Hakim v Hunters Hill Council

[2009] NSWLEC 1439

Land and Environment Court

of New South Wales

CITATION:	Hakim v Hunters Hill Council [2009] NSWLEC 1439
PARTIES:	APPLICANT Mick Bechara Hakim and Yvonne Hakim RESPONDENT Hunters Hill Council
FILE NUMBER(S):	10535 of 2009
CORAM:	Pearson C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Fence
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Hunters Hill Local Environmental Plan No 1 Hunters Hill Development Control Plan No 15 - Residential Development
CASES CITED:	Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134 Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	22 October, 17, 27 November 2009
DATE OF JUDGMENT:	31 December 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr P Clay, barrister Instructed by Mr D Abraham John B Hajje & Associates RESPONDENT Mr J Cole HWL Ebsworth Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

31 December 2009

10535 of 2009 Mick Bechara Hakim and Yvonne Hakim v Hunters Hill Council

JUDGMENT

1 Commissioner: This is an appeal from a decision of Hunters Hill Council (the Council) to refuse an application for consent to development application DA09/11008 for the use of an existing brush screen installed along an open palisade boundary fence and the installation of a clear acrylic screen on part of the palisade fence, at Lot 102 DP 1067610, 1 Angelo Street Woolwich (the site).

2 The site is occupied by a dwelling, swimming pool, and landscaped surrounds. The northern boundary of the site adjoins Lane Cove River, and residential development adjoins the site to its west and south. To the east the site adjoins Angelo Street. The fence the subject of these proceedings is located along the eastern boundary of the site along Angelo Street, which slopes from south to north towards the Lane Cove River. At the end of Angelo Street is a small public reserve with a grass area and a bench seat, and where a number of dinghies are stored. At low tide the foreshore area along the Lane Cove River is accessible.

3 The issues between the parties are whether consent can be granted for the approximately 18 m of brushwood fence that has already been constructed; whether the fence is located on council land, and the consent of the Council as owner is required; whether the existing brushwood fence and the proposed acrylic screen are within the 10 m foreshore building line so that the proposal is prohibited unless a variation can be granted under State Environmental Planning Policy No 1; and the impact of the proposal on views of the Lane Cove River from a number of points from the public domain including Angelo Street and the public reserve.

Background

4 The Council granted development consent for the erection of a new dwelling on the site, including an open palisade fence along the boundary with Angelo Street (DA99/1162). In February 2008 the applicants constructed a brushwood fence on the inside of the palisade fence along the eastern boundary with Angelo Street. The Council commenced Class 4 proceedings against the applicants and on 25 February 2009 consent orders were made requiring the removal of the brushwood fence. On 18 February 2009 the applicants lodged development application DA09/11008 and that application was refused on 18 June 2009.

5 The development application DA09/11008 described the proposed work as “use of existing brush screen up to a point, being 12 m back from the northern point of existing fence”. Amended details were provided indicating that the proposal was to retain the existing unauthorised brushwood fence for an approximate length of 18 m and to reduce it in height by 300 mm; and to remove the first 12 m of the brushwood fence from the northern boundary, and replace it with a clear acrylic screen to a height of 1.5 m above the adjacent footpath level. By the time of the site view at the commencement of the hearing, part of the brushwood fence had been removed and there had been a reduction in height of part of the remaining brushwood fence. As discussed during the course of the hearing and identified in final submissions, the proposal can be summarised as involving work to modify and add to the existing fencing on part of the eastern boundary of the site, such that the resulting fence would be constituted by:

-A brushwood screen behind the existing palisade fence commencing at a distance of 12m from the northern most point for a distance of approximately 19.4m at a height of 1.5m when measured on the outside; and
-A clear acrylic screen from the northern edge of the brushwood screen to the northern most point of the fence at a height of 1.5m.

Planning controls

6 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the SREPP) applies to the site. Relevant clauses are as follows:

25 Foreshore and waterways scenic quality

The matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways are as follows:
(a) the scale, form, design and siting of any building should be based on an analysis of:
(i) the land on which it is to be erected, and
(ii) the adjoining land, and
(iii) the likely future character of the locality,
(b) development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries,
(c) the cumulative impact of water-based development should not detract from the character of the waterways and adjoining foreshores.

