Alvares v The Hills Shire Council

[2025] NSWLEC 1726

Land and Environment Court

New South Wales

Medium Neutral Citation:

Alvares v The Hills Shire Council [2025] NSWLEC 1726

Hearing dates:

25, 26 September 2025

Date of orders:

07 October 2025

Decision date:

07 October 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1)   The appeal is dismissed.

(2)   Modification application 981/2022/HA/B is refused.

(3)   All exhibits are to be returned except Exhibits A, B, D, E, 1, 2 and 4.

Catchwords:

MODIFICATION APPLICATION – construction of a boundary wall and fence – biodiversity impacts – visual impacts – appeal dismissed

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW), Pt 7, s 7.17

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55

Biodiversity Conservation Regulation 2017 (NSW), s 7.1

The Hills Local Environmental Plan 2019, s 7.4

Texts Cited:

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

Richard Alvares (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
J Zorzetto (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2025/148205

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal arises from the actual refusal, by The Hills Shire Council, of Mr Alvares’ application to modify development consent DA 981/2022/HA for his dwelling house at 48 Pitt Town Road, Kenthurst legally known as Lot 1 in DP 258803 (subject site). The modification application, 981/2022/HA/B, seeks to replace the two street-facing boundary fences with a 1800mm high solid masonry wall with masonry piers, and to construct a colorbond fence and partial retaining wall to the two internal boundaries.

2. The subject site has a frontage of approximately 202m to Pitt Town Road to the north and 110m to Emperor Place to the west, and is just over 2ha in area. It is currently occupied by an existing dwelling house, as well as the partially constructed approved dwelling house and a number of ancillary structures. The site is partially mapped as containing Biodiversity Values (Figure 1), and is located within the RU6 Transition zone pursuant to The Hills Local Environmental Plan 2019 (THLEP).

3. The Council contends issues relating to biodiversity and unacceptable visual impacts. For the following reasons, I find that the potential impacts on biodiversity are unable to be assessed, and that the visual impacts of the proposed wall and unacceptable. Accordingly, I find that the appeal should be dismissed.

The proposed boundary treatments

4. The existing boundary of the site is a mix of hedges, post and wire fencing, and no fencing. The site is currently enclosed to both street frontages by temporary Heras fencing due to the construction of the dwelling and ancillary works.

5. The fence approved under DA 981/2022/HA is for an 1800mm high open-style pier and infill fence along the Pitt Town Road and Emperor Place frontages. The piers to this fence are 300 x 300 x 1800mm, and are masonry. The infill panels are open metal railings above a 600mm high solid masonry base.

6. The proposed boundary treatments in this modification application are for a 1800mm high, solid masonry wall and hedging to Pitt Town Road and Emperor Place, and a 1800mm high colorbond fence to the internal (south and east) boundaries. The wall to Pitt Town Road consists of 200mm thick wall panels fixed to the back of masonry piers which are 1800mm high, 400mm wide and 600mm deep. The impact of connecting the panels to the back of the 600mm piers is that the overall wall construction is 800mm deep at each pier: 500mm thicker than the approved fence. The wall construction differs along Emperor Place, where 200mm thick panels are connected to the middle of 400 x 400mm masonry piers. Both the Pitt Town Road and Emperor Place walls are set back 600mm from the site boundary to facilitate the planting of a 1.1m high hedge of Photinia ‘Red Robin’.

7. Two gates are proposed to Pitt Town Road: an entry gate with a covered portico, and an exit gate without cover, both of which are constructed from cast iron with solid timber infill. All fences and gates are of solid construction.

8. The colorbond fence is entirely new to the application; no fences were proposed to the south or east boundaries in the original consent. This fence is 1800mm in height overall, and for a portion of the southern boundary will sit above a 600mm high retaining wall.

9. Fill is proposed to the south-western corner of the site, although the extent and precise location of it is not clear from the drawings, except to confirm that it is maximum of 150mm deep and to a volume of 4.3m³. The engineering drawings at tab 5 of Ex B show fill up to 600mm deep behind the retaining wall, however, the parties agree that this can be reduced to a maximum of 150mm by a condition of consent.

Biodiversity impacts

10. The site contains two areas mapped as Biodiversity Values (see Figure 1) and the original consent necessitated the clearing of native vegetation within these areas. Accordingly, pursuant to s 7.1 of the Biodiversity Conservation Regulation 2017 (NSW), the original development application exceeded the biodiversity offset scheme threshold for the purposes of Pt 7 of the Biodiversity Conservation Act 2016 (BC Act) and was accompanied by a Biodiversity Development Assessment Report (BDAR) prepared by Ecologique Environmental Consulting dated 22 April 2022 (Ex 4). This report was prepared to assess the potential impacts on two communities of native vegetation: Sydney Turpentine Ironbark Forest (PCT 1281) and Hornsby Enriched Sandstone Exposed Woodland (PCT 1782) (see Figure 2).

