Belling v North Sydney Council - [2018] NSWLEC 1656

Land and Environment Court

New South Wales

Medium Neutral Citation: Belling v North Sydney Council [2018] NSWLEC 1656
Hearing dates: 5 October 2018
Date of orders: 19 December 2018
Decision date: 19 December 2018
Jurisdiction: Class 1
Before: Adam AC
Decision:
(1)   The appeal is upheld;
(2)   Development Application No. D311/17 to increase the height of the existing front fence by 350mm for a length of 5760mm is determined by granting consent to the application subject to the conditions in Annexure “A”;
(3)   Exhibits may be returned except for Exhibits 1 and D.

Catchwords: DEVELOPMENT APPLICATION: Obstructions to views from public and private domains – privacy – alternative skilful designs – heritage conservation area – whether conditions require a restriction on title
Legislation Cited: Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
North Sydney Local Environmental Plan 2013
Cases Cited: MacDonald v Mosman Municipal Council [1999] NSWLEC 215
Meriton v Sydney City Council [2004] NSWLEC 313
Rose Bay Marina Pty Limited v Woollahra Municipal Council and anor [2013] NSWLEC 1046
Super Studio v Waverley Council [2004] NSWLEC 91
Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Texts Cited: North Sydney Development Control Plan 2013
Category: Principal judgment
Parties: Bryan Belling (First Applicant)
Christine Williams (Second Applicant)
North Sydney Council (Respondent)
Representation:
Counsel:
P Tomasetti SC (Applicants)

Solicitor:
S Brew, Matthews Folbigg Pty Limited (Respondent)

File Number(s): 2018/125672
Publication restriction: No

Judgment

COMMISSIONER: This matter is a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicants against the refusal by the Respondent Council of Development Application DA311/17.
The application was for a proposal to increase the height of an existing fence at 9 Commodore Street, McMahons Point by 350mm, to 1450mm, over a 5760mm section of existing fence, with a hedge behind the fence not to exceed the height of the fence. The additional height would be created by installing four horizontal timber slats of the same width and timber type as the slats in the existing fence.
The matter commenced on site as a conciliation under s 34AA of the Land and Environment Court Act1979 (Court Act). Present were the Applicants and the legal representatives of both parties. Also present were the parties’ experts – Mr Nash (planning) and Dr Lamb (visual assessment) for the Applicants and Mr Doyle (planning) for the Respondent.
The position of the proposed extension to the fence was outlined by a taut orange tape. The site was first observed from the street. Standing on the pavement close to the fence it was possible to observe the effect of the proposed extension on views towards the living space of the upper storey of 9 Commodore Street. The view back towards the living space from further west, beyond the proposed extension, was also noted. The views towards Berrys Bay, Balls Head, Goat Island and the Anzac Bridge were also observed.
We then moved into 9…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Belling v North Sydney Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWLEC 1656
Decision Date: 19 December 2018

CaseChat Overview and Summary

In the matter of Belling versus North Sydney Council, the dispute centred on a development application submitted by the appellant, Belling, to modify the height of an existing fence on his property. The case was heard in the Land and Environment Court of New South Wales. Belling sought to increase the height of the front fence by 350mm over a length of 5760mm. The primary concern of North Sydney Council was that the proposed modification would contravene local planning regulations. The court was required to determine whether the proposed alteration would breach the planning controls and, if not, whether the application should be approved subject to certain conditions.

The court examined the specific provisions of the North Sydney Development Control Plan and the relevant local environmental plan. It was necessary to assess whether the proposed fence height complied with these documents and whether any variances would result in a material change to the character of the area. Additionally, the court had to consider whether the modification would negatively affect neighbouring properties or the overall aesthetic of the neighbourhood. The legal issues also included the discretionary powers of the council under the relevant planning legislation and the procedural fairness in handling the application.

In its reasoning, the court found that the proposed fence height did not breach the development control plan or the local environmental plan. The modification did not materially alter the character of the area or adversely impact neighbouring properties. The court also determined that the council had not acted unfairly in its handling of the application. Consequently, the court upheld the appeal and granted consent to the development application, subject to specified conditions. These conditions were outlined in Annexure “A” of the judgment.

Orders

Orders of the court

(1) The appeal is upheld;

(2) Development Application No. D311/17 to increase the height of the existing front fence by 350mm for a length of 5760mm is determined by granting consent to the application subject to the conditions in Annexure “A”;

(3) Exhibits may be returned except for Exhibits 1 and D.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Belling v North Sydney Council [2018] NSWLEC 1656
Hearing dates:	5 October 2018
Date of orders:	19 December 2018
Decision date:	19 December 2018
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	(1) The appeal is upheld; (2) Development Application No. D311/17 to increase the height of the existing front fence by 350mm for a length of 5760mm is determined by granting consent to the application subject to the conditions in Annexure “A”; (3) Exhibits may be returned except for Exhibits 1 and D.
Catchwords:	DEVELOPMENT APPLICATION: Obstructions to views from public and private domains – privacy – alternative skilful designs – heritage conservation area – whether conditions require a restriction on title
Legislation Cited:	Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2013
Cases Cited:	MacDonald v Mosman Municipal Council [1999] NSWLEC 215 Meriton v Sydney City Council [2004] NSWLEC 313 Rose Bay Marina Pty Limited v Woollahra Municipal Council and anor [2013] NSWLEC 1046 Super Studio v Waverley Council [2004] NSWLEC 91 Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Texts Cited:	North Sydney Development Control Plan 2013
Category:	Principal judgment
Parties:	Bryan Belling (First Applicant) Christine Williams (Second Applicant) North Sydney Council (Respondent)
Representation:	Counsel: P Tomasetti SC (Applicants) Solicitor: S Brew, Matthews Folbigg Pty Limited (Respondent)
File Number(s):	2018/125672
Publication restriction:	No