Foster v North Sydney Council

[2016] NSWLEC 1008

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Foster v North Sydney Council [2016] NSWLEC 1008
Hearing dates:	14 December 2015
Date of orders:	08 January 2016
Decision date:	08 January 2016
Jurisdiction:	Class 1
Before:	Maston AC
Decision:	See paragraph [18] below
Catchwords:	ORDER TO REMOVE UNAUTHORISED BUILDING: Courts discretion to make an order with respect to compliance; Council Order confirmed subject to compliance within 3 months.
Legislation Cited:	Environmental Planning and Assessment Act 1979; North Sydney Local Environmental Plan 2013 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Category:	Principal judgment
Parties:	Basilika Tatiana Foster (Applicant) North Sydney Council (Respondent)
Representation:	Mrs B.T. Foster (Applicant in person) Mr M. Pearce, solicitor (Respondent)
File Number(s):	10540 of 2015
Publication restriction:	No

Judgment

1. This is an appeal under s.121 ZK of the Environmental Planning and Assessment Act, 1979, (EPA Act) by Mrs B. T. Foster against an Order dated 29/5/2015 issued by the North Sydney Council to her under s. 121B of the EPA Act.

2. Specifically, the Order given by the Council is “to demolish or remove a building”, which is Order No.2 in the table to s.121B. The circumstance relied upon by the Council is that a portion of lattice fencing on top of the boundary wall between Mrs Foster’s property at 15 Military Road, Neutral Bay, and 13 Military Road, Neutral Bay ”was erected without prior approval of Council, in a case where prior development consent is required”.

3. The particular section of lattice affected by the Order is the higher of the two sections of lattice work on top of the dividing wall. The lower section was formerly agreed between the neighbour at No. 13 Military Road to be unobjectionable. The precise area of the lattice work affected by the Order is clearly identified by photographs marked by the Council officers. The height of the lattice in question is stated to be in excess of 2.7m and extends from the back wall of the dwellings to the rear boundary.

4. The hearing of the appeal was conducted on site at Mrs Foster’s dwelling following a view of the fencing from both No.13 and No.15 Military Road.

5. Mrs Foster appeared for herself and Mr. M. Pearce appeared for the Council. Oral evidence was given by Mrs. Foster and she relied upon her Statements of Facts and Contentions which had been filed in the Court on 3rd and 4th of November, 2015.

6. The Council relied on the statement of expert evidence dated 8/12/2015 of its Compliance Officer Ms Katrina Moore who holds qualifications in Law and Environmental Engineering Management. Ms Moore also gave oral evidence.

7. Mrs Foster accepted and Ms Moore’s evidence of her searches and enquiries demonstrate that Mrs Foster has never sought or obtained development consent under the EPA Act for the erection of the lattice fencing on the boundary in question. At the date of the Order, 15 Military Road was zoned R4 High Density Residential under North Sydney Environmental Plan 2013. The only works permitted without development consent are environmental protection works and lattice fencing does not fall into that category as it is defined.

8. Ms Moore referred to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Code) which allows certain types of development without the need for development consent provided certain standards are met. Subdivision 17 of the Code contains the required development standards that must be complied with in order that a fence in an R4 Residential Zone may be erected without development consent. Relevantly clause 2.34 within Subdivision 17 of the Code specifies the standard that the fence is not to be higher than 1.8m above ground level (existing).

9. Ms Moore concluded, and I accept, that the construction of the lattice on top of the boundary fence is in excess of 2.75m above ground level is unauthorized work for which there is no Council approval. Neither party suggested that existing use rights with respect to the existing fencing existed.

Discretionary Considerations:

10. On the hearing of an appeal under s.121 ZK of the EPA Act, the Court may, inter alia, modify the order, revoke it, substitute another order or make such an order with respect to compliance with the order as the Court thinks fit.

11. Mrs Foster is an 86 year old woman who gave evidence that she was anxious for her own safety and security. However, the Council considers that the lattice screen and material attached to it has a substantial adverse privacy and visual impact affecting the rear yard of the occupants of 13 Military Road. On the view, sunlight to the yard of 13 Military Road was seen to be restricted by the lattice panels. The upper lattice section was more open because many of the horizontal pieces of lattice work were missing, leaving the remaining lattice unsecured. The Council contends that the construction of the topmost lattice was unsafe and presented a risk to occupants of 13 Military Road.

12. Although the owners of the properties, several years ago, had agreed to the erection of the lower part of the lattice work, the occupiers of 13 Military Road had not agreed on a dividing fence height that differed from that permitted by the Code.

13. Mrs Foster indicated concern about the cost of the work that would be required to comply with the order, having regard to her limited available resources. She stated that if the order is to be complied with she would have to request her son, who works elsewhere in Military Road as a mechanic, to carry out the work. She stated that he is heavily occupied with his work, does not live locally and has family and other commitments.

14. These discretionary considerations should be taken into account.

Determination

15. In my opinion, the Order is appropriate and reasonable in the circumstances. I am satisfied that the section of fencing in question is a structure which falls within the definition of “building” for the purposes of the circumstances described in Order 2(a) in s.121B of the EPA Act, that it has been erected without prior development and that such consent was required. Section 4(1) of the EPA Act relevantly defines “building” to include part of a building, and also includes any structure or part of a structure.

16. The Order has been in force for seven months and no action has occurred to comply with it. It will not be very difficult to remove the unauthorized part of the lattice, although it cannot be expected that Mrs Foster could do the necessary work herself. As it presently stands, the Order was required to be obeyed within 28 days of 29/5/2015. In the present circumstances Mrs Foster may not be able to have the work carried out immediately. She indicated that within a period of 3 months her son should be able to do the work. The Council did not oppose this course.

Orders

17. It is appropriate that the Order should be carried out, but that the period for fulfillment of it should be extended to a date which is three months from the date of the Court’s Orders in these proceedings.

18. Accordingly, the Orders of the Court are:

1. The Appeal is upheld.

2. The Order No.2 dated 29/5/2015 under s.121B of the Environmental Planning and Assessment Act, 1979 issued by the North Sydney Council to the Applicant to remove lattice and materials erected on the boundary brick wall of the Applicant’s property (15 Military Road, Neutral Bay) and 13 Military Road, Neutral Bay marked with the letter X in Annexure “A” attached to the order, is confirmed, subject to the time for compliance being extended to the date three calendar months from the date of these Orders.

3. The exhibits may be returned.

10540 of 2015 Maston_Annexure A (1.26 MB, pdf)

Amendments

17 February 2016 - Amendment to representatives name

17 February 2016 - Annexure A attached/uploaded

08 January 2016 - Date of order/decision amended

Decision last updated: 17 February 2016