Kushe v City of Sydney Council
[2009] NSWLEC 1403
•26 August 2009
Land and Environment Court
of New South Wales
CITATION: Kushe v City of Sydney Council [2009] NSWLEC 1403 PARTIES: APPLICANT
RESPONDENT
Samuel Kushe
City of Sydney CouncilFILE NUMBER(S): 10417 of 2009 CORAM: Bly C KEY ISSUES: SECTION 121B ORDER :- modification to boundary fence, unauthorised building works. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan 1999
City of Sydney Heritage Development Control Plan 2006
South Sydney Development Control Plan 1997DATES OF HEARING: 25 and 26 August 2009 EX TEMPORE JUDGMENT DATE: 26 August 2009 LEGAL REPRESENTATIVES: APPLICANT
Mr S Kushe (litigant in person)RESPONDENT
Mr M Fozzard (solicitor)
City of Sydney Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
10417 of 2009 Samuel Kushe v City of Sydney Council26 August 2009
This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT
1 On 7 March 2006, development consent was granted in relation to the property at 9 McDonald Street, Potts Point, for the replacement of an existing timber boundary fence with a rendered masonry fence, a covered car space and garage door. These works have now been largely completed, including a 2.2 metre high wall along part of the property’s side boundary to McDonald Lane.
2 In response to continuing security problems in the area and in particular an instance when an intruder climbed over the wall, the applicant installed what he described as a “passive illegal entry disincentive device” on top of the wall. More particularly, this device comprises the placement of shards of glass into a cement mortar base, these fairly closely spaced shards are between three centimetres and as I observed up to about eight centimetres in length and green in colour.
3 On 12 June 2009, the council issued an order pursuant to s 121B of the Environmental Planning and Assessment Act 1979. There was no suggestion that the order was not issued in accordance with the requirements of the Act. In short, the order requires the removal of the “unauthorised building works” on the top of the wall.
4 The applicant has now, pursuant to s 121ZK of the Act, appealed against this order.
5 The site is situated in the 2(b) Residential (Medium Density) zone under the South Sydney Local Environmental Plan 1998 and in this zone residential development is permissible with development consent. Clause 10 of the LEP requires that consent shall not be granted unless the consent authority forms the opinion that the proposal is consistent with the objectives of the zone.
6 There was some suggestion that the glass might comprise for the purposes of cl 10A and the associated South Sydney Development Control Plan 1999 - Exempt and Complying Development and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, however, having explored the provisions of these instruments, it was agreed that they were not applicable.
7 On this basis I accept the council’s contention that development consent was not obtained and should have been obtained and hence the works are, without, consent unlawful.
8 There was also some discussion as to whether this matter would fall within the principle of de minimus. For the reasons given in this judgment I do not find the matter generally or the building works referred to in the order in particular to be trivial, hence the principle does not apply.
9 In support of the order, expert evidence was given by Ms C Elek, a council town planner and Mr C Siganakis, a council building surveyor. The applicant provided several statements in response to this evidence and in response to council’s statement of contentions in reply.
10 In essence, Mr Siganakis was concerned that the glass shards might not have been securely embedded in the mortar and might as a consequence of the passage of time and the various effects of weather, become dislodged and fall into the street or into the property itself. This would present a danger to the safety of pedestrians and other street users and indeed the users of the subject property.
11 He did acknowledge, however, that it may be possible for the glass pieces to be secured directly into the mortar but without particular information in this regard, he could not form a concluded view as to the security of the glass shards.
12 In response, Mr Kushe explained in his report that the glass shards had been inserted into the mortar to a depth that would hold it in place even while it is wet and thus once dry the glass would be “solidly in place”. He also suggested that even if some glass were to fall he would, as the resident owner “address and rectify such a highly unlikely event”.
13 Having observed the mortar and glass from the street and whilst I did not try to physically dislodge the glass, I am satisfied that there is a reasonable likelihood that it would remain in place and that the danger of falling glass or glass in the street or within the property itself would not be of such significance as to warrant the order.
14 Mr Siganakis was also concerned as to the safety of occupants and visitors who might need to climb the wall, for example, if a fire were to break out. Similarly, the glass would be dangerous for fire fighters who might need to climb over the wall.
15 The essence of Mr Kushe’s response was that because his building is fully sprinklered, fire safety will not be a problem. Again, I do not accept that this concern is sufficient to warrant the order sought as alternate access/egress to and from the property can be obtained via the garage door at the rear.
16 Ms Elek’s concerns were twofold. First, the appearance of the glass would adversely affect the character of the heritage conservation area in which the site is situated. Second, it would adversely affect residential amenity. In relation to the heritage conservation area, she noted that the objectives in cl 22 of the LEP seek to ensure that development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage conservation areas. Moreover, development should be sympathetic to and should not detract from the heritage significance of the architectural styles that define the character of such areas.
