Chris Thomas v Ku-ring-gai Council

[2004] NSWLEC 651

Land and Environment Court

of New South Wales

CITATION:	Chris Thomas v Ku-ring-gai Council [2004] NSWLEC 651
PARTIES:	APPLICANT Chris Thomas RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	11104 of 2004
CORAM:	Hoffman C
KEY ISSUES:	Development Consent :- Several parts of the proposal are already constructed and cannot be granted retrospective development consent - a part of the proposal is constructed on the council road reserve and has no owners consent -the Ku-ring-gai PSO and the Dual Occupancy Code can apply where there is no conflict with SEPP 53 - the streetscape character of the locality as defined under the KPSO and the Dual Occupancy Code does have a role to play in determining this fencing proposal for street boundaries.
LEGISLATION CITED:	State Environmental Planning Policy No. 53 (SEPP 53) Ku-ring-gai Planning Scheme Ordinance (KPSO)
CASES CITED:
DATES OF HEARING:	22/11/2004
EX TEMPORE JUDGMENT DATE :	11/22/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr S Kondilios, solicitor SOLICITORS Maddocks Lawyers RESPONDENT Mr Reilly, solicitor SOLICITORS Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

22 November 2004

11104 of 2004 Chris Thomas v Ku-ring-gai Council

JUDGMENT

1 This was a class 1 appeal No. 11104 of 2004 between Chris Thomas and Ku-ring-gai Council in regard to front and side fencing of 2 detached dwellings as dual occupancies built on No. 137 Bobbin Head Road, Turramurra.

2 The property is on the corner of Handley Avenue and the 2 new dwellings have been constructed both facing Handley Avenue. A side fence had been constructed to Bobbin Head Road with a masonry base and a 1.8 m high timber fence erected on top. This fence served Unit B of the 2 dwellings as shown on plans in Exhibit “B”.

3 This fence had been taken around the corner into Handley Avenue to the driveway of the first dual occupancy called Unit B. As it went around the corner, due to slope in the land, the masonry base course became higher out of the ground. At the driveway the fence was probably in the order of 2.8 m high to the top of the pickets.

4 Part of the picket fencing at the corner had been removed since it was found that it had actually been erected on the council’s splay corner boundary. The masonry base course remained there at the time of this hearing. That section of fencing was subject of a separate application before the council to consider whether to allow the fence to remain on the council’s road reserve.

5 The Bobbin Head Road fence was not built quite as shown on the subject plans in Exhibit B. There was a very large tree approximately on the boundary line near the street corner, and the fence had been dog-legged around the tree, so that the fence was actually on the inward side of the street boundary within the vicinity of the tree. This was marked very approximately on Exhibit B.

6 On the Handley Avenue frontage part of the front boundary beyond the driveway of first dual occupancy, called Unit B, had a lower masonry wall about 1 m high. This masonry wall was part of the detention tank for the development that was just inside the street boundary. Beyond the tank this masonry wall continued along the street boundary and extended along to the boundary between Unit A and Unit B. There was to be a 1.2 m high picket fence on top of the wall.

7 At Unit A there was no front fence existing. The proposal was to erect a 1.2 m high picket fence 750 mm inside the boundary such that it would be behind a hedge planted along the front boundary. The young hedge plants were already installed.

8 Both detached dual occupancies were to have ornamental iron pike stave gates on the driveways 1.2 m high. Unit A had its driveway in about the middle of its frontage.

9 The proposal also intended to extend the dividing fence on the common boundary of the lots containing Units A and B. The approved plans showed the fence stopping at the front alignment of the front \walls of the units. The application was to extend it through to the street frontage.

10 The Issues in the appeal were as contained in Exhibit 3 and they could be summarised essentially as streetscape issues. At the hearing the council did not press any changes to the Bobbin Head Road fencing as they considered that to be a side fence. Therefore the subject of the appeal was the Handley Avenue fences to the 2 dual occupancies which could be categorised as front fences.

11 Attending the hearing on site was:

• Mr J Reilly of Abbott Tout for the respondent and
• Mr S Kondilios of Maddocks for the applicant
• Mr Mark Adamson, the expert town planner for the council
• Mr I Glendinning, the expert town planner for the applicant
• Ms Rachel Corey of Maddocks attended together with the applicant Mr Chris Thomas and co-owner Ms Lorraine Dawe.