26 Maintenance, protection and enhancement of views

The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows:
(a) development should maintain, protect and enhance views (including night views) to and from Sydney Harbour,
(b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items,
(c) the cumulative impact of development on views should be minimised.

7 The site is located in the Residential 2(a2) zone under the Hunters Hill Local Environmental Plan No 1 (the LEP). The aims and objectives of the LEP are:

2 Aims, objectives etc

The aim and objective of this plan is to conserve the identity of the Municipality of Hunter’s Hill, as established by its heritage, character, topography and residential amenity, by:
(a) conserving the environmental heritage significance, the foreshore and riverscape, the townscape quality and tree covered environment of the Municipality through regulation of the use and development of land, buildings and structures,

…
(b3) ensuring that new development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of the items and their settings, as well as streetscapes and landscapes and the distinctive character that they impart to the land to which this plan applies,
(c) increasing the area and standard of public open space in the Municipality,
(d) improving public access to the shores of the Lane Cove and Parramatta Rivers,

…
(f) providing, or assisting in the provision of, public amenities and support services consistent with the development of the area.

8 Clause 18 of the LEP relates to foreshore building lines.

18 Foreshore building lines

(1) The council may, by resolution, fix a line (in this clause called a foreshore building line) in respect of any land fronting any bay, creek, harbour or river.
(2) A foreshore building line shall, when fixed in accordance with subclause (1), be marked upon a plan or clearly described in the resolution and the plan or resolution on which it is marked or by which it is described shall be available at the office of the council for inspection by the public during the office hours of the council.
(3) The council may, by resolution, alter or abolish any foreshore building line, other than the one referred to in subclause (6), where the levels, depth or other exceptional features of a site affected by the line make it, in the opinion of the council, necessary or expedient to do so.
(4) A building shall not be erected or rebuilt between a foreshore building line and the bay, creek, harbour or river in respect of which the line is fixed.
(5) Notwithstanding subclause (4), the council may consent to:
(a) the erection of:
(i) retaining walls and steps,
(ii) swimming pools which will not project above natural ground level,
(iii) fences not exceeding 1.5 metres in height, or
(iv) boatsheds, or
(v) (Repealed)
(b) the rebuilding of dwelling-houses which existed immediately before the appointed day,
where the erection or rebuilding, as the case may be, will result in a contravention of subclause (4).
(6) The council shall not grant consent under the Act pursuant to this clause unless it has made an assessment of the effect that the structure, work or dwelling-house, would have, if it were erected or rebuilt, upon the appearance of the adjacent foreshore and the environmental heritage of the Municipality of Hunter’s Hill.
(7) A broken black line shown on the map and identified as a foreshore building line by reference to a linear measurement and the letters “F.S.B.L.” shall be deemed to be a foreshore building line fixed in accordance with subclause (1).

9 The site is within the Foreshore Scenic Protection Area under the LEP, and cl18A provides:

18A Foreshore Scenic Protection Area

The council may not grant consent under the Act to an application to carry out development on land within the Foreshore Scenic Protection Area, being that area shown by hatching on the map marked “Hunter’s Hill Local Environmental Plan No 14—Heritage Conservation” unless it has made an assessment of:
(a) the appearance and visual quality of the proposed development when viewed from the waterway, and
(b) the impact of the proposed development on the view towards the waterway from public roads and from public reserves or from land within Zone No 6 (a) or 6 (b).

10 The site is within the Conservation Area under the LEP.

11 Development Control Plan No 15 Residential Development (the DCP) applies. Part 2 of the DCP contains provisions relating to the character of Hunters Hill. The objectives of Part 3 Planning Policy-All Development are:

a. Development should be compatible with the landscape character of the area. Generally the landscape character of Hunters Hill is encapsulated in the “tree” whether indigenous, native or exotic. Hunter’s Hill Council is committed to protecting and enhancing the area’s landscape character and natural environment.
b. Development, particularly when viewed from the street or other public place should be compatible with the character and scale of any existing building to be retained on the site and residential development in the immediate vicinity.
c. Development, particularly when viewed from public reserves, National Parks, waterways or across valleys should not be obtrusive in or upon the natural landscape.
d. In areas with significant stylistic/architectural associations and identity, additions and new development should be designed in sympathy with their surrounds.

