Marsden v Ku-ring-gai Council

[2010] NSWLEC 1092

Land and Environment Court

of New South Wales

CITATION:	Marsden v Ku-ring-gai Council [2010] NSWLEC 1092
PARTIES:	APPLICANT J Marsden RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10988 of 2009
CORAM:	Moore SC
KEY ISSUES:	CONSENT ORDERS - DEVELOPMENT MODIFICATION - VEGETATION :-
DATES OF HEARING:	24 March 2010
EX TEMPORE JUDGMENT DATE:	24 March 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr P Baker, solicitor Guild Lawyers RESPONDENT Dr J Smith, solicitor Norton Rose

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

24 March 2010

09/10988 J Marsden v Ku-ring-gai Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: This appeal concerns a condition of consent originally imposed by Ku-ring-gai Council (the council) that required the pruning of a Leighton Green hedge between the applicant’s property and the property immediately to the east. Following the lodgement of the appeal, the council and the owner of the development property entered into negotiations that have resulted in an amended condition of consent that will require the Leighton Green hedge to be kept pruned in a horizontal line at a height that is to be measured from 3.5 m above ground level at its northern end.

2 The consequence of this is that, although the hedge will be 3.5 m high at the northern end, because of a slight fall in the land it will be at ~ 4.1 m above ground level at its southern end. The southern end is immediately adjacent to the eaves of the garage on the adjacent property to the east.

3 During the course of this consent orders hearing, I have heard from the owner and one of the tenants of the property immediately to the east – both of whom, after consideration of the shadow diagrams and matters relating to them, object to the pruning of the hedge being measured from the northern end rather from the southern end. Requiring this would, if made an element of the condition, necessitate a pruning at the northern end of some 600 mm lower than would now be required and for that additional height to be reflected along the full length of 30 m of the hedge.

4 The development shadow diagrams disclosed that the only additional shadow that will be cast by the hedge at the winter solstice, for a period of approximately an hour from shortly before 12 noon and sometime towards 1 PM, will be a long strip (on my estimation at most 2 m wide) adjacent to the western boundary of the property in the vicinity of the house before that shadow was overtaken by the shadow of the ridge line of the approved development.

5 The area that will be independently shadowed without affectation of that ridgeline is towards the road and, from my observation, is clearly not a regularly used area of lawn as private active open space. In addition, a further element of the shadow that will be cast by the hedge that is independent of the shadow cast by the ridgeline will be cast only over the garage door and garage roof. This shadow does not provide any amenity concerns that would cause me to alter the terms of the conditions

6 Whilst the height of the hedge, as presently proposed, will be a little prominent and possibly slightly overbearing, it will also, in my assessment (having undertaken an inspection from the development), act to provide a measure of more privacy into the front entrance area and possibly some rooms at the front of the house to the east. Whilst that may not be of concern to the present owner or tenant, it is a matter to be taken into account in planning terms.

7 Because I am satisfied that there is no additional unsatisfactory impact and that there are some minor benefits to be obtained, I am also satisfied, under the circumstances, that I should give effect to the consent orders agreed between the parties and impose a varied condition as amended by the agreement but without further change.

Tim Moore
Senior Commissioner