural land uses, particularly dwelling houses, rural workers dwellings and industries” (emphasis added). Objective (c) is, “to ensure development within the zone maintains the rural character of the locality and minimises any detrimental scenic impact…” (emphasis added).

50. Consequently, the purpose of any development of “dwelling houses, rural workers dwellings and industries” is not ambiguous. It specifically aims to “enable development ancillary to agricultural land uses*”* and “encourage the productive use of the land within the zone”. Dwelling houses or rural workers dwellings should be contemplated as ancillary to agricultural land uses, so as to maintain rural character. When examined in this light, the cracks in Mr Kenny's argument, however comprehensive, become exposed.

51. Considering the submissions in Wilson, Counsel for the applicant and respondent respectively, I dispute Mr Kenny’s contention that the facts and decision in Wilson are not relevant to this dispute. I am not satisfied by the applicant’s argument in Exhibit G, at pars 27-30, where Mr Kenny initially claimed, “[t]he respondent has misunderstood the differences between the objectives of the 7(d1) zone and the nuances of the Environmental planning instrument” in Wilson.

52. By way of example, Mr Kenny claimed that zone C3 in Wilson “is a conservation zoning tailored specifically to that council and is not comparable to 7(d1) Environmental Protection”, having regard to the purpose of zone 7(d1). He said, “zone C3 does not include residential purpose (dwelling-houses) within its primary objectives whereas Ballina LEP 7(d1) does include dwelling-houses as a primary objective with the purpose of supporting ‘rural-residential’ living while maintaining low-density residential outcomes within a rural landscape.”

53. Firstly, this quote which concludes [52] above, deserves consideration as it reflects the applicant's tendency to make bold claims built on shaky foundations. The applicant argues that Ballina LEP 7(d1) “does include dwelling-houses as a primary objective with the purpose of supporting ‘rural-residential’ living while maintaining low-density residential outcomes within a rural landscape”. However, he provided sparse evidence or argument to justify this contention. I find this claim is overblown. As noted above at [49], when considered holistically and in context, the role of “dwelling houses, rural workers dwellings and industries” is to “enable development ancillary to agricultural land uses*”*.

54. The purpose postulated by Mr Kenny, of “supporting ‘rural-residential’ living”, cannot be found amongst the four primary objectives of Ballina LEP 7(d1). Mr Kenny's alleged purpose for zone 7(d1), is an amalgam, a confection. Nowhere did I find a genuine link between the four stated primary objectives of Zone No 7(d1) and “rural residential living”. Quite the contrary, under Zone No 7(d1), residential development is extensively restricted and controlled, and available only on land parcels 40 hectares or larger.

55. Similarly, I dispute two claims in Exhibit G, p 13. The first claim is that the four “special provisions, when read in conjunction with the zone objectives, clarify that zone 7(d1), having regard to the purpose of the zone, has the substantial character of a zone so designated, that is, has the substantial character of rural residential”. Mr Kenny’s second, closely related claim is that the purpose of zone 7(d1) “is not to prohibit development, but rather the zone's purpose is to manage the scenic impacts of development while allowing dwelling houses on rural lots”. Regrettably, Exhibit G was littered with such claims and statements, many of which were accompanied by inadequate substantiation.

56. Returning to Mr Kenny’s argument, in Exhibit G, at pars 27-30, that “the respondent has misunderstood the differences between the objectives of the 7(d1) zone and the nuances of the Environmental planning instrument”, what does Mr Kenny mean? Which nuances of the Environmental planning instrument is Mr Kenny referring to? Without substance and clarification, Mr Kenny’s claims are empty statements.

57. Mr Kenny’s subsequent claim, “that zone C3 in Wilson is a conservation zoning tailored specifically to that council and is not comparable to 7(d1) Environmental Protection, having regard to the purpose of zone 7(d1)”, was also unsubstantiated.

58. Notwithstanding the limitations of comparisons of zone objectives between Local Government Areas (LGA’s), insight may be gained through consideration of similarities and differences between the objectives of Zone No 7(d1) Environmental Protection (Newrybar Scenic/Escarpment) in the Ballina LEP and the objectives of Zone C3 Environmental Management in Wingecarribee Local Environmental Plan 2010 (WLEP).

59. In Wilson; at [13], Galwey AC accessed “the NSW government's website (at https://www.planning.nsw.gov.au/policy-and-legislation/environment-and-heritage/environment-zones) which explains that zones formerly known as environment zones are now known as conservation zones:

‘Environment zones are now known as conservation zones across local environmental plans prepared under the Standard Instrument Order.

There are 4 types:

Zone C1 – National Parks and Nature Reserves

Zone C2 – Environmental Conservation

Zone C3 – Environmental Management

Zone C4 – Environmental Living.

The objectives and land use tables remain the same across all zones. Only the prefix and zone category changed.

