Comino v Ku-Ring-Gai Council

[2007] NSWLEC 145

Land and Environment Court

of New South Wales

CITATION:	Comino v Ku-Ring-Gai Council [2007] NSWLEC 145
PARTIES:	APPLICANT Chris Comino and Caroline Comino RESPONDENT Ku-Ring-Gai Council
FILE NUMBER(S):	11263 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- erection of boundary fencing - bulk/scale - privacy
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	13/03/07
DATE OF JUDGMENT:	23 March 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr J Hones, solicitor SOLICITORS Hones Lawyers RESPONDENT Mr R Graham, solicitor SOLICITORS Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

23 March 2007

11263 of 2006 Chris Comino and Caroline Comino v Ku-Ring-Gai Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the imposition of a condition on the approval by Ku-Ring-Gai Council (the council) of DA 0660/06 for the construction of a 1.8m high fence along the northern and eastern boundaries of 25 Awatea Road, St Ives (the site).

2 The proceedings were conducted as an On-Site Hearing on 13 March 2007 and the merits considered at this time however the council raised a point of law over the competency of the appeal. The point of law was heard by Lloyd J on 16 March 2007 where he found that "there is no impediment to the commissioner proceeding to determine the application".

3 The site is Lot 11 in DP 869453. It has a street frontage to Awatea Road. The lot was created as part of a 2-lot battle axe subdivision in July 1996 with Lot 12 (25A Awatea Road) being the battleaxe lot. Relevant approvals for the site include a swimming pool (October 2005) and a retaining wall along part of the battleaxe handle boundary (northern boundary) and the part of the eastern boundary with 25A Awatea Road (May 2006). While there was some dispute over the height of the retaining wall, I accept that the constructed height of 16.660 AHD (and confirmed by a Registered Surveyor) is generally consistent with the approved level of 16.600 AHD despite a larger difference in the dimensioned height of approximately 1.0m on the plans and the constructed height of some 1.2m. In any dispute, preference should be given to the AHD levels over approximate heights measured to ground level.

4 The council originally refused the development application on 26 July 2006 on the basis that the height of the fence, when combined with the retaining wall would have a negative impact on the amenity of the surrounding area, but principally the premises at 25A Awatea Road. The proposal was found to be inconsistent with cl 4.1.5 of Ku-Ring-Gai Residential Designed Manual - Development Control Plan 38 (DCP 38) in that the proposal failed to “maintain the streetscape character" and "be consistent with the established pattern of fences".

5 The proposal was also found to be contrary to cl 1(a) and cl 1(b) of the Aims and Objectives for Residential zones in Schedule 9 in Ku-Ring-Gai Planning Scheme Ordinance (the KPSO) in that the proposal did not "maintain and, where appropriate, improve existing amenity and environmental character of residential zones" and "permit new residential development only where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development."

6 A review of the decision under s 82A of the Environmental Planning and Assessment Act 1979 was considered by the council on 19 December 2006 where it was recommended that development consent to be granted but with the additional requirement that a 450 mm x 7.0 m planter bed be provided on the eastern boundary to soften the appearance of the fence from 25A Awatea Road (Condition 2).

7 Mr and Ms Yanco, the owners of 25A Awatea Road objected to the height, bulk and the appearance of the fencing from their property, largely from the area near the corner of the northern and eastern boundaries. They advocated a fence of reduced height and supported the 450 mm x 7.0 m planter bed. The applicant opposed the additional requirement for a planter bed, as it would unacceptably reduce the area around the pool. Further, a fence of reduced height would reduce privacy from their dwelling and rear yard.

8 With the benefit of a view from the site, including from inside the dwelling at 25 Awatea Road and from 25A Awatea Road, I accept that the combined height of 3 m for the fence and retaining wall has an unacceptable appearance from 25A Awatea Road and would be inconsistent with the relevant requirements in the KPSO and DCP 38.

9 The approval of the swimming pool above natural ground level is the source of the dispute between the neighbours. The fundamental issue is what would be a reasonable compromise between the height and bulk of a fence when viewed from 25A Awatea Road and a reasonable level of privacy from 25 Awatea Road given the construction of the retaining wall and the swimming pool generally to the height and location in the council approvals.

10 In balancing these competing issues, I am not satisfied that the additional requirement of a 450 mm x 7.0 m planter bed on the eastern boundary is the best compromise. In my view, a better compromise would be the deletion of the condition for the planter bed but the imposition of a new condition that the fence be limited to the maximum height of 1.5 m in the north east area of the site. In coming to this conclusion I have taken into account an existing planter box on the eastern boundary and within 25A Awatea Road. This is an existing structure and would achieve a similar effect to the 450 mm x 7.0 m planter bed when the planting matures. Also, the area near the northern and eastern boundaries provides only access to the dwelling and garage and is not likely to be used as a principal recreation area for the occupants of the dwelling. I acknowledge that this area could be used for other activities such as a children’s play area however activities such as this do not warrant the same degree of protection as principal recreation areas. I note that the enjoyment of the rear yard and north facing balcony attached to the dwelling is largely unaffected by adequate separation and boundary fencing.

11 From 25 Awatea Road, a 1.5 m high fence will provide an acceptable level of privacy around the pool area because of the inability for most people to look over a fence of this height and the difference in levels between the two properties. While glimpses of people around the front door in 25A Awatea Road may be available from within the dwelling at 25 Awatea Road, there is a separation distance in excess of 20 m to minimise any overlooking. I note there will be no opportunity for looking into the dwelling at 25A Awatea Road. If the applicants prefer additional screening, planting could be located inside the perimeter of the site or in strategic locations on the site.

12 The orders of the Court are:

1) The appeal is upheld.
2) DA 0660/06 for the construction of a fence along the northern and eastern boundaries of 25 Awatea Road, St Ives is approved subject to the conditions in Annexure A.
3) The exhibits are returned.
_____________
G T Brown
Commissioner of the Court