12 The objectives of Part 4 Planning Policy- Heritage and Conservation Areas are:

Council's objective in respect of Planning and Conservation matters is to conserve the identity of the Municipality as established by its heritage, character, topography and residential amenity by:
a. Conserving the environmental and cultural heritage significance, the foreshore and riverscape, the townscape quality and tree covered environment of the Municipality through regulation of the use and development of land, buildings and structures;
b. Retaining specific evidence of the thematic development of the environmental heritage of the Municipality through conservation of items of environmental heritage;
c. Integrating heritage conservation into the planning and development control processes;
d. Providing the public involvement in matters relating to the conservation of the area's environmental heritage; and
e. Ensuring that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of the items and their settings, as well as streetscapes and landscapes and the distinctive character that they impart to the Municipality.

13 The principles which apply in relation to buildings in the vicinity of a heritage item and in Conservation Areas are provided in 4.6 and 4.7.

14 Part 5 of the DCP applies to Foreshore Scenic Protection Areas:

5.1 Introduction

Foreshore Scenic Protection Areas are noted in the Hunters Hill LEP No.14 map.
These areas are sensitive and consequently the right of individuals to develop these unique areas carries a responsibility to assess the effect of the development upon the appearance of the adjacent Foreshore and the environmental heritage of Hunters Hill.

5.2 Objectives
a. To encourage residential development that ensures dwelling form, including alterations and additions, that do not degrade the amenity of the surrounding residents or the visual quality of Hunter’s Hill particularly when viewed from the waterway;
b. To minimise the visual impact of development when viewed from adjacent land, public reserves and waterways;
c. To ensure that dwellings be designed with regard to the site conditions, to minimise the impact on the landform and visual amenity;
d. To ensure that dwellings blend into the natural surroundings and are consistent with the aesthetic quality of surrounding developments;
e. To ensure that dwelling designs having regard to preserving existing views towards the waterway from public roads, public reserves and adjoining properties;
5.3 Design Parameters
a. Proposed development within the Foreshore Scenic Protection Area should be designed to blend with the character of the setting, which in most locations is established as buildings within a mature landscape of relatively dense trees and shrubs.
b. Careful attention should be given to controlling building mass by the creation of smaller scale forms within the whole and exploiting effects of light and shade. Overall bulk and scale, materials and colours should not stand out from the predominantly landscaped setting.
c. Existing tree canopy cover, whether indigenous or exotic species, should be maintained and strengthened with appropriate new planting.
d. All development shall be designed to address “The Character of Hunters Hill”.
e. Development should address the design principles and objectives of “Sydney Regional Environmental Plan No. 22 – Parramatta River, State Environmental Planning Policy No. 56 – Sydney Harbour Foreshores and Tributaries, and Sydney Regional Environmental Plan No.23 - Sydney and Middle Harbours”. These policies are adopted for the purpose of this plan, notwithstanding that they may not be specifically applicable under those instruments.

15 Part 6 of the DCP Planning Policy-Visually Prominent Sites provides:

6.1 INTRODUCTION
Visually prominent sites include ridge top locations, escarpments, environmentally sensitive sites on sloping land, elevated corner allotments and any site that has the potential to degrade visual amenity. Such sites are sensitive and consequently the right of individuals to develop these unique areas carries a responsibility to ensure that the visual and environmental quality of Hunters Hill is maintained.
6.2 OBJECTIVES
a. To encourage residential development that ensures dwelling form, including alterations and additions, that does not degrade the amenity of the surrounding residents or the aesthetic quality of Hunter’s Hill;
b. To minimise the visual impact of development when viewed from adjacent land, public reserves and waterways;
c. To ensure that dwellings be designed with regard to the site conditions, to minimise the impact on the landform and visual amenity;
d. To ensure that dwellings blend into the natural surroundings;
e. To ensure that dwelling designs having regard to preserving existing views.

