Fitzmaurice M R v Tweed Shire Council

[2008] NSWLEC 1116

Land and Environment Court

of New South Wales

CITATION:

Fitzmaurice M R v Tweed Shire Council [2008] NSWLEC 1116

PARTIES:

APPLICANT
Michael Robert Fitzmaurice

RESPONDENT
Tweed Shire Council

FILE NUMBER(S):

10018 of 2008

CORAM:

Watts AC

KEY ISSUES:

Section 96 Modification :- Privacy of neighbours and Access to stormwater

LEGISLATION CITED:

Tweed Local Environmental Plan 2000
Tweed Shire Development Control Plan No 47, (DCP47);

DATES OF HEARING:

11 March 2007

 
DATE OF JUDGMENT: 

11 March 2008

LEGAL REPRESENTATIVES:

APPLICANT
Applicant in person
SOLICITORS
N/A

RESPONDENT
Mr Angus C Gordon, solicitor
SOLICITORS
Stacks//Gray

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts AC

11 March 2008

10018 of 2008 – Michael R Fitzmaurice v Tweed Shire Council

JUDGMENT

1. This is an appeal under s 96 of the Environmental Planning and Assessment Act 1979, against the decision of the Tweed Shire Council (the council) to refuse a modification application relating to the erection of a boundary wall and to delete a condition limiting sand filling of the rear yard of residential development on land at Lot 234 DP 1070792, being No 33 Salt Water Crescent Kingscliff 2487.
2. Condition 3 attached to DA 06/0751 for the erection of a boundary wall is in dispute:
“The position of any fill within the 3.5 metre wide easement that is located at the rear of the property is prohibited.”
3. On 11 March 2008, I visited the land in company with the parties, and viewed the fill and inspected nearby properties.
4. I have concluded that the condition should be maintained and that the fill be removed to the natural ground level. Also, part of the boundary wall, the pool filter, and infiltration tank should be removed and the natural levels reinstated. In this way the privacy of the existing and future neighbours and maintenance access to the sewer and stormwater lines in the 3.5m-wide easement would be enhanced. The council asked for the restoration work to be carried out within 60 days.

The land
5 The land situated on the northwestern side of Salt Water Crescent is rectangular in plan and has a frontage to that road of 15m; a rear western boundary of 15m; a southern boundary of 35m and a northern boundary of 35m giving an area of 525m2. The land falls 2m down from the front boundary to the rear.
6 A dwelling has been erected on the land and the rear western wall of the dwelling is setback around 8.08m from the rear boundary. Parallel and near to the rear western boundary is a 3.5m wide easement for sewerage and stormwater. There is a stormwater field gully sump in the northwestern corner and the grate of that sump is practically at the natural ground level of the land. Erected along the southern, western and northern boundary is a reinforced concrete block boundary wall rising to 2.0m in height along the western boundary and tapering in height with the slope of the land towards the street. The land has been filled against the wall and at the rear the fill reaches a maximum depth of around 1.1m. A garden has been planted along the western boundary wall. Elsewhere there are lawns and a vegetable garden. The height of the boundary wall above the fill level is around 1.0m. I am informed that the invert level of the sewer line is a couple of meters below the natural ground level and the fill increases this depth by over 1 metre. The stormwater line is not quite as deep as the sewer.

Relevant planning controls
7. Under the provisions of the Tweed Local Environmental Plan 2000 the land is zoned 2(f) Residential and the proposal is permissible with consent.
8. Other planning controls include:

• The Tweed Shire Development Control Plan No 47, (DCP47);
• Tweed Shire Council Development Design Specification D12 Sewerage System Version 1.5, (DDS12).
9. The council, under the provisions of DDS12 stipulates that reticulation sewers should not be deeper than 3m. The council was concerned for the safety of workers maintaining the sewer that runs parallel to and near the rear boundary with the extra fill in the rear yard. It is stated that:
“Due to the excess depth, a mini/micro excavator may not have adequate reach to access the piping and a machine suitable for the excavation would have difficulties access the property.”

