Hunters Hill Council v Fraser

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Land and Environment Court


of New South Wales


CITATION: Hunters Hill Council v Fraser [2006] NSWLEC 744
PARTIES:

APPLICANT
Hunters Hill Council

RESPONDENTS
Warren James Fraser and Catherine Yvonne Fraser
FILE NUMBER(S): 41424 of 2005
CORAM: Jagot J
KEY ISSUES: Civil Enforcement :- construction of water tank enclosure on reserve - reserve and dwelling both heritage items - discretion - orders for demolition
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Evidence Act 1995
Minister Administering the Crown Lands Act 1989
CASES CITED: ACR Trading Pty Ltd and Another v Fat-Sel Pty Ltd and Another (1987) 11 NSWLR 67;
Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404;
Benz v Blacktown Municipal Council (1971) 25 LGRA 133;
BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274;
F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306;
Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157;
Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265;
Lizzio and Another v The Council of the Municipality of Ryde (1983) 155 CLR 211;
Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302;
Penrith City Council v Waste Management Authority and Another (1990) 71 LGRA 376;
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305;
Shire of Perth v O’Keefe and Another (1964) 110 CLR 529;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335;
Williams v Blue Mountains City Council (2001) 115 LGERA 7
DATES OF HEARING: 5/10/2006, 6/10/2006
 
DATE OF JUDGMENT: 
11/30/2006
LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso SC
SOLICITORS
Abbott Tout

RESPONDENTS
Mr T S Hale SC
SOLICITORS
Noel F Bracks & Company


JUDGMENT:

        THE LAND AND
        ENVIRONMENT COURT
        OF NEW SOUTH WALES

        Jagot J

        30 November 2006

        41424 of 2005

        HUNTERS HILL COUNCIL
        Applicant

        WARREN JAMES FRASER AND
        CATHERINE YVONNE FRASER
        Respondents

        JUDGMENT

Jagot J:
A Introduction

1 The Council has applied for declarations and orders against the respondents in connection with water tanks and related items they caused to be located on a reserve adjoining their home in Hunters Hill. The Council claimed that these activities required development consent, which had not been obtained, and impact adversely on the land and its surrounds.

2 The primary facts are not in dispute. The respondents’ home is the property known as “Windermere” located at 25 and 25A Ernest Street, Hunters Hill. Windermere was built in about 1858, apparently one of a series of buildings of Jules Joubert, an important figure in the early development of Hunters Hill. Windermere adjoins the Ferdinand Street reserve, is in an elevated position, and overlooks a wide expanse of the Lane Cove River towards St Ignatius’ College, Riverview. Both Windermere and the reserve are heritage items under Hunters Hill Local Environmental Plan No. 1. Since they purchased Windermere in 1998, the respondents have restored the large sandstone home on the property. Their restoration works, completed in…

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Details
Case
[2006] NSWLEC 744
Decision Date

CaseChat Overview and Summary

Hunters Hill Council initiated legal action against the Frasers, alleging that they had constructed a water tank enclosure on their property without the necessary council approval. The dispute came before the Supreme Court of New South Wales. The primary legal issues addressed by the court involved whether the Frasers had contravened local council regulations by erecting the enclosure without obtaining the requisite permits and whether the council's orders for its removal and site restoration were justified.

The court examined the zoning laws and council regulations applicable to the property, finding that the Frasers had indeed built the enclosure without the necessary approvals. The court emphasised the importance of adhering to local government planning laws to ensure that developments do not adversely affect the community and environment. The Frasers argued that the enclosure was a minor addition and did not require a permit, but the court was unpersuaded by this contention, holding that the construction had a significant impact on the site's appearance and required prior council approval. The court also considered the council's authority to mandate the restoration of the land to its pre-construction state to mitigate any environmental harm caused by the unauthorised works.

In light of these findings, the court issued orders for the Frasers to dismantle the water tank enclosure and reinstate the land to its original condition. These orders were partially stayed to allow the parties time to negotiate the final form of the relief and address any safety concerns. The court scheduled a further hearing to finalise the orders and determine any additional requirements or costs associated with the enforcement of the stay.

Orders

Orders of the court

Subject to giving the parties the opportunity to address me as to the final form of relief, I propose orders as follows:

(1) Order the respondents to remove the water tank enclosure from the land identified on the plan annexed and marked "A", including the rear retaining wall and associated backfill, other retaining walls, footings, trenches and drainage connections, water tanks and timber canopy, within 30 days of the date of this order.

(2) Order the respondents to restore the area of land shown hatched on the plan annexed and marked "A" to its condition prior to the construction of the water tank enclosure by reinstating the terraced rockery and grassed area generally consistent with the area to the immediate east of the water tank enclosure, within 60 days of the date of this order.

(3) Stay orders (1) and (2) for a period of four months, save and except that the respondents must remove the timber canopy from the top of the water tank enclosure, within 30 days of the date of this order.

The proceedings should be listed before me at 9.00am within the next fortnight for the purpose of making submissions about the final form of the orders and costs. Submissions should address whether any other work for the period of the stay is required for safety reasons. The parties should also attempt to agree on the plan to be included as annexure "A' within the orders and the markings to be placed on it in the interim.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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