16 Part 7 of the DCP provides Development Controls, including 7.6 Views:

7.6.1 Objectives
To provide opportunities for view sharing by both the existing and future residents of the Municipality.
To ensure that the maximum number of residents enjoy a view by avoiding the monopolising of a view by existing dwellings and undue obstruction of views by new dwellings or additions.
7.6.2 General Requirements
New development should be designed to minimise view loss to adjoining or adjacent properties while still providing views from the development itself. This practice is called view sharing and in some cases Council will insist on erection of templates indicating the height of the proposed development together with written and/or photographic displays to ensure that loss of view is minimised.
Template construction is to be to the satisfaction of Council’s officers and are to be certified by a registered surveyor upon erection.
As essential element to the character of the Hunters Hill peninsula is the relationship with the Parramatta River and Lane Cove River, and city skyline views. New development should not unduly obstruct these views from any street, public place or reserve.

17 Part 9 of the DCP deals with Fences.

Evidence

18 The hearing commenced on site with a view, including a view from the water. Evidence was given on site by seven residents, six objecting to the application. Four of those objectors had provided written submissions objecting to the application. Five of the objectors who gave oral evidence live in The Point Road; one lives in Viret Street. The concerns of the objectors related primarily to the blocking of views of the Lane Cove River from View Street and Angelo Street. The objectors stated that they regularly walk down Angelo Street, and the brushwood fence blocks the views across to the water. They had not observed rubbish to be a problem. Two had observed that there may be some rubbish on weekends from the boats. One objector stated that while previously the council rubbish bin might overflow, that has not been a problem since the council installed a larger rubbish bin. There was rubbish on the day of the view. The objectors stated that the park area was popular during the day with families with children, and was used by people to access their boats. Local people use the public reserve and appreciate the views and outlook as well as the access to the river. Comments about the brushwood screen included that the change when the fence was erected was dramatic and going down to the reserve area became dark and boxed in compared to the previously open vista; and that the erection of the fence created a claustrophobic and enclosed environment. One resident gave evidence in support of the application, stating that he regularly drives along Angelo Street in the evening between 7-9pm and sees people, and he sometimes comes on Sundays with his children; he has seen rubbish, including empty boxes and cans.

19 Expert town planning evidence was given by Mr Mark Adamson for the Council and Mr David Furlong for the applicant.

Whether the proposal is prohibited

20 The Council contends that the proposal is prohibited by virtue of cl18 of the LEP. The existing brushwood fence and the proposed acrylic screen lie within the 10 m foreshore building line fixed under cl18(1), and cl18(4) of the LEP prohibits the erection of a building. Clause 18(5) of the LEP provides that Council can consent to “fences not exceeding 1.5 m in height”; both the brushwood fence and the proposed acrylic screen are greater in height than 1.5 m and the proposal is prohibited unless a variation can be granted pursuant to State Environmental Planning Policy No 1(SEPP 1).

21 The applicant's position is that an objection under SEPP 1 is not required, however, it was accepted that if the approach argued by the Council is adopted, then the fence is within the 10 m foreshore building line. The applicant provided a SEPP 1 objection dated 28 October 2009. If on the merits the application should be approved the SEPP 1 objection should be upheld because the objectives of the development standard have been met and the application of the standard is unreasonable or unnecessary because of, in particular, the two peculiar characteristics of the site, namely its shape and the difference between the internal and external heights along the line of the fence. The applicant submits that the height of the fence should be measured from the outside of the fence.