The proposal and its history
10. Development application No 06/0751 to erect a boundary fence (wall) was approved by the respondent council on 25 August 2006. Condition No 3 of that consent is in contention.
11. Previously, the council had approved a development application for the erection of a two-storey dwelling house on the land. This DA 05/1190 was approved 16 November 2005 with Beachlife Homes the applicant on behalf of the Fitzmaurices. The plans show the proposed dwelling on fill benching and no fill is shown against the rear wall or within the 3.5m-wide easement. This dwelling has been erected, however, without authorisation the rear yard has been filled. The council has issued an order under s 121B requiring the fill to be removed.
12. A swimming pool was approved on 13 April 2006 as complying development No CDC06/0050 and under the control of a private certifier the pool was constructed and the fill from the excavation was placed in the rear yard mostly within the easement. The private certifier issued a final certificate for the pool on 17 November 2006. About one month after the pool was completed the Fitzmaurices moved into the house and the fill was levelled and to suppress dust a lawn was planted.

Neighbours
13. Originally neighbours on each side of the land indicated no objection to the proposal to fill the rear yard of No 33 Saltwater Crescent. However, the northern neighbour withdrew her letter of no objection and now is concerned for loss of privacy to the rear yard. The land to the west and the rear is also privately owned and no objection was received from this neighbour.

The council’s decision
14. By notice dated 13 July 2007 under delegated authority, the council refused the modification application for the reasons that:

1. The proposal will result in an unacceptable loss of privacy for the adjacent properties.
2. Pursuant to Section 79C(1)(a)(iii) of the Environmental Planning and Assessment Act the proposal does not comply with objectives of Development Control Plan No 47, Cut and fill on residential land.

The hearing
15. The appeal was filed on 10 January 2008. At the hearing the Court heard evidence on behalf of the respondent council from Mr Dean Napier, building surveyor, of Tweed Shire Council. Also for the applicant Mr Fitzmaurice and Mrs Li Fitzmaurice gave evidence.

The contentions
16. On 6 March 2008 the council filed a statement of facts and contentious issues. The salient issue is whether the rear yard should be filled.

The evidence and findings
Ground levels in easement:
17. The evidence of Mr Napier has persuaded me in this respect. He was of the opinion that the council has consistently applied its planning and building controls over service lines within the 3.5m-wide easement along the western side of the properties on the western side of Saltwater Crescent, so as to ensure that as little fill as possible is placed there. This requires landowners to maintain the natural ground levels within the 3.5m-wide easement. The reason for this is that the maintenance of the sewer and stormwater system would be made more difficult and hazardous if additional fill is placed within the easement.
18. Mr Fitzmaurice stated that he would like to do with his land what he wants. He neglected to acknowledge that land laws in NSW include the controls placed on land by the councils in the public interest.
19. I am satisfied that the council is seeking to protect its services for the benefit of all. The development of Salt has been planned to ensure that each owner has equal access to stormwater and sewerage. The easement is important in this reticulation system and must be protected for the benefit of all.
Privacy
20. Maintaining the ground levels within the easement is also important to promote the privacy between dwellings. The consequence of raising the ground level within the easement is to also raise the eye level of persons standing on the fill and this lessens the privacy enjoyed by neighbours. For the above reasons, the appeal is dismissed.

Orders
21. My orders are:

1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Modification of development application No DA06/0751.02 being an amendment to development consent No DA06/0751 for a 1.8m high masonry fence and the deletion of Condition No 3 at Lot 234 DP 1070792 being No 33 Saltwater Crescent, Kingscliff is refused consent and this would require, within 60 days, the removal of the fill, by the applicant, down to natural ground levels within a 3.5m wide easement parallel to and near to the western boundary; removal of part of the retaining wall within the 3.5m wide easement; removal of the infiltration unit and removal of the pool filter.

3. The papers are to be retained on file.
S J Watts
Commissioner of the Court
sw