Carvouni v Kiama Council
[2008] NSWLEC 1262
•16 June 2008
Land and Environment Court
of New South Wales
CITATION: Carvouni v Kiama Council [2008] NSWLEC 1262 PARTIES: APPLICANT
RESPONDENT
Greg Carvouni
Kiama CouncilFILE NUMBER(S): 10211 of 2008 CORAM: Tuor C KEY ISSUES: Appeal :- Order to demolish screen fence. Whether exempt development. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Kiama Local Environmental Plan 1996CASES CITED: Vibuild Propriety Limited v Kiama Municipal Council [2007] NSWLEC 643 DATES OF HEARING: 16/06/2008 EX TEMPORE JUDGMENT DATE: 16 June 2008 LEGAL REPRESENTATIVES: APPLICANT
Mr G. Carvouni, litigant in personRESPONDENT
Mr P.V. Moggach, solicitor
of Russell McLelland Brown Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
10211 of 2008 Greg Carvouni v Kiama Council16 June 2008
This decision was given extemporaneously.
It has been revised and edited prior to publication.
JUDGMENT
1 This is an appeal against an Order No. 2 under Part 6 of Environmental Planning and Assessment Act, 1979 (the Act) issued by Kiama Council on 7 February 2008 requiring the demolition of timber screen fencing between the existing dwelling and the street frontage at 27 Pacific Avenue, Werri Beach.
2 The site, its context, the history of the application and the planning controls are in the Statement of Facts and Contentions.
3 Section 2.3 of Kiama Development Control Plan No. 20 (DCP 20) relevantly provides:
| Type of Development | Exemption Circumstances/Requirements | Notes |
| Fences in urban areas (other than fences covered by the Swimming Pools Act 1992). |
| These requirements do not set aside the provisions of the Dividing Fences Act 1991. You are advised to talk to your neighbour at an early stage and consult the Dividing Fences Act. |
Boundary Fences |
Maximum height of 1.8m if constructed of timber, metal or lightweight materials. | The height of the fence is measured above natural ground level and includes any retaining wall incorporated into the fence design. |
4 Mr Carvouni, the applicant, contends that the fence is exempt development under the first part of s 2.3 of DCP 20 (relating to fences in urban areas.)
5 Mr Moggach, for the Council, contends, firstly, that the structure is not a fence as it is attached to the dwelling and is more akin to a privacy screen. Secondly, if it is a fence, is not exempt development under the first part of s 2.3 of DCP 20 as this applies to the whole of that section.
Findings
6 I accept Mr Moggach’s submission. The site already has front and side fences. This new structure is within the front setback area and its purpose, as stated by Mr Carvouni, is to provide privacy to the north east facing front garden. I note that this objective could readily achieved by amendments to the existing front and side fences or by landscaping.
7 Even it the structure is a fence it is not exempt development. DCP 20 must be interpreted to provide sensible meanings to its provisions. It would not make sense to provide criteria for boundary fences as exempt development, such as a height limit of 1m, but to permit another fence within the property to be unlimited in height with the only criteria being that it does not prevent the flow of water or be of second hand material.
8 The purpose of exempt development as stated in the DCP is to permit, without consent, ‘minor development having a minimal environmental impact’. If a boundary fence requires consent under certain criteria then an internal fence, which could be placed within 1 m of the front boundary, would sensibly also require consent under similar criteria.
9 This interpretation of s 2.3 is consistent with the criteria under s 3.4.3 of DCP 20 for complying development, which does not include a building in front of the building line or between the dwelling and the public street. Further cl 6.2 of Kiama Development Control Plan No.36 (DCP 36) permits fences to be forward of the front building line, but only with consent and with a maximum height of 1.2m.
10 Clearly the intent of DCP 20 is to require consent for structures in the front of properties other than boundary fences less than 1m in height.
11 Therefore the structure requires approval. As none has been granted the order must be upheld.
12 I note that the applicant has submitted an application for a Building Certificate, which has not been determined by Council. Neither party submitted that this appeal should be stayed until the Building Certificate is determined.
13 Mr Moggach submitted that the decision of Commissioner Moore in Vibuild Pty Ltd v Kiama Municipal Council [2007] NSWLEC 643 found a similar proposed screen fence on the site to be unacceptable. Therefore, in the exercise of the Courts’ discretion, there is no reason to stay the order.
14 While I accept that the location of the proposed screen fence, the front boundary fence and the landscaping is different to that considered by Commissioner Moore, I do not accept the submission of Mr Carvouni that a different decision would be reached if a merit assessment of this proposal were undertaken, particularly as the screen fence is set back only 4m from the front boundary whereas the fence considered by Commissioner Moore was set back 7.6m. The current proposal, even with the increased landscaping, would be likely to impact on the street to a greater extent than the screen fence considered by Commissioner Moore.
15 I note Commissioner Moore’s conclusions which relevantly state:
37 This proposed arrangement is entirely out of character with the area and its streetscape and is sufficiently alien to warrant refusal of the appeal on that basis on first principles.
36 The nature of the front fencing and landscaping will be unexceptional but that which will be viewed behind it will be a 1.5 m high fence which will have, in its appearance, a deal of solidity. This fence will need to be (as it is proposed to be) sufficiently high to provide privacy to this space. This will effectively eliminate many of the benefits of the easterly and south-easterly aspect that might otherwise be enjoyed by persons casually standing in the front yard of the site.
16 There is no evidence before me that demonstrates that the order should not be complied with. The parties have agreed that compliance should be by 1 September 2008 as Mr Carvouni will be overseas until then.
17 Orders of the Court are:
- 1. The appeal is dismissed.
2. The applicant comply by 1 September 2008 with the Order No. 2 under Part 6 Division 2A of the Environmental Planning and Assessment Act 1979 issued by Council on 7 February 2008 to:
- Demolish and remove the timber screen fencing located between the existing dwelling and the Pacific Avenue street frontage.
- 3. The exhibits, except Exhibits 1, 2, 3 and C, may be returned.
___________________
- Annelise Tuor
Commissioner of the Court
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