…

This is a change of name for administrative reasons. The term ‘environment zone’ is too broad and confusing. The new name signals the conservation land use function more clearly.

The aim is to conserve the environmental values and natural qualities in areas where this land use zoning is applied.’”

| Comparison of Zone Objectives | | Zone C3 Environmental Management in WLEP | Zone 7(d1) Environmental Protection (Newrybar Scenic/Escarpment) in BLEP | | Objectives of zone • To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values. • To provide for a limited range of development that does not have an adverse effect on those values • To encourage the retention of the remaining evidence of significant historic and social values expressed in existing landscape and land use patterns adverse effect on those values. • To minimise the proliferation of buildings and other structures in these sensitive landscape areas. • To provide for a restricted range of development and land use activities that provide for rural settlement, sustainable agriculture, other types of economic and employment development, recreation and community amenity in identified drinking water catchment areas. • To protect significant agricultural resources (soil, water and vegetation) in recognition of their value to Wingecarribee’s longer term economic sustainability. | Objectives of Zone The primary objectives are: (a) to protect and enhance areas of particular scenic value to the local government area of Ballina, and (b) to encourage the productive use of land within the zone and enable development ancillary to agricultural land uses, particularly dwelling houses, rural workers dwellings and industries, and (c) to ensure development within the zone maintains the rural character of the locality and minimises any detrimental scenic impact, and (d) to ensure development within the zone is of a scale and nature that will not adversely impact on the existing amenity of the area. |

60. A Conservation zoning is not a mystery. It is an established category across local environmental plans prepared under the Standard Instrument Order. Regardless that zone C3 in Wilson may be a “conservation zoning tailored specifically to that council”, I am not satisfied that it is so discreet and bespoke that it is beyond comparison with an Environmental Protection zone, albeit from another LGA.

61. There were differences between the purpose of the zones, with enhancement, protection, and management of areas with special ecological, scientific, cultural, or aesthetic values emphasised in the C3 Environmental Management zone. Scenic qualities were the primary different emphasis in the No 7(d1) Environmental Protection zone of Ballina LEP.

62. Beyond these differences, there was much common purpose. Both zones shared protection and enhancement of environmental values, encouragement of small-scale agricultural enterprises, and limits and restrictions on buildings and habitation in sensitive landscape areas.

63. Alternatively, a comparison of the objectives between zone C3 Environmental Management and zone R5 Large Lot Residential displayed distinct differences. Typically, rural residential zoning encourages environmentally sensitive dwelling development on lots larger than 0.4 hectares. This applied in Wilson with Wingecarribee Shire’s R5 zone. As the purpose of the R5 Large lot residential zone in the Wingecarribee Local Environmental Plan 2010 (WLEP), displayed below, is typical of rural-residential zoning, it is a reasonable basis for comparison.

| Comparison of Zone Objectives | | Zone R5 Large lot residential in WLEP | Zone 7(d1) Environmental Protection (Newrybar Scenic/Escarpment) in BLEP | | Objectives of zone (1) To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality. (2) To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future. (3) To ensure that development in the area does not unreasonably increase the demand for public services or public facilities. (4) To minimise conflict between land uses within this zone and land uses within adjoining zones. (5) To provide a restricted range of opportunities for employment development and community facilities and services that do not unreasonably or significantly detract from; (a) the primary residential function, character and amenity of the neighbourhood, and (b) the quality of the natural and built environments. | Objectives of Zone The primary objectives are: (a) to protect and enhance areas of particular scenic value to the local government area of Ballina, and (b) to encourage the productive use of land within the zone and enable development ancillary to agricultural land uses, particularly dwelling houses, rural workers dwellings and industries, and (c) to ensure development within the zone maintains the rural character of the locality and minimises any detrimental scenic impact, and (d) to ensure development within the zone is of a scale and nature that will not adversely impact on the existing amenity of the area. |

64. Unsurprisingly, the overriding objectives of R5 Large Lot Residential are the provision of residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality. It aims to “ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future”. This focus on habitation and, albeit environmentally sensitive development is the antithesis of Zone No 7(d1) Environmental Protection and C3 Environmental Management, which aim to limit and regulate buildings and environmental disturbance.

65. Ms White's response in Exhibit 2 was particularly persuasive, especially at page 11 and 13. Consequently, I am persuaded by the respondent that there is an incompatibility between the purpose and operative controls of the 7(d1) zone of the Ballina LEP and the purpose and operative controls of typical rural residential zoning. This is illustrated above; at [60], by the similarity of purpose between zone 7(d1) of the Ballina LEP and zone 3C of the WLEP.

66. This finding is reinforced by the dissimilarity between the purpose of the 7(d1) zone of the Ballina LEP and the purpose of R5 Large Lot Residential of the WLEP, just like the distinct difference between objectives of 3C and 5R of the WLEP in Wilson.