Figure 1: Vegetation mapping indicating areas mapped as ‘Biodiversity Values’ on the site (Source: BDAR)

Figure 2: Vegetation mapping indicating areas mapped as PCT 1281 and PCT 1782 on the site (Source: BDAR)

11. In the original application, the BDAR found that there were unavoidable impacts resulting from the clearing of 0.17ha of PCT 1281 and 0.04ha of PCT 1782. PCT 1281 is listed as a critically endangered ecological community (CEEC) under the BC Act and is also listed as a serious and irreversible impact (SAII) entity.

12. Section 7.17(2) of the BC Act requires that for modifications of planning approvals, a biodiversity development assessment report (a further assessment report) must be submitted with the application for modification and taken into consideration, even if a biodiversity development assessment report was submitted in connection with the application for the original development. However, pursuant to s 7.17(2)(c) a further assessment report is not required if the authority or person determining the application for modification is satisfied that the modification will not increase the impact on biodiversity values.

13. No further assessment report has been submitted with this modification application. The applicant submits that this report is not required because the modification will not increase the impact on biodiversity values.

14. In consideration of potential impacts on Biodiversity Values, I note firstly that the Arboricultural Impact Assessment by Catriona Mackenzie dated 17 September 2025 (Ex B tab 4) confirms that no tree removal is required as part of the modification application.

15. The BDAR draws the conclusion that the area of PCT 1281 on the site is in a degraded state, and includes no shrub or grass cover on this site (Ex 4 p 30). It also concludes that the area of PCT 1782 is predominantly limited to canopy species overlying a mown understorey, however a number of native understorey species persist around the base of trees where mowing has been precluded. This was observed in the western portion of the site, mapped as PCT 1782 on Fig 2.

16. I note that the proposed modification includes a wall that is set further back from the boundary than the approved fence base by an estimated 500mm, and incorporates an overall construction at the piers that is between 100-500mm thicker than the approved fence. Despite the pier-and-beam construction proposed in the engineering drawings at tab 5 of Ex B, I do not agree with the applicant’s submission that the construction impacts of the proposed wall are certain to be less than that of the approved fence.

17. In addition, no work was proposed in the original consent, nor assessed in the BDAR, along the southern or eastern boundaries of the site.

18. As a result of the change to the form and construction of the boundary treatments to the north and west boundaries, including an increase in size and setback into the site, and the introduction of works along the southern boundary, I consider that there is the potential for the modification to increase the impact on biodiversity values that has not been assessed. These proposed works occur largely within the area mapped as PCT 1782, and potentially impact the noted understorey species.

19. I therefore consider that, in accordance with s 7.17 of the BC Act, the modification application is deficient due to the absence of a further assessment report.

20. Furthermore, as a result, I cannot be satisfied that the development is designed, sited, and will be managed to avoid, minimise, or mitigate any significant adverse environmental impact in accordance with THLEP s 7.4 (4), having considered the matters listed at s 7.4(3).

21. As this is a modification application, s 7.4 does not form a jurisdictional threshold that enlivens my power to grant consent. However, in accordance with s 4.55(3) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), I must take into consideration such of the matters referred to in s 4.15(1) as are of relevance to the development the subject of the application. Section 7.4 of THLEP is one such matter.

The visual impact of the wall

22. Development controls relating to boundary treatments within the RU6 Transition zone are limited. The relevant objectives of the zone are:

•  To protect and maintain land that provides a transition between rural and other land uses of varying intensities or environmental sensitivities.

…

•  To ensure that development does not have a detrimental impact on the rural and scenic character of the land.

23. Part B Section 1 of The Hills Development Control Plan 2012 (DCP) applies to land within the RU6 Transition Zone. The aim and description of ‘rural character’ set out in the introduction to this section are relevant:

‘AIM

The aim of this section is to ensure that rural development is compatible with the capability of land, has regard to the natural environment, scenic qualities and rural character and contributes to the social and economic wellbeing of the rural area.

WHAT IS RURAL CHARACTER?

The rural part of the Shire is the land beyond the urban edge and its character can vary from setting to setting and means different things to people depending on a range of things such as background, age or where they live that relates to the appearance, economic and social structure of rural communities.

Beyond the more populated areas it provides an important backdrop to the urban areas and rural villages. In general, it is a relatively undeveloped place, with a natural look that could be described as unplanned and non-uniform. In terms of its physical characteristics, it is agricultural activities, large land parcels, low scale dwellings, farm sheds and natural scenic beauty.

Within the Shire rural character is made up of activities such as ‘lifestyle’ housing, market gardens, cropping orchards, sand mining, horses, animal grazing, houses and outbuildings, vegetation, rolling hills, creeks, gullies, wetlands, rural enterprises and tourism.

Being so close to the urban fringe, the Shire has seen somewhat of a shift away from rural agricultural to more rural lifestyle in some areas where people enjoy the qualities of the area that make it rural with open spaces and countryside and a close community within the rural villages.’