Clause 18 of the LEP

22 Mr Adamson and Mr Furlong were asked to explain their approach to the application of the foreshore building line, initially on the basis of a printout map (Ex 5) showing a line marked “10 FSBL” along that part of the peninsula between Gale Street and Angelo Street. Both agreed that the site is unusual because of the spit of land along the eastern side. Mr Adamson said that the preferable approach was to measure 10 m at a 90° angle from the mean high water mark, and not to follow property boundaries. Following the property boundaries leads to an inconsistent application of the foreshore building line, where there are problems with the contours of the shoreline and where there are not parallel boundaries. Mr Adamson agreed that this approach could put the foreshore building line into an area that was not part of the particular property, however he said that if this occurred it would be possible just to stop at the road. Mr Adamson agreed that if his approach was correct part of the existing palisade fence and the masonry wall were within the foreshore building line. Mr Adamson could not recall whether there had been a SEPP 1 objection in relation to this when the original development consent was granted. Mr Furlong said that his approach differed to that adopted by Mr Adamson. In his view it was appropriate to go down the property boundaries on both sides and then obtain a mean line to get an arc of the foreshore building line. On this approach he would start at the northern point and move from the high water mark a distance of 10 m.

23 Both witnesses were asked to consider their approaches to the foreshore building line in light of a hand drawn map which was tendered on the second day of hearing (Ex 7). This is a hand drawn plan showing a dotted line running close to and approximately parallel to the foreshore. Mr Furlong agreed that this map would indicate that most of the structures including the masonry wall on the eastern boundary of the site would be within the foreshore building line.

24 In relation to the height of the fence, Mr Adamson stated that measured from the western side, namely on the applicant's property, the fence was between 1.9 to 2.1 m high. Mr Adamson agreed that cl 18 did not provide a numerical control for a retaining wall. Mr Adamson said that he would consider both the retaining wall and fence together so that the total height had to be no more than 1.5 m. Mr Furlong said that in determining the height, he would consider the development or work from the part that was most obviously visible to the public. He would look at Council policy documents, including the DCP dealing with fences, and he would primarily consider the issue from Angelo Street. Looking at it from the water side of the property, it is not possible to see the base of the brushwood fence from the west as the brushwood is behind the landscaping. From the water one would see the landscaping and brushwood at approximately the same height, and therefore from both sides of the fence the height would appear to be 1.5 m.

SEPP 1 objection

25 Mr Furlong was of the opinion that the underlying objective or purpose of the standard in cl 18 is that provided in objective (a) of cl 2 of the LEP:

Conserving the environmental heritage significance, the foreshore and riverscape, the townscape quality and tree-covered environment of the Municipality through regulation of the use and development of land, buildings and structures

26 The applicable part of this objective would be an attempt to conserve the foreshore and riverscape. Mr Furlong agreed that in determining the objective of the FBL the considerations in cl18A(a) of the LEP were of assistance, and also (b) in terms of the degree of impact. Mr Furlong stated that the LEP itself agreed that fences up to a height of 1.5m are acceptable development within the foreshore building line. Mr Adamson agreed in response to questions that the objective of the foreshore building line was to minimise adverse visual impact of development when viewed from adjacent waterways and to prevent undesirable development. In his opinion, the underlying objective has to be informed by the three layers of planning controls constituted by the DCP, the LEP and the SREP, including clauses 25 and 26 of the SREP.

27 In Mr Furlong's view the proposed screen meets the height restriction in clause 18(5)(iii). There are two other propositions that are relevant; first that the foreshore building line is not applicable to the road reserve in Angelo Street as well as a number of other public places around the foreshore of Hunters Hill and the fence has previously been approved and permitted to be constructed by Council within the road reserve. Alternatively it would appear that Council was comfortable in the contemplation of a structure within the foreshore building line, and if the approach suggested by Mr Adamson were adopted then the breach includes both the palisade fence and substantial component of the masonry structure surrounding the northernmost driveway and gate to the property. In these circumstances compliance with the standard is both unnecessary and unreasonable as it has effectively been abandoned by counsel in its consideration of the original development application.