67. Mr Kenny's argument relied on an interpretation based on the current land use by about 41 nearby residents of properties east and southeast of Old Byron Bay Road. However, due to extensive subdivision prior to the 40-hectare minimum size accompanying the 7(d1) zone since 2003. The land use pattern on which Mr Kenny's claims are based, does not conform with the purpose of the 7(d1) zone, which is the required basis of assessment.

68. As a result of the various considerations above, I am not satisfied the 7(d1) zone of the Ballina LEP has the purpose of a designated zone at s 4(1)(a) of the Trees Act. Consequently, the Court has no jurisdiction to make orders and the application is refused.

Does Mr Nowell’s opinion extend beyond his area of expertise?

69. In Exhibit 1, at para 29, Ms White submitted that Mr Nowell’s opinion had extended beyond his area of expertise into planning matters, at 5.5 of his report, and should be excluded or given little weight.

70. When first reading Mr Nowell’s report, I was of the same opinion regarding Mr Nowell’s commentary on the severity of the applicant’s view obstruction. Mr Nowell may reasonably presume that anyone can provide an opinion on the severity of view obstruction, and he may not be aware of the existence of “viewing experts”. Nonetheless, as I found no evidence of Mr Nowell having expertise in either planning or view assessment, I concur with Ms White that Mr Nowell has transgressed beyond his area of expertise.

71. There is a threshold when providing expert opinion, beyond which one is advocating for the client, contrary to the Expert Witness Code of Conduct. Therefore, I shall give little weight to Mr Nowell's opinion in both these respects.

72. Having said this, the partisan element of Mr Nowell's report appeared to arise from his conviction that the bamboo was contrary to regeneration of the lowland rainforest endangered ecological community, and perhaps enthusiasm. I am not satisfied there was any attempt to manipulate or deceive the Court and any impact on the proceedings was not determinative.

73. The report is accurate and comprehensive. The site inspection of 26 January 2026 and subsequent report played a significant role in narrowing the focus of the dispute to the key elements. Notwithstanding disagreement between the parties as to the identification of the various bamboo species, the accuracy of the report’s data assisted the Court.

74. If I was wrong, and s 4(1)(a) of the Trees Act was engaged, the application for alleged severe view obstruction, under Part 2A, would be prioritised.

Jurisdiction – Pt 2A of the Trees Act

75. Part 2A of the Trees Act provides a limited jurisdiction, applying only to groups of two or more trees that are planted so as to form a hedge and that rise to a height of at least 2.5 metres.

76. Part 2A does not assume one should have a right to sunlight or views. The Court must consider a series of jurisdictional tests before any orders can be contemplated. The Court must be satisfied that trees forming a hedge are causing a severe obstruction of sunlight to a window of an applicant’s dwelling, or a view from the applicant’s dwelling.

77. Even when the jurisdictional tests are satisfied, before making any orders the Court is required to balance the benefits and contributions of the trees (at s 14F of the Trees Act) against the interests of the applicant and the imperative for intervention.

78. Section 14A (1) of the Trees Act states:

14A Application of Part

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

79. Section 14B of the Trees Act states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

80. Section 14C(1) of the Trees Act stipulates requirements for notice of application for order to be given to owners of affected land, as follows:

(1) An applicant for an order under this Part must give notice of the lodging of the application and the terms of any order sought at least 21 days before a hearing in relation to the application to—

(a) the owner of the land on which the trees are situated, and

(b) any relevant authority that would, in accordance with section 14G, be entitled to appear in proceedings in relation to the trees, and

(c) any other person the applicant has reason to believe will be affected by the order.

81. Section 14D of the Trees Act covers the Court’s broad jurisdiction to make orders:

(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of -

(a) sunlight to a window of a dwelling situated on the applicant’s land, or

(b) any view from a dwelling situated on the applicant’s land,

if the obstruction occurs as a consequence of trees that are the subject of the application concerned.

(2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may do any or all of the following-

(a) require the taking of specified action to remedy the obstruction of sunlight or of a view,

(b) require the taking of specified action to restrain or prevent the obstruction of sunlight or of a view,

(c) require the taking of specified action to maintain a tree or trees at a certain height, width or shape,

(d) require the removal of a tree or trees and the replacement of the tree or trees with a different species of tree,

(e) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a),

(f) authorise the applicant concerned to take specified action to remedy, restrain or prevent the obstruction of sunlight or of a view,

(g) authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land),

(h) require the payment of costs associated with carrying out an order under this section.

(3) However, the power to make an order under subsection (1) does not extend to an order that requires the payment of compensation.

