Evenden v Pittwater Council - [2009] NSWLEC 1174

Land and Environment Court

of New South Wales

CITATION: Evenden v Pittwater Council [2009] NSWLEC 1174

PARTIES:
APPLICANT
Peter Evenden
RESPONDENT
Pittwater Council

FILE NUMBER(S): 10188 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Height of fence in Foreshore Scenic Protection Area, view impact, character

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Pittwater Local Environmental Plan 1993
Pittwater 21 Development Control Plan
State Environmental Planning Policy 71 – Coastal Protection

CASES CITED: Tenacity v Warringah Council [2004] NSWLEC 140
Pafburn v North Sydney Council [2005] NSWLEC 444

DATES OF HEARING: 19 May 2009

DATE OF JUDGMENT:
4 June 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Sattler (Solicitor)
SOLICITOR
Sattler & Associates
RESPONDENT
Ms S Puckeridge (Solicitor)
SOLICITOR
Mallesons Stephen Jacques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

4June 2009

10188 of 2009 Peter Evenden v Pittwater Council
JUDGMENT

Background

1 This appeal was lodged against council’s refusal of a development application for the erection of a 1.8m high by 6.2m long fence adjacent to the rear portion of 90 George Street, Avalon. The applicant requires this fence in order to achieve a satisfactory level of privacy to this part of the garden area of the property.

2 As the property is situated on the Pittwater waterfrontage, the proposed fence would restrict views from other neighbouring properties. Consequently the issues concern the loss of visual amenity and the fence is out of character with the area.

The site

3 The site contains a 2-storey dwelling, a detached single storey outbuilding, decks, swimming pool and a sandstone seawall along the MHWM. It is located on the north-eastern side of George Street in a strip of residential houses. Immediately to the south is a single storey dwelling No. 88. To the north is Pittwater Waterway.

4 The surrounding area comprises low density dwellings that are oriented with attractive easterly/northerly aspects towards the waterway. Further to the east and south are mangrove areas.

5 The following controls apply:

Pittwater LEP 1993; under which the land is zoned Residential 2(a) (Residential A), “Area 1” under the Dual Occupancy Control and it is located within the Foreshore Scenic Protection Area.
State Environmental Planning Policy 71 – Coastal Protection (SEPP 71).
Pittwater 21 DCP – Amendment 3, adopted 4 February 2008, in force from 18 February 2008 until 28 November 2008. It contains relevant controls on:
Wave action and tidal inundation.
Habitat category 2.
C1.3 View Sharing.

The evidence

6 Detailed evidence was presented by Mr M Edwards, council planner and Mr D Fish consulting planner for the applicant. Other objections were presented by neighbours, including the owners of the adjoining No 88 George Street.

7 At the on-site hearing there was the opportunity of assessing the location of the proposed fence and undertaking view impact assessments from the neighbouring properties. It is obvious that the living areas and primary open space areas on the subject property have a favourable northerly orientation, towards Pittwater.

8 The location of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWLEC 1174
Decision Date: 4 June 2009

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an appeal by Peter Evenden against the Pittwater Council's refusal of his development application to erect a 1.8m high by 6.2m long fence on his property at 90 George Street, Avalon. The proposed fence was intended to provide privacy for the rear garden area, which adjoins a neighbouring property. The primary concern raised by the Council and the neighbouring property owners was the potential impact on the visual amenity and the character of the area. The site in question is situated within the Foreshore Scenic Protection Area and is subject to specific planning controls aimed at preserving the natural landscape and visual amenities.

The key legal issues before the Court were whether the proposed fence complied with the requirements of the view sharing principle under the relevant planning controls and whether it was consistent with the desired future character of the area. The applicant argued that the fence, while potentially obstructing some views, would maintain a reasonable level of privacy without significantly impacting the overall visual amenity. The Council and the neighbours contended that the fence would cause a severe loss of valuable views and was out of character with the predominantly open waterfront area.

The Court found that while the applicant's need for privacy was legitimate, the proposed fence was too high and obstructive, leading to a significant loss of valuable views from the neighbouring property. The Court concluded that the proposed fence did not reasonably satisfy the view sharing principle and was inconsistent with the desired future character of the area. The Court granted the appeal and approved the development application, subject to specific conditions that included reducing the height and length of the fence and ensuring it had an open design. These conditions aimed to balance the applicant's need for privacy with the need to preserve the visual amenity and character of the area.

Orders