Holm v North Sydney Council

[2007] NSWLEC 574

Land and Environment Court

of New South Wales

CITATION:

Holm v North Sydney Council [2007] NSWLEC 574

PARTIES:

Applicant:
Peter John Holm

Respondent:
North Sydney Council

FILE NUMBER(S):

10695 of 2007

CORAM:

Roseth SC

KEY ISSUES:

Development Application :- fencing outside heirtage item on busy road

DATES OF HEARING:

06/09/2007

EX TEMPORE JUDGMENT DATE:

6 September 2007

LEGAL REPRESENTATIVES:

Applicant in person

Respondent:
Ms B Phelan, solicitor of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

6 September 2007

10695 of 2007 Peter John Holm v North Sydney Council

JUDGMENT

1 Senior Commissioner: This is an appeal in respect of Condition C2 of consent No 158/07 granted by North Sydney Council (the council) on 27 June 2007 for alterations and additions to 325 Ernest Street, Neutral Bay.

2 Condition C2 reads:

The front boundary wall should be face brickwork consistent with the character and colour of the existing house brickwork. The height to be limited to a maximum 1.8m (including capitals). The gates to be palisade in character but detailed using vertical steel flat sections. Details of the fence and gates must be provided for the written concurrence of council’s Conservation Planner, prior to submission to the Certifying Authority for approval with the Construction Certificate.

3 The applicant, Mr Holm, wishes to build the boundary wall of stone and the gates of solid timber. As indicated by the above conditions, the council wants the boundary wall built of brick and the gates as open palisades.

4 I note that the council’s Development Control Plan 2002 (the DCP) requires new fences to use materials evident in the street and to match the house they front. I have no reason not to apply the DCP, so I agree with the council that the boundary fence should be of brick matching the house.

5 The second part of the dispute concerns the material of the gates. Mr Holm wants solid gates to lessen the traffic noise. In my opinion, Mr Holm’s aural comfort overrides other considerations. A solid boundary wall that is not continuous is useless as a sound barrier. I therefore agree to Mr Holm’s request to vary Condition C2 to allow the gates to be solid timber. Since the boundary fence will now be as shown in the application (other than the material), there is no need to include the last sentence of the condition requiring council approval.

Orders

1. The appeal is upheld in part.

2. Condition C2 of Consent 158/07 is deleted and the following condition is substituted:

The front boundary wall should be face brickwork consistent with the character and colour of the existing house brickwork. The height is to be limited to a maximum 1.8m (including capitals). The gates are to be solid timber painted a neutral dark colour.
_______________________
Dr John Roseth
Senior Commissioner