24. Within this section of the DCP, Part 1 Section 2 provides the following relevant statement of outcomes:

‘The scale, siting and visual appearance of new development maintains the open rural feel of the landscape and preserves scenic and environmental qualities of the area.’

25. The General Controls at page 9 of the DCP provide the only control directly relating to fences in this zone, which is that front fences must be 1800mm maximum height, must be of open style and must not be of solid masonry or solid panel construction. No controls are provided that relate to side or rear boundary fences or walls, or to ‘street frontages’ generally.

26. It is undisputed that all proposed fences achieve a maximum height of 1800mm and are of solid masonry or solid panel construction, contrary - in the case of the front fence - to the general controls.

27. The parties dispute the definition of ‘front fence’, with the Council arguing that the fence to Emperor Place is also a front fence as it forms a street frontage. I accept the applicant’s position that, in this case, as the site is only accessed from Pitt Town Road, and both dwellings face their front doors to the same street, Pitt Town Road forms the front boundary. I therefore accept that the fence to Pitt Town Road is the ‘front fence’ for the purposes of the general controls in the DCP.

28. Relying on the provisions of s 4.15(3A) of the EPA Act whereby I am to be flexible in applying the provisions of the DCP if the objects of the standard is achieved, the applicant then turns to the objectives of the general controls for new development in the DCP. The parties accept these are reflected in the statement of outcomes at [24]. The applicant submits that the scale, siting, and visual appearance of the fence maintains the open rural feel of the landscape and preserves scenic and environmental qualities of the area.

29. At the site view I was taken to several vantage points along Pitt Town Road where either dense hedges were planted along the site boundary, or in the case of 41 Pitt Town Road, a solid masonry wall was used, albeit lower than proposed in this application. The applicant also relied on a number of photographs from various properties in the vicinity (Ex E) that demonstrate various combinations of solid masonry, dense hedges, metal railings or solid timber fences. Of these examples, the only wall or fence with a confirmed height was at 652 Old Northern Road, Dural, with a solid masonry wall of 2230mm high. No evidence was given as to the length of each run of fence, wall or hedge, but the applicant conceded that no individual boundary treatment ran for an equivalent length to the 202m proposed to Pitt Town Road on this site.

30. The applicant submits that the ‘scenic and environmental qualities of the area’ comprise a mix of fences, walls, hedges and other boundary treatments, which was confirmed by the Town Planners, Patrick Hurley & John McFadden, in expert evidence. The applicant then submits that the ‘open rural feel of the landscape’ is maintained by this solid wall, through the inclusion of a screening hedge in front of the wall and the fact that you can see the tops of trees and the dwellings on the site over the top of this wall.

31. I do not accept the applicant’s position that the proposed wall meets the objective to maintain the open rural feel of the landscape, and prefer the Council’s position that 202m of 1800mm high solid front wall is contrary to this objective, irrespective of the inclusion of a hedge. The ability to see landscape or built elements over the top of a wall does not make it ‘open’, even if the two sets of gates were left open, providing visual relief at two points.

32. I also concur with the Council that planting a hedge in front of a masonry wall does not result in a ‘rural feel’, and that a hedge in front of a solid wall is a very different landscape feature to a natural hedge on its own, regardless of the density of the hedge.

33. I further concur with the Council that the excessive length and solidity of the proposed fence contradicts the description of ‘rural character’ in the DCP as being “a relatively undeveloped place, with a natural look that could be described as unplanned and non-uniform.”

34. I consider that the 202m wall to Pitt Town Road on its own contradicts the controls, objectives and intended character of the zone. I further consider that, in the absence of specific controls governing the other three boundary fences, that the additional 110m length of wall and equivalent lengths of colorbond fence to the south and east boundaries further compound the adverse impact of the proposed walls and fences on the character of the area, also conflicting with the character of the zone.

35. It is therefore my considered opinion that the proposed walls and fences would have a detrimental impact on the rural and scenic character of the land due to their solidity, length and design, and that this is contrary to the objectives of the RU6 Transition Zone in the THLEP, and the relevant objectives and controls of Part B Section 1 of the DCP.

Conclusion

36. For the above reasons, I consider that the visual impact of the proposed walls and fences is unacceptable when considered against both the RU6 Transition zone of THLEP and the relevant parts of the DCP. Additionally, in the absence of a further assessment report, I am unable to evaluate whether the proposed works would have an unacceptable impact on the biodiversity of the site, contrary to the requirements of s 7.17 of the BC Act and s 7.4 of the THLEP. Accordingly, the appeal should be dismissed.

Orders

37. The Court orders:

1. The appeal is dismissed.

2. Modification application 981/2022/HA/B is refused.

3. All exhibits are to be returned except Exhibits A, B, D, E, 1, 2 and 4.

……………………….……….…

E Washington

Commissioner of the Court

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Decision last updated: 07 October 2025