82. Section 14E(1) addresses the following matters, of which Court must be satisfied before making an order:

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

83. Section 14E(2) of the Trees Act is particularly significant. It states:

(2) The Court must not make an order under this Part unless it is satisfied—

(a) the trees concerned—

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant's land, and

(b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

84. If the Court is satisfied an obstruction is severe, at s 14E(2)(a), it must consider s 14E(2)(b); this in turn requires consideration of the following matters under s 14F (below). If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Trees Act.

85. Section 14F: Matters to be considered by the Court:

(a) the location of the trees concerned in relation to the boundary of the land on which the trees are situated and the dwelling the subject of the application,

(b) whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to),

(c) whether the trees grew to a height of 2.5 metres or more during the period that the applicant has owned (or occupied) the relevant land,

(d) whether interference with the trees would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(e) any other relevant development consent requirements or conditions relating to the applicant’s land or the land on which the trees are situated,

(f) whether the trees have any historical, cultural, social or scientific value,

(g) any contribution of the trees to the local ecosystem and biodiversity,

(h) any contribution of the trees to the natural landscape and scenic value of the land on which they are situated or the locality concerned,

(i) the intrinsic value of the trees to public amenity,

(j) any impact of the trees on soil stability, the water table or other natural features of the land or locality concerned,

(k) the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees,

(l) any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated,

(m) anything, other than the trees, that has contributed, or is contributing, to the obstruction,

(n) any steps taken by the applicant or the owner of the land on which the trees are situated to prevent or rectify the obstruction

(o) the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost,

(p) whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves,

(q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view,

(r) the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed,

(s) such other matters as the Court considers relevant in the circumstances of the case.

Findings

Do the trees form a hedge?

86. In the first test, at s 14A(1), I am satisfied the trees are a hedge for the purpose of the Trees Act. Bamboo is considered a tree in accordance with the Trees (Disputes Between Neighbours) Regulation 2006; at s 4. The bamboo was planted in an orderly pattern along the boundary and rapidly developed into a dense screen, as intended. The dispute between the parties about the species of bamboo was not relevant to the determination.

87. Mr Kenny satisfied the requirements for notice of application for order to be given to owners of affected land, and to Council, at s 14C and s 14E(1)(b) of the Trees Act. He also satisfied the requirement to make a reasonable effort to reach agreement with the respondent, at s 14E(1)(a).

Obstruction of a view from a dwelling

88. The next step is to assess the severity of the obstruction from the applicant’s dwelling as a consequence of any or all of the trees in the hedge.

Is the obstruction of a view severe?

89. Based on my site inspection and the submissions of the parties, I am persuaded by the applicant’s argument and am satisfied that the obstruction of a view from the applicant’s dwelling is currently severe. I am also satisfied that the view obstruction is likely to rapidly worsen. Therefore, s 14 E(2)(a) is engaged.

90. However, I am not satisfied that the Strelitzia are causing a severe obstruction of the applicant's views, nor likely to cause a severe obstruction in the foreseeable future.

91. Relevant factors considered at s 14F are the location of the bamboo, at s 14F(a), the bamboo's negative and positive contributions to the local ecosystem and biodiversity, at s 14F(g), the impact of pruning, at s 14F(k),contribution to privacy and landscaping, at s 14F(l), anything, other than the trees, that has contributed, or is contributing, to the obstruction, at s 14F(m), the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view at s 14F(r), and the nature and extent of the view loss, at s 14F(q).

92. Upon consideration of these elements, I am satisfied the imperative to intervene with the bamboo exceeds the contributions and benefits the bamboo provides, such that s 14 E(2)(b) of the Trees Act is engaged.

93. Consequently, orders would be made for removal of the bamboo, including removal or poisoning of roots. I would discourage stump grinding as it is likely to result in a residue of small broken roots with the propensity to re-establish. Orders would also be made to limit the height of replacement trees to 5 m.

94. The application under Pt 2 of the Trees Act for pruning of the branches of four rainforest trees overhanging the applicant's dwelling would be refused. In accordance with the Tree dispute principle in Barker v Kyriakides [2007] NSWLEC 292, leaves and other small debris falling from trees into gutters other surfaces are not damage. Therefore, the Court has no power to make orders to remedy this leaf drop.

Conclusion

95. Admittedly, as I distilled the detail of the case, I came to appreciate the extent and nature of the applicant’s challenge to prove his contention that Zone No 7(d1) had the substantial character of a zone designated rural-residential, and the objectives of the zones are substantially similar.

96. Mr Kenny’s argument repeatedly returned to the appearance and function of local land use in Zone No 7(d1), notwithstanding that this did not reflect the outcome arising from Wilson, that the purpose or objective of zoning is the relevant crux of comparison.

97. Consequently, I was more persuaded by the respondent, who retained the purpose of the zoning as the basis of assessment and comparison.

Orders

98. The order of the Court is:

99. The application is refused.

J Douglas

Acting Commissioner of the Court

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