17 She also referred to the provisions of the City of Sydney Heritage Development Control Plan 2006 that seeks to have development that enhances the character and heritage significance of heritage conservation areas and that development be compatible with surrounding built form by responding sympathetically to existing form, architectural style and surrounding character. Importantly, alterations and additions are not to dominate or detract from the original building.
18 In the context of these objectives, it was her opinion that broken glass would not be sympathetic to and would detract from the significance of the conservation area and the architectural styles that define its particular character. As she said, the broken glass would create a jagged edge to the masonry wall in contrast to the common feature of smooth edges defining the various architectural styles in the area. In essence, the glass does not respond sympathetically to the characteristic form of terrace houses or to the surrounding architectural styles, character and the streetscape. It would be a detracting element of the kind otherwise required to be removed in accordance with the DCP.
19 In response, Mr Kushe explained that security devices are common in the area. This includes fences, barbed wire and security grilles on doors and windows. His glass shards would simply be another security device, a device that has been commonly used in the past. Moreover, the shards would only be really noticeable from close by in the lane and the street. When viewed from across the street “the glass blurs into a harmonious cohesive green strip barely discernible as glass”.
20 Whilst security devices are common in the locality, I agree with Ms Elek that the glass shards would be so uncharacteristic as to be unacceptable. I have reached this conclusion notwithstanding that the detailed nature of the glass would only be apparent from close by. Although not completely inconsistent with what I would call the aggressive character of barbed wire, this does not make it acceptable. As Ms Elek said, she would not recommend approval of the use of barbed wire in the heritage conservation area. Taking these matters into account, it is my opinion that the order is warranted.
21 As for residential amenity, Ms Elek referred to the objectives of the 2(b) zone that require the enhancement of existing amenity and the need to ensure that building form is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment. Her arguments in relation to the character in part are much the same as those presented in relation to the conservation area.
22 In dealing more particularly with amenity, she refers to the nature of existing devices used for security purposes and in particular the styles and materials that include open palisade style fences and masonry walls. By contrast, glass shards on top of a masonry wall are uncharacteristic and create or imply “a sense of danger and disorder and are certainly not welcoming”. On this basis, they are not in character with the surrounding built environment. There are certainly no design cues that can be taken from surrounding buildings in support of the use of glass in this fashion.
23 Ms Elek also refers to the urban design principles in South Sydney Development Control Plan 1997. In particular, she refers to the principle of improving and enhancing urban village character to identify and promote safer and more liveable environments with a sense of community spirit and belonging and this characteristic would be contradicted by the uncharacteristic use of “inhospitable broken glass” that would not promote socialisation or a sense of belonging, safety or civic pride.
24 In response, Mr Kushe again refers to the fact that numerous other security devices, including barbed wire, are used in the locality and that glass has been historically used in a similar fashion, hence the use of glass would not increase local residents’ sense of danger. He also explained that by removing the glass it would make it easier for intruders to access his property and would thus not promote a safer environment.
25 I again accept the evidence of Ms Elek. Whilst I recognise that there are numerous other security devices utilised in the locality, the use of shards of glass is, in my opinion, fundamentally different, having an aggressive character that I accept would be out of place and would adversely affect the residential amenity of this area contrary to the objectives of the planning controls. Indeed, I expect that most residents would be concerned if security devices such as glass shards and barbed wire were to become commonplace, even taking into account that these methods of providing security have in the past been commonplace.
26 Plainly, as I have already indicated, the glass will not be seen from many locations but it will be seen and will have the effect of changing the character of the wall as essentially contended by Ms Elek. The planning aims and objectives should not be simply put aside and consequently these matters are sufficient to warrant retention of the order.
27 There was no dispute that security is a problem in this locality and I accept that owners must be entitled to take reasonable measures to protect their properties, however, in my opinion, this is a case where the public interest as exemplified by the requirements of the planning instruments must prevail over the property owner’s private interest.
28 Preferring as I do the expert town planning evidence provided on behalf of the council, I have thus decided that the appeal should be dismissed. I do not have an answer to Mr Kushe’s security problems but I nevertheless feel sure that there is some other more acceptable means of preventing intruders from scaling this wall and entering his property. Perhaps some discussions with council’s relevant experts in this regard would assist.
29 Having discussed the existing order with the parties in relation to the particulars including the timeframe within which the unauthorised building works should be removed I have modified the order and pursuant to s 121ZK(4)(f) of the Environmental Planning and Assessment Act 1979 make the following orders:
1. Within one month from 26 August 2009 the owner of the premises 9 McDonald Street Potts Point New South Wales 2001 is to provide the Sydney City Council with a scope of works prepared by a suitably qualified person for the safe removal of the unauthorised building works carried out along the top of the masonry boundary wall along McDonald Lane;
2. To demolish the unauthorised building works carried out along the top of the masonry boundary wall along McDonald Lane in accordance with the scope of works as approved by council by 26 December 2009;
3. All demolition and removal works to be carried out in accordance with council’s requirements for working on or over the public way;
4. All waste materials are to be disposed of lawfully.
5. The exhibits are returned.
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- T A Bly
Commissioner of the Court
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