28 Mr Adamson considered that the palisade fence did not raise similar concerns as that proposed. It is an open form of a type used in the municipality and is black so it is recessive in colour. He could support the palisade fence because it works as a boundary fence and is clear so as to allow the view to and from the water. Mr Adamson referred to the objectives of the foreshore scenic protection area in the DCP, in particular point b, “ to minimise the visual impact of development when viewed from adjacent land, public reserves and waterways”. In considering whether a SEPP 1 objection would be upheld, there is a difference between the palisade fence which is open and allows continuity from the waterway, and the brushwood fence which obscures the view from various points.

Findings

29 Based on the plan that is now Exhibit 7, and as accepted by both Mr Adamson and Mr Furlong, the foreshore building line fixed by the Council that applies to the site is identified as contended by the Council, namely that it is a line intended to run perpendicular to the mean high water mark. I accept that this approach gives rise to anomalies because of shape of the site, and could mean that the line could extend into the middle of Angelo Street. That is clearly not intended to be the case, as neither the hand drawn plan (Ex 7) nor the computer plan (Ex 5) show a foreshore building line along the public land adjoining the foreshore of the Lane Cove River to the north of the peninsula (or the Parramatta River to the south). I accept that as a consequence of that, the existing palisade fence and part of the masonry wall adjacent to the driveway entrance to the site are within the foreshore building line. Whether or not a SEPP 1 objection was needed for the original construction of the house (and if so, whether one was provided and upheld) is not relevant to these proceedings, other than as evidence that the Council may itself have abandoned the control represented by the standard.

30 The first issue to be considered is whether the proposal falls within the exemption in cl18(5)(iii) of the LEP. The palisade fence is constructed on top of a retaining wall, and cl 18(5) does not set a height limit for retaining walls. The height of the proposed brushwood and acrylic part of the fence depends on where the measurement is taken. Mr Furlong and Mr Adamson agreed that measured from the applicant's land the ultimate height of the brushwood screen would be in the order of 1.9 to 2.1m. Measured from the street side, the brushwood screen as proposed would be 1.5m; the applicant would accept a condition that the acrylic screen be no higher than 1m on the street side.

31 Part 9.10 of the DCP contains Special Provisions for fences, and includes:

9.10.1 Height of fences, walls and screens
In general the height of fences, walls and screens shall not exceed 1.5 metre when measured above the natural ground level on the outside face of the structure, ie the elevation presented to a neighbour or to a public road or public place or reserve.

32 The fence is visible from both the Angelo Street side and from the water. I agree with Mr Furlong that when viewed from the water the landscaping on the applicant’s property shields the fence to a degree. The residents’ evidence supports the conclusion that the most significant impact in terms of visibility is on approach (whether by car or by foot) down Angelo Street towards the water. Measuring the proposed brushwood and acrylic screen from that side of the fence would be consistent with the approach adopted by the DCP to consider the aspect of most significant impact. On that basis, the proposed brushwood and acrylic screens are within the height limit set by cl 18(5)(iii) of the LEP. The proposal is consistent with cl18(5) and the SEPP 1 objection would not be needed.

33 The council contends that the proposed fence obstructs views of the Lane Cove River and the northern side of the river from a significant number of points in the public domain, and that the acrylic screen is uncharacteristic in the locality and over time will fail to permit views through it. The applicant's position is that the fence does not inhibit views from the park at the end of Angelo Street; it is designed so that views over it are enjoyed while walking down the street to the park; and that in assessing the impact on views, the following points are relevant:

-the park is the most important piece of public infrastructure in the vicinity;
-views enjoyed from the roadway are dynamic and transitory;
-the focus of the view is to the north, as that is the direction of travel and the road and existing lawful fencing on each side of it create and reinforce the funnel to the north;
-cl18 of the LEP anticipates fences to a height of 1.5m on top of a retaining wall.

34 Mr Furlong was of the opinion that the proposed screen would not diminish the ability to conserve the foreshore nor deny the opportunity to view it. Mr Furlong stated that the function of the acrylic screen would be to stop rubbish being pushed through the gaps in the palisade fence; a low height would allow people to throw things over. Mr Furlong said that in his opinion visibility to and from the waterfront is paramount, and that it is now possible to get acrylic materials that are better than those available in the past. The acrylic screen would be at the bottom of the yard, and maintain visibility and amenity. That part of the site is well used by the owner.

