Hoang v Lane Cove

[2007] NSWLEC 590

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Hoang v Lane Cove [2007]  NSWLEC 590

PARTIES:
APPLICANT
Hoang

RESPONDENT
Lane Cove

FILE NUMBER(S):   10532  of       2007

CATCHWORDS:      Appeal :- Ornamental pond in front setback area, landscaping and streetscape.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Lane Cove Local Environmental Plan 1987
Lane Cove Code for Dwelling Houses, Fences, Private Swimming Pools and Outbuildings

CASES CITED:

CORAM:       Bly C

DATES OF HEARING:       14/09/2007

EX TEMPORE DATE:         14 September 2007

LEGAL REPRESENTATIVES

APPLICANT
Mr M Van Hoang, litigant in person

RESPONDENT
Ms J. Walsh, solicitor
of Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

14 September 2007

10532 of 2007     Hoang v Lane Cove Council

JUDGMENT

1. The existing almost completed three-storey dwelling house at 8 Kimberley Ave., Lane Cove is, by comparison with most of its traditional brick and tile neighbours, a modern, parapet style rendered building.  According to the approved plans the front setback area of about 7.6 metres, excluding the driveway to the garage and the access steps is occupied by an elevated terrace and what is described as a front landscaped garden.  That garden area occupies about half of the width of the site. 

1. The applicant now proposes to develop much of this garden area with an ornamental fish pond having overall dimensions of about 6.5 metres by 4.5 metres.  The two levels are separated by a 4.5 metre wide "waterfall" that has a fall of about 500 millilitres.  In part at least the structure associated with the proposal has been constructed essentially in accordance with walls shown on the approved plans.  The pond structure is to be positioned 900 millilitres from the southern side boundary of the site and at 1.1 metres away from the front boundary.  The proposed water pump is to be located under the existing front porch. 

1. The proposal is permissible with development consent under the 2(a1) zone in the Lane Cove Local Environmental Plan 1987 ("the LEP"). The relevant aims of the LEP in relation to housing include the improvement of existing amenity and to ensure that new development is compatible with the existing environmental character of the locality. The objectives of the 2(a1) zone also speak of improving existing residential amenity and the maintenance of existing street character in terms of building mass and style and landscaping.

1. The Lane Cove Code for Dwelling Houses, Fences, Private Swimming Pools and Outbuildings ("the code") requires the provision of 35% of the site as soft landscaped areas to ensure appropriate landscaped quality and the reduction in urban runoff.  Such areas are to be distributed around the site to minimise the dominance of buildings and structures when viewed from the street.  The proposed pond structure does not comprise a soft landscaped area and taking into account the proposal there is a landscaped area deficiency of about 16 square metres.

1. The development application (DA 335/2006) was advertised and three objections were received.  Those objections the raise a number of concerns: the size of the pond is excessive; the waterfall feature would be noisy and cause sleep disruption and; the pond would be a breeding ground for mosquitoes.

1. A report was prepared by Ms M Li a council town planner that having considered the applicable planning controls and the resident objections recommended that conditional development consent be granted.  The council nevertheless decided to refuse the application for reasons associated with: child safety; amenity impacts on neighbours; loss of landscaped areas and failure to meet council's landscape area requirements; and adverse impacts on the streetscape.

1. The applicant has now appealed against this decision and the appeal was heard on site as a binding conference under s 34(3)(b)(ii) of the Land and Environment Court Act 1979.  No expert evidence was provided nor did any of the neighbour objectors appear, hence the matter was dealt with by consideration of the various documents from the council's file, including the planning controls, the applicant's plans and an inspection of the site and its environs.

1. In essence the respondent submitted that the proposed pond structure would not meet the objectives and requirements of the LEP and the code particularly in relation to landscaping and streetscape as a result of the covering of most of the front yard with structures thus limiting landscaping opportunities. It was also submitted that as indicated in the written objections the neighbours would be and adversely affected.

1. Whilst the applicant disagreed with these submissions, I was persuaded by the submissions made on behalf of the respondent that whilst the impacts on the neighbours would not be such as to warrant refusal, that size and location of the pond was unacceptable.  This is because I agree that taking into account its size it would limit opportunities for soft landscaping to the extent that the streetscape would be and adversely affected.

1. Having explained this to the applicant, he agreed to prepare amended plans that significantly reduce the size of the pond and provide additional significant setbacks from the side boundary and the street frontage.  He also agreed to provide an additional 16 square metres of soft landscaped area in various locations on the site.  Having considered this alternative design (Exhibit B) I am satisfied that it would meet the objectives of the planning controls and would not adversely affect the neighbours.  I thus conclude that the appeal should be upheld and conditional development consent granted.

1. Conditions 25, 26 and 27 that deal with stormwater and sediment control were opposed by the applicant.  In my view, in their present form, taking into account the scale of the proposal, these conditions are excessive and have been modified accordingly.

___________________

T A Bly
Commissioner of the Court

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