12 Evidence was taken on site and the Court was shown the streetscape along the length of Handley Avenue and the other properties nearby in Bobbin Head Road.

13 There were submissions that State Environmental Planning Policy No. 53 (sepp) was the predominant instrument and this was correct. However, the Court has concluded that being the dominant instrument did not prevent consideration of subsidiary statutes and controls where there was no conflict with specific provisions of the State Environmental Planning Policy.

14 The SEPP required that adequate regard be given to the streetscape qualities and that a design should contribute to an attractive residential environment. In this regard the dwellings were erected in the Residential 2(c) Zone under the Ku-ring-gai Planning Scheme Ordinance. In that zone the council had prepared a Dual Occupancy Code specifically for developments carried out under the powers of SEPP 53.

15 The character statement in the Code for the streetscape of the locality was said to be the “1945-1968 period” with “post-1968” development occurring due to re-development. In the character statement it was noted that in both periods, front fences were either small or non-existent, and there were usually hedges and shrubbery at the front boundary.

16 The council said that this was the character of the Handley Avenue and that it should be maintained and would not permit the fencing and gates as now proposed to the front boundaries of the two dual occupancies.

17 The applicant drew the Court’s attention to side fences on two properties in Handley Avenue which fronted other streets. The fences were high paling fences to create privacy for rear yards. One had extensive landscaping in front of it including shrubbery and street trees. A third property had a narrow frontage to Handley Avenue and had a fence apparently in or near the boundary, but it also had vegetation in front.

18 All the other frontages which were the main front boundaries for the houses in Handley Avenue did not have fences and the predominant character was front setbacks open to the street giving a park-like appearance.

19 During the hearing the council indicated that it would accept a 1.8 m high timber fence on top of a masonry base around the splay of the corner. However, once it met the Handley Avenue main frontage the timber fence should be terminated. The existing constructed masonry base wall within the property could remain up to the drive entry to Unit B. The masonry wall to the detention tank on the front boundary which extended from the other side of the driveway of Unit B to the boundary with Unit A could also remain. However, the council preferred that there be no driveway gates or timber fence on top of the walls. Nor should there be a front fence to Unit A, nor the extension of the dividing fence across the front setback. Suitable vegetation should also be planted to better fit the development into the streetscape character of the locality as set out in Sch 9 of the Ku-ring-gai Planning Scheme Ordinance and under the Dual Occupancy Code.

20 Having heard the evidence, and accepted the streetscape is as the council’s evidence stated, the Court has concluded in this case that the council’s evidence has the greater weight.

21 The Court noted that some of the fencing and other structures were already built. The parties agreed the Court could not grant retrospective development approval to those already built.

22 The Court’s conclusion on the merits of the streetscape were that the Handley Avenue front setback should remain clear of any fences and be landscaped in accordance with the approved landscape plan. That meant that the Handley Avenue as yet unbuilt fencing proposal must be refused.

23 The applicant put that the fencing to the splay corner could be dealt with by the Court since it had not been built (the 90 corner section of the existing fence having been built on the council road reserve).

24 The council did not object to the Court dealing with the unbuilt splay fencing as long as it was on that part of the splay running north-east from the existing constructed fence on Bobbin Head Road to the existing masonry base course on the Handley Avenue frontage where it intersected the splay corner boundary. This was a distance of only 3 or 4 m.

25 The Orders of the Court are:

1. The appeal is upheld in part.
2. Development consent is granted only to a fence on part of the boundary splay on the corner of No. 137 Bobbin Head Road and Handley Avenue, Turramurra. The fence to consist of a masonry base course and timber picket fence above, a maximum of 1.8 m high as in Detail No. 3 of the Plan in Exhibit B. The length of the fence of the splay is marked in red on Exhibit B (approximately 4 m long).
3. All the other fencing and gate proposals on Exhibit B are refused.
4. The Conditions of Consent are as in Exhibit 7 with Condition 1 amended to reflect Order Nos. 2 and 3 above.
5. The exhibits are returned to the parties except Exhibits 2, 3, 7 and B.
6. A copy of Exhibit B as marked is attached to these Orders.
___________________
K G Hoffman
Commissioner of the Court
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