35 In Mr Adamson's opinion the disadvantage to the public represented by the screen was not outweighed by the private benefit. It would need to be a deliberate action to push rubbish through the fence. Rubbish could easily accumulate by tidal action of the river on the northern side of the site. Mr Adamson agreed that he had seen rubbish pushed below the edge of the fence on the day of the site view. Mr Adamson was of the opinion that the acrylic screen would offend the character of the locality; it would become opaque over time and attract dirt. In response to questions Mr Adamson said that even assuming that screen was of a quality that it would not become opaque and was capable of being cleaned he would still have some concerns about that part of the fence because in that location it is not one of the desirable materials to use in a conservation area and it is contrary to the objectives in terms of style of finish.

36 The applicant submits that clauses 25 and 26 of the SREP are relevant considerations, and not matters about which a consent authority must be satisfied. In applying the LEP, the applicant submits that in the absence of a provision in the LEP which makes the aims and objectives in cl2 relevant considerations, such as by requiring the consent authority to be satisfied that a proposal is consistent with one or more of the objectives, the only role for the aims and objectives is limited to construction of provisions of the LEP. Clause 18A simply requires the consent authority to make an assessment of appearance from the waterway and impact on views. The applicant submits that the objectives of the Foreshore Scenic Protection Area as set out in 5.1 and 5.2 of the DCP are objectives against which the design parameters can be interpreted, and the DCP does not require compliance with those objectives. In considering the design parameters in 5.3, the applicant submits that the proposal strengthens the landscape character of the setting, and in particular the use of acrylic is a common pool fence as observed on the site inspection.

37 The Council submits that the SREP, the LEP and the DCP, both general objectives and specific controls, all clearly identify both the importance of public views towards the harbour and the requirement for them to be preserved and the minimisation of visual impact of structures near and visible from the waterway or the harbour foreshores. The Council submits that the proposal is not consistent with the principles adopted in cl2 of the SREP or cll 22, 25 and 26; the aims and objectives in cl2 of the LEP, in particular cl2(a), (b3) and (c), and the assessment required by cl18A(b); the objectives of part 5.3 of the DCP, and the specific provisions in part 7.6, 9.7.3 and 9.9 of the DCP.

Findings

38 Both experts agreed that the proposal will have some level of impact on views of the waterway, while disagreeing on the extent and acceptability of that impact. Based on the site inspection the brushwood fence obscures views of the Lane Cove River which would otherwise be available through the palisade fence. In considering whether this impact is acceptable, it is appropriate to start with the provisions of the SREP, in particular cll 25 and 26. As noted by Biscoe J in Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134 at [40], the SREP “places an extraordinary emphasis on the environment of Sydney Harbour and the priority of the public good over the private good”. Clause 20 of the SREP requires that the matters referred to in Div 2 of the SREP are to be taken into consideration before granting development consent; those matters include clauses 25 (maintenance, protection and enhancement of the scenic quality of foreshores and waterways) and 26 (maintenance, protection and enhancement of views). As noted by Biscoe J (at [53]) there is a tension between the cl26(a) and (b) considerations, and the considerations under cll 25 and 27; what is required is “a balanced consideration of all the matters that are prescribed for consideration”. That includes as relevant to this proposal, the need to “maintain, protect and enhance the unique visual qualities” of the foreshore and waterway (cl25(b)), and the consideration of minimising “adverse impacts on views and vistas to and from public places” (cl26(b)). This consideration takes place in the broader context of the SREP as a whole, one aim of which is "to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained: (i) as an outstanding natural asset, and (ii) as a public asset of national and heritage significance, for existing and future generations" (cl 2(1)(a)).

