Ghaderi-Araghi v Ku-ring-gai Council

[2005] NSWLEC 39

Land and Environment Court

of New South Wales

CITATION:

Ghaderi-Araghi v Ku-ring-gai Council [2005] NSWLEC 39

PARTIES:

APPLICANT
Mehrdad Ghaderi-Araghi

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10955, 11383 & 11612 of 2004

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Section 97 - Section 121 Order - to demolish - Section 149 Building Certificate - Residential amenity - Impact on streetscape - structural stability

LEGISLATION CITED:

Environmental Planning and Assessment Act, s 97 s 121 and
s 149

DATES OF HEARING:

09/02/2005

EX TEMPORE JUDGMENT DATE:

02/09/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr B Hones, solicitor
SOLICITORS
Hones Lawyers

RESPONDENT
Mr P Rigg, solicitor
SOLICITOR
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

9 February 2005

10955, 11383 & 11612 of 2004 Mehrdad Ghaderi-Araghi v Ku-ring-gai Council

JUDGMENT

1 The proceedings this morning take the form of an on-site hearing for the property known as 7 Camden Gardens, North Turramurra. There are three appeals before me this morning: one concerns a development application for a fence, that is appeal No. 11383 of 2004; the second is in respect of a s 121 order issued by the council under the Environmental Planning and Assessment Act to demolish the existing colourbond fence that is appeal No. 10955; and the third matter before me this morning is that relating to a building certificate under s 149 of the Act, appeal No. 11612 of 2004.

2 I have considered the three matters together as that is clearly the most efficient way to progress the proceedings. The Court has the benefit of council’s controls/guidelines and of hearing from the applicant and also from council’s planner in respect of the fences and there has been a great deal of discussion about the appropriateness of the existing fences and their setbacks from street boundaries.

3 The Court is of the view that a ‘colorbond’ fence that is visible from the street adversely impacts on the amenity of the residential area. The area is one that can be described as a heavily vegetated leafy environment and the streetscape is that there are generally no fences and in the few cases they are generally set back from the street boundary.

4 The applicant’s position is that a fence is required for the boundary along the right-of-way as this serves two houses to the south-east of the subject site and there is concern about children trespassing on their property who attend music lessons at one of the rear properties. For this reason it would be appropriate some form of fence along the boundary with the right-of-way.

5 The Court is of the mind that the ‘colorbond’ fencing up to the front setback of the dwelling house next door at No. 14 Camden Garden should be demolished and in its place the Court agrees that a brushwood fence could be erected to blend in with the environment. (The steel posts may remain to support the new brushwood fence)

6 The return on Mrs Kelly’s property at No. 5 Camden Garden is to be reconfigured such that it is a maximum height of 900 mm for a distance angling up to the 1.8 m existing fence approximately 2 panels forward of the garage on No. 5.

7 For the front boundary fence, that is the small portion in the arc of the cul-de-sac the Court has considered the views of the applicant “to hide” conceal in a convenient location the four garbage bins, that are required in the municipality, and as such the Court considers that a brushwood fence of 1.3 m would be appropriate in the circumstances of this case. The circumstances of this case are the Liquidamber tree in the street verge and the splay of the verge is wider than a normal footpath and therefore a greater setback is not required, and having regard to the site constraints and the applicant’s needs for a flat area to store his garbage bins. In this regard my decision should not be seen as a precedent in terms of Council’s Development Control Plan which I have given focal consideration to in the course of these proceedings. However, the individual circumstances and merits of this matter warrant approval of a fence that departs from council’s controls.

8 On the basis of my findings today and discussions between the parties which have been co-operative and productive, the Court will be prepared to issue orders in chambers following the submission of details of the new fence shown on an amended plan to be submitted to the council and the Court within 21 days in respect of the development application appeal. For the building certificate appeal the Court will be prepared to direct that the council issue a building certificate subject to the submission of an engineer’s certificate as to the structural stability of the retaining wall (and the Court will issue that order in chambers as well). The council will then on the Court issuing final orders have a period of 3 weeks in which to issue a building certificate under s 149 of the Environmental Planning and Assessment Act.

9 The s 121 order to demolish the fence is upheld in part. However, based on the proceedings today the Court is satisfied with the amendments proposed to replace the ‘colorbond’ fence with brushwood fencing where it is highly visible from the street. As for the remainder of the ‘colorbond’ fence for the side boundaries the Court is satisfied it does not need to be demolished.

10 Therefore Orders of the Court will be issued in chambers on the receipt of the engineer’s certificate and a plan to show the brushwood fencing with dimensions the extent of the return portions in brushwood fencing along the side boundaries with adjoining properties. The terms of the Orders is as follows:

1. The appeal in respect of the s 121 Order to demolish the fence is upheld in part.

2. The appeal in respect of the development application for front and side fences to the property known as 7 Camden Gardens, North Turramurra, is approved in part, subject to the receipt of an amended plan.

3. The appeal in respect of the building certificate is to be upheld and council will be ordered to issue a building certificate following receipt of an engineer’s advice verifying the structural soundness of the retaining wall foundation.

4. All the exhibits are returned today (because what would be kept on the Court’s file are the new plans of the fence and the engineer’s certificate).


___________________
J S Murrell
Commissioner of the Court
rjs