Hale v Mosman Council

[2007] NSWLEC 788

Land and Environment Court

of New South Wales

CITATION:	Hale v Mosman Council [2007] NSWLEC 788
PARTIES:	Applicant: Tim Hale Respondent: Mosman Council
FILE NUMBER(S):	10848 of 2007
CORAM:	Roseth SC
KEY ISSUES:	:- appeal against s121B order
DATES OF HEARING:	27/11/2007
EX TEMPORE JUDGMENT DATE:	27 November 2007
LEGAL REPRESENTATIVES:	Applicant: Mr P Holland, solicitor Respondent: Ms J Hewitt, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

27 November 2007

10848 of 2006 Tim Hale v Mosman Council

JUDGMENT

1 Senior Commissioner: This is an appeal against an order under s121B of the Environmental Planning and Assessment Act 1979 made in respect of an unauthorised screen and fence attached to the top of the tennis court fence at the western side of the allotment at 18 Burrawong Avenue, Mosman.

2 The screen and fence in question is on the boundary between 18 Burrawong Avenue and 11 Buena Vista Avenue. It is an extension, about 20m long, which brings the existing 3.6m height of the fence to 5m above the level of the tennis court on 18 Burrawong Avenue. The entire structure is lined with a synthetic material called “instant picket hedge”. While the council now says that it intended the removal of the synthetic lining not only from the extension above the existing fence, but also from the existing tennis court fence, in my view the s121B Order refers only to the extension. Consequently I do not think that I have the power to require removal of the lining from the existing fence.

3 As concerns the fence extension, all parties, the applicant, the council and the owner of 11 Buena Vista Avenue, Mr Mark Ivanhoe, agree that it should be temporary only. The disagreement is about the time when it should be removed. The council wants it removed within 14 days; the applicant wants it removed when the trees planted on the side of 11 Buena Vista Avenue reach a height of 5m and achieve appropriate density; while Mr Ivanhoe would accept a period of compliance of about two months.

4 I have visited 11 Buena Vista Avenue twice. The trees along the fence appear healthy. They have not quite reached 5m yet, but they appear to be above 4m. The upstairs balcony is screened to a height of 1.62m and prevents overlooking of 18 Burrawong Avenue, except by someone intent on seeing into the property. In my opinion, the unauthorised extension to the fence no longer has a legitimate function. Without it the privacy of 18 Burrawong Avenue may not be the same as it was before a row of tall trees was cut down on 112 Buena Vista Avenue, but it is certainly adequate in the context of other houses in the Mosman area.

5 However, I do not think that the council’s 14 day deadline for removing the fence extension is reasonable. Workmen are difficult to get in December and January. In addition a few months’ delay will allow the trees on 11 Buena Vista Avenue to achieve more height. For this reason I set the date for compliance with the Order on 31 March 2008. In all other aspects, the Order is confirmed.

Orders

1. The Order under s 121B of the Environmental Planning and assessment Act 1979 made by Mosman Council on 2 August 2007 in respect of unauthorised screen and fencing at 18 Burrawong Avenue, Mosman is modified to the extent of the Period of Compliance, which is to be 31 March 2008.

2. The exhibits are returned.

__________________
Dr John Roseth
Senior Commissioner