Chen v Ku-ring-gai Municipal Council

[2007] NSWLEC 867

Land and Environment Court

of New South Wales

CITATION:

Chen v Ku-ring-gai Municipal Council [2007] NSWLEC 867

PARTIES:

APPLICANT
Peter Chen

RESPONDENT
Ku-ring-gai Municipal Council

FILE NUMBER(S):

10648 of 2007

CORAM:

Moore C

KEY ISSUES:

Appeal :-
S 121B order
Size of gate

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Zhang v Canterbury City Council (2001) 115 LGERA 37

DATES OF HEARING:

26 September 2007

EX TEMPORE JUDGMENT DATE:

26 September 2007

LEGAL REPRESENTATIVES:

APPLICANT
In person

RESPONDENT
Mr T March, solicitor
Home Wilkinson and Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

26 September 2007

10648 of 2007 Peter Chen v Ku-ring-gai Municipal Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an appeal pursuant to s 101ZK of the Environmental Planning and Assessment Act 1979 (the Act) lodged by Mr Chen against an order issued by Ku-Ring-Gai Municipal Council (the Council) on 18 June 2007. The order, which is made pursuant to section 121B of the Act, is to require Mr Chen to do the following:

• Remove any portion of the metal grille gates which are above 1.6 metres in height from the pedestrian entry gate, vehicular entry gate and associated posts located adjacent to the southern end of the front boundary at the subject premises.

2 The premises which are the subject of the order are Mr Chen’s home at 138 Kissing Point Road, Turramurra. The structures to which the order refers are a lych-gate which is located on the northern side of the driveway to Mr Chen’s property and perpendicular to Kissing Point Road together with the vehicular access gates across the driveway.

3 During the course of the proceedings, the Council accepted a submission made by Mr Chen that this lych-gate is exempt and complying development within the meaning of Development Control Plan 46 (as set out at p 13 of that DCP), being a gate which is not more than 1.8 m wide and not more than 2.4 m high.

4 The terms of the order therefore, by concession, are limited to consideration of the main vehicular gate which is a structure measured on site as being some 5.7 m wide and, it is agreed between the parties, some 2.25 m high.

5 It is constructed of metal pickets with a decorative metal top and a bar at the bottom and a bar at approximately one third to 40 per cent of the height of the gate (the latter being for structural rigidity purposes). It is a remote operated electrically driven opening gate. On the northern support post for this gate Mr Chen has installed a closed circuit television camera and the Council raises no objection to the height of that post or to the retention of the camera on it. Effectively, therefore, the two structures in contention are the gate itself and the post that acts as its stop at the southern end of its path of travel.

6 During the course of the hearing, it has become unnecessary to deal with the question of the fencing controls in Development Control Plan 38, being the Council’s Residential Design Manual (the RDM), and I am proceeding to consider this appeal on general streetscape issues arising out of the Ku-ring-Gai Planning Scheme Ordinance (the KPSO) and the RDM.

7 Schedule 9 of the KPSO includes, amongst its aims, to maintain and where appropriate improve the existing amenity and environmental character of residential zones – the premises being located within such a residential zone. The RDM informs and fleshes out the provisions of the KPSO. The RDM includes, as its streetscape objectives, a number of elements. They are set out on p 12 of the RDM and they are:

“(a) To ensure that the development is sensitive to the landscape setting, environmental conditions and established character of the street and locality.

(b) To ensure that the appearance of new development is of a high visual quality, enhances the streetscape and compliments good quality surrounding development.”

8 The third general objective is not relevant in these proceedings.

9 Consistent with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, I am obliged to use the provisions of the RDM as the focal or starting point of my consideration of this matter. If I am satisfied there is some other good reason, when considering the bases for assessment in s 79C of the Act, I am not absolutely constrained by the terms of the RDM but I need explain why I have chosen to depart from its terms if I do so.

10 During the course of the inspection this morning, I had the opportunity to walk the streetscape to the north and south of the premises and observe a variety of matters including a number of fences – photographs of which have been tendered on behalf of the Council – which fences were significantly higher than the fences on the immediately adjacent properties to the north and south of the premises.

11 It is important at this stage to note a number of matters, which are not pressed, in addition to the matters which I have earlier noted were not pressed. Mr Chen has planted along the front boundary, with the exception of some infill plants which are not yet grown to maturity, a substantial hedge which, in general terms, has been trimmed to the height of the present gate. I do not understand that the Council objects to that hedge being maintained provided it is, in general terms, trimmed and maintained trimmed to a height of some 2 to 2.2 m and in a fashion which does not intrude on the pedestrian footpath along Kissing Point Road. The Council had earlier indicated a preference for change of colour to the gate and that is no longer pressed.

12 The Council’s original order had proposed that the reduction in height of the gate should be to 1.6 m. The Council now proposes that 1.8 m would be acceptable. The Council originally required that the terms of any order be complied with within 30 days of the date of the order and, as Mr Chen has submitted that it would require a longer period of time for his gate manufacturer to be able to deal with any order to modify the gate, the Council has indicated that it would be prepared to accept a 90 day period within which any order should be complied with. Those matters are noted least it be thought, on the basis of the orders that I now propose to deal with, that Mr Chen has failed entirely in these proceedings and that some order for costs ought be sought against him.

13 It is clear that the existing gate, which is set some 2 m or more back from the street, is a larger structure than the majority of those that are fences or gates in the generally surrounding visual catchment to the premises. Although it is an open structure, it has a decorative treatment to the top which gives it a greater degree of cohesion (in a visual sense) than would be the case if it had had a picketed treatment to the top.

14 The parties in these proceedings, however, do not ask me to deal with design issues and I confine myself, therefore, to considering what would be an appropriate height for a gate at the present location.

15 I am satisfied, from my observation of the properties to some distance on either side of the premises, that the present height of 2.25 m is not acceptable in the context of the present streetscape setting. I am satisfied, however, that the eclectic nature of the various fencing and gating arrangements that we saw during the site inspection, coupled with the fact that Mr Chen’s gate is set back significantly from the street, render the requirement for a reduction to 1.8 m unnecessarily severe.

16 I am satisfied that, at that degree of setback and consistent with the arrangements, whether informal or approved or not (but at least tolerated) by the Council at other locations in the street, mean that a height of 1.95 m would be appropriate under all the circumstances for those reasons. A longer period to effect this should be permitted to be prudent.

17 I am therefore satisfied that the order issued to Mr Chen of 18 June 2007 should be set aside and the terms of the order should be substituted in the following terms.

• Reduce the height of the metal vehicular gate and associated post on the southern end of the existing gate to no more than 1.95 metres above ground level at its present location and that the period for compliance with the order should be amended to 120 days from the date of the formal orders being issued by the Court.

Tim Moore

Commissioner of the Court