Endo Tecknik-Nord Pty Limited v Kiama Municipal Council

[2008] NSWLEC 1332

Land and Environment Court

of New South Wales

CITATION:

Endo Tecknik-Nord Pty Limited v Kiama Municipal Council [2008] NSWLEC 1332

PARTIES:

APPLICANT
Endo Tecknik-Nord Pty Limited

RESPONDENT
Kiama Municipal Council

FILE NUMBER(S):

10253 and 10254 of 2008

CORAM:

Hussey C

KEY ISSUES:

Appeal - Development Application :- front fence gate, adverse streetscape impacts, character of area. s121B Order for removal of fence

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Kiama Local Environmental Plan 1996

DATES OF HEARING:

18/08/2008

EX TEMPORE JUDGMENT DATE:

18 August 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Miller, QC
Instructed by Puleo Lawyers

RESPONDENT
Mr C. Fuller, agent
of Kiama Municipal Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

28 August 2008

10253 of 2008 Endo Tecknik-Nord Pty Limited v Kiama 10254 of 2008 Municipal Council

JUDGMENT

1 These proceedings comprise the following 2 appeals:

• No. 10253 of 2008; an appeal against council’s refusal of a development application for a front fence element and gate structure at 96 Rose Valley Road, Gerringong.
• No. 10254 of 2008; an appeal against a s121 B Order to demolish and remove a fence and gate structure.

2 The parties agreed the matters be heard concurrently.

3 The main issue concerns the streetscape impact of the front fence component and associated gates. The fence comprises masonry piers with heights in the order of 2.2 m, with metal picket inserts on horizontal support members. This fence transitions to 2 masonry gate posts, which are 3m high. A higher security gate (approximately 3.2 m at its centre) is supported by the gate posts.

The Site

4 The property is described as Lot 103 DP 561082. It currently contains a single dwelling house and a number of farm sheds.

5 The entry to the property is shared with 3 other allotments.

6 The surrounding area comprises farmland used for dairying and other rural/residential activities.

Planning Controls.

7 Kiama Local Environmental Plan 1996. Under which the site is zoned 1(a) Rural “A” and 7(e) Rural Hinterland Protection (Hinterland). The proposed ancillary structures are permissible with consent.

8 The LEP contains a number of relevant objectives, wherein the following is relevant in the current matter:

( e) …. to protect the landscape quality of the area .

9 Development Control Plan No 35 – Rural Dwelling Design and Siting Guidelines. Clause 4 outlines the following objectives that are relevant in this matter:

a) To protect the amenity of the locality in which the development is situated.
c) To ensure that development preserves and compliments any natural and/or cultural heritage characteristics of the area;
d) To achieve well designed and sited dwellings and outbuildings that complement the landscape and do not cause, in the opinion of the Council, adverse visual impacts.

10 Clause 7.1 provides aims, performance criteria and standards to ensure :

• The preservation of the rural character of the locality.
• That the bulk and scale of development is limited so that it does not dominate the surrounding rural area.
• That the type and colour of materials is appropriate to the landscape and does not cause significant visual impact and reflectivity.
• All buildings shall be setback at least fifteen (15) metres from the front throughout property boundary (with frontage to a public road).

11 Detailed assessment of the proposal were undertaken by:

• Mr J Williams; Senior planner Kiama Municipal Council, and
• Mr C Stoddart; Consulting planner for the applicant.

12 The planners prepared a joint report (Exhibit 1) and this was considered in conjunction with the written and oral evidence given by objectors.

13 This evidence concerns the excessive bulk and scale and height of the fencing proposal, in the existing rural context. In this regard the planners agree that the visual catchment comprised the Rose Valley Road catchment.

14 Mr William said that within this catchment area most houses are of single storey construction and:

“The entrances to properties forms part of the landscape character of this visual catchment and assist in delineating properties and, along the houses, driveways, plantings an open fields an important quality of the landscape character of the area.”

15 Accordingly, he does not consider the proposed fence satisfies objective (e) for the development controls in the DCP regarding visual impacts. Nevertheless, he says that the proposed form of fencing is generally accepted providing it is modified to:

• reduce the height of the fence and posts be no higher than the top crossbar,
• drop the fencing panellist ground level, to achieve a further reduction in height,
• maintain a consistent height in the fencing panels as opposed to the proposal for the increasing height to the north.

16 Against this, Mr Stoddart supports the proposal on the basis that:

• the gates do not impact on natural features or resident amenity,
• the proposed dark colour of the gates reduces visual impact,
• the potential for viewing of the gates is low, and predominantly by the relatively low number of residents who live to the west of the entrance,
• due to the physical location of the gates and their generally low visibility, then the existing visual character of another gate in the immediate locality is not unusual for added character.

17 However, after discussions at the view and further consideration by the applicant, amendments were made to the proposal to generally reduce its height and resultant impact, as suggested by Mr Williams.

18 The amended proposal is to generally:

i) Reduce the height of the fence metal inserts to that of the horizontal member, but allowing the existing picket tops to exceed this height.
ii) Reduce the height of the masonry piers to that of the horizontal member, plus a capping block.
iii) Reduce the height of the gate posts to that of the horizontal member, plus 2 masonry blocks and capping to allow property identification.
iv) Reduce the gates to have a horizontal top, consistent with the gate posts.

Conclusions

19 After further consideration of these amendments, the parties have agreed to consent orders, which basically reflect these amendments. I am satisfied that these amendments adequately respond to evidence of Mr Williams and that of the neighbours, who expressed concerns about the unsatisfactory height and scale of the fence and gates.

20 It is apparent from the view that Rose Valley Road has a distinct rural character in the surrounding visual catchment area. The obvious qualities are well separated rural dwellings on acreage, which are accessed by a single lane rural road. This road is fenced mainly with posts, star pickets and wiring of approximately 1.2m high. The entry to these properties is mainly through rural type gates. Although, there are a few more formal entries. These fences and gates have a low, unobtrusive visual impact in my assessment.

21 But, in my assessment the proposal is in sharp contrast to these qualities because of its overbearing height (ie tapering up to approximately 3.5m) and appearance. Whilst it may achieve the applicant’s objective for high level security, it nevertheless does not satisfy the zone objective (e).

22 However, I am satisfied that the revised proposal, which basically adopts the level of the horizontal member (ie approximately 2.1m) as the base level, plus the piers, represents a reasonable balance between the owners requirement for security and property identification relative to the protection of the landscape qualities of the area. I also consider that 15m setback to the gate section helps reduce the visual impacts, so that the streetscape impacts will be acceptable in the locational context.

23 Accordingly, I consider it appropriate to grant the consent orders.

24 By consent the Court Orders: Appeal No 10253 of 2008:

1. The appeal is dismissed.

25 By consent the Court Orders: Appeal No 10254 of 2008:

1. That Order No. 2, issued on 27th February 2008 by the Respondent, Kiama Municipal Council, pursuant to Part 6 Division 2A of the Environmental Planning and Assessment Act 1979, to the Applicant, Endo Technik-Nord Pty Limited requiring the demolition and removal of a fence and gate structure situate on land known as 96 Rose Valley Road, Gerringong (being lot 103 DP 561082) be modified as follows:
(a) The Applicant to carry out works upon the gate and fence to reduce the height of the same in accordance with the 2 page amened plan AO1 of 27/8/08 marked “A” hereto signed by the parties, in accordance with the Directions of the Court;
(b) Such works are to be completed by no later than 18th December 2008.
2. No Order as to Costs in either matter.

___________________

R Hussey
Commissioner of the Court
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