39 The central provision of the LEP is cl18A, which requires an assessment of the appearance and visual quality of the proposed development when viewed from the waterway, and of the impact of the proposed development on the view towards the waterway. The LEP does not include a provision requiring consistency with any of the aims or objectives of the LEP as a whole or those of the relevant zone; that does not mean, however, that the aims and objectives as stated in cl2 of the LEP have no role to play. I agree with the Council that these aims and objectives are relevant in undertaking the assessment required by cl18A. The consideration of the appearance and visual quality and impact on views of a proposed development, as directed by cl18A, takes place in a context. That context is the LEP, the aim and objective of which is to “conserve the identity” of the Municipality, in particular by “conserving the environmental heritage significance, the foreshore and the riverscape…through regulation of the use and development of land, buildings and structures” (cl2(a)).

40 The provisions of the DCP are to be considered as a fundamental element in, or focal point to, the decision-making process (Zhang v Canterbury City Council (2001) 115 LGERA 373), while not being determinative. The provisions relating to the Foreshore Scenic Protection Area, in particular the objective in 5.2(b) of minimising the visual impact of development when viewed from adjacent land, public reserves and waterways, are consistent with the overarching principles provided by the SREP and LEP.

41 The applicant’s case is that the proposal that the brushwood fence be of a maximum height of 1.5m, and reduced in length from that as originally constructed, creates an appropriate balance and minimises adverse impacts. In part the applicant relies on the ability of a person travelling down Angelo Street to see part of the river above the brushwood screen (in a similar fashion to the depiction at 7.6.2 in the DCP), so that views up river are available despite the screen and existing landscaping and street trees. Mr Furlong’s evidence was that the screen will not be obvious when viewed from the waterway and will appear as a boundary fence in a less bold manner than other solid timber or masonry fence elements that predominate in the area. I agree that there are other solid fences in the vicinity, including the paling fence along the other side of Angelo Street. However, in the context of the unusual configuration of the site, with the narrow spit of land running along Angelo Street to the north and adjoining the Council reserve at the end of Angelo Street, and with the fall of the land away from Angelo Street to the west, the impact on views to Lane Cove River and to the west represented by the brushwood screen is significant. It is ameliorated somewhat by the reduction in height of the brushwood, which allows a view of part of the river over the top. However, when considered against the planning controls which place significant weight on the priority of the public good over the private good, including the SREP and parts 5.2(b) and 7.6.2 of the DCP, the proposal does not minimise visual impacts, and provides an unacceptable impact on views from the public domain of the waterway.

42 Considering the proposed acrylic screen, the evidence as to the technical specifications is that contained in the product description tendered by the applicant (Ex F). This description makes the claim that the screen proposed “will show no visible yellowing for 30 years”, and “will retain a high level of light transmission for 30 years”. This latter claim is quantified by the statement that “depending on material grade and region”, it will retain “up to 90% light transmission after 30 years of service life”. I agree with the Council that even accepting these claims there is still the potential for the acrylic screen to yellow and become more opaque over time. To that extent it will, as put in evidence by Mr Adamson, present an additional element above that created by the open palisade fence. I accept, based on the site view, that clear screens are not unknown in Hunters Hill, for example as pool fencing. However, the screen as proposed in this context will provide minimal privacy screening, and would be of limited assistance in meeting the applicant’s stated concerns about rubbish which could still, as Mr Furlong accepted, be thrown over the fence, or accumulate by tidal action. In balancing the considerations as required by cll 25 and 26 of the SREP, in the context of the assessment required by cl18A of the LEP and the DCP, the proposed acrylic screen does not protect or enhance the visual quality of the waterway or minimise impacts on the views of the waterway, and should not be approved.

43 The conclusion that the proposal is unacceptable when considered against the applicable planning controls means that it is unnecessary to consider the remaining two contentions in dispute, namely whether development consent can be granted retrospectively for the approximately 18m of brushwood fence that has already been constructed, and whether owner’s consent is required or should be given for the construction of the fence on Council land.

Orders

44 The orders of the Court are:

1. The appeal is dismissed.
2. Development application DA09/11008 for the use of an existing brush screen fence and installation of an acrylic screen on part of a palisade fence at Lot 102 DP 1067610, 1 Angelo Street Woolwich, is refused.
3. The exhibits, other than Exhibit C, are returned.

Linda Pearson
Commissioner of the Court